1
EXHIBIT 2.49
STOCK PURCHASE AGREEMENT
BY AND AMONG
YOUNG ONES, INC.,
ZEBRA BROADCASTING CORPORATION,
THE SELLING STOCKHOLDERS NAMED HEREIN,
AND
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
AS OF AUGUST 11, 1998
2
TABLE OF CONTENTS
Page
ARTICLE 1
TERMS OF THE TRANSACTION . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Sale of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2
GOVERNMENTAL CONSENTS . . . . . . . . . . . . . . . . . . . . . . 5
2.1 FCC Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 FCC Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE COMPANY . . . . . . . . . . . . . 5
3.1 Representations and Warranties of Sellers and the Company . . . . . . . . . . . . . . . . . . . . 5
3.1.1 Title to Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1.4 Organization, Good Standing, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1.5 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1.6 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1.7 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.1.8 Compliance with Applicable Laws, FCC Matters . . . . . . . . . . . . . . . . . . . . . . 8
3.1.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1.10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1.11 Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1.12 Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.1.13 Liens and Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.1.14 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.1.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1.16 Personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1.17 Certain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1.18 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.1.19 Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.1.20 Patents, Trademarks, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.1.21 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3
3.1.22 Commission or Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1.23 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1.24 The Company's Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1.25 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1.26 Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1.27 Availability of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1.28 Interest in Competitors, Suppliers and Customers . . . . . . . . . . . . . . . . . . . 21
3.1.29 Controlled Group Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1.30 Barter Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1.31 Settlement Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1.32 No Assets, Liabilities or Operations . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . 23
4.1 Representations and Warranties of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1.1 Organization and Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1.3 Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1.4 Absence of Conflicting Agreements or Required Consents . . . . . . . . . . . . . . . . . 23
4.1.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.1.6 Commission or Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.1.7 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.1.8 Investment Intent; Sophisticated Buyer . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 5
COVENANTS OF SELLERS AND THE COMPANY . . . . . . . . . . . . . . . . . . . 25
5.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.1.1 Conduct Prior to the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.1.2 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.1.3 Satisfaction of Conditions; Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.1.4 Sale of Acquired Assets; Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.1.5 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1.6 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1.7 FCC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1.8 Updating of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.9 Response to Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.10 Barter and Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.11 Interim Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.12 Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.13 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ii
4
5.1.14 Termination of Management Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 6
COVENANTS OF BUYER . . . . . . . . . . . . . . . . . . . . . . . 31
6.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1.1 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1.2 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1.3 Post-Closing Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1.4 Satisfaction of Conditions; Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.1.5 Response to Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.1.6 Other Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 7
JOINT COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 33
7.1 FCC Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.3 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.4 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.5 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.6 Condition of Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.7 Cobra Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 8
CONDITIONS OF CLOSING BY BUYER . . . . . . . . . . . . . . . . . . . . 35
8.1 Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.2 Compliance with Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.3 Third Party Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.4 Closing Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.5 Governmental Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.6 Adverse Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.7 The Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.8 Indemnification and Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.9 Release of Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.10 Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.11 ▇▇▇▇▇▇▇ Money Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.12 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.13 Resignation of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.14 Other Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.15 1445 Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.16 Termination of Management Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
iii
5
ARTICLE 9
CONDITIONS OF CLOSING BY SELLERS . . . . . . . . . . . . . . . . . . . . 38
9.1 Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.2 Compliance with Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.3 Certifications, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.4 Governmental Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.5 Adverse Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.6 Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.7 Indemnification and Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.8 Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 10
TRANSFER TAXES; FEES AND EXPENSES; TAX MATTERS . . . . . . . . . . . . . . . . 39
10.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.2 Sales and Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.3 Governmental Filing or Grant Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.4 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 11
LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE, LETTER OF CREDIT . . . . . . . . . . . . . 41
11.1 Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.2 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.3 Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 12
TERMINATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 43
12.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 13
RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . 44
13.1 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 14
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 46
14.1 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
14.2 Certain Interpretive Matters and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
14.3 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
14.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
14.5 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
14.6 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
iv
6
14.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
14.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
14.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
14.10 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
14.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
14.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
14.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
14.14 No Third-Party Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
14.15 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
v
7
SCHEDULES
Schedule 2.1 Licenses
Schedule 3.1.1 Shares
Schedule 3.1.6 Financial Statements
Schedule 3.1.7 Undisclosed Liabilities
Schedule 3.1.8 Noncompliance with the Communications Act and the FCC
Schedule 3.1.9 Litigation
Schedule 3.1.10 Insurance
Schedule 3.1.11 Real Estate
Schedule 3.1.12 Personal Property
Schedule 3.1.13 Permitted Liens
Schedule 3.1.14 Environmental Matters
Schedule 3.1.15 Taxes
Schedule 3.1.16 Personnel
Schedule 3.1.17 Contracts
Schedule 3.1.18 ERISA Matters
Schedule 3.1.19 Labor Matters
Schedule 3.1.20 Intellectual Property
Schedule 3.1.28 Interest in Competitors, Suppliers and Customers
Schedule 3.1.30 Barter Arrangements
Schedule 4.1.4 Consents
Schedule 6.1.5 Certain Actions
EXHIBITS
Exhibit A Indemnification and Escrow Agreement
Exhibit B-1 Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates
Exhibit B-2 Opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Exhibit C Opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP
Exhibit D Earnest Money Escrow Agreement
vi
8
DEFINED TERMS
Defined Terms Section
------------- -------
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 14.2
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.4
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.4
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.15
Communications Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.8
Company Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Company Nonvoting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.3
Company Voting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.3
Company's Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.6
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.17
▇▇▇▇▇▇▇ Money Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 11.3
▇▇▇▇▇▇▇ Money Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . Section 11.3
▇▇▇▇▇▇▇ Money Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . Section 11.3
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3
Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.18
Environmental Costs and Liabilities . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.14
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.14
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.18
ERISA Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.18
Estimate Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.3
Excepted Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 14.1
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 14.4
FCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.1
FCC Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.2
FCC Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.1
Final Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.4
Final Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.4
FTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.5
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.6
Governmental Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.5
Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.14
HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.5
Indemnification and Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . Section 1.2
vii
9
Independent Group Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.20
Leased Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.11(c)
Liability Adjustment Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.2
Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.13
Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.4
May 1998 Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.7
Objection Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.5
Other Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Owned Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.11(c)
Permitted Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.13
Predecessor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.14
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.2
Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.11(c)
Reviewing Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.5
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 4.1.8
Seller Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 11.1
Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Settlement Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.31
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Specified Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 13.1
Station Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.16
Stations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Stations Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.1
Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.6
Tax or Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.15
Tax Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.15
Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.2
Wincom Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Working Capital Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.1
Young Ones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Young Ones Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Zapis Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
viii
10
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), made as of August
11, 1998, is by and among Young Ones, Inc., an Ohio corporation ("Young Ones"),
Zebra Broadcasting Corporation, an Ohio corporation (the "Company"), ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (all
such individuals collectively referred to as the "Sellers"), and Chancellor
Media Corporation of Los Angeles, a Delaware corporation ("Buyer").
WITNESSETH:
WHEREAS, the Company owns certain assets, which are used in connection
with the operation of radio stations WZJM 92.3 FM and WJMO 1490 AM in Cleveland
Heights, Ohio (the "Stations"); and
WHEREAS, Sellers own all of the issued and outstanding shares of
capital stock of Young Ones, which constitutes all of the issued and
outstanding equity interests of Young Ones (the "Young Ones Shares"); and
WHEREAS, Sellers own all of the issued and outstanding nonvoting
capital stock of the Company (the "Company Nonvoting Shares"), which, together
with all of the issued and outstanding voting capital stock of the Company
owned by Young Ones (the "Company Voting Shares"), constitutes all of the
issued and outstanding equity interests of the Company (the "Company Shares,"
and together with the Young Ones Shares, the "Shares"); and
WHEREAS, contemporaneously herewith, Buyer shall enter into (a) a
Stock Purchase Agreement with ML Media Partners L.P., Wincom Broadcasting
Corporation and WIN Communications, Inc. to purchase all of the stock of Wincom
Broadcasting Corporation, which operates radio station WQAL 104.1 FM in
Cleveland, Ohio (the "Wincom Acquisition"), (b) an Asset Purchase Agreement
with Independent Group Limited Partnership to purchase substantially all of the
assets used in connection with the operation of radio stations WDOK 102.1 FM
and WRMR 850 AM in Cleveland, Ohio (the "Independent Group Acquisition") and
(c) an Asset Purchase Agreement with Zapis Communications Inc. to purchase
substantially all of the assets used in connection with the operation of radio
stations WZAK 93.1 FM in Cleveland, Ohio (the "Zapis Acquisition," and together
with the Independent Group Acquisition and the Wincom Acquisition, the "Other
Acquisitions"); and
11
WHEREAS, Sellers desire to sell the Shares and Buyer desires to
purchase the Shares in accordance with the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound hereby agree as follows:
ARTICLE 1
TERMS OF THE TRANSACTION
1.1 Sale of Shares. On the terms and subject to the conditions
contained in this Agreement, at the Closing (as defined in Section 1.4),
Sellers shall sell and assign to Buyer, and Buyer shall purchase and acquire
from Sellers, the Shares.
1.2 Purchase Price. In exchange for the Shares, Buyer shall,
subject to Articles 8 and 9 hereof, at the Closing deliver to Sellers the
amount equal to Thirty-Five Million Dollars ($35,000,000), plus or minus as the
case may be, the Working Capital Amount as defined in Section 1.3.1 hereof,
minus the Liability Adjustment Amount as defined in Section 1.3.2 hereof (as
adjusted, the "Purchase Price") by wire transfer of immediately available
funds; provided that a portion of the Purchase Price equal to $1,018,160 will
be paid by Buyer into escrow pursuant to the Indemnification and Escrow
Agreement among Buyer, Sellers and Key Trust Company of Ohio, N.A., as escrow
agent in the form attached as Exhibit A hereto (the "Indemnification and Escrow
Agreement").
1.3 Adjustments.
1.3.1 (a) The "Working Capital Amount" means the amount
equal to the Company's current assets, net of an allowance for uncollectible
accounts established in accordance with GAAP (as defined in Section 3.1.6)
consistent with the Company's past accounting practices and policies during the
fiscal year ended December 31, 1996 in which Seller was audited by ▇▇▇▇▇ &
Company, as of 12:01 a.m. on the Closing Date (as defined in Section 1.4) (the
"Effective Time"), minus the Company's current liabilities as of the Effective
Time, calculated in accordance with GAAP.
(b) The payments to Sellers shall be made by Buyer, or on
behalf of Buyer, to Sellers or Sellers' designee pursuant to an irrevocable pay
proceeds letter delivered by Sellers to Buyer at least three business days
prior to the Closing Date.
2
12
1.3.2 The "Liability Adjustment Amount" means the amount
equal to the total of, without duplication, (a) all of the liabilities and
obligations of the Company as of the Effective Time required to be reflected on
a balance sheet prepared in accordance with GAAP, (b) any prepayment penalties
and premiums and other penalties, costs and expenses associated with the
prepayment or retirement of any indebtedness of the Company, whether or not
incurred at Closing, (c) any stay bonuses paid to employees of the Company
prior to or at the Closing or committed to, prior to the Closing, to be paid by
the Company after the Closing, (d) Taxes relating to any periods ending on or
prior to the Closing Date, whether or not then due, (e) any severance
obligations of the Company with respect to employees terminated prior to or as
of the Closing, and (f) all liabilities and obligations to any Affiliates (as
defined in Section 14.2) of Sellers, the Company or Young Ones (including
without limitation Zapis Communications Corporation ("Zapis") and The Parklane
Group, Inc. ("Parklane")) but, excluding (i) the liabilities and obligations of
the Company which relate to the operations of the Company after the Closing,
(ii) any liabilities and obligations reflected in the Working Capital Amount,
(iii) any liabilities and obligations related to vacation and sick pay of
employees who remain with the Company accrued since January 1, 1998, (iv) any
liabilities and obligations of the Company paid prior to or as of the Closing,
provided that to the extent that cash of the Company is used to make such
payments, the use of such cash is reflected in the Working Capital Amount, and
(v) all liabilities and obligations relating to bartered goods and services
("Trade Agreements").
1.3.3 Sellers shall prepare and deliver to Buyer, at least
five business days prior to the Closing Date, a statement (the "Estimate
Statement") showing the amount reasonably estimated by Sellers, in good faith,
to be (a) the Working Capital Amount, together with reasonable detail as to how
such amount was determined and (b) the Liability Adjustment Amount, together
with reasonable detail as to how such amount was determined. Prior to Closing,
Sellers and the Company shall provide to Buyer copies of or reasonable access
to all books and records as Buyer may reasonably request for purposes of
verifying the estimated Working Capital Amount, the estimated Liability
Adjustment Amount and the calculations set forth on the Estimate Statement.
Sellers and Buyer agree to work together in good faith to resolve on or before
the Closing Date any disagreement with respect to any matter set forth in the
Estimate Statement. The Purchase Price paid by Buyer shall be based on the
estimated Working Capital Amount and estimated Liability Adjustment Amount set
forth in the Estimate Statement agreed to by Buyer and shall be adjusted
post-Closing, if necessary pursuant to this Section 1.3.
1.3.4 Buyer will deliver to Sellers, within 60 days after
the Closing Date, a schedule which sets forth the actual Working Capital Amount
and the actual Liability Adjustment Amount as of the Effective Time and sets
forth in reasonable detail how such
3
13
amounts were determined (the "Final Statement"). Buyer shall provide to Sellers
copies of or reasonable access to all books and records of the Company as
Sellers may reasonably request for purposes of verifying the final Working
Capital Amount, the final Liability Adjustment Amount and the calculations set
forth in the Final Statement.
1.3.5 If within 30 days after Buyer delivers the Final
Statement to Sellers (the "Objection Period"), Sellers notify Buyer of any
objections to the calculation of the amounts set forth in the Final Statement,
Buyer and Sellers will attempt in good faith to agree by the date which is 100
days after the Closing Date upon such amounts. If Buyer and Sellers cannot
agree by such date as to the final Working Capital Amount and/or Liability
Adjustment Amount, Buyer and Sellers hereby designate Ernst & Young LLP (the
"Reviewing Firm") to review the Final Statement, Sellers' objections and any
other relevant documents. The cost of retaining such Reviewing Firm shall be
borne one-half by Buyer and one-half by Sellers. The Reviewing Firm shall
report its conclusions in writing to both Buyer and Sellers and such
conclusions as to factual and accounting matters respecting the final Working
Capital Amount and/or the final Liability Adjustment Amount and the
calculations set forth in the Final Statement shall be conclusive on all
parties to this Agreement and not subject to review or dispute. Buyer or
Sellers, as applicable, shall within ten days of the earlier to occur of (a)
the parties' agreement to the final Working Capital Amount and the final
Liability Adjustment Amount or (b) the Reviewing Firm's final determination of
such amounts, pay the amount owing to the other party by wire transfer of
immediately available funds.
1.4 Closing. The consummation of the transactions contemplated
herein (the "Closing") shall occur, except as otherwise mutually agreed upon by
Buyer and Sellers (a) within ten (10) business days after the FCC Consents (as
defined in Section 2.1) to the transfer of control of the Stations Licenses (as
defined in Section 2.1) have become Final Orders (as hereinafter defined) or
(b) at such later date that all other terms and conditions as set forth in
Articles 8 and 9 have been satisfied, or such other date as may be mutually
agreed to by the parties ("Closing Date"); provided, however, that in no event
shall the Closing occur prior to January 4, 1999. For purposes of the
Agreement, "Final Order" means action by the FCC (as defined in Section 2.1)
consenting to the transactions contemplated by this Agreement which is not
reversed, stayed, enjoined, set aside, annulled or suspended, and with respect
to which action no timely request for stay, petition for rehearing, or
reconsideration, application for review or appeal is pending, and as to which
the time for filing any such request, petition or appeal or reconsideration by
the FCC on its own motion has expired. The Closing shall be held in the offices
of Benesch, Friedlander, ▇▇▇▇▇▇ & Aronoff, LLP, 2300 BP America Building,
Cleveland, Ohio, or at such place as the parties hereto may agree.
4
14
ARTICLE 2
GOVERNMENTAL CONSENTS
2.1 FCC Consents. It is specifically understood and agreed by
Buyer and Sellers that the Closing and the transfer of control of the Stations
Licenses and the transfer of the Shares are expressly conditioned on and are
subject to the prior consent and approval of the Federal Communications
Commission ("FCC Consents"). "Stations Licenses" means all of the Company's
rights in and to the licenses, permits and other authorizations issued to the
Company by any governmental authority, including those issued by the Federal
Communications Commission (the "FCC"), used in connection with the operation of
the Stations, along with renewals or modifications of such items between the
date hereof and the Closing, including but not limited to those listed in
Schedule 2.1 hereto.
2.2 FCC Applications. Within ten business days after the execution
of this Agreement or such earlier time as shall be agreed to by all of the
parties hereto, Buyer, Sellers and the Company shall file applications with the
FCC for the FCC Consents ("FCC Applications").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE COMPANY
3.1 Representations and Warranties of Sellers and the Company.
Sellers and the Company, jointly and severally, represent and warrant to the
Buyer the following:
3.1.1 Title to Shares. Sellers are the true and lawful
owners, of record and beneficially, of the Shares. Except as set forth on
Schedule 3.1.1, the Shares are, and at the Closing will be, owned by Sellers
free and clear of all Liens. Except as set forth on Schedule 3.1.1, other than
the rights and obligations arising under this Agreement, none of the Shares is
subject to any rights of any other person to acquire the same. Except as set
forth on Schedule 3.1.1, none of the Shares is subject to any Liens (as defined
in Section 3.1.13) or restrictions on transfer thereof, except for restrictions
imposed by applicable federal and state securities laws. Young Ones is the true
and lawful owner, of record and beneficially, of the Company Voting Shares. The
Company Voting Shares are owned by Young Ones free and clear of all Liens. None
of the Company Voting Shares is subject to any rights of any other person to
acquire the same. None of the Company Voting Shares is subject to any Liens or
restrictions on transfer thereof, except for restrictions imposed by applicable
federal and state securities laws.
5
15
3.1.2 Subsidiaries. The Company does not have any
subsidiaries or any debt or equity investment in any other corporation,
partnership, joint venture or other business enterprise (the "Company Nonvoting
Shares"). Except for its ownership interest in the Company, Young Ones does not
have any subsidiaries or any debt or equity investment in any other
corporation, partnership, joint venture or other business enterprise.
3.1.3 Capital Stock. The authorized capital stock of the
Company consists solely of 750 shares of Class A Common Stock, no par value, of
which 650 shares are classified as nonvoting shares and of which 100 shares are
classified as voting shares. Except as set forth on Schedule 3.1.1, as of the
date hereof and as of the Closing, there are, and will be, 90 Voting Shares and
305.15 Nonvoting Shares issued and outstanding. The authorized capital stock of
Young Ones consists solely of 750 shares of common stock, no par value, of
which 100 shares are, as of the date hereof, and will be, as of the Closing,
issued and outstanding. There are no shares of capital stock of the Company or
Young Ones held in treasury. All of the outstanding shares of capital stock of
the Company and Young Ones are duly authorized and validly issued, fully paid
and nonassessable. None of the outstanding shares of the Company or Young Ones
were issued in violation of any preemptive or preferential right. There are no
other equity securities of the Company or Young Ones outstanding. There are
outstanding no securities or indebtedness convertible into, exchangeable for or
carrying the right to acquire, common stock or other equity securities of the
Company or Young Ones, or subscriptions, warrants, options, rights or other
arrangements or commitments obligating the Company or Young Ones to issue or
dispose of any of its common stock or other equity securities or any ownership
therein, except as set forth in Schedule 3.1.1 hereto. Except as set forth on
Schedule 3.1.1, there are no voting trusts, proxies or other agreements or
understandings with respect to the voting of any capital stock of the Company
or Young Ones.
3.1.4 Organization, Good Standing, Etc. (a) Young Ones and
the Company are corporations duly incorporated, validly existing and in good
standing under the laws of the State of Ohio, and each has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted and is duly qualified to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary,
other than in such jurisdictions where the failure to so qualify has not had
and would not reasonably be expected to have a material adverse effect on the
assets, liabilities or the business of the Company or the Stations, or on
Sellers' or the Company's ability to consummate the transactions contemplated
by this Agreement (a "Material Adverse Effect").
6
16
(b) Each of Sellers, the Company and Young Ones has all
requisite power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by Sellers, the Company and Young Ones and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on the part of Sellers, the Company and Young Ones. This
Agreement has been duly executed and delivered by Sellers, the Company and
Young Ones and constitutes the legal, valid and binding obligation of Sellers,
the Company and Young Ones, enforceable against each of them in accordance with
its terms.
3.1.5 Authority. Assuming the consents identified in this
Section 3.1.5 and Section 3.1.17 are obtained, neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby by the Company, Young Ones or any of the Sellers (a)
violate, conflict with or result in any breach of any provision of the articles
of incorporation or code of regulations (whether written or oral) of Young Ones
or the Company, (b) violate, conflict with or will result in a violation or
breach of, or constitute a default (with or without due notice or lapse of time
or both) under, or permit the termination of, or will result in the
acceleration of, or entitle any party to accelerate (whether as a result of the
sale of the Shares or otherwise) any obligation, or result in the loss of any
benefit, or give rise to the creation of any lien, charge, security interest or
encumbrance upon any of the properties or assets of Sellers, the Company or
Young Ones under any of the terms, conditions or provisions of any loan or
credit agreement, note, bond, mortgage, indenture or deed of trust, or any
license, lease, agreement or other instrument or obligation to which any of
them are a party or by which they or any of their properties or assets may be
bound or affected, or (c) violate any order, writ, judgment, injunction,
decree, statute, rule or regulation, of any court, administrative agency or
commission or other governmental authority or instrumentality (a "Governmental
Entity") applicable to Sellers, the Company or Young Ones or any of their
respective properties or assets, except, in the case of (b) and (c) above, for
those violations that individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Sellers, the Company or Young Ones in
connection with the execution, and delivery of this Agreement by Sellers, the
Company or Young Ones or the consummation by Sellers, the Company or Young Ones
of the transactions contemplated hereby, except for (x) the filing of a
premerger notification report under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and the expiration of the
applicable waiting period thereunder, and (y) the FCC Consents.
7
17
3.1.6 Financial Statements. Attached as Schedule 3.1.6 are
copies of the Company's (a) audited balance sheet at December 31, 1996 and the
related statements of income and cash flow for the fiscal year then ended with
an audit report thereon issued by ▇▇▇▇▇ & Company; (b) the unaudited balance
sheet at December 31, 1997 and the related statements of income and cash flow
for the fiscal year then ended; and (c) internally prepared balance sheets as
of May 31, 1997 and 1998, and the related statement of income for the periods
then ended (such financial statements collectively being referred to as the
"Company's Financial Statements"). Except as set forth on Schedule 3.1.6
hereto, the Company's Financial Statements were prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby ("GAAP") and present fairly, in all
material respects, the financial position, results of operations and, as to the
year end statements only, changes in cash flows of the Company as of such dates
and for the periods then ended (subject to the absence of notes and to normal,
recurring adjustments that would not be material in the aggregate), other than
Trade Agreements.
3.1.7 Absence of Undisclosed Liabilities. Except as set
forth on Schedule 3.1.7, there are no material liabilities of the Company of
any kind whatsoever (whether absolute, accrued, contingent or otherwise, and
whether due or to become due) that are required to be reflected on, or
disclosed in the notes to, a balance sheet of the Company prepared in
accordance with GAAP, other than liabilities and obligations (a) provided for
or reserved against in the Company's internally prepared balance sheet at May
31, 1998 described in Section 3.1.6 (the "May 1998 Balance Sheet") or reflected
in the notes thereto or (b) arising after May 31, 1998, in the ordinary course
of business and consistent with past practices and which individually or in the
aggregate have not had and could not reasonably be expected to have a Material
Adverse Effect.
3.1.8 Compliance with Applicable Laws, FCC Matters. (a)
Except as permitted or contemplated hereby, the operations of the Company,
including, without limitation, the operation of the Stations have been and now
are being conducted in substantial compliance, in all material respects, with
the Stations Licenses, each law, ordinance, regulation, judgment, decree,
injunction, rule or order of the FCC or any other Governmental Entity binding
on the Company or its respective properties or assets. No investigation or
review by any Governmental Entity with respect to the Company is pending or, to
Sellers' or the Company's knowledge, is threatened. Without limiting the
generality of the foregoing, each of Sellers and the Company has complied in
all material respects with the Communications Act of 1934, as amended (the
"Communications Act"), all rules, regulations and written policies of the FCC
thereunder, all obligations with respect to equal opportunity under applicable
law, and the FCC's policy on exposure to radio frequency radiation
8
18
applicable to the Stations. No renewal of any Stations Licenses would
constitute a major environmental action under the rules of the FCC. Access to
the Stations' transmission facilities are restricted in accordance with the
policies of the FCC. In addition, each of Sellers and the Company has duly and
timely filed, or caused to be filed, with the appropriate Governmental Entities
all reports, statements, documents, registrations, filings or submissions with
respect to the operations of the Company, including, without limitation, the
operation of the Stations and the ownership thereof, including, without
limitation, applications for renewal of authority required by applicable law to
be filed. All such filings complied in all material respects with applicable
laws when made and to the Sellers' or the Company's knowledge, no deficiencies
have been asserted with respect to any such filings. All of the material
required by 47 C.F.R. Section 73.3526 to be kept in the public inspection files
of the Stations is in such files. Except as disclosed on Schedule 3.1.8,
neither Sellers nor the Company has knowledge of any fact or circumstance
relating to the Company or the Stations arising from noncompliance with the
Communications Act, or the rules, regulations or written policies of the FCC in
effect on the date of this Agreement that could reasonably be expected to (i)
disqualify Sellers from assigning the Shares to the Buyer or (ii) prevent or
delay the consummation by Sellers and Buyer of the transactions contemplated by
this Agreement. The ground system of the AM Station is as specified in the
current license or applicable construction permit for the AM Station (including
with respect to the number, length and burial depth of radials).
(b) Schedule 2.1 lists (i) all licenses, permits and
other authorizations (including all STL licenses and construction permits)
issued to the Company or the Sellers by the FCC relating to the Stations and
held by them as of the date of this Agreement and (ii) all licenses, permits,
or authorizations issued to the Company by any other Governmental Entities.
Such licenses, permits and authorizations, and all applications for
modification, extension or renewal thereof or for new licenses, permits,
permissions or authorizations that would be material to the operations of the
Stations, are collectively referred to herein as the Stations Licenses (as
further defined in Section 2.1), each of which is in full force and effect. All
towers and other structures used in the operation of the Stations or located on
the Real Property are obstruction marked and lighted to the extent required by,
and in accordance with the rules and regulations of the FAA, the FCC and other
federal, state and local authorities. Appropriate notifications to the FAA and
registrations with the FCC have been filed for such towers where required.
Except for proceedings affecting the radio broadcast industry generally, there
are no proceedings pending or, to Sellers' or the Company's knowledge,
threatened with respect to the Company's ownership or operation of the Stations
which reasonably may be expected to result in the revocation, material adverse
modification, non-renewal or suspension of any of the Stations Licenses, the
denial of any pending applications for the Stations Licenses, the issuance
against the Company of any cease and
9
19
desist order, or the imposition of any administrative actions by the FCC or any
other Governmental Entity with respect to the Stations Licenses, or which
reasonably may be expected to adversely affect the Stations' ability to operate
as currently operated or Buyer's ability to obtain assignment of the Shares.
With the exception of such temporary reduced power operations as are necessary
for routine maintenance, the Stations operate (i) in conformity with their
licenses and (ii) within the operating power tolerances specified in 47 C.F.R.
Section 73.1560(b). No other broadcast station or radio communications facility
is causing interference to the Stations' transmissions beyond that which is
allowed by FCC rules and regulations. The Company has all necessary authority
to use the call signs set forth on Schedule 2.1.
3.1.9 Litigation. Except as disclosed on Schedule 3.1.9,
there are no actions, suits, inquiries, judicial or administrative proceedings,
or arbitrations pending or, to the knowledge of Sellers or the Company,
threatened against Sellers, the Company or Young Ones or any of their
respective properties or assets by or before any arbitrator or Governmental
Entity nor are there any investigations relating to Sellers, the Company or
Young Ones or any of their respective properties or assets pending or, to the
knowledge of Sellers or the Company threatened by or before any arbitrator or
Governmental Entity that has had or that reasonably could be expected to have a
Material Adverse Effect. There are no material judgments, decrees, injunctions,
or orders of any Governmental Entity or arbitrator outstanding against Sellers,
the Company or Young Ones or any of their respective properties or assets.
There is no action, suit, inquiry, judicial or administrative proceeding
pending or, to the knowledge of Sellers or the Company threatened against
Sellers, the Company or Young Ones by a third party relating to the
transactions contemplated by this Agreement.
3.1.10 Insurance. Schedule 3.1.10 sets forth a list of all
fire, liability and other forms of insurance and all fidelity bonds held by or
applicable to the Company or the Stations setting forth in respect of each such
policy the policy name, policy number, carrier, term, type of coverage and
annual premium, each of which is in full force and effect on the date hereof,
valid and enforceable in accordance with its terms and in amounts which are
adequate in relation to the business and assets of the Company and the
Stations. To Sellers' knowledge, no event has occurred, including, without
limitation, the failure by Sellers or the Company to give any notice or
information, or the delivery of any inaccurate or erroneous notice or
information, which limits or impairs the rights of Sellers or the Company under
any such insurance policies. The Company shall keep comparable policies of
insurance in effect for acts, omissions and events occurring on or prior to the
Closing Date.
10
20
3.1.11 Real Estate. (a) The Company has, and upon Closing,
will continue to have, good and marketable title to the Owned Real Estate (as
hereinafter defined) and, except as set forth on Schedule 3.1.11, valid
leaseholds in the Leased Real Estate (as defined in subparagraph (c) below),
free and clear of any Liens except for the Permitted Liens (as defined in
Section 3.1.13). The buildings (or portions thereof), improvements and fixtures
that are included in the Real Estate (as defined in subparagraph (c) below) are
suitable for their intended use. The Company owns, or has a valid right to use
adequate routes of ingress and egress to, from and over all of the Real Estate
necessary to operate the Stations. The Real Estate has adequate water supply,
sewage and waste disposal facilities, is connected to and served by telephone,
gas, electricity and other utility equipment facilities and services necessary
for the operation or use of the Real Estate. Such facilities and services are
adequate for the present use and operation of the Real Estate on a fully
occupied basis, and are installed and connected pursuant to valid material
permits and are in material compliance with all material governmental
regulations. To Sellers' and the Company's knowledge, no fact or condition
exists which would result in the termination or impairment of the furnishing of
utility services to the Real Estate. Schedule 3.1.11 lists the street address
and/or legal descriptions of the Owned Real Estate and the street addresses
and/or legal descriptions of the Leased Real Estate. All real estate Taxes,
assessments and use charges pertaining to the Owned Real Estate that have
become due have been paid in full.
(b) The Real Estate, any improvements thereon, and the
use by the Company thereof, conform in all material respects, to (i) all
applicable laws, including but not limited to zoning requirements and the
Americans With Disabilities Act, and (ii) all restrictive covenants, if any.
There are no eminent domain proceedings pending, or to Sellers' and the
Company's knowledge, threatened against the Real Estate. All material
improvements (i) have been, to Seller's knowledge, constructed in a good and
workmanlike manner, free, in all material respects, from defects in workmanship
and material; and (ii) have been constructed, occupied, maintained and
operated, and to Seller's knowledge, constructed, in material compliance with
all applicable laws, insurance requirements, contracts, leases, permits,
licenses, ordinances, restrictions, building set-back lines, covenants,
reservations, and easements, and the Company has not received any notice,
written or verbal, claiming any material violation of any of the same or
requesting or requiring the performance of any material repairs, alterations or
other work in order to so comply. Other than Permitted Liens, no improvement on
any of the Real Estate encroaches upon any adjacent real property of any other
person or entity. The heating, air conditioning, plumbing, ventilating,
utility, sprinkler and other mechanical and electrical systems, apparatus and
appliances located on the Real Estate or in the improvements are in good
operating condition (normal wear and tear excepted), free from material defects
in workmanship and material.
11
21
(c) The "Owned Real Estate" means all real property owned
by the Company together with all appurtenant easements thereunto and all
structures, fixtures and improvements located thereon as more fully described
in Schedule 3.1.11 hereto, together with any additions thereto between the date
hereof and the Closing. The "Leased Real Estate" means all rights and interests
of the Company under any and all of the leases of real property held by the
Company as more fully described in Schedule 3.1.11. The "Real Estate" means the
Owned Real Estate together with the Leased Real Estate.
3.1.12 Personal Property. Schedule 3.1.12 hereto contains a
list of all material tangible personal property and assets owned or held by the
Company (other than Real Estate, which is addressed in the foregoing Section
3.1.11). Except as disclosed in Schedule 3.1.12, the Company owns and will have
as of the Closing, good and marketable title to all property referred to in the
immediately preceding sentence and none of such property is, or at the Closing
will be, subject to any Liens (as defined in Section 3.1.13) other than
Permitted Liens (as defined in Section 3.1.13). The tangible personal property
and fixtures owned or used by the Company are, in all material respects, in
good operating condition (subject to normal wear and tear) and are sufficient
to permit the conduct of the business of the Stations in material compliance
with FCC rules and regulations. The Company owns or holds under valid leases
all of the tangible personal property and fixtures necessary to conduct the
business of the Company as presently conducted. The assets owned or held by the
Company (including the Real Estate) constitute all of the assets, rights and
properties that are required for the operation of the Company and the Stations
as they are now conducted.
3.1.13 Liens and Encumbrances. All properties and assets,
including leases, owned by the Company are free and clear of all liens,
pledges, claims, security interests, restrictions, mortgages, tenancies and
other possessory interests, conditional sale or other title retention
agreements, assessments, easements, rights of way, covenants, restrictions,
rights of first refusal, defects in title, encroachments and other burdens,
options or encumbrances of any kind (collectively, "Liens") except (a)
statutory Liens securing payments not yet delinquent or the validity of which
are being contested in good faith by appropriate actions, (b) purchase money
Liens arising in the ordinary course, (c) Liens for Taxes (as defined in
Section 3.1.15(k)) not yet delinquent, (d) Liens securing indebtedness, all of
which Liens will be discharged at the Closing upon repayment by Sellers of all
amounts due and owing, (e) Liens which in the aggregate do not materially
detract from the value or materially impair the present and continued use of
the properties or assets subject thereto in the usual and normal conduct of the
business of the Company, (f) Liens on leases arising from the provisions of
such leases, (g) zoning ordinances and (h) any other permitted
12
22
exceptions listed on Schedule 3.1.13 hereto (the Liens referred to in clauses
(a) through (h) being "Permitted Liens").
3.1.14 Environmental Matters.
On the date of this Agreement, except as disclosed on Schedule 3.1.14:
(a) The Stations and any and all Real Estate is, and to
any of Sellers' and the Company's actual knowledge with respect to any
predecessor or prior owner, operator or lessee (each a "Predecessor")
has been, in compliance in all material respects, with all
Environmental Laws (as defined in subparagraph (f) below);
(b) No judicial or administrative proceedings are pending
or, to the knowledge of the Sellers or the Company, threatened against
Sellers or the Company, relating to any of the Real Estate alleging
the violation of or seeking to impose liability on Sellers or the
Company pursuant to any Environmental Law. Neither the Sellers nor
the Company has received any written notice, claim or other written
communication from any Governmental Entity or other person alleging
the violation of or liability under any Environmental Laws in
connection with any of the Real Estate or operations thereon;
(c) There are no facts, circumstances or conditions
associated with Real Estate or the operations thereon that could
reasonably be expected to give rise to a material environmental claim
against the Stations or the owner or operator thereof or result in the
Stations or the owners or operators thereof incurring material
Environmental Costs and Liabilities (as defined in subparagraph (f)
below);
(d) All substances, materials or waste that are regulated
by federal, state or local government under the Environmental Laws as
hazardous, toxic or a pollutant or contaminant as well as any
petroleum or petroleum derived product (collectively, "Hazardous
Substances"), used or generated by the Company or to Sellers' or the
Company's actual knowledge, by any Predecessor in connection with the
Real Estate, have been stored, used, treated, and disposed of by such
persons or on their behalf in such manner as not to result in any
material Environmental Costs or Liabilities;
(e) There are not now, nor have there been in the past,
on, in or under any Real Estate when owned, leased or operated by the
Company or, to Sellers' or the Company's knowledge, when owned, leased
or operated by any Predecessor, any of the following: any (i)
underground storage tanks, above-ground storage tanks, dikes
13
23
or impoundments containing Hazardous Substances, (ii) asbestos
containing materials, (iii) polychlorinated biphenyls or related
compounds (other than those labeled and maintained in accordance with
applicable Environmental Laws) in amounts or concentrations regulated
under the Environmental Laws or (iv) radioactive substances in amounts
or concentrations regulated under the Environmental Laws; and
(f) For purposes of this Section 3.1.14, the following
terms have the following meanings: "Environmental Laws" shall mean all
applicable federal, state and local laws, statutes, codes, rules,
regulations, common law or other legal requirements relating the
environment, natural resources, and public or employee health and
safety; "Environmental Costs and Liabilities" means any losses,
including environmental remediation costs, liabilities, obligations,
damages, fines, penalties or judgments, arising from or under any
Environmental Law or order of or agreement with any Governmental
Entity or other person.
3.1.15 Taxes. (a) All Tax Returns (as defined in subsection
(j) below) that are required to be filed by or on behalf of the Company on or
before the execution of this Agreement have been duly filed on a timely basis
under the statutes, rules and regulations of each jurisdiction in which such
Tax Returns are required to be filed and Sellers and the Company will file or
will cause to be duly filed, all Tax Returns required to be filed by or on
behalf of the Company as of the Closing Date and with respect to any taxable
period prior to or which includes the Closing Date. All such Tax Returns are
(or will be) complete and accurate in all respects. Except as set forth on
Schedule 3.1.15, all Taxes, whether or not reflected on the Tax Returns, which
are due with respect to the Company and any Affiliates as of the date hereof
have been timely paid by the Company, and/or any such Affiliates. For the
purposes of this Section 3.1.15, Affiliates shall mean any entity that files a
consolidated combined or unitary Tax Return with the Company. All Taxes,
whether or not reflected on the Tax Returns, which are due with respect to the
Company through the Closing Date will be included as a liability in Working
Capital Amount or the Liability Adjustment Amount.
(b) No claim for assessment or collection of Taxes has
been asserted against the Company or any Affiliates. Neither the Company nor
any of its Affiliates is a party to any pending audit, action, proceeding or
investigation by any Governmental Entity for the assessment or collection of
Taxes nor does the Company or any of its Affiliates have knowledge of any
threatened audit, action, proceeding or investigation. No issue has been raised
by any Governmental Entity in any prior examination which could reasonably be
expected to result in a proposed deficiency for any subsequent taxable period.
14
24
(c) Neither the Company nor any of its Affiliates has
waived or extended any statutes of limitation for the assessment or collection
of Taxes. No claim has ever been made by a Governmental Entity in a
jurisdiction where the Company or any of its Affiliates do not currently file
Tax Returns that it is or may be subject to taxation by that jurisdiction nor
is the Company or any of its Affiliates aware that any such assertion of
jurisdiction is pending or threatened. No Liens, other than Permitted Liens
(whether filed or arising by operation of law), have been imposed upon or
asserted against any of the assets of the Company as a result of or in
connection with any failure, or alleged failure to pay any Tax.
(d) The Company has withheld and paid over to the
appropriate Governmental Entity all Taxes required to be withheld in connection
with any amounts paid or owing to any employee, creditor, independent
contractor or other third party.
(e) None of the Sellers is a foreign person within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code").
(f) The Company has not (A) filed a consent pursuant to
Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code
apply to the disposition of a subsection (f) asset (as such term is defined in
Section 341(f)(4) of the Code) owned by the Company, (B) agreed nor is required
to make any adjustments pursuant to Section 481(a) of the Code or any other
similar provision of state, local or foreign law by reason of a change in
accounting method initiated by the Company or have any knowledge that the
Internal Revenue Service ("IRS") has proposed any such adjustment or change in
accounting method, or has any application pending with any Governmental Entity
requesting permission for any changes in accounting methods that relate to the
business or operations of the Company, (C) executed or entered into a closing
agreement pursuant to Section 7121 of the Code or any predecessor provision
thereof or any similar provision of state, local or foreign law with respect to
the Company, (D) requested any extension of time within which to file any Tax
Return, which Tax Return has since not been filed, or (E) executed a power of
attorney with respect to any Tax matter which is currently in force.
(g) No property owned by the Company constitutes (i)
"tax-exempt use property" within the meaning of Section 168(h)(1) of the Code,
(ii) "tax-exempt bond financed property" within the meaning of Section 168(g)
of the Code, or (iii) "limited use property" (as that term is used in Rev.
Proc. 76-30), nor is any such property required to be treated as owned by
another person pursuant to the provisions of Section 168(f)(8) of the Internal
Revenue Code of 1954, as amended and in effect immediately prior to the
enactment of the Tax Reform Act of 1986.
15
25
(h) The Company is not a party to any tax sharing, tax
indemnification or similar agreement or arrangement (whether or not written)
with respect to Taxes pursuant to which it will have any obligation to make any
payments after the Closing Date.
(i) The Company has never been a member of any
consolidated, combined unitary or affiliated group of corporations for any Tax
purposes.
(j) For purposes of this Agreement, the terms "Tax" and
"Taxes" shall mean all federal, state, local, or foreign taxes, assessments,
duties, levies or similar charges of any kind including, without limitation,
all income, payroll, Medicare, withholding, unemployment insurance, social
security, sales, use, service, service use, leasing, leasing use, excise,
franchise, gross receipts, value added, alternative or add-on minimum,
estimated, occupation, real and personal property, stamp, duty, transfer,
workers' compensation, severance, windfall profits, environmental (including
Taxes under Section 59A of the Code), other Tax, charge, fee, levy or
assessment of the same or of a similar nature, including any interest, penalty,
or addition thereto whether disputed or not. The term "Tax Return" means any
return, declaration, report, claim for refund, or information return or
statement relating to Taxes or any amendment thereto, and including any
schedule or attachment thereto.
3.1.16 Personnel. Attached as Schedule 3.1.16 is a complete
and correct list as of the date of this Agreement of the names, positions, and
location of all employees or other station and broadcast personnel (whether
employees or independent contractors) of the Company, which sets forth the
current salaries of all such employees and the other compensation arrangements
with all General Managers, Station Managers, General Sales Managers, Local
Sales Managers, National Sales Managers, Program Directors, Business Managers
and Traffic Managers, if any, (collectively, "Station Management"), all
on-the-air broadcast personnel of the Stations and all directors and officers
of the Company and indicates which of those employees, Station Management,
on-the-air broadcast personnel, or director or officer is a party to an
employment or consulting or similar contract with the Company. The Company has
delivered to Buyer accurate and complete copies of all such employment
agreements, confidentiality agreements and all other agreements, plans and
other instruments to which the Company is a party and under which such
employees are entitled to receive benefits of any value that involve payment by
or to the Company in excess of $25,000.
3.1.17 Certain Agreements. The Contracts (as defined below)
are the only contractual agreements necessary to carry out the business and
operations of the Company and the Stations as currently conducted. Each
Contract is a valid and binding obligation of
16
26
the Company and is in full force and effect and, to the knowledge of Sellers
and the Company, each other party to such Contract, has performed in all
material respects the obligations required to be performed by it and is not
(with or without lapse of time or the giving of notice, or both) in material
breach or default thereunder. Schedule 3.1.17 identifies, as to each Contract,
whether the consent of the other party thereto is required in order for such
Contract to continue in full force and effect upon the consummation of the
transactions contemplated hereby. "Contracts" means all of the Company's right
in and under those contracts, agreements, leases and legally binding
contractual rights of any kind, written or oral, relating to the operation of
the Company listed in Schedule 3.1.17 hereto and (i) those contracts entered
into by the Company between the date hereof and the Closing in the ordinary
course of business of the Company consistent with past practices, subject to
Section 5.1 hereto; (ii) all contracts for the sale of advertising time for
cash, subject to Section 5.1 hereto; and (iii) all Trade Agreements, subject to
Section 5.1 hereto; and (iv) all other contracts, agreements, leases,
understandings, arrangements and legally binding contractual rights of any
kind, written or oral, to which the Company is a party or by which the
Company's assets or properties are bound that involve a payment by or to the
Company in excess of $25,000 individually or $150,000 in the aggregate. There
has not been (i) any threatened cancellation of any material Contracts, (ii)
any outstanding disputes, of a material nature, under any material Contracts or
(iii) to Sellers' or the Company's knowledge, any bases for any claim of breach
or default thereunder. Sellers and the Company have no knowledge that any of
the material Contracts that are renewable will not be renewed by the other
party on commercially reasonable terms.
3.1.18 ERISA Compliance. (a) Neither the Company nor any other
trades or businesses under common control, or which is treated as a single
employer with the Company under Sections 414(b),(c),(m) or (o) of the Code
(collectively, the "ERISA Group") has contributed or been obligated to
contribute to any "multi-employer plan" as such term is defined in Section
3(37) or Section 4001(a)(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), except as disclosed on Schedule 3.1.18. Schedule
3.1.18 lists all "employee benefit plans" within the meaning of Section 3(3) of
ERISA and bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
salary continuation, educational assistance, club memberships, company car
(other than those provided to employees pursuant to employment agreements
listed on Schedule 3.1.18 hereto), retirement, vacation, severance, disability,
death benefit, hospitalization, insurance or other plan or arrangement or
understanding providing benefits to any present or former employee or
contractor of the Company or as to which the Company (with respect to such
individuals) has any liability or obligation (collectively, "Employee Benefit
Plans"). Accurate and complete copies of such plans and their related summary
plan descriptions have been delivered to
17
27
Buyer. The ERISA Group does not maintain or contribute to, and is not obligated
to maintain or contribute to, any employee pension benefit plan, as defined in
Section 3(2) of ERISA, subject to Part 3 of Title I of ERISA or Title IV of
ERISA.
(b) The Employee Benefit Plans and their related trusts
intended to qualify under Sections 401 and 501(a) of the Code, respectively, so
qualify. Any voluntary employee benefit association which provides benefits to
current or former employees of the Company or its beneficiaries, is and has
been qualified under Section 501(c)(9) of the Code.
(c) All contributions or other payments required to have
been made by Company to or under any Employee Benefit Plan by applicable law or
the terms of such Employee Benefit Plan have been timely and properly made.
(d) The Employee Benefit Plans have been maintained and
administered in all material respects in accordance with their terms and
applicable laws.
(e) Except as disclosed in Schedule 3.1.18, there are no
pending or, to the knowledge of the Company, threatened actions, claims or
proceedings against or relating to any Employee Benefit Plan other than routine
benefit claims by persons entitled to benefits thereunder.
(f) Except as disclosed in Schedule 3.1.18, the Company
does not maintain or have an obligation to contribute to retiree life or
retiree health plans which provide for continuing benefits or coverage for
current or former officers, directors or employees of the Company except (i) as
may be required under Part 6 of Title I of ERISA) and at the sole expense of
the participant or the participant's beneficiary or (ii) a medical expense
reimbursement account plan pursuant to Section 125 of the Code.
(g) Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (i) result in
any payment becoming due to any employee of the Company, (ii) increase any
amounts otherwise payable under any Employee Benefit Plan or (iii) result in
the acceleration of the time of payment or vesting of any such benefits.
(h) Assuming the Company was the only member of an ERISA
Group, the amount of withdrawal liability they would incur, in the aggregate,
as a result of a complete withdrawal from each of the multiemployer plans set
forth in Schedule 3.1.18 would not exceed the amount set forth in Schedule
3.1.18 for each such plan.
18
28
(i) No amount payable to any employee of the Company in
connection with the transactions contemplated by this Agreement will fail to be
deductible by the Company by reason of Section 280G of the Code.
(j) Neither the Company nor any Person with whom the
Company would be treated as an "employer" for purposes of the Worker Adjustment
and Retraining Notification Act or any similar state law has incurred or will
incur in connection with the transactions contemplated by this Agreement any
liability or obligation under such laws.
3.1.19 Labor. The Company has not agreed to recognize any
union or other collective bargaining unit, nor has any union or other
collective bargaining unit been certified as representing any of its employees.
Except as disclosed on Schedule 3.1.19, since June 30, 1995, the Company (a) is
and has been in compliance, in all material respects, with all applicable laws
regarding employment and employment practices, terms and conditions of
employment, wages and hours, and plant closing, occupational safety and health
and workers' compensation and is not engaged, nor has it engaged, in any unfair
labor practices, (b) has no, and has not had, any unfair labor practice charges
or complaints pending or, to Sellers' or the Company's knowledge, threatened
against the Company before the National Labor Relations Board, (c) has no and
has not had any grievances pending or, to Sellers' or the Company's knowledge,
threatened against the Company and (d) has no, and has not had any charges
pending or, to Sellers' or the Company's knowledge, threatened against the
Company before the Equal Employment Opportunity Commission, the FCC or any
state or local agency responsible for the prevention of unlawful employment
practices. There is no labor strike, slowdown, work stoppage or lockout
actually pending or, to the knowledge of Sellers or the Company, threatened
against or affecting the Company. To Sellers' and the Company's knowledge, no
union organizational campaign or representation petition is currently pending
with respect to the employees of the Company.
3.1.20 Patents, Trademarks, Etc. Schedule 3.1.20 sets forth
all call letters, patents, patent applications, trademarks, trade names,
Internet domain names, service marks, trade secrets, applied for, issued, owned
or used, copyrights and other proprietary Intellectual Property (as defined
below) used in the operation of the Company's businesses (whether owned, leased
or licensed by the Company). The Company has, and upon the Closing will
continue to have, good and marketable title to the material Intellectual
Property owned by it, free and clear of any Liens except for Permitted Liens
and for any infringement claims by third parties of which Sellers are not
aware. The Company has not received any notice of any claimed conflict,
violation or infringement of such Intellectual Property rights, and to Sellers'
and the Company's knowledge, none of such Intellectual Property rights are
being infringed by any third party. To Sellers' knowledge, the operation of the
Company's
19
29
businesses does not infringe on the intellectual property rights of any other
person. "Intellectual Property" means all of the Company's rights in and to all
call letters, trademarks, trade names, service marks, franchises, copyrights,
Internet domain names, including registrations and applications for
registration of any of them, computer software programs and programming
material of whatever form or nature, jingles, slogans, the Stations' logos and
all other logos or licenses to use same and all other intangible property
rights of the Company, including, but not limited to those listed on Schedule
3.1.20 hereto together with any associated goodwill and any additions thereto
between the date hereof and the Closing.
3.1.21 Absence of Certain Changes or Events. Except as
contemplated or expressly permitted by this Agreement, since December 31, 1997,
there has not been (a) any material damage, destruction or loss of any kind
with respect to the Company or the Stations not covered by valid and
collectible insurance, nor, to Sellers' or the Company's knowledge, has there
been any event or circumstance which has had or reasonably could be expected to
have a Material Adverse Effect; (b) the execution of any agreement with any
Station Management or broadcast personnel of the Company (whether an employee
or independent contractor) providing for his/her employment, or any increase in
compensation or severance or termination of benefits payable or to become
payable by the Company to any officer, Station Management, or broadcast
personnel of the Company (whether an employee or independent contractor), or
any increase in benefits under any collective bargaining agreement, except as
to all of the foregoing in this clause (b), in the ordinary course of business
consistent with past practices and except as permitted by Section 5.1.1 or (c)
any change by the Company in its financial or Tax accounting principles or
methods, except insofar as required by GAAP, applicable law or circumstances
which did not exist as of the date of the December 31, 1997 balance sheet
included in the Company's Financial Statements.
3.1.22 Commission or Finder's Fees. Neither Sellers, the
Company, or Young Ones, nor any entity acting on behalf of any of them has
agreed to pay a commission, finder's fee or similar payment to any person or
entity in connection with this Agreement or any matter related hereto.
3.1.23 Full Disclosure. No representation or warranty by
Sellers, the Company or Young Ones contained in this Agreement (including the
Schedules hereto) or in any certificate furnished pursuant to this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit to state any material fact necessary, in light of the circumstances
under which it was or will be made, in order to make the statements herein or
therein not misleading.
20
30
3.1.24 The Company's Financial Condition. No insolvency
proceedings of any character, including, without limitation, bankruptcy,
receivership, reorganization, composition or arrangement with creditors,
voluntary or involuntary, affecting the Company or Young Ones or any of its
respective assets or properties are pending, or to Sellers', the Company's or
Young Ones' knowledge, threatened, and the Company has not made assignment for
the benefit of creditors, nor taken any action with a view to, or which would
constitute a basis for, the institution of any such insolvency proceedings.
3.1.25 Books and Records. The books, records and accounts of
the Company and Young Ones maintained with respect to the Company and the
Stations, and Young Ones, respectively, accurately and fairly reflect, in
reasonable detail, in all material respects, the transactions and the assets
and liabilities of the Company and the Stations and Young Ones. Neither Sellers
nor the Company have engaged in any transaction, maintained any bank account or
used any of the funds of the Company except for transactions, bank accounts and
funds which have been and are reflected, in all material respects, in the
normally maintained books and records of the Company.
3.1.26 Accounts Receivable. All accounts, notes and loans
receivable of the Company reflected in the Company's Financial Statements or
arising since the date thereof (a) arose in the ordinary course of business of
the Company, (b) are subject to a reserve for bad debts which has been computed
in accordance with GAAP and (c) are valid and genuine. All such accounts, notes
and loans receivable are free and clear of Liens. There is no right or claim of
offset, no valid defenses or counterclaims with respect to any such accounts,
notes or loans receivable. None of the obligors of such accounts, notes or
loans receivable has refused or given notice that it refuses to pay the full
amount or any material portion thereof.
3.1.27 Availability of Documents. The Company and Young Ones
has heretofore made available for inspection by Buyer and its representatives
true, correct and complete copies of the articles of incorporation and code of
regulations or other organizational documents of each of the Company and Young
Ones, all written agreements, arrangements, commitments, and documents referred
to in the Schedules hereto, and the corporate minute books of each of the
Company and Young Ones. Such corporate minute books contain all of the minutes
of meetings of stockholders, board of directors, and any committees of the
board of directors of each of the Company and Young Ones and all of the written
consents to action executed in lieu thereof.
21
31
3.1.28 Interest in Competitors, Suppliers and Customers.
Except as set forth on Schedule 3.1.28 hereto, neither Sellers nor any officer,
director or Affiliate of the Company, Sellers or Young Ones has any ownership
interest in any competitor, supplier, customer or other service provider of the
Company or any property used in the operation of the businesses of the Company.
3.1.29 Controlled Group Liability. The Company is not and will
not be subject to any liability on account of Sellers, the Company and Young
Ones having been affiliated, prior to the Closing Date, directly or indirectly,
with any other entity or person under Code Section 414, ERISA Section 4001 or
any similar foreign law.
3.1.30 Barter Arrangements. Schedule 3.1.30 accurately
describes all barter, trade or similar arrangements for the sale of advertising
time for other than cash and all Trade Agreements of the Company or of Sellers
relating to the operation of the Stations which are outstanding as of July 29,
1998. With respect to the Stations, all advertising time sold under barter,
trade or similar arrangements for the sale of advertising time for other than
cash and Trade Agreements may, at the Stations' option, be, preempted by
advertising time that is sold for cash. All barter, trade or similar
arrangements for the sale of advertising time for other than cash and all Trade
Agreements have been entered into in the ordinary course of business consistent
with past practices.
3.1.31 Settlement Agreement. Buyer has been provided with true
and complete copies of that certain Letter Agreement, dated as of December 22,
1993, by and among the Company, the Cleveland, Ohio Branch of the National
Association for the Advancement of Colored People and other parties signatory
thereto, and all amendments thereof and other documents related thereto
(collectively, the "Settlement Agreement"). The Settlement Agreement is a valid
and binding obligation of the Company and is in full force and effect and the
Company has complied and satisfied all of its obligations under the Settlement
Agreement, including without limitation all payment obligations thereunder,
required to be satisfied as of the date hereof and Sellers and the Company
shall continue to comply with and satisfy such obligations of the Company
through the Closing Date. The Company has no outstanding payment obligations
under, or arising from, the Settlement Agreement.
3.1.32 No Assets, Liabilities or Operations. Young Ones has no
assets (other than the Company Voting Shares, its corporate seal, minute books,
charter documents, stock record books and other books and records as pertain to
its organization, existence and share capitalization) or liabilities. Young
Ones has no, and never has had any, operations of any kind.
22
32
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Representations and Warranties of Buyer. Buyer represents and
warrants to Sellers the following:
4.1.1 Organization and Standing. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted and is duly qualified to do business in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties makes
such qualification necessary, other than in such jurisdictions where the
failure to so qualify has not had and would not reasonably be expected to have
a material adverse effect on the assets, or the business of Buyer, or on
Buyer's ability to consummate the transactions contemplated by this Agreement.
4.1.2 Authorization and Binding Obligation. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. Buyer's execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action on the
part of Buyer and constitutes the legal, valid and binding obligation of Buyer,
enforceable against it in accordance with its terms.
4.1.3 Qualification. To Buyer's knowledge, there is no
fact, allegation, condition, or circumstance that could reasonably be expected
to prevent the prompt grant of the FCC Consents. Buyer knows of no fact that
would, under the Communications Act, or the rules, regulations and policies of
the FCC, disqualify Buyer from acquiring the Shares or, as of the date hereof,
otherwise require Buyer to obtain a waiver of any FCC rule, regulation or
policy in order to obtain the FCC Consents. There are no proceedings,
complaints, notices of forfeiture, claims, or investigations pending or, to the
knowledge of Buyer, threatened against any or in respect of any of the
broadcast stations licensed to Buyer or its Affiliates that would materially
impair the qualifications of Buyer to acquire the Shares or delay the FCC's
processing of the FCC Applications.
4.1.4 Absence of Conflicting Agreements or Required
Consents. Except as set forth in Schedule 4.1.4 hereof, the execution and
delivery of this Agreement, and the consummation of the transactions
contemplated hereby by Buyer: (a) do not violate, conflict with or result in
any breach of any provision of the charter or bylaws of Buyer; (b) violate,
23
33
conflict with or will result in a violation or breach of, or constitute a
default (with or without due notice or lapse of time or both) under, or permit
the termination of, or will result in the acceleration of, or entitle any party
to accelerate (whether as a result of the sale of the Shares or otherwise) any
obligation, or result in the loss of any benefit, or give rise to the creation
of any lien, charge, security interest or encumbrance upon any of the
properties or assets of Buyer or any of its subsidiaries under any of the
terms, conditions or provisions of any loan or credit agreement, note, bond,
mortgage, indenture or deed of trust, or any license, lease, agreement or other
instrument or obligation to which any of them are a party or by which they or
any of their properties or assets may be bound or affected, or (iii) violate
any order, writ, judgment, injunction, decree, statute, rule or regulation of
any Governmental Entity applicable to Buyer or any of its respective properties
or assets, except for those violations that individually or in the aggregate
could not reasonably be expected to have a material adverse effect on Buyer's
ability to consummate the transactions contemplated by this Agreement.
4.1.5 Litigation. There are no actions, suits, inquiries,
judicial or administrative proceedings, or arbitrations pending or, to the
knowledge of Buyer, threatened against Buyer or any of its respective
properties or assets by or before any arbitrator or Governmental Entity nor are
there any investigations relating to Buyer or any of its respective properties
or assets pending or, to the knowledge of Buyer, threatened by or before any
arbitrator or Governmental Entity that has had or that reasonably could be
expected to have a material adverse effect on Buyer's ability to consummate the
transactions contemplated by this Agreement. There are no material judgments,
decrees, injunctions, or orders of any Governmental Entity or arbitrator
outstanding against Buyer or any of its respective properties or assets that
has had or that reasonably could be expected to have a material adverse effect
on Buyer's ability to consummate the transactions contemplated by this
Agreement. There is no action, suit, inquiry, judicial or administrative
proceeding pending, or, to the knowledge of Buyer, threatened against Buyer by
a third party relating to the transactions contemplated by this Agreement.
4.1.6 Commission or Finder's Fees. Neither Buyer nor any
entity acting on behalf of Buyer has agreed to pay a commission, finder's fee
or similar payment to any person or entity in connection with this Agreement or
any matter related hereto.
4.1.7 Full Disclosure. No representation or warranty by
Buyer contained in this Agreement (including the Disclosure Schedules hereto)
or in any certificate furnished pursuant to this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
any material fact necessary, in light of the circumstances under
24
34
which it was or will be made, in order to make the statements herein or therein
not misleading.
4.1.8 Investment Intent; Sophisticated Buyer. Buyer (a) is
an informed sophisticated entity with sufficient knowledge and experience in
investing so as to be able to evaluate the risks and merits of its investment
in the Shares, (b) is financially able to bear the risks of investing in the
Company, (c) has had an opportunity to discuss the business, management and
financial affairs of the Company with the management of the Company, (d) is
acquiring the Shares for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof, (e)
understands that (i) the Shares have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), (ii) the Shares must be held
indefinitely unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration, (f) has no present need for
liquidity in connection with its purchase of the Shares, (g) understands that
the purchase of the Shares involves a high degree of risk, and (h) acknowledges
that the purchase of the Shares is consistent with its general investment
objectives.
ARTICLE 5
COVENANTS OF SELLERS AND THE COMPANY
5.1 The Company, Young Ones and Sellers covenant and agree with
Buyer that, pending Closing and except as otherwise agreed to in writing by
Buyer:
5.1.1 Conduct Prior to the Closing. (a) The Company shall:
((i) use commercially reasonable efforts to maintain its
present business organization, keep available the services of its
present employees and independent contractors, preserve its
relationships with its customers and others having business
relationships with it, and refrain from materially and adversely
changing any of its business policies (including but not limited to
advertising (including substantially the same amount of cash
expenditure), marketing, pricing, purchasing, personnel, sales, and
budget policies);
((ii) maintain its books of account and records in the
usual and ordinary manner and in accordance with GAAP except as
otherwise provided in Section 3.1.6;
25
35
((iii) notify Buyer if the regular broadcast transmission of
the Stations from their main transmitting facilities at full
authorized effective radiated power is interrupted for a period of
more than five consecutive hours or for an aggregate of ten or more
hours in any continuous three-day period;
((iv) operate in the usual and ordinary course of business
in accordance with past practices and conduct its business in all
material respects in compliance with the terms of the Stations
Licenses and all applicable laws, rules, and regulations, including,
without limitation, the applicable rules and regulations of the FCC
through the Closing Date;
((v) use, repair, and, if necessary, replace any of the
Stations' studio and transmission assets in a reasonable manner
consistent with historical practice and maintain its assets in
substantially their current condition, ordinary wear and tear
excepted;
((vi) maintain insurance in conformity with Section 3.1.10
through the Closing Date;
((vii) not knowingly incur any debts, obligations, or
liabilities (absolute, accrued, contingent, or otherwise) that include
obligations (monetary or otherwise) to be performed by Buyer after the
Closing that exceed $50,000 individually or $150,000 in the aggregate;
((viii) not lease, mortgage, pledge, or subject to a lien,
claim, or encumbrance (other than Permitted Liens) any of its assets
or sell or transfer any of its assets without replacing such assets
with an asset of substantially the same value and utility;
((ix) without the prior consent of Buyer, which consent
shall not be unreasonably withheld or delayed, (x) not modify or
extend any Contracts, other than Contracts for the sale of advertising
for cash, or (y) enter into any new Contract, other than Contracts for
the sale of advertising time for cash, or other than non-advertising
Contracts obligating the Company to provide payments or benefits of
less than $50,000 each over the life of the Contract and $150,000 in
the aggregate;
((x) except for stay bonuses which are taken into account
in the Working Capital Amount or the Liability Adjustment Amount, not
make or grant any general wage or salary increase or generally
materially modify the employees' terms and
26
36
conditions of employment, other than in the ordinary course of
business, consistent with past practices, and with respect to any
Station Management and on-air personnel, the Company shall not make or
grant any wage or salary increase or modify any terms and conditions
of employment without the prior consent of Buyer;
((xi) not make (x) any change in the accounting principles,
methods, or practices followed by it or depreciation or amortization
policies or rates or (y) any change in any Tax election or settle or
compromise any Tax liability;
((xii) not make any loans or make any dividends or
distributions;
((xiii) other than in the ordinary course of business, not
cancel or compromise any debt or claim, or waive or release any right,
of material value;
((xiv) not disclose to any person (other than Buyer and its
representatives) any confidential or proprietary information;
((xv) use its commercially reasonable efforts to maintain
the present formats of the Stations and with programming consistent
with past practices;
((xvi) other than in the ordinary course of business, not
increase the number of regularly scheduled commercial units run during
the day-parts on the Stations (other than changes in the number of
commercial units run during any day-part as a result of operating
difficulties that require commercial units to be broadcast at times
other than as scheduled);
(xvii) not make capital expenditures, or enter into any
commitment which commits the Company to expend, in the aggregate, in
excess of $500,000;
((xviii) not (x) issue, grant or dispose of, or make any
agreement, arrangement or commitment obligating it to issue, grant or
dispose of, any of its capital stock or other securities it, (y)
authorize or effect any reorganization, recapitalization, or split-up
of its capital stock or (z) redeem, purchase, or otherwise acquire,
directly or indirectly, any of its capital stock;
((xix) not amend or otherwise change its articles of
incorporation or code of regulations; and
((xx) agree to do any of the foregoing.
27
37
(b) Young Ones shall:
((i) not disclose to any person (other than Buyer and its
representatives) any confidential or proprietary information;
((ii) not amend or otherwise change its articles of
incorporation or code of regulations;
((iii) not incur any liabilities of any kind or commence any
operations of any kind; and
((iv) agree to do any of the foregoing.
5.1.2 Access. The Company, Sellers and Young Ones shall (a)
give Buyer and Buyer's counsel, accountants, engineers and other
representatives, including environmental consultants, reasonable access during
normal business hours to all of Young Ones' and the Company's properties,
books, Contracts, Trade Agreements, reports and records including financial
information and Tax Returns, and to all Real Estate, buildings and equipment,
in order that Buyer may have full opportunity to make such investigation,
including but not limited to, environmental assessments, as it desires of the
affairs of the Company, the Stations and Young Ones and (b) furnish Buyer with
information, and copies of all documents and agreements including but not
limited to financial and operating data and other information concerning the
financial condition, results of operations and business of the Company, the
Stations and Young Ones, that Buyer may reasonably request. The rights of Buyer
under this Section shall not be exercised in such a manner as to interfere
unreasonably with the business of the Stations.
5.1.3 Satisfaction of Conditions; Closing. Sellers and the
Company shall use all commercially reasonable efforts to conduct the business
of the Company and the Stations in such a manner that on the Closing Date the
representations and warranties of Sellers and the Company contained in this
Agreement shall be true in all material respects as though such representations
and warranties were made on and as of such date. Furthermore, the Sellers, the
Company and Young Ones shall cooperate with Buyer and use all commercially
reasonable efforts to satisfy promptly all conditions required hereby to be
satisfied by Sellers, the Company and Young Ones in order to expedite the
consummation of the transactions contemplated hereby.
28
38
5.1.4 Sale of Acquired Assets; Negotiations. None of the
Sellers, the Company or Young Ones shall, and Sellers, the Company and Young
Ones shall cause their respective Affiliates, directors, officers, employees,
agents, representatives, legal counsel, and financial advisors not to, (a)
solicit, initiate, accept, consider, entertain or encourage the submission of
proposals or offers from any person or entity with respect to the transactions
contemplated by this Agreement or any similar transaction wherein such person
or entity would directly or indirectly acquire all or any portion of the assets
of the Company or ownership interests in the Company or Young Ones, or any
merger, consolidation, or business combination, directly or indirectly, with or
for the Company or Young Ones or all or substantially all of the Company's
business, or (b) participate in any negotiations regarding, or, except as
required by legal process (including pursuant to discovery or agreements
existing on the date hereof), furnish to any person or entity (other than
Buyer) to do or seek any of the foregoing. None of the Sellers, the Company or
Young Ones shall enter into any agreement or consummate any transactions that
would interfere with the consummation of the transactions contemplated by this
Agreement. Each of Sellers, the Company and Young Ones shall promptly notify
Buyer if it receives any written inquiry, proposal or offer described in this
Section 5.1.4 or any verbal inquiry, proposal or offer described in this
Section 5.1.4 that is competitive with the terms of the transactions
contemplated by this Agreement, and the Company, Sellers or Young Ones, as
applicable, shall inform such inquiring person or entity of the existence of
this Agreement and make such inquiring person or entity aware of Sellers', the
Company's or Young Ones' obligations under this Section 5.1.4. The notification
under this Section 5.1.4 shall include the identity of the person or entity
making such inquiry, offer, or other proposal, the terms thereof, and any other
information with respect thereto as Buyer may reasonably request. None of the
Sellers, the Company or Young Ones shall provide any confidential information
concerning the Company's business or properties or assets to any third party
other than in the ordinary course of the business of the Company and consistent
with prior practices of the Company. Sellers, the Company and Young Ones have
ceased and caused to be terminated any existing activities, discussions or
negotiations with any person or entity conducted heretofore with respect to any
of the foregoing.
5.1.5 No Inconsistent Action. None of the Sellers, the
Company or Young Ones shall take any action which is materially inconsistent
with its respective obligations under this Agreement.
5.1.6 Notification. Sellers, the Company and Young Ones
shall promptly notify Buyer in writing of (a) the failure of Sellers, the
Company or Young Ones or, to Sellers', the Company's or Young Ones' knowledge,
any employee or agent of Sellers or the Company to comply with or satisfy in
any material respect any covenant, condition or
29
39
agreement to be complied with hereunder; (b) the occurrence of any event that
would entitle Buyer to terminate this Agreement pursuant to Section 12.1; or
(c) of any overt threat or actual resignation or termination of any Station
Management or over-the-air personnel at the Stations or any officers or
directors of the Company prior to the Closing Date.
5.1.7 FCC Reports. The Company shall file on a current
basis through the Closing Date all reports and documents required to be filed
with the FCC with respect to the Stations Licenses. Copies of each such report
and document filed between the date hereof and the Closing Date shall be
furnished to Buyer promptly after its filing.
5.1.8 Updating of Information. Between the date of this
Agreement and the Closing Date, the Company will deliver to Buyer, on a monthly
basis within 30 days of the end of each month, information relating to the
operation of the Stations, including weekly sales reports and such other
financial information that may be reasonably requested.
5.1.9 Response to Certain Actions. Sellers, the Company and
Young Ones agree to cooperate and use their commercially reasonable efforts to
contest and resist any action, including administrative or judicial action, and
make reasonable attempts to have vacated, lifted, reversed or overturned any
decree, judgment, injunction or other order, whether temporary, preliminary or
permanent, that is in effect and that restricts, prevents or prohibits the
consummation of the transactions contemplated by this Agreement.
5.1.10 Barter and Trade. Sellers and the Company shall use
their commercially reasonable efforts to (a) reduce the total amount of
advertising time owed for other than cash and (b) if the value of the Company's
obligations to provide goods or services other than for cash is greater than
the value of the goods or services to be received by the Company other than for
cash on or after the Closing Date, reduce such excess amount prior to the
Closing Date; provided, however, that in no event shall the Purchase Price be
decreased as result of such remaining excess value existing as of the Closing.
Any Trade Agreements entered into during the period between the date hereof and
the Closing Date shall be entered into only in the ordinary course of the
Company's business and consistent with past practices.
5.1.11 Interim Financial Statements. Sellers and the Company
shall promptly deliver to Buyer copies of any monthly, quarterly or annual
financial statements relating to the Company's operations that may be prepared
by it during the period from the date hereof through the Closing Date. Such
financial statements shall fairly present, in all material respects, the
financial position and results of operations of the Company as at the dates and
30
40
for the periods indicated, and shall be prepared on a basis consistent and in
accordance with the basis upon which the financial statements in Section 3.1.6
were prepared.
5.1.12 Estoppel Certificates. If requested by Buyer within 30
days of the date of this Agreement, the Company and Sellers shall use
commercially reasonable efforts to obtain from third parties the estoppel
certificates, nondisturbance agreements, and/or written clarifications of the
rights of Buyer thereunder, all in form and substance reasonably satisfactory
to Buyer.
5.1.13 Employee Benefit Plans. Sellers shall (a) satisfy all
liabilities and obligations with respect to the Employee Benefit Plans arising
prior to the Closing Date, (b) cause Zapis to maintain in full force and effect
the Employee Benefit Plans, including related insurance policies, to the extent
necessary to permit Sellers to satisfy all liabilities and obligations arising
thereunder prior to the Closing Date and (c) cause the Company to cease
participation in the Employee Benefit Plans as of the Closing Date.
5.1.14 Termination of Management Agreements. Sellers shall
cause any agreements, arrangements or understandings with Parklane that relate
in any way to the Stations, the assets of the Company, or the Company's
employees to be terminated and of no further force and effect as of the
Closing. Sellers agree that Buyer (and following the Closing, the Buyer and the
Company) shall have no obligations or liabilities arising from or related to
such agreements, arrangements or understandings. In addition, Sellers agree to
cause that certain Management Agreement dated as of February 17, 1994, by and
between Zapis and the Company, and any successor agreements thereto (the
"Management Agreement") to be terminated and of no further force and effect as
of the Closing Date. Sellers agree that Buyer (and following the Closing, the
Buyer and the Company) shall have no obligations or liabilities arising from or
related to the Management Agreement.
ARTICLE 6
COVENANTS OF BUYER
6.1 Buyer covenants and agrees that, pending the Closing and
except as otherwise agreed to in writing by Sellers:
6.1.1 Notification. Buyer shall promptly notify Sellers in
writing of (a) any litigation, arbitration or administrative proceeding pending
or, to its knowledge, threatened against Buyer which challenges the
transactions contemplated hereby or (b) the failure of Buyer, or, to Buyer's
knowledge, any employee or agent of Buyer to comply with or satisfy
31
41
in any material respect any covenant, condition or agreement to be complied
with or satisfied by it hereunder and (c) the occurrence of any event that
would entitle Sellers to terminate this Agreement pursuant to Section 12.1.
6.1.2 No Inconsistent Action. Buyer shall not take any
action which is materially inconsistent with its obligations under this
Agreement.
6.1.3 Post-Closing Access. Buyer, for a period of seven
years following the Closing Date, shall make available during normal business
hours for audit and inspection by Sellers and their representatives, for any
reasonable purpose and upon reasonable notice, all records, files, documents
and correspondence of the Company relating to the pre-Closing period. During
such seven-year period, Buyer shall at no time dispose of or destroy any such
records, files, documents and correspondence without giving 30 days prior
notice to Sellers to permit Sellers, at their expense, to examine, duplicate or
take possession of and title to such records, files, documents and
correspondence. All information, records, files, documents and correspondence
made available or disclosed under this Section 6.1.3 shall be kept
confidential.
6.1.4 Satisfaction of Conditions; Closing. Buyer shall use
all commercially reasonable efforts to conduct its business in such a manner
that on the Closing Date the representations and warranties of Buyer contained
in the Agreement shall be true in all material respects as though such
representations and warranties were made on and as of such date. Buyer shall
cooperate with Sellers and the Company and use commercially reasonable efforts
to satisfy promptly all conditions required hereby to be satisfied by Buyer in
order to expedite the consummation of the transactions contemplated hereby.
6.1.5 Response to Certain Actions. Buyer agrees to
cooperate and use its commercially reasonable efforts to contest and resist any
action, including administrative or judicial action, and make reasonable
attempts to have vacated, lifted, reversed or overturned any decree, judgment,
injunction or other order, whether temporary, preliminary or permanent, that is
in effect and that restricts, prevents or prohibits the consummation of the
transactions contemplated by this Agreement and Buyer agrees to take the
actions described (under the circumstances so described) on Schedule 6.1.5.
6.1.6 Other Acquisitions. Buyer agrees to close the Other
Acquisitions unless any of the Sellers are in breach of this Agreement or any
of the applicable sellers is in breach of the Zapis Acquisition or Independent
Group Acquisition agreements or Buyer is otherwise not obligated to close with
any of the Sellers under this Agreement or with any of the applicable sellers
under the Zapis Acquisition or Independent Group Acquisition
32
42
agreements, in which case Buyer is not obligated to close any of the Other
Acquisitions or consummate the transactions contemplated under this Agreement.
ARTICLE 7
JOINT COVENANTS
Buyer, Sellers and the Company covenant and agree that, pending the
Closing and except as otherwise agreed to in writing, they shall act in
accordance with the following:
7.1 FCC Applications. Buyer, Sellers, the Company and Young Ones
shall prosecute the FCC Applications with all reasonable diligence and
otherwise use their commercially reasonable efforts to obtain the FCC Consents
as expeditiously as practicable, but none of Buyer, the Company, Sellers or
Young Ones shall have any obligation to satisfy complainants or the FCC by
taking any steps which would have a material adverse effect upon Buyer, the
Company or Sellers (other than Buyer's obligations under Section 6.1.5).
Notwithstanding anything to the contrary contained herein, Buyer or Sellers may
terminate this Agreement upon notice to the other, if, for any reason, other
than Buyer's failure to comply with Section 6.1.5 (in which case only Sellers
can terminate), the FCC Applications are designated for hearing by the FCC;
provided, however, that notice of termination must be given within 20 days
after release of the hearing designation order and that the party giving such
notice is not in default and has otherwise complied with its obligations under
this Agreement. Upon termination pursuant to this Section 7.1, the parties
shall be released and discharged from any further obligation hereunder without
being subject to a claim by Sellers for liquidated damages or for any other
claims for damages.
7.2 Confidentiality. Each of Buyer, Sellers, the Company and Young
Ones shall keep confidential all information obtained by it with respect to the
other parties hereto in connection with this Agreement and the negotiations
preceding this Agreement, including, without limitation, the results of, and
information relating to, the Studies (as defined in Section 7.6), and will use
such information solely in connection with the transactions contemplated by
this Agreement, and if the transactions contemplated hereby are not consummated
for any reason, each shall return to each other party hereto, without retaining
a copy thereof, any schedules, documents or other written information obtained
from such other party in connection with this Agreement and the transactions
contemplated hereby except to the extent required or useful in connection with
any claim made with respect to the transactions contemplated by this Agreement
or the negotiation thereof which will be returned following settlement of the
claim. Notwithstanding the foregoing, no party shall be required to keep
confidential or return any information which (a) is known or available
33
43
through other lawful sources, not bound by a confidentiality agreement with the
disclosing party, or (b) is or becomes publicly known through no fault of the
receiving party or its agents, or (c) is required to be disclosed pursuant to
an order or request of a judicial or government authority (provided the
non-disclosing party is given reasonable prior notice such that it may seek, at
its expense, confidential treatment of the information to be disclosed), (d) is
developed by the receiving party independently of the disclosure by the
disclosing party or (e) is required to be disclosed under applicable law or
rule, as determined by counsel for the receiving party.
7.3 Cooperation. Buyer, Sellers, the Company and Young Ones shall
cooperate fully with one another in taking any actions, including actions to
obtain the required consent of any governmental instrumentality or any third
party necessary or helpful to accomplish the transactions contemplated by this
Agreement; provided, however, that no party shall be required to take any
action which would have a material adverse effect upon it.
7.4 Public Announcements. None of Buyer, Sellers, the Company or
Young Ones shall issue any press release or make any disclosure with respect to
the transactions contemplated by this Agreement without the prior written
approval of the other party, except as may be required by applicable law or by
obligations pursuant to any listing agreement with any securities exchange or
the Nasdaq National Market or any stock exchange or Nasdaq National Market
regulations in which case Buyer, Sellers, the Company or Young Ones, as the
case may be, shall give notice to the other parties prior to making such
disclosure.
7.5 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. Sellers, Buyer, the Company and Young Ones
shall submit to the United States Department of Justice and the United States
Federal Trade Commission ("FTC") not later than 15 business days after the date
of this Agreement all of the forms and information applicable to this
transaction required under the HSR Act and will use commercially reasonable
efforts to respond promptly to any request by them for additional information.
Buyer, the Company and Sellers shall use commercially reasonable efforts
(including the filing of a request for early termination) to obtain the early
termination of the waiting period under the HSR Act. Sellers shall reimburse
Buyer for one-half of the filing fees for Buyer's HSR Act filing.
7.6 Condition of Real Estate. Buyer may, at its sole expense,
conduct environmental studies, title examinations, and land surveys (the
"Studies") of the Real Estate provided all information received as a result of,
or in the course of, any of the Studies will be deemed confidential (subject to
Section 7.2). Sellers, the Company and Young Ones agree to cooperate with any
reasonable request of Buyer for a site assessment or site review
34
44
concerning any environmental, title or survey matter, including the making
available of such personnel of the Company as Buyer may reasonably request, so
long as such activities do not unreasonably interfere with the conduct of the
Company's businesses. At the discretion of Buyer, Buyer may arrange, at its
sole expense, for one or more independent contractors to conduct tests of the
Real Estate, including tests of air, soil (including surface and subsurface
materials), surface water and ground water, or any equipment or facilities
located thereon, in order to identify any present or past release or threatened
release of any hazardous substances. Such tests may be done at any time, or
from time to time, upon reasonable notice and under reasonable conditions,
which do not impede the performance of such tests. If Buyer notifies Sellers
within 45 days of the date of this Agreement that the Studies disclose
potential Environmental Costs and Liabilities in excess of $100,000, or the
presence of Hazardous Materials at concentrations exceeding those allowed by
Environmental Laws, evidence encroachments that materially and adversely affect
the use (for the purpose currently used) of the Real Estate, or any other
matters that materially affect the title, value or use of the Real Estate,
Sellers shall promptly commence remedial action at their expense to cure the
condition giving rise to such matter and attempt to cure such condition prior
to the Closing; provided that Sellers shall not be obligated to spend (but may
choose to spend) more than $100,000 in the aggregate in their attempts to cure
all such conditions. Sellers shall notify Buyer within 30 days after their
receipt of Buyer's Studies if they determine that they are unable to cure such
conditions for $100,000 or less and choose not to attempt to cure such
conditions, in which case Buyer may elect within 30 days after Buyer's receipt
of Sellers' notice that they choose not to attempt to cure such conditions (a)
to terminate this Agreement or (b) to waive such obligations and receive a
$100,000 credit at the Closing. If this Agreement is terminated in accordance
with the immediately preceding sentence, no party shall have any liability to
the other with respect to such termination. Either party may extend the Closing
by not more than 30 days if either reasonably determines that any necessary
remedial action can be completed during such period.
7.7 Cobra Compliance. Sellers shall take all necessary actions to
comply with Part 6, Subtitle B, of Title I of ERISA with respect to the
employees and former employees of the Company, and Buyer shall not have any
obligations or liability with respect thereto on or before the Closing Date.
ARTICLE 8
CONDITIONS OF CLOSING BY BUYER
The obligations of Buyer hereunder, including, without limitation, the
obligation to close the transactions contemplated herein, are, at its option,
subject to satisfaction, at or
35
45
prior to the Closing, of all of the following conditions, any of which may be
waived by Buyer:
8.1 Representations, Warranties and Covenants. All representations
and warranties of Sellers, the Company and Young Ones made in this Agreement or
in any Exhibit, Schedule or document delivered pursuant hereto, shall be true
and correct in all material respects as of the date hereof and on and as of the
Closing Date as if made on and as of that date, except for changes expressly
permitted by the terms of this Agreement and except those given as of a
specified date which must only be true and correct as of such specified date.
Notwithstanding anything herein to the contrary, a breach of Section 3.1.9
resulting from Buyer's breach of Section 6.1.5 shall not be deemed a breach of
Section 3.1.9 by Sellers.
8.2 Compliance with Agreement. All of the terms, covenants and
conditions to be complied with and performed by Sellers, the Company and Young
Ones on or prior to the Closing Date shall have been complied with or performed
in all material respects.
8.3 Third Party Consents and Approvals. Sellers and the Company
shall have obtained all third-party consents and approvals, if any, required
for the transfer or continuance, as the case may be, of the Contracts
designated by an asterisk as "essential" on Schedule 3.1.17 (and contracts of a
similar nature that would have been marked as such on Schedule 3.1.17 had they
been in existence on the date of this Agreement).
8.4 Closing Certificates. Buyer shall have received a certificate,
dated as of the Closing Date, from Sellers, the Company and Young Ones,
executed by an executive officer of each of Sellers, the Company and Young Ones
to the effect of Sections 8.1 and 8.2.
8.5 Governmental Consents. (a) The FCC Consents shall have been
issued by the FCC without any conditions that would otherwise permit Buyer to
terminate this Agreement pursuant to Section 12.1(e), below, and the FCC
Consents shall have become Final Orders (as defined in Section 1.4).
(b) All applicable notification and waiting period
requirements under the HSR Act shall have been satisfied.
8.6 Adverse Proceedings. No injunction, order, decree or judgment
of any court, agency or other Governmental Entities shall have been rendered
against Sellers, the Company, Young Ones or Buyer which would render it
unlawful, as of the Closing, to effect the transactions contemplated by this
Agreement in accordance with its terms.
36
46
8.7 The Shares. Sellers, the Company and Young Ones shall have
delivered or caused to be delivered to Buyer, on the Closing Date, the stock
certificates evidencing the Shares, duly endorsed or accompanied by a duly
executed stock power assigning the shares to Buyer and otherwise in good form
for transfer.
8.8 Indemnification and Escrow Agreement. The Sellers shall have
executed and delivered to Buyer the Indemnification and Escrow Agreement.
8.9 Release of Encumbrances. Evidence satisfactory to Buyer's
counsel of the payment or release of any and all Liens (other than Permitted
Liens not required to be released pursuant to the provisions of this
Agreement).
8.10 Legal Opinions. Buyer shall have received an opinion of ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ & Associates and Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, each dated
as of the Closing Date, substantially in the form of Exhibits B-1 and B-2
hereto.
8.11 ▇▇▇▇▇▇▇ Money Letter of Credit. The ▇▇▇▇▇▇▇ Money Letter of
Credit (as defined in Section 11.3) shall have been returned to Buyer for
cancellation.
8.12 No Material Adverse Change. Since the date hereof, there shall
have been no material adverse change to the financial condition or operating
results of the Company (other than as a result of regulatory changes affecting
the radio broadcasting industry generally or general economic conditions).
8.13 Resignation of Directors. The directors of the Company and
Young Ones shall have resigned effective as of the Closing Date.
8.14 Other Acquisitions. The Zapis Acquisition and the Independent
Group Acquisition shall concurrently close with the transactions contemplated
under this Agreement unless the Zapis Acquisition and the Independent Group
Acquisition do not close solely due to the breach by Buyer of the agreement
governing the Zapis Acquisition or the Independent Group Acquisition, as
applicable, in which case this condition shall not apply with respect to any
such acquisition that does not close solely due to the Buyer's breach.
8.15 1445 Certificate. Sellers shall have executed and delivered a
certificate, in a form reasonably satisfactory to Buyer, stating that none of
Sellers is a foreign person within the meaning of Section 1445 of the Code.
37
47
8.16 Termination of Management Agreement. The Management Agreement
shall have been terminated and shall be of no further force and effect and
Buyer or the Company shall have no obligations or liabilities arising from or
related to the Management Agreement.
ARTICLE 9
CONDITIONS OF CLOSING BY SELLERS
The obligations of Sellers hereunder including, without limitation,
the obligation to close the transactions contemplated herein, are, at their
option, subject to the satisfaction, at or prior to the Closing Date, of all of
the following conditions any of which may be waived by Sellers:
9.1 Representations, Warranties and Covenants. All representations
and warranties of Buyer made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and correct in all material
respects as of the date hereof and on and as of the Closing Date as if made on
and as of that date, except for changes expressly permitted by the terms of
this Agreement and except those given as of a specified date which must only be
true and correct as of such specified date.
9.2 Compliance with Agreement. All the terms, covenants, and
conditions to be complied with and performed by Buyer on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
9.3 Certifications, etc. Sellers shall have received a
certificate, dated as of the Closing Date, from Buyer, executed by an executive
officer of Buyer to the effect of Sections 9.1 and 9.2.
9.4 Governmental Approval. (a) The FCC Consents shall have been
issued by the FCC and shall have become Final Orders (as defined in Section
4.1).
(b) All applicable notification and waiting period
requirements under the HSR Act shall have been satisfied.
9.5 Adverse Proceedings. No injunction, order, decree or judgment
of any court, agency or other Governmental Entities shall have been rendered
against Buyer, Sellers or the Company which would render it unlawful, as of the
Closing, to effect the transactions contemplated by this Agreement in
accordance with its terms.
38
48
9.6 Opinions. Buyer shall have delivered to Sellers an opinion of
Weil, Gotshal & ▇▇▇▇▇▇ LLP, dated as of the Closing Date, in the form of
Exhibit C hereto.
9.7 Indemnification and Escrow Agreement. Buyer shall have
executed and delivered to the Sellers the Indemnification and Escrow Agreement.
9.8 Release. ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Zapis shall have been released
from their obligations as guarantors under that certain Lease between Radio
Seaway, Inc., as Lessor, and Friendly Broadcasting Company, as Lessee, dated
February 16, 1989, as amended.
ARTICLE 10
TRANSFER TAXES; FEES AND EXPENSES; TAX MATTERS
10.1 Expenses. Except as set forth in Sections 10.2 and, 10.3
below, each party hereto shall be solely responsible for all costs and expense
incurred by it in connection with the negotiation, preparation and performance
of and compliance with the terms of this Agreement; provided that all such
costs and expenses of the Company and Young Ones shall be borne by the Sellers.
10.2 Sales and Transfer Taxes. All sales, excise, use, transfer,
deed, duties, stamp, notary public and other similar taxes, duties and transfer
fees applicable to the transactions contemplated by this Agreement, including
fees to record assignments, shall be borne equally by Sellers and Buyer. Buyer
and Sellers agree to cooperate with each other and to file all necessary
documentation (including but not limited to, all Tax Returns) with respect to
all amounts in a timely manner.
10.3 Governmental Filing or Grant Fees. Any filing or grant fees
imposed by any governmental authority the consent of or filing with which is
required for the consummation of the transactions contemplated hereby,
including but not limited to, the FCC, the FTC, and the Department of Justice
shall be borne equally by Buyer and Sellers.
10.4 Tax Matters.
39
49
(a) Preparation of Tax Returns; Payment of Taxes.
(i) The Seller Representative shall prepare all
Tax Returns required to be filed by the Company and Young Ones, with
respect to taxable periods of the Company or Young Ones ending on or
prior to the Closing Date (taking into account any extensions) and the
Seller Representative shall pay any and all Taxes due with respect to
such Tax Returns to the extent such Taxes exceed Taxes attributable to
taxable periods ending on or before the Closing Date taken into
account in determining Liability Adjustment Amount or Working Capital
Amount. All Tax Returns described in this Section 10.4(a)(i) shall be
prepared in a manner consistent with prior practice. Seller
Representative shall provide Buyer with a copy of such Tax Returns at
least 20 days prior to the due date for filing such Tax Returns. Buyer
shall have the right to review and approve any such Tax Returns filed
after the Closing Date, and Buyer and the Seller Representative shall
attempt in good faith mutually to resolve any disagreements regarding
such Tax Return within fifteen (15) days of the Buyer's receipt
thereof. Any disagreement regarding such Tax Return shall be resolved
pursuant to Section 10.4(c). Any amount owing under this Section
10.4(a)(i) shall be paid by the Seller Representative to Buyer no
later than five (5) days before the due date (including extensions, if
any) for payment of Taxes with respect to any such Tax Return.
(ii) For federal income tax purposes, the taxable
year of the Company and Young Ones shall end as of the close of the
Closing Date and, with respect to all other Taxes, the Seller
Representative and Buyer will, unless prohibited by applicable law,
close the taxable period of the Company and Young Ones as of the close
of the Closing Date. Except as otherwise required by applicable law,
neither Sellers nor Buyer shall take any position inconsistent with
the preceding sentence on any Tax Return. In any case where applicable
law does not permit the Company or Young Ones to close its taxable
year on the Closing Date or in any case in which a Tax is assessed
with respect to a taxable period which includes the Closing Date (but
does not begin or end on that day) (the "Straddle Period"), then
Taxes, if any, attributable to the taxable period of the Company or
Young Ones beginning before and ending after the Closing Date shall be
allocated (A) to Sellers for the period up to and including the
Closing Date, and (B) to Buyer for the period subsequent to the
Closing Date. Any allocation of income or deductions required to
determine any Taxes attributable to any period beginning before and
ending after the Closing Date shall be prepared by Buyer and shall be
made by means of a closing of the books and records of the Company and
Young Ones as of the close of the Closing Date, provided that
exemptions, allowances or deductions that are calculated on an annual
40
50
basis (including, but not limited to, depreciation and amortization
deductions) shall be allocated between the period ending on the
Closing Date and the period after the Closing Date in proportion to
the number of days in each such period.
(iii) With respect to any Tax Returns for Straddle
Periods, the Seller Representative shall pay to Buyer an amount equal
to that portion of the Taxes shown on such Tax Returns attributable to
the portion of the taxable period ending on the Closing Date as
determined pursuant to subparagraph (ii), in excess of Taxes
attributable to such period taken into account in determining
Liability Adjustment Amount or Working Capital Amount. Buyer shall
provide the Seller Representative with a schedule showing the
computation of such amount at least 20 days prior to the due date for
filing such Tax Returns along with a copy of such Tax Return. The
Seller Representative shall have the right to review and approve any
such Tax Return and schedule, and Buyer and the Seller Representative
shall attempt in good faith mutually to resolve any disagreements
regarding the determination of such amount within fifteen (15) days of
the Seller Representative's receipt thereof. Any disagreement
regarding such determination shall be resolved pursuant to Section
10.4(c) below. Any amount owing under this Section 10.4(a)(iii) shall
be paid by the Seller Representative to Buyer no later than five (5)
days before the due date (including extensions, if any) for payment of
Taxes with respect to any such Tax Return.
(b) Cooperation with Respect to Taxes. Buyer and Sellers
agree to furnish or cause to be furnished to each other, and each at their own
expense, as promptly as practicable, such information (including access to
books and records) and assistance, including making employees available on a
mutually convenient basis to provide additional information and explanations of
any material provided, relating to the Company as is reasonably necessary for
the filing of any Tax Return, for the preparation of any audit, and for the
prosecution and defense of any claim, suit or proceeding relating to Taxes.
(c) Dispute Procedures. Any disputes as to matters
covered hereby shall be resolved by Ernst & Young LLP. The parties will
instruct the accounting firm to reach its conclusion regarding any such dispute
as promptly as practicable. The report of the accounting firm shall be final,
binding and conclusive on Sellers and Buyer. The fees and expenses of such
accounting firm shall be borne equally by the Sellers, jointly and severally on
the one hand, and Buyer, on the other hand.
41
51
ARTICLE 11
LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE, LETTER OF CREDIT
11.1 Liquidated Damages. If this Agreement is terminated by Sellers
pursuant to Sections 12.1(b)(ii) or 12.1(g) the parties agree and acknowledge
that Sellers will suffer damages that are not practicable to ascertain.
Accordingly, in such event, Sellers shall be entitled to the sum of $3,500,000
as liquidated damages (and not as a penalty), payable solely and exclusively by
drawing upon the ▇▇▇▇▇▇▇ Money Letter of Credit and through the delivery to
Sellers, of the sum of $1,750,000 via wire transfer of immediately available
funds. The parties agree that the foregoing liquidated damages are reasonable
considering all the circumstances existing as of the date hereof and constitute
the parties' good faith estimate of the actual damages reasonably expected to
result from the termination of this Agreement pursuant to Sections 12.1(b)(ii)
or 12.1(g). In such event, Buyer shall immediately instruct the ▇▇▇▇▇▇▇ Money
Escrow Agent (as hereinafter defined) to deliver the ▇▇▇▇▇▇▇ Money Letter of
Credit to ▇▇▇▇ ▇. ▇▇▇▇▇, on behalf of and for the benefit of all of the Sellers
(the "Seller Representative") to permit it to draw upon the ▇▇▇▇▇▇▇ Money
Letter of Credit and shall deliver to Sellers, via wire transfer of immediately
available funds, the sum of $1,750,000. Sellers agree that, to the fullest
extent permitted by law, the right to draw upon the ▇▇▇▇▇▇▇ Money Letter of
Credit and to receive the additional sum of $1,750,000 from Buyer as provided
in this Section 11.1 shall be their sole and exclusive remedy with respect to
any damages whatsoever that Sellers may suffer or allege to suffer as a result
of a termination pursuant to Sections 12.1(b)(ii) or 12.1(g). Except for a
termination pursuant to Sections 12.1(b)(ii) or 12.1(g) (for which the sole
recourse of Sellers shall be as provided in this Section 11.1) or pursuant to
Section 12.1(a) or 7.6 (for which no party shall have any liability to the
other), the termination of this Agreement shall not relieve the parties for any
liability or obligation relating to their breaches of this Agreement occurring
prior to such termination.
11.2 Specific Performance. In addition to any other remedies which
Buyer may have at law or in equity, Sellers hereby acknowledge that the Shares
are unique, and that the harm to Buyer resulting from a breach by Sellers of
their obligations to sell the Shares to Buyer cannot be adequately compensated
by damages. Accordingly, Sellers agree that Buyer shall have the right to have
this Agreement specifically performed by Sellers, provided that Buyer is not in
material breach of this Agreement, and hereby agree, in such event, not to
assert any objections to the imposition of the equitable remedy of specific
performance by any court of competent jurisdiction.
42
52
11.3 Letter of Credit.
11.3.1 Concurrently with the execution of this Agreement,
Buyer shall deposit an original, irrevocable letter of credit, which shall be
in a form reasonably satisfactory to Buyer and Sellers (the "▇▇▇▇▇▇▇ Money
Letter of Credit"), issued by The Toronto-Dominion Bank for the sum of
$1,750,000 with Key Trust Company of Ohio, N.A. (the "▇▇▇▇▇▇▇ Money Escrow
Agent") to be held in escrow in accordance with the ▇▇▇▇▇▇▇ Money Escrow
Agreement substantially in the form of Exhibit D hereto.
11.3.2 The ▇▇▇▇▇▇▇ Money Letter of Credit shall be held by the
▇▇▇▇▇▇▇ Money Escrow Agent in accordance with the terms of the ▇▇▇▇▇▇▇ Money
Escrow Agreement. Subject to satisfaction of the conditions to the Sellers'
obligations set forth in Article 9, at the Closing, the Seller Representative
shall instruct the ▇▇▇▇▇▇▇ Money Escrow Agent to release and return the ▇▇▇▇▇▇▇
Money Letter of Credit to Buyer for cancellation.
11.3.3 If this Agreement is terminated as provided in Sections
12.1(b)(ii) or 12.1(g), Buyer shall instruct the ▇▇▇▇▇▇▇ Money Escrow Agent to
release the ▇▇▇▇▇▇▇ Money Letter of Credit to the Seller Representative, all as
provided in Section 11.1. In all other events, the Seller Representative shall
join in instructions to the ▇▇▇▇▇▇▇ Money Escrow Agent to return the ▇▇▇▇▇▇▇
Money Letter of Credit to Buyer.
ARTICLE 12
TERMINATION RIGHTS
12.1 Termination. This Agreement may be terminated at any time
prior to Closing as follows:
(a) by the mutual consent of Buyer and Sellers;
(b) by written notice of (i) Buyer to Sellers if any of
the Sellers, the Company or Young Ones breaches in any material
respect any of their representations or warranties or defaults in any
material respect in the observance or in the due and timely
performance of any of their covenants or agreements herein contained
and such breach or default shall not be cured within thirty (30) days
of the date of notice of breach or default served by Buyer or (ii)
Sellers, the Company and Young Ones to the Buyer if Buyer breaches in
any material respect any of their representations or warranties or
default in any material respect in the observance or in the due and
timely performance of any of its covenants or agreements herein
contained and such
43
53
breach or default shall not be cured within thirty (30) days of the
notice of breach or default served by Sellers, the Company and Young
Ones;
(c) by Buyer, Sellers, the Company or Young Ones by
written notice to the other, if a court of competent jurisdiction or
other Governmental Entity shall have issued an order, decree or ruling
or taken any other action (which order, decree or ruling the parties
hereto shall use their best efforts to lift), in each case permanently
restraining, permanently enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order, decree,
ruling or other action shall have become final and nonappealable;
provided that Buyer shall not have the right to terminate this
Agreement pursuant to Section 12.1(c) unless Buyer has satisfied the
covenants contained in Section 6.1.5 hereof;
(d) by the party whose qualifications are not at issue,
if, for any reason, the FCC denies or dismisses any of the FCC
Applications and the time for reconsideration or court review under
the Communications Act with respect to such denial or dismissal has
expired and there is not pending with respect thereto a timely filed
petition for reconsideration or request for review;
(e) by written notice of Buyer to Sellers if the FCC
Consents contain a condition on Buyer that (i) is unrelated to Buyer's
qualifications, (ii) could reasonably be expected to have a materially
adverse impact on the financial condition or business operations of
the Stations, and (iii) the time for reconsideration or court review
under the Communications Act with respect to such condition(s) has
expired without the filing with respect thereto of a timely petition
for reconsideration or request for review;
(f) by written notice of Buyer to Sellers, or by Sellers
to the Buyer, if the Closing shall not have been consummated on or
before June 1, 1999, subject to extensions as provided in Sections 7.6
and 13.1; or
(g) by written notice of Sellers to Buyer, if by May 31,
1999 all of the conditions of Closing by Buyer identified in Article 8
have been satisfied other than the expiration of the applicable
waiting period requirements under the HSR Act.
Notwithstanding the foregoing, no party hereto may effect a termination hereof
if such party is in material default or breach of this Agreement.
44
54
ARTICLE 13
RISK OF LOSS
13.1 Risk of Loss. (a) The risk of loss or damage to the assets of
the Company shall be upon Sellers at all times prior to the Closing Date. In
the event of loss or damage, Sellers shall promptly notify Buyer thereof (the
"Sellers' Risk of Loss Notice") and if the lost or damaged assets of the
Company are capable of being replaced or repaired for an aggregate amount less
than $100,000, then Sellers shall, at their sole cost and expense, replace or
repair such assets of the Company prior to the Closing Date or deliver to Buyer
at the Closing an amount in cash equal to the cost of replacement or repair of
such assets of the Company, as mutually agreed in good faith by Buyer and
Sellers. Notwithstanding the foregoing, if the amount required to replace or
repair such Station Assets exceeds $100,000, Sellers may elect in the Sellers'
Risk of Loss Notice not to replace or repair such assets of the Company (which
election must be set forth in Seller's Risk of Loss Notice), provided, however,
that in such event Buyer, at its option, may elect within 30 days after its
receipt of the Sellers' Risk of Loss Notice, to terminate this Agreement
without either party being subject to a claim by the other for liquidated
damages or any other claims or damages, or waive any default or breach with
respect to the loss or damage and receive a $100,000 credit at Closing. Either
party may extend the Closing Date by up to 30 days in order to allow Sellers
and the Company to complete the repair or replacement.
(b) The Company shall use its commercially reasonable
efforts to avoid the Stations being off the air for three or more consecutive
days or five or more days in any 30 day period. The Company shall give prompt
written notice to Buyer if either of the following (a "Specified Event") shall
occur: (i) the regular broadcast transmissions of the Stations in the normal
and usual manner are interrupted or discontinued for more than thirty (30)
minutes; or (ii) the Stations are operated at less than their licensed antenna
height above average terrain or at less than ninety percent (90%) of their
licensed effective radiated power. If any Specified Event persists for more
than seventy-two (72) consecutive hours or five or more days, whether or not
consecutive, during any period of thirty (30) consecutive days, then Buyer may,
at its option: (i) terminate this Agreement by written notice given to Sellers
and the Company not more than ten (10) days after the expiration of such thirty
(30) day period (without either party being subject to a claim by the other for
liquidated damages or any other claims for damages); or (ii) proceed in the
manner set forth in Section 13.1(a) above. In the event of termination of this
Agreement by Buyer pursuant to this Section 13.1, the parties shall be released
and discharged from any further obligation hereunder (without being subject to
a claim by Sellers or the Company for liquidated damages or any other claims
for damages). With respect to Acts of God which may adversely affect the
Stations' operations, Sellers shall use their commercially reasonable efforts
to reinstate the Stations'
45
55
operations within 30 days and shall have the Stations operating at not less
than seventy percent (70%) of maximum authorized effective radiated power by
the Closing Date.
(c) Resolution of Disagreements. If the parties are
unable to agree upon the extent of any loss or damage, the cost to repair,
replace or restore any lost or damaged property, the adequacy of any repair,
replacement, or restoration of any lost or damaged property, or any other
matter arising under this Section 13.1, the disagreement shall be referred to a
qualified consulting communications engineer mutually acceptable to Sellers,
Buyer and the Company who is a member of the Association of Federal
Communications Consulting Engineers, whose decision shall be final, binding
upon and non-appealable by the parties, and whose fees and expenses shall be
paid one-half by Sellers and one-half by Buyer.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 Survival of Representations and Warranties. Except as to
representations and warranties contained in Section 3.1.1 and 3.1.32 which
shall survive the Closing indefinitely and Sections 3.1.14, 3.1.15 and 3.1.18
which shall survive the Closing until the expiration of the applicable
statute(s) of limitations (the "Excepted Representations"), all representations
and warranties made by Sellers, Buyer, the Company and Young Ones in this
Agreement, or pursuant hereto, shall survive the consummation of the
transactions contemplated in this Agreement for a period of one year after the
Closing Date, regardless of any investigation at any time made by or on behalf
of Buyer or Sellers, and shall not be deemed merged in any document or
instrument executed or delivered at the Closing. Buyer's sole remedies for any
breach of representation or warranty (other than Excepted Representations) or
pre-Closing breach of a covenant or agreement shall be those set forth in the
Indemnification and Escrow Agreement.
14.2 Certain Interpretive Matters and Definitions. Unless the
context otherwise requires, (a) all references to Sections, Articles or
Schedules are to Sections, Articles or Schedules of or to this Agreement, (b)
each term defined in this Agreement has the meaning assigned to it, (c) each
accounting term not otherwise defined in this Agreement has the meaning
assigned to it in accordance with generally accepted accounting principles as
in effect on the date hereof, (d) "or" is disjunctive but not necessarily
exclusive, and (e) words in the singular include the plural and vice versa, and
(f) except with respect to Section 3.1.15, the term "Affiliate" has the meaning
given it in Rule 12b-2 of Regulation 12B under the Securities Exchange Act of
1934, as amended. All references to "$" or dollar amounts will be to lawful
currency of the United States of America.
46
56
14.3 Further Assurances. At and after the Closing, Sellers shall
from time to time, at the request of and without further cost or expense to
Buyer, execute and deliver such other instruments of assignment, conveyance and
transfer and take such other actions as may reasonably be requested in order to
more effectively consummate the transactions contemplated hereby.
14.4 Financial Statements. At all times after the date hereof,
Sellers, the Company and Young Ones shall, and shall cause their
representatives (including their independent public accountants) to, cooperate
in all reasonable respects with the efforts of Buyer and their independent
auditors to prepare such audited and interim unaudited financial statements of
the Company and Young Ones as Buyer may reasonably determine are necessary in
connection with any filing required to be made by it or any of its Affiliates
under the Exchange Act of 1934, as amended (the "Exchange Act"), or the
Securities Act. Sellers, the Company and Young Ones shall execute and deliver
to Buyer's independent accountants such customary management representation
letters as they may require as a condition to their ability to sign an
unqualified report upon the audited financial statements of the Company and
Young Ones for the periods for which such financial statements are required
under the Exchange Act or the Securities Act. Sellers, the Company and Young
Ones shall cause their independent public accountants to make available to
Buyer and its representatives all of their work papers related to the financial
statements or Tax Returns of Sellers (to the extent they relate to the
Stations), the Company and Young Ones and to provide Buyer's independent public
accountants with full access to those personnel who previously have been
involved in the audit or review of Sellers', the Company's and Young Ones'
financial statements or Tax Returns. Any reasonable out-of-pocket costs
incurred by Sellers in connection with Sellers' obligations under this Section
14.4 shall be promptly reimbursed by Buyer upon Buyer's receipt of reasonably
detailed information regarding such costs.
14.5 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, whether by operation of law or otherwise; provided, however, that
without releasing Buyer from any of its obligations or liabilities hereunder
(a) nothing in this Agreement shall limit Buyer's ability to sell or transfer
any or all of its respective assets (whether by sale of stock or assets, or by
merger, consolidation or otherwise) without the consent of Sellers, the Company
or Young Ones, (b) nothing in this Agreement shall limit Buyer's ability to
assign the Shares (including the right to acquire the Shares at the Closing) to
any Affiliate of Buyer without the consent of Sellers, the Company or Young
Ones, and (c) nothing in this Agreement shall limit Buyer's ability to make a
collateral assignment of its rights under this Agreement to any institutional
lender that provides funds to Buyer without the consent of Sellers, the Company
or Young Ones. Sellers, the Company and Young Ones shall execute an
acknowledgment of
47
57
such assignment(s) and collateral assignments in such forms as Buyer or its
institutional lenders may from time to time reasonably request; provided,
however, that unless written notice is given to Sellers, the Company and Young
Ones that any such collateral assignment has been foreclosed upon, Sellers, the
Company and Young Ones shall be entitled to deal exclusively with Buyer as to
any matters arising under this Agreement or any of the other agreements
delivered pursuant hereto. In the event of such an assignment, the provisions
of this Agreement shall inure to the benefit of and be binding on Buyer's
successors and assigns.
14.6 Amendments. No amendment, waiver of compliance with any
provision or condition hereof or consent pursuant to this Agreement shall be
effective unless evidenced by an instrument in writing signed by the party
against whom enforcement of any waiver, amendment, change, extension or
discharge is sought.
14.7 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
14.8 Governing Law. The construction and performance of this
Agreement shall be governed by the laws of the State of Ohio without giving
effect to the choice of law provisions thereof.
14.9 Notices. Any notice, demand or request required or permitted
to be given under the provisions of this Agreement shall be in writing and
shall be deemed to have been duly delivered and received when electronically
confirmed if sent by facsimile; 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 and shall be addressed to the
following addresses (or at such other address which party shall specify to the
other party in accordance herewith):
48
58
(a) In the case of Sellers, the Seller Representative,
the Company or Young Ones, to:
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) In the case of Buyer:
Chancellor Media Corporation of Los Angeles
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Chancellor Media Corporation of Los Angeles
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
49
59
and
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
14.10 Schedules. The schedules and exhibits attached to this
Agreement and the other documents delivered pursuant hereto are hereby made a
part of this Agreement as if set forth in full herein.
14.11 Entire Agreement. This Agreement contains the entire agreement
among the parties hereto with respect to its subject matter and supersedes all
negotiations, prior discussions, agreements, letters of intent, and
understandings, written or oral, relating to the subject matter of this
Agreement.
14.12 Severability. If any provision of this Agreement is held to be
unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby.
14.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
14.14 No Third-Party Rights. Nothing in this Agreement, express or
implied, shall be construed to confer upon any person, other than the parties
hereto, their successors and permitted assigns, any legal or equitable rights,
remedies, claims, obligations or liabilities under or by reason of this
Agreement (other than as provided for in the Indemnification and Escrow
Agreement).
14.15 Arbitration. All disputes which cannot be resolved by
agreement of the parties shall be arbitrated in Washington, D.C. in accordance
with the rules of the American Arbitration Association before a single
arbitrator who shall be jointly selected by Sellers and Buyer, or if Sellers
and Buyer cannot agree on the selection of such arbitrator, such arbitrator
shall be selected by the head of the Washington, D.C. office of the American
Arbitration Association. The costs of such arbitrator shall be paid by Sellers
and Buyer in
50
60
such proportion as the arbitrator deems equitable based on the relative merits
of the positions of the parties.
[The remainder of this page is intentionally left blank]
51
61
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed and delivered as of the first above written.
SELLERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
ZEBRA BROADCASTING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: President
-----------------------------
YOUNG ONES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: President
-----------------------------
62
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
63
EXHIBIT A - ZEBRA ACQUISITION
INDEMNIFICATION AND ESCROW AGREEMENT
THIS INDEMNIFICATION AND ESCROW AGREEMENT (this "Agreement")
is made and entered into as of this ____ day of ______________, _____, by and
among Chancellor Media Corporation of Los Angeles, a Delaware corporation
("Buyer"), ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ (all such individuals collectively referred to as "Sellers" and
each, individually, as a "Seller"), and Key Trust Company of Ohio, N.A., as
escrow agent ("Agent").
RECITALS
A. Pursuant to that certain Stock Purchase Agreement, dated as of
August 11, 1998, by and among Buyer, Young Ones, Inc., an Ohio corporation
("Young Ones"), Zebra Broadcasting Corporation, an Ohio corporation (the
"Company"), and Sellers (the "Stock Purchase Agreement"), Buyer has agreed to
acquire from Sellers, and Sellers have agreed to sell to Buyer, all of the
Shares (as defined in the Stock Purchase Agreement).
B. It is a condition precedent to the closing of the transactions
contemplated by the Stock Purchase Agreement (the "Closing"), that Buyer,
Sellers and Agent execute and deliver this Agreement.
C. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings assigned to them in the Stock Purchase Agreement.
AGREEMENTS
In consideration of the recitals and of the respective
agreements and covenants contained herein, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
Section 1.1 Funds. (a) At the Closing, and only if the Closing
occurs, Buyer shall place in an escrow account with Agent (the "Account") the
sum of $1,018,160 out of the Purchase Price paid pursuant to Section 1.2 of the
Stock Purchase Agreement (the "Funds").
64
(b) The Funds shall be held by Agent in the Account for
the benefit of Buyer and Sellers as provided in this Agreement. In no event
shall Agent disburse or invest the Funds except in accordance with this
Agreement.
Section 1.2 Acceptance of Appointment as Agent. Agent, by signing
this Agreement, accepts the appointment as Agent and agrees to hold and deliver
the Funds and make disbursements from the Account in accordance with the terms
of this Agreement.
Section 1.3 Distribution of Funds to Buyer Indemnitees. Agent shall
disburse to Buyer (for its own account or for the account of any Buyer
Indemnitee, as defined in Section 2.1) such portion of the Funds as may be
necessary to pay the Damages (as defined in Section 2.1) for which a Buyer
Indemnitee is entitled to reimbursement under Section 2.1, 2.2, 2.3 or 2.4.
Payment shall be made not more than three (3) business days after (i) the
delivery to Agent of written instructions signed by Buyer and the Seller
Representative (as defined below), specifying an amount to be paid to a Buyer
Indemnitee, or (ii) the delivery to Agent and the Seller Representative of a
copy of a Final Determination (as defined below) establishing a Buyer
Indemnitee's right to reimbursement under this Agreement with respect to such
Damages. A "Final Determination" shall mean a judgment of a court of competent
jurisdiction having the authority to determine the amount of, and liability
with respect to, the determined item, which judgment is not subject to appeal,
reconsideration or review. Agent, at its option, shall be entitled to seek
and, if received, rely conclusively upon an opinion of legal counsel to the
effect that the judgment delivered to Agent pursuant to this Section 1.3 (or
pursuant to Section 1.6(b)) is a Final Determination. The "Seller
Representative" shall mean ▇▇▇▇ ▇. ▇▇▇▇▇ or, if such person at any time is
unwilling or unable to so serve, another person selected by Sellers (written
notice of which selection shall be delivered by Sellers to Agent and Buyer
promptly following such selection).
Section 1.4 Investment of Funds. (a) Pending disbursement of the
Funds, Agent shall invest the Funds in Permitted Investments (as defined
below). For purposes of this Agreement, "Permitted Investments" shall mean
direct obligations of the U.S. government having maturities of 180 days or
less, money market funds that invest solely in direct obligations of the U.S.
government, including, without limitation, the Victory U.S. Obligation Fund,
and such other investments as may be specified from time to time by joint
written agreement between Buyer and the Seller Representative. As and when any
payment is to be made from the Funds or the Funds are to be otherwise disbursed
under this Agreement, Agent shall cause a sufficient portion of the Permitted
Investments to be converted into cash. Agent shall select the investments or
types of investments to be so converted. Neither Buyer nor Sellers shall be
liable for any loss of principal or income due to the choice of Permitted
Investments in which the Funds are invested or the choice of Permitted
Investments converted into cash pursuant to this paragraph (a).
2
65
(b) For Tax purposes, the Funds shall be property of
Sellers and all interest, dividends and other income earned on the Funds
(collectively, the "Earnings") shall be the income of Sellers and be
distributed to the Sellers following the Expiration Date, as hereinafter
defined. Buyer and Sellers shall file Tax Returns consistent with such
treatment.
Section 1.5 No Distribution of Expenses. Except as provided in
Sections 2.1, 2.2, 2.3 and 2.4 of this Agreement, neither Buyer nor Sellers
shall be entitled to reimbursement out of the Funds or from any alternative
recovery for any costs and expenses incurred by them in connection with
exercising their rights or performing their duties under this Agreement.
Section 1.6 Segregation of the Funds. (a) Notwithstanding any other
provision of this Agreement to the contrary, Agent shall segregate from the
Account and transfer into a separate sub-account (the "Pending Claim Account")
maintained by Agent for the benefit of Buyer and Sellers the portion of the
Funds that may be necessary to satisfy in full all Pending Claims (as defined
below) and shall hold such portion in accordance with this Section 1.6;
provided, however, that Agent shall not so segregate from the Account and
transfer to the Pending Claim Account the Funds that may be necessary to
satisfy Pending Claims hereunder until such time as the aggregate amount of
Damages asserted by Buyer and any Buyer Indemnitees hereunder, taken as a
whole, exceeds the Indemnification Basket (as defined in Section 3.1(a)).
"Pending Claims" shall mean unresolved claims for indemnification under
Sections 2.1, 2.2, 2.3 or 2.4 that are the subject of Claim Notices (as defined
in Section 2.7).
(b) Any portion of the Funds segregated under Section
1.6(a) shall continue to be segregated by Agent until released thereafter to
Sellers in accordance with Section 1.7 or until Agent is directed to release
such Funds by (i) written instructions signed by Buyer, that are agreed to in
writing by the Seller Representative, or (ii) a copy of a Final Determination
establishing a Buyer Indemnitee's right to receive such Funds as reimbursement
for indemnification claims under Article 2, or establishing Sellers' right to
receive such Funds. Any Funds so released to Sellers will be released in
accordance with an allocation among Sellers to be delivered in writing to Agent
by the Seller Representative.
Section 1.7 Distribution of Funds to Sellers. Within three business
days after the Expiration Date (as defined below), Agent shall distribute to
Sellers from the Account an amount equal to the Earnings and the then remaining
amount of Funds less the total amount of Funds that are then being segregated
with respect to Pending Claims under Section 1.6. "Expiration Date" shall mean
one year after the Closing Date. Any amounts segregated as of the Expiration
Date with respect to Pending Claims shall be released thereafter as provided in
Section 1.6(b). Any Funds so released to Sellers will be released in
accordance
3
66
with an allocation among Sellers to be delivered in writing to Agent by the
Seller Representative.
ARTICLE II
INDEMNIFICATION CLAIMS
Section 2.1 Indemnification by Sellers. From and after the Closing,
but subject to the conditions and limitations set forth in this Agreement,
Buyer and its respective successors and assigns (and, following the Closing,
the Companies) and their officers, directors, stockholders, employees and
agents (and each person who is an officer, director, stockholder, employee or
agent of the Companies following the Closing) (collectively, the "Buyer
Indemnitees") shall be entitled to reimbursement from Sellers, on a joint and
several basis, for any and all losses, costs, damages, claims, fines,
penalties, expenses (including, without limitation, reasonable attorneys' fees
and expenses), amounts paid in settlement, court costs, out-of-pocket costs,
costs of investigation, and reasonable costs of litigation (including, without
limitation, reasonable fees and expenses of accountants, investment bankers and
other experts) (collectively, "Damages") actually incurred or suffered by a
Buyer Indemnitee or to which any of the Buyer Indemnitees may be subjected, to
the extent resulting from, arising out of, based on or relating to (a) any
inaccuracy in any representation or warranty of any Seller or the Company
contained in the Stock Purchase Agreement or in any schedule, instrument,
exhibit, or certificate delivered pursuant thereto (a "Related Document") or
(b) any breach of any covenant or agreement of any Seller or the Company
contained in the Stock Purchase Agreement (provided, in the case of any such
breach by the Company, that such breach occurred at or prior to the Closing).
Section 2.2 Tax Indemnification. Without limiting the generality of
any of the foregoing, Sellers, shall, jointly and severally, indemnify and hold
harmless Buyer Indemnities from and against any and all Damages resulting from,
arising out of, based on or relating to, the Company's or Young Ones'
liabilities for (i) all Taxes attributable to taxable periods ending on or
before the Closing Date or which includes any or all days up to and including
the Closing Date (collectively, the "Pre-Closing Date Tax Liability") and (ii)
any and all Taxes of any member of a consolidated, combined or unitary group of
which the Company or Young Ones (or any predecessor) is or was a member on or
prior to the Closing Date, by reason of the liability of the Company or Young
Ones pursuant to Treasury Regulation Section 1.1502-6(a) or any analogous or
similar state, local or foreign law or regulation; if and to the extent that
such liability exceeds Taxes attributable to taxable periods ending on or
before the Closing Date taken into account in determining Liability Adjustment
Amount or Working Capital Amount.
4
67
Section 2.3 ERISA Indemnification. Without limiting the generality
of any of the foregoing, Sellers shall, jointly and severally, indemnify and
hold harmless Buyer Indemnities, from and against any and all Damages resulting
from or relating to any claims of governmental entities, employees or other
third parties relating to or arising out of any of the following:
(i) any Employee Benefit Plan, maintained by, contributed
to, or obligated to contribute to, at any time, by any Seller, Young
Ones, the Company, or any ERISA Affiliate, with respect to any (A)
liability to the PBGC under Title IV of ERISA; (B) liability relating
to a multiemployer plan; (C) liability with respect to non-compliance
with the notice and benefit continuation requirements of COBRA; (D)
liability with respect to any non-compliance with ERISA or any other
applicable laws; or (E) liability with respect to any suit, proceeding
or claim which is brought against Buyer, any Employee Benefit Plan or
any fiduciary or former fiduciary of any such Employee Benefit Plan;
(ii) the employment or termination of employment,
including a constructive termination, by any Seller, the Company or
any of their Affiliates of any individual (including, but not limited
to, any employee of any Seller, the Company or any of their
Affiliates) attributable to any actions or inactions occurring prior
to the Closing;
(iii) any claims by any employee of any Seller, the Company
or any of their Affiliates for workers' compensation and/or related
medical benefits incurred after the Closing which relate to any injury
or illness originating prior to the Closing, to the extent not covered
by insurance;
(iv) WARN or any other statutory or common law or civil
law notice, severance pay, termination pay in lieu thereof or damages
arising as a result of the termination or dismissal (including
constructive termination or dismissal), by the Company or any of its
Affiliates of any or all Employees of the Company on or prior to the
Closing Date; and
(v) any claim of discrimination against the Company or
any of its Affiliates in hiring, management or termination or
dismissal of any individual or group of individuals by the Company or
any of its Affiliates (including constructive termination or
dismissal) which (A) occurred or is alleged to have occurred prior to
the Closing, or (B) in connection with transactions contemplated by
this Agreement.
5
68
Section 2.4 Additional Indemnification by Sellers. Without limiting
the generality of any of the foregoing, Sellers shall, jointly and severally,
indemnify and hold harmless the Buyer Indemnities from and against any and all
Damages resulting from, arising out of, based on or relating to:
(i) any actual or asserted obligations or liability of
Young Ones or the Company or any subsidiary (whether for
indemnification or otherwise) under any agreement entered into prior
to the Closing related to the sale of any securities, assets,
properties, operations or businesses of Young Ones, the Company or any
subsidiary; or
(ii) any civil, criminal or administrative action, suit,
claim, hearing, investigation or proceeding (including but not limited
to any counterclaims or crossclaims), relating to Young Ones, the
Company or any subsidiary arising out of or based upon or with respect
to any condition existing or action or event occurring prior to the
Closing Date, whether or not pending or threatened on the date hereof
or at the Closing, any whether brought, made or instigated by any
Governmental Entity or any private person.
Section 2.5 Indemnification by Buyer. From and after the
Closing, but subject to the conditions and limitations set forth in this
Agreement, Sellers and their respective successors and assigns, and their
officers, directors, stockholders, employees and agents (collectively, the
"Seller Indemnitees") shall be entitled to reimbursement from the Buyer for any
and all Damages actually incurred or suffered by a Seller Indemnitee, or to
which any of the Seller Indemnitees may be subjected, to the extent resulting
from, arising out of, based on or relating to (a) any inaccuracy in any
representation or warranty of Buyer contained in the Stock Purchase Agreement
or in any Related Document, (b) any breach of any covenant or agreement of the
Buyer contained in the Stock Purchase Agreement or (c) the operations of the
businesses of the Companies or the ownership of the Companies' assets following
the Closing Date (except to the extent any such Damages relating to such
operations or ownership following the Closing Date arise from any matter with
respect to which any Buyer Indemnitee is entitled to indemnification under
Section 2.1, 2.2, 2.3 and/or 2.4).
Section 2.6 Procedures Regarding Third Party Claims. (a) In the
event that any person entitled to indemnification under this Article 2 (the
"Indemnified Party") becomes aware of any matter with respect to which it
believes it is entitled to indemnification under this Article 2 from Buyer or
Sellers, as applicable (the "Indemnifying Party"), and such matter involves (i)
any claim made against the Indemnified Party by any party other than a party to
the Stock Purchase Agreement or (ii) the commencement of any action, suit,
investigation, arbitration or similar proceeding against the Indemnified Party
by any party other than a party to the Stock Purchase Agreement (a "Third Party
Claim"), the Indemnified
6
69
Party shall notify the Indemnifying Party in writing with reasonable promptness
of such Third Party Claim, specifying, to the extent known, the nature,
circumstances and the amount of such Third Party Claim (a "Third Party Claim
Notice") accompanied by all correspondence, documents, pleadings or other
writings received with respect to such Third Party Claim. Failure to give such
reasonably prompt notice shall not relieve the Indemnifying Party of its
obligations under this Article 2, except to the extent the Indemnifying Party
is materially prejudiced thereby. The Indemnifying Party shall have ten (10)
business days from its receipt of a Third Party Claim Notice (the "Third Party
Claim Notice Period") to notify the Indemnified Party (and if Seller is the
Indemnifying Party and any Funds continue to be held by Agent, Agent as well)
(i) whether the Indemnifying Party disputes the Indemnified Party's right of
indemnification, and (ii) if the Indemnifying Party does not dispute such right
of indemnification, whether or not it desires to defend the Indemnified Party
against such Third Party Claim. Notwithstanding the foregoing, as used in this
Section 2.6 and in Section 2.7, with respect to any claim for indemnification
by any Buyer Indemnitee against any Seller, the term "Indemnifying Party" shall
be deemed to refer to any and all Sellers against whom such claim for
indemnification is made; provided, that with respect to notices given by or to,
or procedures to be followed by, the Indemnifying Party in the case of any such
claim, the term "Indemnifying Party" shall be deemed to refer to the Seller
Representative.
(b) If the Indemnifying Party notifies the Indemnified
Party (and if any Seller is the Indemnifying Party and any Funds continue to be
held by Agent, Agent as well) in writing within the Third Party Claim Notice
Period that (i) the Indemnifying Party does not dispute the Indemnified Party's
right of indemnification and (ii) the Indemnifying Party desires to defend
against such Third Party Claim, then the Indemnifying Party shall have the
right to assume and control, at its sole cost, expense and liability, the
defense of such Third Party Claim by appropriate proceedings with counsel
reasonably acceptable to the Indemnified Party. The Indemnified Party may
participate in any such defense or settlement, at its sole cost and expense.
(c) If (i) the Indemnifying Party disputes the
Indemnified Party's right of reimbursement with respect to a Third Party Claim,
(ii) the Indemnifying Party does not dispute such right of reimbursement but
fails to promptly assume and prosecute the defense of such Third Party Claim,
or (iii) the Indemnified Party reasonably believes that a conflict of interest
exists between the Indemnified Party and the Indemnifying Party, then the
Indemnified Party shall be entitled to assume and control (at the Indemnifying
Party's sole cost, expense and liability) the defense of such Third Party Claim
with counsel reasonably acceptable to Indemnifying Party. If the Indemnifying
Party does not assume the defense of a Third Party Claim for any reason, it may
still participate in, but not control, the defense of such Third Party Claim at
the Indemnifying Party's sole cost and expense.
7
70
(d) The party responsible for the defense of any Third
Party Claim (the "Responsible Party") shall, to the extent reasonably requested
by the other party, keep such other party informed as to the status of any
Third Party Claim for which such other party is not the Responsible Party,
including, without limitation, all settlement negotiations and offers. Each
party shall make available to the other party and its representatives
(including accountants and counsel) all books and records of such party
relating to such Third Party Claim and shall render to each other such
assistance and access to the books and records that they may reasonably require
of each other in order to ensure the proper and adequate defense of such Third
Party Claim, including, without limitation, making employees available (upon
reasonable advance notice and with due regard for prior scheduling commitments)
to testify in any proceeding, pretrial deposition or otherwise, except that
unless required to do so by valid governmental or judicial order or legal
process, a party shall not be required to make available to the other party any
books, records, documents or other information that such party reasonably
determines to be confidential or subject to attorney-client privilege until the
other party shall have entered into such agreements as is reasonably necessary
in light of all the surrounding circumstances to protect such confidentiality
or privilege.
(e) Neither the Indemnified Party nor the Indemnifying
Party shall enter into any settlement of any Third Party Claim without the
prior written consent of the other party (which shall not be unreasonably
withheld or delayed). The Responsible Party shall promptly notify the other
party of each settlement offer (including whether or not the Responsible Party
is willing to accept the proposed settlement offer) with respect to a Third
Party Claim. Such other party agrees to notify the Responsible Party with
reasonable promptness whether or not such party is willing to accept the
proposed settlement offer.
Section 2.7 Procedures Regarding Direct Claims. In the event that an
Indemnified Party has a claim for reimbursement which does not involve a Third
Party Claim (a "Direct Claim"), the Indemnified Party shall notify the
Indemnifying Party (and if any Seller is the Indemnifying Party and any Funds
continue to be held by Agent, Agent as well) with reasonable promptness,
specifying, to the extent known, the nature, circumstances and amount of such
Direct Claim (a "Direct Claim Notice" and together with Third Party Claim
Notices, the "Claim Notices"), including with particularity the specific
representation and warranty or covenant and agreement alleged to have been
breached and the manner in which such representation and warranty or covenant
and agreement is alleged to have been breached. Failure to give such
reasonably prompt notice shall not relieve the Indemnifying Party of its
obligations under this Article 2, except to the extent the Indemnifying Party
is materially prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it disputes the Indemnified Party's right of
reimbursement with respect to a particular Direct Claim, the Indemnified Party
and the Indemnifying Party shall use their reasonable efforts to negotiate a
resolution of such dispute promptly. Nothing herein shall be deemed to prevent
the Indemnified Party from initiating litigation under this Agreement, and
subject to the
8
71
limitations contained herein, against the Indemnifying Party with respect to
any Direct Claim disputed by the Indemnifying Party for the purpose of
obtaining a Final Determination in order to establish the Indemnified Party's
right to reimbursement hereunder.
Section 2.8 Appointment of Seller Representative. Each Seller
hereby irrevocably designates and appoints the Seller Representative as such
Seller's attorney-in-fact, with full power of substitution and resubstitution,
to take any and all actions in the name and on behalf of such Seller as the
Seller Representative may determine with respect to the Funds and with respect
to any claim for indemnification against such Seller under this Article 2
(including but not limited to any actions that the Seller Representative may
determine with respect to the settlement of any such claim), each of which
actions by the Seller Representative shall be binding on such Seller and shall
be deemed to be the actions of such Seller.
ARTICLE III
LIMITATIONS ON LIABILITY
Section 3.1 Limitations on Reimbursement. (a) The Buyer Indemnitees
shall not be entitled to indemnification hereunder unless and until aggregate
Buyer Indemnitees' Damages for which indemnification otherwise would be
available hereunder exceed $63,636 (the "Indemnification Basket"), in which
event the Buyer Indemnitees shall be entitled to reimbursement hereunder for
the amount of all such Damages (including the initial $63,636).
(b) Except with respect to indemnification pursuant to
Section 2.1(a) for the breach by Seller of any representation or warranty set
forth in Sections 3.1.1, 3.1.14, 3.1.15, 3.1.18, or 3.1.32 of the Stock
Purchase Agreement (including any bring-down of any such representation or
warranty pursuant to any certificate delivered at Closing), the right to
reimbursement from the Funds shall constitute the sole remedy of any Buyer
Indemnitee with respect to any matter for which such Buyer Indemnitee is
entitled to indemnification under Sections 2.1, 2.3 and/or 2.4.
(c) Any claim by any Buyer Indemnitee for reimbursement
under Section 2.1(a) must be asserted within the period of survival, as set
forth in the Stock Purchase Agreement, of the representation or warranty with
respect to which such claim relates.
(d) After the Expiration Date, no Buyer Indemnitee may
assert any claim for reimbursement from the Funds.
9
72
(e) For all purposes of this Agreement, the amount of
Damages, and the amount reimbursable with respect thereto, shall be reduced to
the extent of any insurance proceeds or other third party recovery received by
the Indemnified Party with respect to such Damages. If the Indemnified Party
receives any such insurance proceeds or other recovery after the Indemnifying
Party shall have made any payment to the Indemnified Party with respect to such
Damages, the Indemnified Party shall promptly return such payment to the
Indemnifying Party to the extent of insurance proceeds or other recovery
received; provided, however, that any such payment returned to Seller prior to
the Expiration Date shall be placed in the Account and become part of the Funds
and such amount shall not be deemed to have been paid to any Indemnified Party
as Damages under this Agreement. The Indemnified Party shall timely file
claims for insurance proceeds and pursue all other reasonable third party
reimbursement rights with respect to any Damages sustained by the Indemnified
Party.
(f) An Indemnified Party's rights to reimbursement or
indemnification for Damages resulting from any untrue or incorrect
representation or warranty of the Indemnifying Party shall not be affected by
any investigation made by the Indemnified Party or whether or not the
Indemnified Party relied upon such untrue or incorrect representation or
warranty; provided, however, that no Indemnified Party shall be entitled to
reimbursement or indemnification for Damages resulting from an untrue or
incorrect representation or warranty of the Indemnifying Party if (i) the fact
that such representation or warranty was untrue or incorrect was disclosed in
writing to the Indemnified Party prior to the Closing (along with an
acknowledgment by the Indemnifying Party that the conditions to the Indemnified
Party's obligation to effect the Closing, as a result of the failure of such
representation or warranty to be true and correct, are not satisfied) and (ii)
the Indemnified Party nevertheless determines to effect the Closing.
ARTICLE IV
AGENT
Section 4.1 Rights and Responsibilities of Agent. (a) The duties
and responsibilities of Agent shall be limited to those expressly set forth in
this Agreement and it shall not be subject to, nor obligated to recognize, any
other agreement between, or direction or instruction of, the parties to this
Agreement, unless such agreement, direction or instruction is in writing and is
signed by both Buyer and Seller.
(b) If any controversy arises between the parties to this
Agreement, or with any other party, concerning the subject matter of this
Agreement, its terms or conditions, Agent will not be required to determine the
controversy or to take any action regarding it.
10
73
Agent may hold all documents and funds and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in
Agent's discretion, Agent may require, despite what may be set forth elsewhere
in this Agreement. In such event, Agent will not be liable for interest or
damage. Furthermore, Agent may, at its option, file an action of interpleader
requiring the parties to answer and litigate any claims and rights among
themselves. Agent is authorized to deposit with the clerk of the court all
documents and funds held in escrow. All costs, expenses, charges and
reasonable attorney fees incurred by Agent due to the interpleader action shall
be paid one-half by Buyer and one- half by Seller, in each case jointly and
severally. Upon initiating such action, Agent shall be fully released and
discharged of and from all obligations and liability imposed by the terms of
this Agreement.
(c) In performing any duties under the Agreement, Agent
shall not be liable to any party for damages, losses, or expenses, except as a
result of gross negligence or willful misconduct on the part of Agent. Agent
shall not incur any such liability for any action taken or omitted in reliance
upon any instrument, including any written statement or affidavit provided for
in this Agreement that Agent shall in good faith believe to be genuine, nor
will Agent be liable or responsible for forgeries, fraud, impersonations, or
determining the scope of any representative authority. In addition, Agent may
consult with legal counsel in connection with Agent's duties under this
Agreement and shall be fully protected in any act taken, suffered, or permitted
by it in good faith in accordance with the advice of counsel. In the absence
of knowledge that any action taken or purported to be taken hereunder is
wrongful, Agent is not responsible for determining and verifying the authority
of any person acting or purporting to act on behalf of any party to this
Agreement.
(d) Agent, and any successor Agent, may resign at any
time as escrow agent hereunder by giving at least 30 days prior written notice
to Seller and Buyer. Upon such resignation and the appointment of a successor
escrow agent, the resigning Agent shall be absolved from any and all liability
in connection with the exercise of its powers and duties as escrow agent
hereunder except for liability arising in connection with its own gross
negligence or willful misconduct. Upon their receipt of notice of resignation
from Agent, Buyer and Seller shall use commercially reasonable efforts jointly
to designate a successor Agent. In the event Buyer and Seller do not agree
upon a successor escrow agent within 30 days after the receipt of such notice,
Agent so resigning may petition any court of competent jurisdiction for the
appointment of a successor Agent or other appropriate relief and any such
resulting appointment shall be binding upon all parties hereto. By mutual
agreement, Buyer and Seller shall have the right at any time upon not less than
10 days' prior written notice to Agent to terminate the appointment of Agent,
or successor Agent, as escrow agent hereunder. Agent or successor Agent shall
continue to act as escrow agent until a successor is appointed and qualified to
act as Agent.
11
74
Section 4.2 Fees and Expenses of Agent. Agent shall (a) be paid a
fee for its services under this Agreement as provided by Exhibit A and (b) be
entitled to reimbursement for reasonable expenses (including the reasonable
fees and disbursements of its counsel engaged pursuant to Sections 1.3 and/or
1.4 hereof, or otherwise) actually incurred by it in connection with its duties
under this Agreement (collectively, the "Agent Fees and Expenses"). All Agent
Fees and Expenses shall be paid one-half by Buyer and one-half by Sellers.
Escrow Agent shall have a lien upon the funds for payment of its fees and
expenses. Escrow Agent may pay itself from the Funds for any fees and expenses
for which it has not been paid.
Section 4.3 Indemnification of Agent. The parties and their
respective successors and assigns agree jointly and severally to indemnify and
hold Agent harmless against any and all losses, claims, damages, liabilities,
and expenses, including reasonable costs of investigation, reasonable legal
counsel fees and disbursements that may be imposed on Agent or incurred by
Agent in connection with the performance of its duties under this Agreement,
including but not limited to any litigation arising from this Agreement or
involving its subject matter, provided, however, neither Buyer nor Sellers nor
their successors and assigns need indemnify Agent for any loss, claim, damage,
liability or expense caused by Agent's gross negligence or willful misconduct.
ARTICLE V
MISCELLANEOUS
Section 5.1 No Right of Contribution. Each Seller hereby
expressly and irrevocably waives and releases any right that such Seller might
otherwise have to contribution from Young Ones or the Company (or any similar
right to recover any amount from Young Ones or the Company) as a result of any
Funds being utilized to satisfy any indemnification claims of any Buyer
Indemnitee, or as a result of any payments by such Seller with respect to any
indemnification claims of any Buyer Indemnitee.
Section 5.2 Notices. All notices, requests, consents or other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given or delivered by any party (a) when
received by such party if delivered by hand, (b) upon confirmation when
delivered by telecopy, (c) within one day after being sent by recognized
overnight delivery service, or (d) upon receipt of a return receipt after being
mailed by certified mail, return receipt requested, and in each case addressed
as follows:
12
75
(i) if to Buyer or to any Buyer Indemnitee:
Chancellor Media Corporation of Los Angeles
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Chancellor Media Corporation of Los Angeles
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Seller or to any Seller Indemnitee, to:
c/o the Seller Representative
▇▇▇▇ ▇. ▇▇▇▇▇
c/o Zebra Broadcasting Corporation
▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
13
76
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to Agent, to:
Mail or other Instructions
Key Trust Company of Ohio, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any party by written notice to the other parties pursuant to this Section 5.1
may change the address or the persons to whom notices or copies thereof shall
be directed.
Section 5.3 Assignment. This Agreement and the rights and duties
hereunder shall be binding upon and inure to the benefit of the parties hereto
and the successors and assigns of each of the parties to this Agreement. No
rights, obligations or liabilities hereunder shall be assignable by any party
without the prior written consent of the other parties, except that Buyer may
assign its rights under this Agreement without obtaining the prior written
consent of the other parties hereto to any person or entity to whom, pursuant
to the Stock Purchase Agreement, Buyer is permitted to assign all or a portion
of its rights under the Stock Purchase Agreement, provided that any such
assignee duly executes and delivers an agreement to assume Buyer's obligations
under this Agreement and that Buyer remains liable with respect to such
obligations.
Section 5.4 Amendment. This Agreement may be amended or modified
only by an instrument in writing duly executed by Agent, Buyer and Sellers.
Section 5.5 Waivers. Any waiver by any party hereto of any breach of
or failure to comply with any provision of this Agreement by any other party
hereto shall be in writing and shall not be construed as, or constitute, a
continuing waiver of such provision, or a waiver of any other breach of, or
failure to comply with, any other provision of this Agreement.
14
77
Section 5.6 Construction. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Ohio
without giving effect to the choice of law provisions thereof. The headings in
this Agreement are solely for convenience of reference and shall not be given
any effect in the construction or interpretation of this Agreement. Unless
otherwise stated, references to Sections and Exhibits are references to
Sections and Exhibits of this Agreement.
Section 5.7 Third Parties. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
or entity other than Buyer, Buyer Indemnitees, Sellers, Seller Indemnitees, the
Seller Representative and Agent any rights or remedies under, or by reason of,
this Agreement.
Section 5.8 Termination. This Agreement shall terminate at the time
of the final resolution of all Pending Claims and, if any amount remains
thereunder, disbursement of the Funds, all in accordance with the provisions of
this Agreement.
Section 5.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed any original and all of which
together shall constitute a single instrument.
Section 5.10 Waiver of Offset Rights. Agent hereby waives any and
all rights to offset that it may have against the Funds including, without
limitation, claims arising as a result of any claims, amounts, liabilities,
costs, expenses, damages, or other losses that Agent may be otherwise entitled
to collect from any party to this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
15
78
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the day and year first
written above.
BUYER:
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By:
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
SELLERS:
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
79
AGENT:
KEY TRUST COMPANY OF OHIO, N.A.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
80
EXHIBIT A
Fees of Agent
$2,500.00 Annual Escrow Agent Fee for Administration.
Escrow Fee will be payable upon execution of the Escrow Agreement and annually
thereafter on the anniversary date of the agreement.