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EXHIBIT 10.3
INTERCOMPANY AGREEMENT
between
CBS CORPORATION
and
INFINITY BROADCASTING CORPORATION
Dated as of December [ ], 1998
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Definitions.......................................................................... 2
SECTION 1.02. Other Definitional Provisions........................................................ 13
ARTICLE II
Payment of Transaction Costs......................................................... 13
ARTICLE III
Services and Operations
SECTION 3.01. Services............................................................................. 14
SECTION 3.02. Expansion, Reduction or Termination of Services...................................... 15
SECTION 3.03. Payment of Expenses.................................................................. 15
SECTION 3.04. Employees............................................................................ 17
SECTION 3.05. Real Property; Leases; Operating Assets.............................................. 20
SECTION 3.06. Insurance............................................................................ 23
SECTION 3.07. Operations........................................................................... 24
SECTION 3.08. Further Assurances; No Agency........................................................ 25
SECTION 3.09. Limitation of Liability.............................................................. 25
SECTION 3.10. Competition.......................................................................... 26
ARTICLE IV
Use of Proceeds of Initial Public Offering........................................... 26
ARTICLE V
Registration Rights
SECTION 5.01. Demand Registration.................................................................. 27
SECTION 5.02. Piggyback Registration............................................................... 29
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SECTION 5.03. Hold Back Agreement.................................................................. 31
SECTION 5.04. Registration Procedures.............................................................. 31
SECTION 5.05. Registration Expenses................................................................ 36
SECTION 5.06. Underwriting Requirements............................................................ 36
SECTION 5.07. Transfer of Registration Rights...................................................... 37
ARTICLE VI
Trademark Agreements................................................................. 37
ARTICLE VII
Information
SECTION 7.01. Provision of Corporate Records....................................................... 37
SECTION 7.02. Access to Information................................................................ 38
SECTION 7.03. Reimbursement; Other Matters......................................................... 38
SECTION 7.04. Confidentiality...................................................................... 38
SECTION 7.05. Destruction of Records............................................................... 39
ARTICLE VIII
Assumption and Satisfaction of Liabilities........................................... 40
ARTICLE IX
Indemnification
SECTION 9.01. General Cross Indemnification........................................................ 40
SECTION 9.02. Registration Statement Indemnification............................................... 41
SECTION 9.03. Limitations on Indemnification Obligations........................................... 43
SECTION 9.04. Procedures for Indemnification....................................................... 43
SECTION 9.05. Indemnification Payments............................................................. 45
SECTION 9.06. Other Adjustments.................................................................... 45
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ARTICLE X
Tax Indemnification
SECTION 10.01. Intercompany Transfers of Property and Services..................................... 46
SECTION 10.02. Special Procedures Regarding Tax Claims............................................. 46
SECTION 10.03. Tax-Free Spin-Off................................................................... 47
ARTICLE XI
Term of Agreement
SECTION 11.01. Termination......................................................................... 47
SECTION 11.02. Effect of Termination............................................................... 48
SECTION 11.03. Survival of Termination............................................................. 49
ARTICLE XII
Miscellaneous
SECTION 12.01. Complete Agreement; Construction.................................................... 49
SECTION 12.02. Ancillary Agreements................................................................ 49
SECTION 12.03. Counterparts........................................................................ 50
SECTION 12.04. Notices............................................................................. 50
SECTION 12.05. Waivers............................................................................. 50
SECTION 12.06. Amendments.......................................................................... 50
SECTION 12.07. Assignment.......................................................................... 51
SECTION 12.08. Successors and Assigns.............................................................. 51
SECTION 12.09. Subsidiaries........................................................................ 51
SECTION 12.10. Third Party Beneficiaries........................................................... 51
SECTION 12.11. Attorney Fees....................................................................... 51
SECTION 12.12. Title and Headings.................................................................. 52
SECTION 12.13. Schedules and Exhibits.............................................................. 52
SECTION 12.14. Specific Performance................................................................ 52
SECTION 12.15. GOVERNING LAW....................................................................... 52
SECTION 12.16. Consent to Jurisdiction............................................................. 52
SECTION 12.17. Severability........................................................................ 53
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SCHEDULES AND EXHIBITS
Schedule 1.01(a) CBS Employees
Schedule 1.01(b) IBC Business
Schedule 1.01(c) Transferring Employees
Schedule 1.01(d) Leased Properties
Schedule 1.01(e) Owned Properties
Schedule 3.01(a)(i) Services to be Provided by CBS
Affiliated Group to IBC Affiliated
Group
Schedule 3.01(a)(ii) Services to be Provided by IBC
Affiliated Group to CBS
Affiliated Group
Schedule 3.01(b)(i) CBS Benefit Plans
Schedule 3.01(b)(ii) IBC Benefit Plans
Schedule 3.04(g)(i) CBS Executives
Schedule 3.04(g)(ii) IBC Executives
Exhibit 6.1 Form of Trademark Agreement between CBS
Broadcasting and IBC
Exhibit 6.2 Form of Trademark Agreement between CBS
and IBC
Exhibit 6.3 Form of Trademark Agreement between CBS
Worldwide Inc. and CBS Broadcasting
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INTERCOMPANY AGREEMENT dated as of December
[ ], 1998, between CBS CORPORATION, a Pennsylvania
corporation ("CBS"), and INFINITY BROADCASTING
CORPORATION, a Delaware corporation (formerly
Infinity Media Corporation) ("IBC").
WHEREAS CBS caused IBC to be formed in September 1998 as a
direct wholly owned Subsidiary of CBS Broadcasting Inc., a New York corporation
that is an indirect wholly owned Subsidiary of CBS ("CBS Broadcasting"), to hold
the radio broadcasting and outdoor advertising business of CBS;
WHEREAS, pursuant to the reorganization of the radio
broadcasting and outdoor advertising assets of CBS and its Subsidiaries prior to
the consummation of the Initial Public Offering (as defined below), CBS and CBS
Broadcasting owned [ ]% and [ ]%, respectively, and immediately following the
consummation of the Initial Public Offering, CBS and CBS Broadcasting will own
[ ]% and [ ]%, respectively, of the issued and outstanding common stock of IBC;
WHEREAS the Board of Directors of CBS has determined that it
is appropriate and desirable for IBC to issue shares of its Class A Common
Stock, par value $0.01 per share, to the public in an initial public offering in
the United States and a concurrent international offering (collectively, the
"Initial Public Offering"); and
WHEREAS each of the parties hereto has determined that it is
desirable to set forth herein certain agreements that will govern the
relationship of the parties hereto following the Initial Public Offering, the
terms of which have not resulted from arms length negotiations between the
parties, and accordingly, such terms may be in some respects less favorable to
IBC than those that it could obtain from unaffiliated third parties;
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NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Whenever used in this Agreement,
the following terms shall have the following meanings, and the definition of
such terms are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neutral genders of
such terms:
"Action" shall mean any action, suit, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental or other
regulatory or administrative agency, body or commission or any arbitration
tribunal.
"Ancillary Agreement" shall mean any of the written
agreements, instruments, understandings, assignments or other arrangements
(other than this Agreement) entered into in connection with the transactions
contemplated hereby, including the Tax Sharing Agreement, the Asset
Restructuring Agreements and any CBS License.
"Asset Restructuring Agreements" shall mean (i) the Agreement
and Plan of Merger dated as of December [ ], 1998, between CBS and Group W
Broadcasting, Inc.; (ii) the Stock and Asset Transfer Agreement dated as of
December [ ], 1998, between CBS and Westinghouse CBS Holding Company, Inc.;
(iii) the Stock and Asset Transfer Agreement dated as of December [ ], 1998,
between Westinghouse CBS Holding Company, Inc. and CBS Broadcasting; (iv) the
Stock and Asset Transfer Agreement dated as of December [ ], 1998, between CBS
Broadcasting and IBC; and (v) the Stock Transfer Agreement dated as of December
[ ], 1998, between CBS and IBC;
"Benefit Plans" shall have the meaning specified in Section
3.01.
"Business Day" shall mean any day, other than a Saturday or
Sunday, which is not a day on which banking institutions in New York City are
authorized or obligated by law or executive order to close.
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"CBS" shall have the meaning specified in the introductory
statement to this Agreement.
"CBS Affiliated Group" shall mean, collectively, CBS and all
its direct and indirect Subsidiaries now or hereafter existing, other than the
IBC Affiliated Group.
"CBS Benefit Plans" shall have the meaning specified in
Section 3.01.
"CBS Broadcasting" shall have the meaning specified in the
preamble to this Agreement.
"CBS Business" shall mean the businesses of (i) any division,
Subsidiary or investment of the CBS Affiliated Group managed or operated as of
the date of this Agreement or any prior time by any member of the CBS Affiliated
Group and (ii) entities acquired or established by or for the CBS Affiliated
Group after the date of this Agreement, provided that the term "CBS Business"
shall not include the IBC Business.
"CBS Controlled Group" shall mean, collectively, CBS and all
Persons of which at least 80% of (i) the total combined voting power or (ii) the
total value of the outstanding capital stock or other equity interests thereof
is beneficially owned by CBS.
"CBS Credit Agreement" shall mean the $4.0 billion Credit
Agreement among CBS, the lenders named therein, NationsBank, N.A. and The
Toronto-Dominion Bank, as Syndication Agents, The Chase Manhattan Bank, as
Documentation Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent, dated August 29, 1996, as amended by amendments thereto
dated January 29, 1997, March 21, 1997, and March 3, 1998.
"CBS Employees" shall mean those employees
described on Schedule 1.01(a).
"CBS Executives" shall have the meaning specified
in Section 3.04(g)(i).
"CBS Expenses" shall mean (i) all costs accrued or incurred by
CBS in respect of the CBS Services and CBS Benefits Plans, (ii) any expenses
relating to fixed assets (including any costs for furniture and personal
computers), (iii) any miscellaneous expenses (including insurance,
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travel and entertainment, advertising and licenses) accrued or incurred by CBS
and related to the businesses of the parties hereto and (iv) any other corporate
costs (other than any costs relating to the Federal regular income tax liability
of CBS's consolidated group) incurred by CBS.
"CBS Guarantee Liabilities" shall mean any payments made by
CBS pursuant to the performance of its guarantee of IBC's obligations under the
CBS Credit Agreement.
"CBS Indemnitees" shall mean each member of the CBS Affiliated
Group, each of their respective directors, officers, employees and agents and
each of the heirs, executors, successors and assigns of any of the foregoing.
"CBS Indenture Liabilities" shall mean any liabilities
incurred by IBC in the event that IBC is required to assume or guarantee the
obligations of CBS and/or CBS Broadcasting under any of the CBS Indentures.
"CBS Indentures" shall mean the indentures pursuant to which
the following bonds were issued: (i) with respect to CBS, 8 7/8% Notes Due 2001,
8 3/8% Notes Due 2002, 8 5/8% Debentures Due 2012, 6 7/8% Notes Due 2003, 7 7/8%
Debentures Due 2023, 8 7/8% Notes Due 2014 and 7.15% Senior Notes Due 2005; and
(ii) with respect to CBS Broadcasting, 7 5/8% Senior Notes Due 2002, 7 3/4%
Senior Notes Due 1999, 7 1/8% Senior Notes Due 2023 and 8 7/8% Senior Debentures
Due 2022.
"CBS Information" shall mean the information furnished to IBC
by or on behalf of CBS specifically for inclusion in the Prospectus which forms
a part of the Form S-1 in connection with the Initial Public Offering.
"CBS Liabilities" shall mean, collectively, (i) all the
Liabilities of the CBS Affiliated Group under this Agreement and any of the
Ancillary Agreements and (ii) all the Liabilities of the parties hereto or their
respective Subsidiaries (whenever arising whether prior to, at or following the
Closing Time) arising out of or in connection with or otherwise relating to the
management or conduct before or after the Closing Time of the CBS Business,
provided that the term "CBS Liabilities" shall not include the IBC Liabilities.
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"CBS Note" shall mean the floating rate promissory note due
September 18, 2003, in the aggregate principal amount of $2,500,000,000, that
was issued to CBS on September 18, 1998, by Infinity Media Corporation, a
Delaware corporation that is a wholly owned Subsidiary of IBC.
"CBS Operating Assets" shall mean assets (other than real and
leasehold property) used in the radio or outdoor advertising businesses of CBS
and its Subsidiaries prior to the effective date(s) of the Asset Restructuring
Agreements that were not transferred to IBC by CBS and its Subsidiaries pursuant
to the Asset Restructuring Agreements.
"CBS Parent" shall have the meaning specified in the Restated
Certificate of Incorporation of IBC as in effect upon the consummation of the
Initial Public Offering.
"CBS Party" shall have the meaning specified in the Restated
Certificate of Incorporation of IBC as in effect upon the consummation of the
Initial Public Offering.
"CBS Pension Liabilities" shall mean, with respect to any
qualified pension plan of the CBS Affiliated Group (including the Westinghouse
Pension Plan), any liabilities for pension funding, pension termination
liabilities and other pension-related excise and other taxes of any member of
the CBS Controlled Group (other than IBC or any of its Subsidiaries) that are
incurred by IBC in the event that such liabilities are incurred, and not
discharged, by such other member, provided that the term "CBS Pension
Liabilities" shall not include any such liabilities incurred with respect to
Transferring Employees who may continue to participate in any qualified pension
plan of the CBS Affiliated Group after January 1, 1999.
"CBS Radio" shall mean CBS Radio, Inc. (formerly American
Radio Systems Corporation), a Delaware corporation that is a direct wholly owned
Subsidiary of IBC.
"CBS Radio Bonds" shall mean the notes and debentures issued
by CBS Radio pursuant to the CBS Radio Indentures.
"CBS Radio Indentures" shall mean (i) the Indenture dated as
of February 1, 1996, among CBS Radio and the subsidiary guarantor and the
trustee named therein relating to the $175,000,000 9% Senior Subordinated Notes
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Due 2006, as amended by supplemental indentures dated as of May 31, 1996,
October 1, 1996, and April 28, 1998; (ii) the Indenture dated as of November 21,
1995, among CBS Radio and the subsidiary guarantor and the trustee named therein
relating to the $150,000,000 9 3/4% Senior Subordinated Notes Due 2005, as
amended by the supplemental indentures dated as of April 4, 1997, and April 28,
1998; and (iii) the Indenture dated as of January 30, 1997, between CBS Radio
and the trustee named therein relating to the $200,000,000 11 3/8% Subordinated
Exchange Debentures Due 2008. For purposes only of the definition of "CBS Radio
Bonds", the term "CBS Radio Indentures" shall also include the Indenture dated
as of June 25, 1996, among CBS Radio and the trustee named therein relating to
the $125,000,000 7% Convertible Subordinated Debentures Due 2011.
"CBS Services" shall have the meaning specified in Section
3.01.
"Class A Common Stock" shall mean the Class A Common Stock,
par value $0.01 per share, of IBC.
"Class B Common Stock" shall mean the Class B Common Stock,
par value $0.01 per share, of IBC.
"Closing Time" shall mean 11:59 p.m., New York City time, on
the Effective Date.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the United States Treasury regulations promulgated thereunder,
including any successor legislation.
"Commission" shall mean the Securities and Exchange
Commission.
"Common Stock" shall mean, collectively, the Class A Common
Stock and Class B Common Stock and any other class or series of common stock of
IBC hereafter created.
"Delay Period" shall have the meaning specified in Section
5.01(d).
"Demand Notice" shall have the meaning specified in Section
5.01(a).
"Demand Registration" shall have the meaning specified in
Section 5.01(b).
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"Effective Date" shall mean the date on which the Initial
Public Offering is consummated.
"Effectiveness Period" shall have the meaning specified in
Section 5.01(d).
"ERISA" shall have the meaning specified in Section 3.04(f).
"ERISA Event" shall have the meaning specified in Section
3.04(f).
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Form S-1" shall mean the Registration Statement of IBC on
Form S-1 (No. 333-63727) relating to the registration of shares of Class A
Common Stock under the Securities Act, as the same may be amended or
supplemented from time to time.
"Hold Back Period" shall have the meaning specified in Section
5.03.
"Holder" shall mean CBS, CBS Broadcasting and any Transferee.
"IBC" shall have the meaning specified in the introductory
statement to this Agreement.
"IBC Affiliated Group" shall mean, collectively, IBC and all
its direct and indirect Subsidiaries now or hereafter existing.
"IBC Benefit Plans" shall have the meaning specified in
Section 3.01.
"IBC Business" shall mean the businesses of (i) those entities
listed on Schedule 1.01(b), (ii) any other division, Subsidiary or enterprise of
the IBC Affiliated Group managed or operated as of the date of this Agreement or
any prior time by any member of the IBC Affiliated Group, and (iii) entities
acquired or established by or for the IBC Affiliated Group after the date of
this Agreement.
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"IBC Executives" shall have the meaning specified in Section
3.04(g)(ii).
"IBC Expenses" shall mean (i) all costs accrued or incurred by
IBC in respect of the IBC Services and IBC Benefit Plans, (ii) any expenses
relating to fixed assets (including any costs for furniture and personal
computers), (iii) any miscellaneous expenses (including insurance, travel and
entertainment, advertising and licenses) accrued or incurred by IBC and related
to the businesses of the parties hereto and (iv) any other corporate costs
incurred by IBC.
"IBC Indemnitees" shall mean each member of the IBC Affiliated
Group, each of their respective directors, officers, employees and agents and
each of the heirs, executors, successors and assigns of any of the foregoing.
"IBC Liabilities" shall mean, collectively, (i) all the
Liabilities of the IBC Affiliated Group under this Agreement, including its
allocated portion of CBS Expenses and all the costs described in Article II, and
any of the Ancillary Agreements, (ii) all the Liabilities of the parties hereto
or their respective Subsidiaries (whenever arising whether prior to, at or
following the Closing Time) arising out of or in connection with or otherwise
relating to the management or conduct, before or after the Closing Time, of the
IBC Business, (iii) all other Liabilities based upon, arising out of or in
connection with or otherwise relating to the radio or outdoor advertising
businesses conducted, directly or indirectly, by CBS and its current or former
Subsidiaries at any time prior to the Effective Date or any other businesses
conducted at any time prior to the Effective Date by the IBC Affiliated Group,
and (iv) any Liabilities incurred by IBC (other than in respect of CBS
Information) pursuant to the Underwriting Agreements.
"IBC Operating Assets" shall mean assets (other than real and
leasehold property) used in the businesses of CBS and its Subsidiaries prior to
the effective date(s) of the Asset Restructuring Agreements that were
transferred to IBC by CBS and its Subsidiaries pursuant to the Asset
Restructuring Agreements.
"IBC Services" shall have the meaning specified in Section
3.01.
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"Indemnifiable Losses" shall mean any and all losses,
liabilities, claims, damages, demands, costs or expenses (including attorneys'
fees and other out-of-pocket expenses) whatsoever reasonably incurred in
investigating, preparing for or defending against any Actions or potential
Actions.
"Indemnifying Party" shall have the meaning specified in
Section 9.03.
"Indemnitee" shall have the meaning specified in Section 9.03.
"Infinity Media" shall mean Infinity Media Corporation, a
Delaware corporation that is a wholly owned Subsidiary of IBC.
"Initial Public Offering" shall have the meaning specified in
the preamble to this Agreement.
"Inspectors" shall have the meaning specified in Section
5.04(j).
"Insurance Proceeds" shall mean the monies (i) received by an
insured from an insurance carrier or (ii) paid by an insurance carrier on behalf
of an insured, in either case net of any applicable premium adjustment,
retrospectively-rated premium, deductible, retention paid or held by or for the
benefit of such insured.
"Interim Period" shall have the meaning specified in Section
3.04(h).
"Internal Revenue Service" shall mean the United States
Internal Revenue Service.
"Interruption Period" shall have the meaning specified in
Section 5.04.
"Leased Properties" shall mean the properties described on
Schedule 1.01(d).
"Liabilities" shall mean any and all debts, liabilities and
obligations (relating to performance or otherwise), absolute or contingent,
matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or
unknown, whenever arising, including those debts, liabilities and obligations
arising under any law, rule,
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regulation, Action, threatened Action, order or consent decree of any court, any
governmental or other regulatory or administrative agency or commission or any
award of any arbitration tribunal, and those arising under any contract,
guarantee, commitment or undertaking.
"Net Proceeds" shall have the meaning specified in Article IV.
"Notice Period" shall have the meaning specified in paragraph
(n)(i) of Article VI.
"Owned Properties" shall mean the properties described on
Schedule 1.01(e).
"Pass Through Basis" shall have the meaning specified in
Section 3.05(b).
"Person" shall mean any individual, corporation, partnership,
joint venture, limited liability company, association or other business entity
and any trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Piggyback Registration" shall have the meaning specified in
Section 5.02(a).
"Prospectus" shall mean the prospectus or prospectuses
included in any Registration Statement (including a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such prospectus or prospectuses.
"Recipient" shall have the meaning specified in Section
3.01(b).
"Records" shall have the meaning specified in Section 7.01(a).
"Registrable Securities" shall mean the Common Stock and any
stock or other securities into which or for which such Common Stock may
hereafter be changed, converted
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or exchanged and any other shares or securities issued to Holders of such Common
Stock (or such shares or other securities into which or for which such shares
are so changed, converted or exchanged) upon any reclassification, share
combination, share subdivision, share dividend, share exchange, merger,
consolidation or similar transaction. As to any particular Registrable
Securities, such Registrable Securities shall cease to be Registrable Securities
when (i) a registration statement with respect to the sale by the Holder thereof
shall have been declared effective under the Securities Act and such securities
shall have been disposed of in accordance with such registration statement, (ii)
they shall have been distributed to the public in accordance with Rule 144
promulgated under the Securities Act, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by IBC and subsequent disposition of them
shall not require registration or qualification of them under the Securities Act
or any state securities or blue sky law then in effect or (iv) they shall have
ceased to be outstanding.
"Registration" shall mean registration under the Securities
Act of an offering of Registrable Securities pursuant to a Demand Registration
or a Piggyback Registration.
"Registration Expenses" shall mean any and all costs, fees and
expenses incident to IBC's performance of or compliance with any registration of
securities in connection with the Initial Public Offering or pursuant to Article
V, including (i) the fees, disbursements and expenses of IBC's counsel and
accountants and the reasonable fees and expenses of counsel, if any, selected by
the Holders in accordance with this Agreement in connection with the
registration of the securities to be disposed of; (ii) all expenses, including
registration and filing fees, in connection with the preparation, printing and
filing of the registration statement, any preliminary prospectus or final
prospectus, any other offering document and amendments and supplements thereto,
any other filing pursuant to the Securities Act or the Exchange Act in
connection therewith and the mailing and delivering of copies thereof to any
underwriters and dealers; (iii) the cost of printing or producing any agreements
among underwriters, underwriting agreements and blue sky or legal investment
memoranda, any selling agreements and any other documents in connection with the
offering, sale or delivery of the securities to be disposed
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of; (iv) all expenses in connection with the qualification of the securities to
be disposed of for offering and sale under state securities laws, including the
fees and disbursements of counsel for the underwriters or the Holders of
securities in connection with such qualification and in connection with any blue
sky and legal investment surveys; (v) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the securities to be disposed of; (iv) transfer agent and
registrar fees and expenses and the fees and expenses of any other agent or
trustee appointed in connection with such offering; (vii) all security engraving
and security printing expenses; (viii) all fees and expenses payable in
connection with the listing of the securities on any securities exchange or
automated interdealer quotation system or the rating of such securities; (ix)
any other fees and disbursements of underwriters customarily paid by the issuers
of securities, but excluding underwriting discounts and commissions and transfer
taxes, if any; and (x) other reasonable out-of-pocket expenses of Holders other
than legal fees and expenses referred to in clauses (i) and (iv) above.
"Registration Indemnitee" shall have the meaning
specified in Section 9.02(a).
"Registration Statement" shall mean any registration statement
of IBC (including the Form S-1) filed with the Commission under the Securities
Act, including in each such case the related Prospectus, all amendments and
supplements to such registration statement, including pre-and post-effective
amendments, all exhibits thereto and all materials incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"Securities Act" shall mean the Securities Act of 1933 and the
rules and regulations of the Commission promulgated thereunder.
"Servicer" shall have the meaning specified in Section 3.01(b).
"Services" shall have the meaning specified in Section 3.01.
"Shelf Registration" shall have the meaning specified in Section
5.01(b).
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"Subsidiary" shall mean any corporation, partnership, joint
venture or other Person of which another Person (i) owns, directly or
indirectly, ownership interests sufficient to elect a majority of the board of
directors of such corporation, partnership, joint venture or other Person (or
Persons performing similar functions) (irrespective of whether at the time any
other class or classes of ownership interests of such corporation, partnership,
joint venture or other Person shall or might have such voting power upon the
occurrence of any contingency) or (ii) is a general partner or an entity
performing similar functions (e.g., a trustee or manager).
"Tax" shall mean all Federal, state, local or other
governmental taxes, assessments, duties, fees, levies or similar charges of any
kind, including all income, profits, franchise, excise, property, use,
intangibles, sales, value-added, ad valorem, payroll, employment, withholding,
estimated and other taxes of any kind whatsoever whether disputed or not, and
including all additions to tax, additional amounts, interest and penalties
imposed with respect to such amounts.
"Tax Claims" shall have the meaning specified in Section
10.02(a).
"Tax-Free Spin-Off" shall mean any transfer of the Class B
Common Stock beneficially owned by CBS Parent to stockholders of CBS Parent in a
transaction intended to be tax free under Section 355 of the Code.
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement
dated the date hereof, between CBS and IBC.
"Third Party Claim" shall have the meaning specified in
Section 9.04(a).
"Transferee" shall have the meaning specified in Section 5.07.
"Transferring Employees" shall mean those employees described
on Schedule 1.01(c).
"Trigger Date" shall mean the date on which a CBS Party shall
cease to own, in the aggregate, 50% or more of the combined voting power of the
Voting Stock then issued and outstanding other than shares of Voting Stock held
by IBC as treasury stock or by any Subsidiary of IBC.
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"Underwriting Agreements" shall mean (i) the U.S. Purchase
Agreement dated as of December [ ], 1998, in connection with the Initial Public
Offering, between IBC and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as
the representative of the several U.S. Underwriters named therein, and (ii) the
International Purchase Agreement dated as of December [ ], 1998, in connection
with the Initial Public Offering, between IBC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International,
as the lead manager of the several International Managers named therein.
"Voting Stock" shall mean all securities issued by IBC having
the ordinary power to vote in the election of directors of IBC, other than
securities having such power only upon the occurrence of a default or any other
extraordinary contingency.
SECTION 1.02. Other Definitional Provisions. The words
"hereof", "hereto", "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; references to any Article, Section,
Exhibit or Schedule are references to Articles, Sections, Exhibits or Schedules
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
ARTICLE II
Payment of Transaction Costs
IBC shall pay (or, to the extent incurred by and paid for by
any member of the CBS Affiliated Group, shall promptly reimburse such member of
the CBS Affiliated Group for any and all amounts so paid) for all fees, costs
and expenses incurred in connection with: (a) IBC's formation and organization,
including any transactions contemplated by the Asset Restructuring Agreements
and any Taxes incurred in respect thereof; (b) the preparation and negotiation
of this Agreement, any Ancillary Agreement and any other documentation, forms,
applications, contracts, consents and other actions related thereto; (c) all
Registration Expenses with respect to the Initial Public Offering; and (d) all
expenses with respect to the offers to purchase outstanding debt securities of
its Subsidiaries that are required to be made in accordance with the terms of
the indentures
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(including the CBS Radio Indentures) pursuant to which such debt securities were
issued.
ARTICLE III
Services and Operations
SECTION 3.01. Services. (a) Beginning on the Effective Date
and continuing until the termination of this Agreement pursuant to Article XI,
CBS shall make available, and shall cause the CBS Affiliated Group to make
available, to the IBC Affiliated Group the services set forth on Schedule
3.01(a)(i) (the "CBS Services" and each, a "CBS Service"), and IBC shall, and
shall cause its Subsidiaries to, utilize such CBS Services set forth on Schedule
3.01(a)(i) in the conduct of their respective businesses. Beginning on the
Effective Date and continuing until the termination of this Agreement pursuant
to Article XI, IBC shall make available, and shall cause the other members of
the IBC Affiliated Group to make available, to the CBS Affiliated Group the
services set forth on Schedule 3.01(a)(ii) (the "IBC Services" and each, an "IBC
Service"). The CBS Services and IBC Services are hereinafter collectively
referred to as the "Services".
(b) CBS has agreed that the Transferring Employees be eligible
to continue to participate in the benefit plans and programs described on
Schedule 3.01(b)(i) to the extent that such Transferring Employees obtained
rights under such benefit plans prior to January 1, 1999 or may obtain rights
under such benefits plans on or after January 1, 1999 (collectively, "CBS
Benefit Plans"). IBC has agreed that the CBS Employees shall be eligible to
continue to participate in the benefit plans and programs described on Schedule
3.01(b)(ii) to the extent that such Transferring Employees obtained rights under
such benefit plans prior to January 1, 1999 or may obtain rights under such
benefit plans on or after January 1, 1999 (collectively, the "IBC Benefit Plans"
and, together with the CBS Benefit Plans, the "Benefit Plans"). CBS has agreed
that it shall continue to provide the CBS Services described on Schedule
3.01(a)(i) with respect to Transferring Employees participating in CBS Benefit
Plans and IBC has agreed that it shall continue to provide the IBC Services
described on Schedule 3.01(a)(ii) with respect to CBS Employees participating in
IBC Benefit Plans. In their respective capacities as service providers under
this
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Agreement, each of CBS and IBC are hereinafter referred to as a "Servicer" and
collectively as the "Servicers". In their respective capacities as service
receivers under this Agreement, each of CBS and IBC are hereinafter referred to
as a "Recipient" and collectively as "Recipients". The CBS Services may be
provided by (i) any employee of CBS or its Subsidiaries (other than IBC and its
Subsidiaries) or (ii) any third party designated by CBS, in its sole discretion
after consultation with IBC; provided, however, that notwithstanding any such
designation by CBS, CBS shall remain responsible in all respects for the
provision of the particular service or services to be provided by such
designated third party. The IBC Services may be provided by (i) any employee of
IBC or its Subsidiaries or (ii) any third party designated by IBC, in its sole
discretion after consultation with CBS; provided, however, that notwithstanding
any such designation by IBC, IBC shall remain responsible in all respects for
the provision of the particular service or services to be provided by such
designated third party.
SECTION 3.02. Expansion, Reduction or Termination of Services.
Except as otherwise provided in Section 12.01 or as otherwise agreed in writing
by the parties hereto, each of the CBS Services provided by CBS and each of the
IBC Services provided by IBC may be expanded, reduced or terminated upon the
mutual agreement of the parties hereto.
SECTION 3.03. Payment of Expenses. (a) CBS shall allocate the
portion of the CBS Expenses incurred on behalf of the IBC Affiliated Group
pursuant to allocation methodologies determined on an annual basis by CBS, in
its sole discretion, after consultation with IBC, which evidence each such
party's respective fair and reasonable share of the CBS Expenses.
(b) IBC shall pay all the IBC Expenses incurred by IBC. IBC
shall allocate the portion of IBC Expenses incurred on behalf of the CBS
Affiliated Group pursuant to allocation methodologies determined on an annual
basis by CBS, in its sole discretion, after consultation with IBC which,
evidence each such party's respective fair and reasonable share of the IBC
Expenses.
(c) Each of CBS and IBC shall submit to the other party within
15 working days following the end of each month an invoice for all charges
associated with Services provided by such party during the preceding month, any
adjustments
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for prior months and any other amounts payable in respect of the preceding
month. All invoices shall describe in reasonable detail a description of the
Services provided and the charges associated therewith, any prior month
adjustments and any other amounts that are payable. Except as provided in
Section 3.03(d), IBC shall remit payment on a monthly basis to CBS on behalf of
the IBC Affiliated Group for its portion of all charges invoiced on or before
the last working day of the month in which the invoice is received in respect of
CBS Expenses, net of the CBS Affiliated Group's allocated share of the IBC
Expenses that are invoiced on or before the last working day of the month in
which the invoice is received; provided, however, that if such net payment shall
be a negative amount, CBS shall remit payment to IBC on behalf of the CBS
Affiliated Group for such month in an amount equal to such negative amount
(taken as a positive number).
(d) In the event of a dispute as to an invoiced amount, the
party disputing such amount shall promptly pay all undisputed amounts on each
invoice, but shall be entitled to withhold payment of any amount in dispute, and
shall promptly notify the party providing the Services of the disputed amount
and the reasons each such charge is so disputed. The parties agree to provide
each other with sufficient records and information that will enable the parties
to resolve any such dispute and, without limiting the rights and remedies of the
parties hereunder, to negotiate in good faith a resolution thereto.
(e) It is understood and agreed that the Services provided
hereunder will be substantially identical in nature and quality (but not
necessarily in amount) to the Services performed by the parties for each other
during the year prior to the date of this Agreement, except as may be required
by virtue of IBC becoming a public company after the Initial Public Offering.
(f) Performance of any Services will not be required for the
benefit of any entity other than the parties and their respective Subsidiaries
and will not be required to be provided to the extent that a Servicer ceases to
provide the applicable Service to the CBS Affiliated Group or the IBC Affiliated
Group, as applicable. Each party represents and agrees that it will use the
Services only in accordance with all applicable federal, state and local laws,
regulations and tariffs and in accordance with the reasonable conditions, rules,
regulations and
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specifications that are or may be set forth in any manuals, materials, documents
or instructions of the party providing the Services. Each of CBS and IBC
reserves the right to take all actions, including termination of any Services,
that it reasonably believes to be necessary in order to ensure that the Services
are provided in compliance with any applicable laws, regulations and tariffs.
(g) Any input or information required by either party to
perform the Services pursuant to the provisions of this Agreement shall be
provided by the other party or its Subsidiaries, as the case may be, in a manner
consistent with the practices employed by the parties during the year prior to
the date of this Agreement. If the failure to provide such input or information
renders the performance of the Services impossible or unreasonably difficult,
the party providing the Services may, upon reasonable notice, refuse to provide
such Services.
(h) (i) With respect to those retired or former employees who
were or would have been Transferring Employees prior to the Effective Date, IBC
shall reimburse CBS, on demand or as otherwise directed, for all costs as
accrued or incurred by CBS or members of the CBS Affiliated Group with respect
to such retired or former employees pursuant to the Benefit Plans. (ii) With
respect to an individual who, prior to the date on which such individual retired
from or otherwise ceased to be an employee of CBS or any of its Subsidiaries,
worked (either simultaneously or at different times) both in and/or outdoor
advertising businesses conducted by CBS and its Subsidiaries, and (ii) any
business conducted by CBS and its Subsidiaries other than the businesses
referred to in clause (i) above, such individual shall be classified as (x) a
Transferring Employee if he/she was employed in the radio and/or outdoor
advertising businesses of CBS and its Subsidiaries on the date such individual
retired or otherwise ceased to be an employee of CBS or any of its Subsidiaries
and (y) a CBS Employee if he/she was employed in any other business conducted by
CBS and its Subsidiaries on such date.
SECTION 3.04. Employees. (a) Plans and Services. Prior to the
Effective Date, certain Transferring Employees participated in certain CBS
Benefit Plans. On and after the Effective Date, certain Transferring Employees
shall continue to be eligible to participate in certain CBS Benefit Plans,
subject to the terms of the governing plan documents as interpreted by the
appropriate plan fiduciaries. On and after the Effective Date, certain CBS
Employees shall be eligible to participate in the IBC Benefit Plans set forth on
Schedule 3.01(b)(ii), subject to the terms of the governing plan documents as
interpreted by the appropriate plan
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fiduciaries. On and after the Effective Date and until the termination of this
Agreement pursuant to Article XI, subject to regulatory requirements, CBS shall
continue to provide CBS Services with respect to Transferring Employees
participating in CBS Benefit Plans in substantially the same manner as it
administered such plans prior to the Effective Date and IBC shall continue to
provide IBC Services with respect to CBS Employees participating in IBC Benefit
Plans in substantially the same manner as it administered such plans prior to
the Effective Date, subject to CBS's or IBC's right, as applicable, to
terminate, amend and modify such Benefit Plans pursuant to Sections 3.04(c) and
(d).
(b) Direct Cost Reimbursement. Notwithstanding the provisions
of Section 3.03, if a Servicer provides a Recipient with at least five days'
advance written notice, such Recipient agrees to make funds available, as and
when required to be paid by such Servicer, to such Servicer so that such
Servicer may make contributions or payments to, for the account of, or in
respect of current or former employees or their spouses or other beneficiaries
(i) under tax-qualified benefit plans or (ii) that are generally made on a
predetermined periodic basis.
(c) Termination. A Recipient or a Servicer may terminate
participation by the employees of such Recipient in a Servicer's Benefit Plan by
giving reasonable written notice in advance of such termination to the other
party, taking into consideration all relevant factors applicable to the
Recipient or the Servicer and any applicable legal requirements. Such Servicer
shall promptly submit an invoice for, and such Recipient shall promptly pay to
such Servicer, all costs or accelerated payments or contributions incurred prior
to the date of termination, including costs resulting from the termination.
(d) Changes; Additional Services and Plan Terms. Nothing
contained in this Agreement shall be construed to limit the ability of CBS or
IBC to amend or modify any of the CBS Benefit Plans or IBC Benefit Plans,
respectively, consistent with the terms of such plans, as determined in CBS's or
IBC's sole discretion, as the case may be, provided that CBS or IBC, as
applicable, shall provide at least 30
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days' prior written notice to the other of any proposed significant amendment to
or modification of any Benefit Plan. Each Recipient may request additional
services that, if agreeable to the applicable Servicer, shall be provided on a
direct cost basis to such Recipient.
(e) Regulatory Matters. CBS and IBC agree to cooperate fully
with each other in the administration and coordination of regulatory and
administrative requirements associated with the Benefit Plans that apply either
to the other party or jointly to each party hereto. Such coordination, upon
request, shall include: sharing payroll data for determination of highly
compensated employees, providing census information (including accrued benefits)
for purposes of running discrimination tests, providing actuarial reports for
purposes of determining the funded status of any plan and providing for review
of all summary plan descriptions, requests for determination letters, Forms
5500, financial statement disclosures and plan documents.
(f) Certain Notices. In the event there is an ERISA Event with
respect to Benefit Plans administered by a Servicer, such Servicer shall advise
the Recipient as soon as reasonably practicable after such Servicer determines
the ERISA Event has occurred. For purposes of this Section 3.04(f), an "ERISA
Event" shall mean (i) the termination of a Benefit Plan or the filing of a
Notice of Intent to Terminate such a plan, in either case, under Section 4041(c)
of the Employee Retirement Income Security Act of 1974, as amended from time to
time ("ERISA"); (ii) the institution of proceedings by the Pension Benefit
Guaranty Corporation (or any successor thereof) to terminate a Benefit Plan or
to appoint a trustee to administer such a plan or the receipt of notice by such
Servicer that such an action has been taken with respect to such a plan; (iii)
any substantial accumulated funding deficiency within the meaning of Section 412
of the Code or Section 302 of ERISA is incurred with respect to any Benefit Plan
sponsored by such Servicer and no waiver of that deficiency has been obtained
from the Internal Revenue Service; (iv) the Internal Revenue Service determines
that a Benefit Plan that is intended to be qualified under Section 401 of the
Code fails to meet the applicable requirements of the Code and disqualifies the
plan; or (v) an amendment to a Benefit Plan sponsored by such Servicer that
results in a significant underfunding described in Section 401(a)(29) of the
Code or Section 307 of ERISA.
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(g) Executive Services. On the terms and subject to the
conditions set forth in this Agreement, (i) CBS shall make available to IBC the
services of the employees listed on Schedule 3.04(g)(i) hereto and certain other
officers and employees of CBS (collectively, "CBS Executives") as may be
mutually agreed upon in the future, and (ii) IBC shall make available to CBS the
services of the employees listed on Schedule 3.04(g)(ii) hereto and certain
other officers and employees of IBC (collectively, "IBC Executives") as may be
mutually agreed upon in the future. The obligations of CBS and IBC pursuant to
this Section 3.04(g) shall be subject to the reasonable demands imposed by, and
the reasonable requirements of, the on-going operations of CBS and IBC,
respectively. CBS and IBC shall allocate the portion of the compensation and
benefits costs of the CBS Executives and the IBC Executives, respectively,
pursuant to allocation methodologies determined on an annual basis by CBS or IBC
(as applicable), in its sole discretion, after consultation with IBC or CBS (as
applicable), which evidence IBC's and CBS's (as applicable) fair and reasonable
share of such compensation and benefits costs.
(h) Delayed Employee Transfers; Interim Period. With respect
to the period from and including the Effective Date to and including December
31, 1998 (the "Interim Period"), Transferring Employees shall continue to be
employees of the CBS Affiliated Group and shall continue to participate in the
CBS Benefit Plans in which they participated prior to the Effective Date. After
the expiration of the Interim Period, each such Transferring Employee then in
employment will become an employee of IBC. IBC will promptly reimburse CBS for
100% of the payroll, benefits (including statutory benefits, severance and other
termination benefits) and other costs and expenses directly or indirectly
relating to such Transferring Employees with respect to the Interim Period
within 15 days following receipt of each written notification from CBS of such
payroll, benefits and other costs and expenses. All services provided by such
Transferring Employees during the Interim Period shall be for the benefit of
IBC.
The CBS Affiliated Group shall be entitled to be indemnified
by IBC, and shall be entitled to the benefit of the provisions of Article IX of
this Agreement, with respect to any and all claims, losses, damages, liabilities
and expenses (including court costs and reasonable attorney fees) incurred by
CBS arising out of (i) any act or omission of any such Transferring Employees
occurring during the
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Interim Period or (ii) any loss of or damage to property of, or any bodily
injury, sickness and/or disease, including death, sustained by, any such
Transferring Employees during the Interim Period.
(i) Third-Party Beneficiary. Nothing in this Agreement is
intended to entitle any employee or individual to any benefit or compensation
from IBC or CBS or to otherwise establish or create any rights on the part of
any third party. Nothing in this Agreement is intended to restrict or limit a
Servicer in the exercise of its rights or the fulfillment of its duties as plan
sponsor.
(j) Conflicts. In the event of a conflict between the terms of
this Section 3.04 and the terms of Section 3.01 hereof relating to providing
Services in connection with Benefit Plans, the terms of this Section 3.04 shall
prevail.
SECTION 3.05. Real Property; Leases; Operating Assets. (a)
With respect to the Owned Properties, CBS shall, or, to the extent that another
member of the CBS Affiliated Group owns the Owned Properties, CBS shall cause
such member to, lease to IBC or any of its Subsidiaries, or otherwise permit the
continued occupancy by IBC or any of its Subsidiaries of, the space occupied in
each of such Owned Properties by the IBC Affiliated Group as of the Effective
Date on the terms set forth in the following paragraph.
Each lease for, or other agreement for occupancy of, space in
the Owned Properties referred to in this Section 3.05(a) shall, (i) until the
later of (x) the expiration of each such lease or other agreement and (y) the
Trigger Date, be on payment terms which are consistent with the past cost
allocation practices of CBS or on such other terms which are consistent with the
past practice and (ii) after such date, be on a fair market value basis and on
such other terms that are consistent with leases with similar rental periods and
for similar properties in the relevant local real estate market.
(b) With respect to the Leased Properties which are leased by
any member of the CBS Affiliated Group, CBS shall, or, to the extent that
another member of the CBS Affiliated Group is the lessee of any such Leased
Properties, CBS shall cause such member to, sublease (or otherwise permit the
continued occupancy of) the space occu-
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pied in each of such Leased Properties by the IBC Affiliated Group as of the
Effective Date to the IBC Affiliated Group (but only if and to the extent
permitted by the primary lease with respect to such property) until the
expiration of the primary lease with respect to such Leased Properties (or, if
the IBC Affiliated Group is the occupant of all the space under a particular
lease to the member of the CBS Affiliated Group, then until one day prior to the
expiration of the primary lease with respect to such Leased Properties) and on
payment terms which are consistent with the past cost allocation practices of
CBS or on such other terms which are consistent with past practice. As soon as
practicable after the Trigger Date, the portion of each lease referred to in the
first sentence of this Section 3.05(b) relating to the space attributable to the
IBC Affiliated Group in each of such Leased Properties shall be, in each case as
determined by CBS in its sole discretion, assigned to IBC or one of its
Subsidiaries (but only if and to the extent permitted by the primary lease with
respect to such property); otherwise, the IBC Affiliated Group's occupation of
such Leased Property shall continue on a Pass Through Basis until the expiration
of the underlying lease for such Leased Properties. Notwithstanding the
foregoing, if any lease in effect as of the Effective Date for any Leased
Properties expires prior to the Trigger Date, the IBC Affiliated Group shall
have the option, subject to negotiations with the lessor of each such Leased
Property, to lease the space occupied by the IBC Affiliated Group in any such
Leased Property directly from the lessor and CBS shall cooperate with and assist
IBC in such negotiations. As used herein, "Pass Through Basis" shall mean that
the occupation of any Leased Property by the IBC Affiliated Group shall be
subject to all provisions and restrictions contained in the primary lease
(including the term thereof) and the rental payments due from the IBC Affiliated
Group shall be based upon the pro rata occupation of the space in such Leased
Property, with an additional reasonable allocation to be made with respect to
any common areas to which the IBC Affiliated Group has access.
(c) With respect to the CBS Operating Assets, CBS shall, or,
to the extent that another member of the CBS Affiliated Group owns the CBS
Operating Assets, CBS shall cause such member to, permit the continued use by
IBC or any of its Subsidiaries of the CBS Operating Assets used by the IBC
Affiliated Group prior to the Effective Date. CBS shall allocate the costs for
the use by the IBC Affiliated Group of such CBS Operating Assets according to
established methodologies determined on an annual basis by CBS, in its
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sole discretion, after consultation with IBC, which will evidence each party's
fair and reasonable share of such costs.
(d) With respect to the IBC Operating Assets, IBC shall, or,
to the extent that another member of the IBC Affiliated Group owns the IBC
Operating Assets, IBC shall cause such member to, permit the continued use by
any member of the CBS Affiliated Group of the IBC Operating Assets used by CBS
and its Subsidiaries prior to the Effective Date. IBC shall allocate the costs
for the use by the CBS Affiliated Group of such IBC Operating Assets according
to established methodologies determined on an annual basis by IBC, in its sole
discretion, after consultation with CBS, which will evidence each party's fair
and reasonable share of such costs.
(e) IBC shall, and shall cause the other members of the IBC
Affiliated Group to, and CBS shall, and shall cause the other members of the CBS
Affiliated Group to, as applicable, negotiate diligently and in good faith the
leases and subleases referred to in this Section 3.05. Unless expressly provided
to the contrary herein, to the extent that any provision in this Section 3.05
obligates a lessor to lease any property described in such provision to a
lessee, such provision shall also be construed to obligate such lessee to lease
such property from such lessor.
SECTION 3.06. Insurance. (a) CBS shall use its commercially
reasonable efforts to cause IBC to be covered under CBS's insurance policies
(including directors' and officers' liability insurance and workers'
compensation) which will provide to IBC the type of insurance provided to IBC
immediately prior to the date hereof, subject to availability. CBS shall not be
responsible for obtaining or maintaining any additional insurance coverage for
IBC other than as set forth in the preceding sentence. The portion of such
premiums and other charges payable by IBC for such insurance coverage shall be
allocated by CBS, in its sole discretion, after consultation with IBC, and will
evidence IBC's fair and reasonable share of such premiums and other charges. CBS
shall use its commercially reasonable efforts to provide such allocation as soon
as practicable after receipt of the information to be included therein. The
insurance provided shall be subject to such policies of insurance or
self-insurance, and such guidelines or procedures in respect of insurance or
self-insurance, as are in effect immediately prior to the date hereof. In the
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event that the terms of the insurance (including the scope of coverage),
self-insurance, or other policies, guidelines or procedures relating to
insurance or self-insurance, change or require change from those terms in effect
immediately prior to the date hereof, CBS agrees (a) to the extent CBS is aware
of a material change prior to the effective date of the change, to provide
notice to IBC of such change prior to its effective date, or (b) otherwise to
provide notice to IBC upon becoming aware of the change. It is expressly agreed
by IBC and CBS that any self-insurance, retroactive assessments, retention or
deductible allocable to IBC shall be for the account of and be an obligation of
IBC, and that IBC's obligations in respect of such self-insurance, retention or
deductible shall survive the termination of this Agreement.
(b) Termination of Insurance. Either IBC or CBS may terminate
all or any portion of the insurance at any time on 90 days' prior written notice
to the other party hereto. Notwithstanding the foregoing, so long as CBS, CBS
Broadcasting or any other member(s) of the CBS Affiliated Group beneficially
owns shares of capital stock of IBC representing 50% or more of the voting power
of all then-outstanding shares of capital stock, IBC may not, without the prior
written consent of CBS, terminate all or any portion of the insurance. In the
event that all or any portion of the insurance is terminated, if appropriate,
the charges therefor shall be adjusted equitably to reflect such termination.
SECTION 3.07. Operations. (a) Prior to the Effective Date, the
CBS Affiliated Group provided to members of the IBC Affiliated Group, and the
IBC Affiliated Group provided to members of the CBS Affiliated Group,
advertising time and space for promotional purposes without charge in
circumstances where the Servicer determined that providing such advertising time
or space would not significantly affect such Servicer's potential revenues. On
and after the Effective Date, each of CBS and IBC agrees to make available, and
to cause the other members of the CBS Affiliated Group and the IBC Affiliated
Group, respectively, to make available, to the IBC Affiliated Group and the CBS
Affiliated Group, respectively, advertising time and space for promotional
purposes without charge or at rates that are more favorable to the Recipient
than those that would have been obtained in a comparable transaction by either
party with a non-affiliated Person; provided, however, that neither the CBS
Affiliated Group nor the IBC Affiliated
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Group shall be required to provide such advertising time or space if to do so
would significantly affect its potential revenues; provided further, however,
that if the CBS Affiliated Group or the IBC Affiliated Group determines that
providing such advertising time and space to the other party would significantly
affect its potential revenues, it shall be required to continue to make
available to the other party following such determination only the advertising
time and space that it had agreed to provide (or, pursuant to regulatory
obligations, is required to provide) to such party prior to the date of any such
determination. Notwithstanding the foregoing, each of CBS and IBC agrees that
nothing in this Agreement shall relieve any member of the CBS Affiliated Group
or the IBC Affiliated Group, respectively, of their obligation to comply with
the terms of any other arrangement, agreement, contract or other commitment in
writing that requires them to provide the IBC Affiliated Group or the CBS
Affiliated Group, respectively, with advertising time and space on terms no less
favorable to the other party than those that would be provided to an
unaffiliated third party. Each of CBS and IBC acknowledges that the CBS
Affiliated Group is likely to receive, in the aggregate, more advertising time
and space for promotional purposes from the IBC Affiliated Group pursuant to
this Section 3.07(a) than the IBC Affiliated Group is likely to receive from the
CBS Affiliated Group.
(b) Prior to the Effective Date, certain members of the IBC
Affiliated Group received from the CBS Affiliated Group radio broadcast rights
to television programming produced by the CBS Affiliated Group in exchange for
the IBC Affiliated Group providing advertising time and space for promotional
purposes to the CBS Affiliated Group during the broadcasting by the IBC
Affiliated Group of such television programming. On and after the Effective
Date, the CBS Affiliated Group agrees to provide the IBC Affiliated Group with
radio broadcast rights to television programming (of the same type and nature as
it provided prior to the Effective Date) produced by the CBS Affiliated Group,
and in exchange therefor, the IBC Affiliated Group agrees to provide the CBS
Affiliated Group with advertising time and space for promotional purposes during
the broadcasting by the IBC Affiliated Group of such television programming.
(c) Each of CBS and IBC will, and will cause each other member
of the CBS Affiliated Group and the IBC Affiliated Group, respectively, to, use
its best efforts to cooperate in jointly marketing its respective products and
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services to potential advertisers and to refer advertisers to the other party.
The costs associated with, and the revenues derived from, any such arrangements
will be allocated among the CBS Affiliated Group and the IBC Affiliated Group
pursuant to allocation methodologies determined on an annual basis by CBS, in
its sole discretion, after consultation with IBC, which evidence each such
party's respective fair and reasonable share of such costs and revenues.
SECTION 3.08. Further Assurances; No Agency. In case at any time after
the Effective Date any further action is reasonably necessary or desirable to
carry out the purposes of this Agreement or any Ancillary Agreement, the proper
officers of each party to this Agreement shall take all such necessary action.
Without limiting the foregoing, each of IBC and CBS shall use its commercially
reasonable efforts to obtain all consents and approvals, to enter into all
amendments and to make all filings and applications that may be required for the
consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements, including all applicable governmental and regulatory
filings. However, this Agreement in and of itself creates no agency relationship
between CBS and IBC.
SECTION 3.09. Limitation of Liability. Except as may be provided in
Articles IX and X, (i) no member of the CBS Affiliated Group, their respective
controlling Persons, if any, and their respective directors, officers,
employees, agents or permitted assigns, on the one hand (each, a "CBS Party"),
and (ii) no member of the IBC Affiliated Group, their respective controlling
Persons, if any, and their respective directors, officers, employees, agents or
permitted assigns, on the other hand (each, an "IBC Party"), shall be liable to
any IBC Party or CBS Party, as applicable, for any liabilities, claims, damages,
losses or expenses, including any special, indirect, incidental or consequential
damages, of an IBC Party or a CBS Party arising in connection with this
Agreement, the Services or the Benefit Plans.
SECTION 3.10. Competition. Each of the CBS Affiliated Group and the IBC
Affiliated Group shall be entitled to compete with each other in selling
advertising time and space and in making acquisitions of media properties,
subject to applicable laws, rules and regulations. If the ownership or operation
of the respective media assets of CBS on the one hand and IBC on
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the other hand, as the same exists from time to time, by reason of a potential
acquisition, change of law or regulation, any regulatory action, final judicial
determination or otherwise, places the ownership or operation of such media
assets of CBS and/or IBC in conflict with or violation of Federal law or the
rules or regulations of the Federal Communications Commission, then the parties
hereto will attempt to resolve in good faith such conflict or violation. In the
absence of such resolution, and until the Trigger Date, CBS may in its sole
discretion take any and all actions which it in good ▇▇▇▇▇ ▇▇▇▇▇ necessary to
avoid or eliminate such conflict or violation, including requiring IBC to
dispose of assets or take other specified action(s), provided that the same
shall not have a material adverse effect upon the overall business of IBC.
Should there be a dispute between CBS and IBC as to whether or not such actions
will result in such material adverse effect, the parties hereto hereby agree to
submit such dispute to arbitration, subject to the American Arbitration
Association Commercial Arbitration Rules.
ARTICLE IV
Use of Proceeds of Initial Public Offering
IBC covenants and agrees with CBS that, immediately following the
consummation of the Initial Public Offering, (a) it will contribute
$2,500,000,000 of the proceeds of the Initial Public Offering (net of
underwriting discounts and estimated offering expenses) ("Net Proceeds") to
Infinity Media and will cause Infinity Media to prepay the principal amount
outstanding as of such date under the CBS Note, together with accrued and unpaid
interest on the principal amount thereof to be paid to but excluding such date
of prepayment and (b) to the extent that the Net Proceeds exceed the amount
contributed to Infinity Media as described in clause (a) of the Article IV, IBC
will apply the requisite amount of such excess Net Proceeds to purchase from CBS
on the Closing Date any CBS Radio Bonds owned by CBS on the Closing Date for a
purchase price in cash equal to the amount of the purchase price paid by CBS for
such CBS Radio Bonds plus accrued and unpaid interest, if any, on such purchase
price (which interest shall be calculated in accordance with the terms of the
applicable CBS Radio Indentures).
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ARTICLE V
Registration Rights
SECTION 5.01. Demand Registration. (a) The Holders shall have the
right, following the Effective Date, by written notice (a "Demand Notice") given
to IBC, to request IBC to register under and in accordance with the provisions
of the Securities Act all or any portion of the Registrable Securities
designated by such Holders; provided, however, that the aggregate number of
Registrable Securities requested to be registered pursuant to any Demand Notice
and pursuant to any related Demand Notices received pursuant to the following
sentence shall be at least 1,000,000. Upon receipt of any such Demand Notice,
IBC shall promptly notify all other Holders of the receipt of such Demand Notice
and allow them the opportunity to include Registrable Securities held by them in
the proposed registration by submitting their own Demand Notice. In the event
that such Demand Registration involves an underwritten offering and the managing
underwriter or underwriters participating in such offering advise the Holders in
writing of Registrable Securities to be included in such offering so that the
total number of Registrable Securities to be included in such offering exceeds
the amount that can be sold in (or during the time of) such offering without
delaying or jeopardizing the success of such offering (including the price per
share of the Registrable Securities to be sold), then the amount of Registrable
Securities to be offered for the account of such Holders shall be reduced pro
rata on the basis of the number of Registrable Securities to be registered by
each such Holder. The Holders as a group shall be entitled to (i) unlimited
Demand Registrations prior to the Trigger Date and (ii) three Demand
Registrations following the Trigger Date, each pursuant to this Section 5.01(a).
If any Demand Registration does not become effective or is not maintained for a
period (whether or not continuous) of at least 120 days (or such shorter period
as shall terminate when all the Registrable Securities covered by such Demand
Registration have been sold pursuant thereto), such Demand Registration shall be
disregarded and deemed not to have been made.
(b) Within 45 days of the date on which IBC receives a Demand Notice
from Holders in accordance with Section 5.01(a), IBC shall file with the
Commission, and IBC shall thereafter use its best efforts to cause to be
declared effective, a Registration Statement on the
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appropriate form for the registration and sale, in accordance with the intended
method or methods of distribution, of the total number of Registrable Securities
specified by the Holders in such Demand Notice, which may include a "shelf"
registration (a "Shelf Registration") pursuant to Rule 415 promulgated under the
Securities Act (a "Demand Registration").
(c) IBC shall use commercially reasonable efforts to keep each
Registration Statement filed pursuant to this Section 5.01 continuously
effective and usable for the resale of the Registrable Securities covered
thereby (i) in the case of a Registration that is not a Shelf Registration, for
a period of 120 days from the date on which the Commission declares such
Registration Statement effective and (ii) in the case of a Shelf Registration,
for a period of 180 days from the date on which the Commission declares such
Registration Statement effective, in either case (x) until all the Registrable
Securities covered by such Registration Statement have been sold pursuant to
such Registration Statement and (y) as such period may be extended pursuant to
this Section 5.01.
(d) IBC shall be entitled to postpone the filing of any Registration
Statement otherwise required to be prepared and filed by IBC pursuant to this
Section 5.01, or suspend the use of any effective Registration Statement under
this Section 5.01, for a reasonable period of time, but not in excess of 90 days
(a "Delay Period"), if the Chairman of the Board of Directors of IBC determines
that in such person's reasonable judgment and good faith the registration and
distribution of the Registrable Securities covered or to be covered by such
Registration Statement would materially interfere with any pending material
financing, acquisition or corporate reorganization or other material corporate
development involving IBC or any of its Subsidiaries or would require premature
disclosure thereof and promptly gives the Holders written notice of such
determination, containing a reference to this Section 5.01(d) and an
approximation of the period of the anticipated delay; provided, however, that
(i) the aggregate number of days included in all Delay Periods during any
consecutive twelve-month period shall not exceed the difference between (x) 120
days and (y) the number of days occurring during all Hold Back Periods and
Interruption Periods during such consecutive twelve-month period, and (ii) a
period of at least 60 days shall elapse between the termination of any Delay
Period, Hold Back Period or
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Interruption Period and the commencement of the immediately succeeding Delay
Period. If IBC shall so postpone the filing of a Registration Statement, the
Holders of Registrable Securities to be registered shall have the right to
withdraw the request for registration by giving written notice from the Holders
of a majority of the Registrable Securities that were to be registered to IBC
within 45 days after receipt of the notice of postponement and, if earlier,
before the termination of such Delay Period (and, in the event of such
withdrawal, such request shall not be counted for purposes of determining the
number of requests for registration to which the Holders of Registrable
Securities are entitled pursuant to this Section 5.01). The time period for
which IBC is required to maintain the effectiveness of any Registration
Statement shall be extended by the aggregate number of days of all Delay
Periods, all Hold Back Periods and all Interruption Periods occurring during
such Registration and such period and any extension thereof is hereinafter
referred to as the "Effectiveness Period". IBC shall not be entitled to initiate
a Delay Period unless it shall (A) to the extent permitted by agreements with
other security holders of IBC, concurrently prohibit sales by such other
security holders under registration statements covering securities held by such
other security holders and (B) in accordance with IBC's policies from time to
time in effect, prohibit purchases and sales in the open market by senior
executives and certain other employees of IBC.
(e) IBC shall not include any securities that are not Registrable
Securities in any Registration Statement filed pursuant to Section 5.01 without
the prior written consent of the Holders of a majority in number of the
Registrable Securities covered by such Registration Statement.
(f) Holders of a majority in number of the Registrable Securities to be
included in a Registration Statement pursuant to this Section 5.01 may, at any
time prior to the effective date of the Registration Statement relating to such
Registration, revoke such request by providing a written notice to IBC revoking
such request. The Holders of Registrable Securities who revoke such request
shall reimburse IBC for all its out-of-pocket expenses incurred in the
preparation, filing and processing of the Registration Statement; provided,
however, that, if such revocation was based on IBC's failure to comply in any
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material respect with its obligations hereunder, such reimbursement shall not be
required.
SECTION 5.02. Piggyback Registration. (a) Right To Piggyback. If at any
time following the Effective Date IBC proposes to file a Registration Statement
under the Securities Act with respect to a public offering of any of its Common
Stock pursuant to a firm commitment underwritten offering solely for cash for
its own account (other than a Registration Statement (i) on Form S-8 or any
successor forms thereto or (ii) filed solely in connection with a dividend
reinvestment plan or employee benefit plan covering officers or directors of any
of the IBC Affiliated Group) or for the account of any holder of Common Stock,
then IBC shall give written notice of such proposed filing to the Holders at
least 15 Business Days before the anticipated filing date. Such notice shall
offer the Holders the opportunity to register such amount of Registrable
Securities as they may request (a "Piggyback Registration"). Subject to Section
5.02(b), IBC shall include in each such Piggyback Registration all Registrable
Securities with respect to which IBC has received written requests for inclusion
therein within ten Business Days after notice has been given to the Holders.
Each Holder shall be permitted to withdraw all or any portion of the Registrable
Securities of such Holder from a Piggyback Registration at any time prior to the
effective date of such Piggyback Registration; provided, however, that if such
withdrawal occurs after the filing of the Registration Statement with respect to
such Piggyback Registration, the withdrawing Holders shall reimburse IBC for the
portion of the registration expenses payable with respect to the Registrable
Securities so withdrawn.
(b) Priority on Piggyback Registrations. IBC shall permit the Holders
to include all such Registrable Securities on the same terms and conditions as
any similar securities, if any, of IBC included therein. Notwith standing the
foregoing, if the managing underwriter or underwriters participating in such
offering advise the Holders in writing that the total amount of securities
requested to be included in such Piggyback Registration exceeds the amount which
can be sold in (or during the time of) such offering without delaying or
jeopardizing the success of the offering (including the price per share of the
securities to be sold), then the amount of securities to be offered for the
account of the Holders and other holders of securities who have piggyback
registration rights with
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respect thereto shall be reduced (to zero if necessary) pro rata on the basis of
the number of shares of Common Stock requested to be registered by each such
Holder or holder participating in such offering.
(c) Right To Abandon. Nothing in this Section 5.02 shall create any
liability on the part of IBC to the Holders if IBC in its sole discretion should
decide not to file a Registration Statement proposed to be filed pursuant to
Section 5.02(a) or to withdraw such Registration Statement subsequent to its
filing, regardless of any action whatsoever that a Holder may have taken,
whether as a result of the issuance by IBC of any notice hereunder or otherwise.
SECTION 5.03. Hold Back Agreement. If (i) during the applicable
Effectiveness Period, IBC shall file a Registration Statement (other than in
connection with the registration of securities issuable pursuant to an employee
stock option, stock purchase or similar plan or pursuant to a merger, exchange
offer or a transaction of the type specified in Rule 145(a) promulgated under
the Securities Act) with respect to the Common Stock or similar securities or
securities convertible into, or exchangeable or exercisable for, such securities
and (ii) with reasonable prior written notice, the managing underwriter or
underwriters (in the case of an underwritten public offering by IBC pursuant to
such Registration Statement) advises IBC in writing (in which case IBC shall
notify the Holders) that a public sale or distribution of Registrable Securities
would materially adversely impact such offering, then each Holder shall, to the
extent not inconsistent with applicable law, refrain from effecting any public
sale or distribution of Registrable Securities during the ten days prior to the
effective date of such Registration Statement and until the earliest to occur of
(A) the abandonment of such offering, (B) 90 days from the effective date of
such Registration Statement and (C) if such offering is an underwritten
offering, the termination in whole or in part of any "hold back" period obtained
by the underwriter or underwriters in such offering from IBC in connection
therewith (each such period, a "Hold Back Period").
SECTION 5.04. Registration Procedures. In connection with the
registration obligations of IBC pursuant to and in accordance with Sections 5.01
and 5.02 (and subject to Sections 5.01 and 5.02), IBC shall use commercially
reasonable efforts to effect such registration to permit the sale of such
Registrable Securities in
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accordance with the intended method or methods of disposition thereof, and
pursuant thereto IBC shall as expeditiously as possible (but subject to Sections
5.01 and 5.02):
(a) prepare and file with the Commission a Registration
Statement for the sale of the Registrable Securities on any form for
which IBC then qualifies or which counsel for IBC shall deem
appropriate in accordance with such Holders' intended method or methods
of distribution thereof, subject to Section 5.01(b), and, subject to
IBC's right to terminate or abandon a registration pursuant to Section
5.02(c), use commercially reasonable efforts to cause such Registration
Statement to become effective and remain effective as provided herein;
(b) prepare and file with the Commission such amendments
(including post-effective amendments) to such Registration Statement,
and such supplements to the related Prospectus, as may be required by
the rules, regulations or instructions applicable to the Securities Act
during the applicable period in accordance with the intended methods of
disposition specified by the Holders of the Registrable Securities
covered by such Registration Statement, make generally available
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act (provided that IBC shall be deemed to have complied with
this clause if it has complied with Rule 158 promulgated under the
Securities Act), and cause the related Prospectus as so supplemented to
be filed pursuant to Rule 424 promulgated under the Securities Act;
provided, however, that before filing a Registration Statement or
Prospectus, or any amendments or supplements thereto (other than
reports required to be filed by it under the Exchange Act), IBC shall
furnish to the Holders of Registrable Securities covered by such
Registration Statement and counsel to the Holders (provided that the
Holders shall appoint one counsel only) for review and comment, copies
of all documents required to be filed;
(c) notify the Holders of any Registrable Securities covered
by such Registration Statement promptly and (if requested) confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to such
Registration Statement or any
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post-effective amendment, when the same has become effective, (ii) of
any request by the Commission for amendments or supplements to such
Registration Statement or the related Prospectus or for additional
information regarding such Holders, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by IBC of any notification with respect to
the suspension of the qualification or exemption from qualification of
any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (v) of
the happening of any event that requires the making of any changes in
such Registration Statement, Prospectus or documents incorporated or
deemed to be incorporated therein by reference so that they will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(d) use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Registration Statement or the lifting of any suspension of the
qualification or exemption from qualification of any Registrable
Securities for sale in any jurisdiction in the United States;
(e) furnish to the Holder of any Registrable Securities
covered by such Registration Statement, counsel for such Holders and
each managing underwriter, if any, without charge, one conformed copy
of such Registration Statement, as declared effective by the
Commission, and each post-effective amendment thereto, in each case
including financial statements and schedules and all exhibits and
reports incorporated or deemed to be incorporated therein by reference;
and deliver, without charge, such number of copies of the preliminary
prospectus, any amended preliminary prospectus, each final Prospectus
and any post-effective amendment or supplement thereto, as such Holder
may reasonably request in order to facilitate the disposition of the
Registrable Securities of such Holder covered by such Registration
Statement in conformity with the requirements of the Securities Act;
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(f) prior to any public offering of Registrable Securities
covered by such Registration Statement, use commercially reasonable
efforts to register or qualify such Registrable Securities for offer
and sale under the state securities laws of such jurisdictions as the
Holders of such Registrable Securities shall reasonably request in
writing; provided, however, that IBC shall in no event be required to
qualify generally to do business as a foreign corporation or as a
dealer in any jurisdiction where it is not at the time so qualified or
to execute or file a general consent to service of process in any such
jurisdiction where it has not theretofore done so or to take any action
that would subject it to general service of process or taxation in any
such jurisdiction where it is not then subject;
(g) upon the occurrence of any event contemplated by paragraph
(c)(v) above, prepare a supplement or post-effective amendment to such
Registration Statement or the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference and file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder
(including upon the termination of any Delay Period), such Prospectus
will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(h) use commercially reasonable efforts to cause all
Registrable Securities covered by such Registration Statement to be
listed on each securities exchange or automated interdealer quotation
system, if any, on which similar securities issued by IBC are then
listed or quoted;
(i) on or before the effective date of such Registration
Statement, provide the transfer agent of IBC for the Registrable
Securities with printed certificates for the Registrable Securities
covered by such Registration Statement, which are in a form eligible
for deposit with The Depository Trust Company;
(j) if such offering is an underwritten offering, make
available for inspection by any Holder of Registrable Securities
included in such Registration
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Statement, any underwriter participating in any offering pursuant to
such Registration Statement and any attorney, accountant or other agent
retained by any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records and other information,
pertinent corporate documents and properties of any of IBC and its
Subsidiaries, as shall be reasonably necessary to enable them to
exercise their due diligence responsibilities; and
(k) if such offering is an underwritten offering, enter into
such agreements (including an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such
other appropriate and reasonable actions requested by the Holders of a
majority of the Registrable Securities being sold in connection
therewith (including those reasonably requested by the managing
underwriters) in order to expedite or facilitate the disposition of
such Registrable Securities, and in such connection, (i) use
commercially reasonable efforts to obtain opinions of counsel to IBC
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters and counsel to the Holders of the Registrable Securities
being sold), addressed to each selling Holder of Registrable Securities
covered by such Registration Statement and each of the underwriters as
to the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such counsel and underwriters, (ii) use commercially
reasonable efforts to obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of IBC (and, if
necessary, any other independent certified public accountants of any
Subsidiary of IBC or of any business acquired by IBC for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling
holder of Registrable Securities covered by the Registration Statement
(unless such accountants shall be prohibited from so addressing such
letters by applicable standards of the accounting profession) and each
of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings, (iii) upon the reasonable
request of the
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underwriters, make senior officers of IBC available to participate in a
series of "roadshow" meetings and (iv) if requested and if an
underwriting agreement is entered into, provide indemnification
provisions and procedures substantially to the effect set forth in
Article IX hereof with respect to all parties to be indemnified
pursuant to said Article. The above shall be done at each closing under
such underwriting or similar agreement, or as and to the extent
required thereunder.
IBC may require each Holder of Registrable Securities covered by a
Registration Statement to furnish such information regarding such Holder and
such Holder's intended method of disposition of such Registrable Securities as
it may from time to time reasonably request in writing. If any such information
is not furnished within a reasonable period of time after receipt of such
request, IBC may exclude such Holder's Registrable Securities from such
Registration Statement.
Each Holder of Registrable Securities covered by a Registration
Statement agrees that, upon receipt of any notice from IBC of the happening of
any event of the kind described in Section 5.04(c)(ii), (iii), (iv) or (v), that
such Holder shall forthwith discontinue disposition of any Registrable
Securities pursuant to such Registration Statement or the related Prospectus
until receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5.04(g), or until such Holder is advised in writing by
IBC that the use of the applicable Prospectus may be resumed, and has received
copies of any amended or supplemented Prospectus or any additional or
supplemental filings which are incorporated, or deemed to be incorporated, by
reference in such Prospectus (such period during which disposition is
discontinued being an "Interruption Period") and, if requested by IBC, the
Holder shall deliver to IBC (at the expense of IBC) all copies then in its
possession, other than permanent file copies then in such holder's possession,
of the Prospectus covering such Registrable Securities at the time of receipt of
such request.
Each Holder of Registrable Securities covered by a Registration
Statement further agrees not to utilize any material other than the applicable
current preliminary prospectus or Prospectus in connection with the offering of
such Registrable Securities.
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SECTION 5.05. Registration Expenses. Whether or not any Registration
Statement is filed or becomes effective, IBC shall pay all Registration Expenses
with respect to a particular offering (or proposed offering). Notwithstanding
the foregoing, the fees and expenses of any Persons retained by any Holder
(other than the fees and expenses of one counsel for all such Holders) any
discounts, commissions or brokers' fees or fees of similar securities industry
professionals, any transfer taxes relating to the disposition of the Registrable
Securities by a Holder and any internal administration and similar costs of such
Holder in connection with such offering (or proposed offering) will be payable
by such Holder and IBC will have no obligation to pay any such amounts.
SECTION 5.06. Underwriting Requirements. (a) Subject to Section
5.06(b), any Holder shall have the right, by written notice, to request that any
Demand Registration provide for an underwritten offering.
(b) In the case of any underwritten offering pursuant to a
Demand Registration, the Holders of a majority of the Registrable Securities to
be disposed of in connection therewith shall select the institution or
institutions that shall manage or lead such offering, which institution or
institutions shall be reasonably satisfactory to IBC. In the case of any
underwritten offering pursuant to a Piggyback Registration, IBC shall select the
institution or institutions that shall manage or lead such offering. No Holder
shall be entitled to participate in an underwritten offering unless and until
such Holder has entered into an underwriting or other agreement with such
institution or institutions for such offering in such form as IBC and such
institution or institutions shall determine.
SECTION 5.07. Transfer of Registration Rights. Any Holder may transfer
all or any portion of its rights under this Article V to (i) any affiliate
thereof in respect of any number of Registrable Securities or (ii) any other
transferee in respect of a number of Registrable Securities owned by such Holder
equal to or exceeding 5% of the outstanding Common Stock at the time of transfer
(each transferee that receives such minimum number of Registrable Securities
shall be referred to herein as a "Transferee"). Any transfer of registration
rights pursuant to this Section 5.07 shall be effective upon receipt by IBC of
(i) written notice from such Holder stating the name and address of any
Transferee and identifying the number of Registrable
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Securities with respect to which the rights under this Agreement are being
transferred and the nature of the rights so transferred and (ii) a written
agreement from such Transferee to be bound by the terms of this Agreement. The
Holders may exercise their rights hereunder in such priority as they shall agree
upon among themselves.
ARTICLE VI
Trademark Agreements
The forms of trademark license agreements set forth as
Exhibits 6.1, 6.2 and 6.3 hereto are hereby incorporated by reference herein.
ARTICLE VII
Information
SECTION 7.01. Provision of Corporate Records. (a) Subject to
applicable law and privileges, from and after the Effective Date, upon the prior
written request by CBS for specific and identified agreements, documents, books,
records or files, including, without limitation, computer files, microfiche,
tape recordings and photographs (collectively, "Records"), relating to or
affecting CBS, IBC shall arrange, as soon as reasonably practicable following
the receipt of such written request, for the provision of appropriate copies of
such Records (or the originals thereof if the party making the request has a
reasonable need for such originals) in the possession of IBC or any of its
Subsidiaries, but only to the extent such items are not already in the
possession of the requesting party.
(b) Subject to applicable law and privileges, from and after
the Effective Date, upon the prior written request by IBC for specific and
identified Records relating to or affecting IBC, CBS shall arrange, as soon as
reasonably practicable following the receipt of such request, for the provision
of appropriate copies of such Records (or the originals thereof if the party
making the request has a reasonable need for such originals) in the possession
of CBS or any of its Subsidiaries, but only to the extent such items are not
already in the possession of the requesting party.
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SECTION 7.02. Access to Information. (a) Subject to applicable
law and privileges, from and after the Effective Date, IBC shall afford to CBS
and its authorized accountants, counsel and other designated representatives
reasonable access during normal business hours, subject to appropriate
restrictions for classified, privileged or confidential information, to the
personnel, properties, books and records of IBC and its Subsidiaries insofar as
such access is reasonably required by CBS.
(b) Subject to applicable law and privileges, from and after
the Effective Date, each of IBC and CBS shall provide to the other, within a
reasonable period of time prior to the time at which such documents shall be
filed with the Commission, all documents proposed to be filed by it and any of
its Subsidiaries with the Commission pursuant to the periodic and interim
reporting requirements of the Exchange Act.
SECTION 7.03. Reimbursement; Other Matters. Except to the
extent otherwise contemplated by any Ancillary Agreement, a party providing
Records or access to information to another party hereto pursuant to this
Article VII shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments for such amounts, relating to
supplies, disbursements and other out-of-pocket expenses, as may be reasonably
incurred in providing such Records or access to information.
SECTION 7.04. Confidentiality. Each of IBC and CBS shall not
(without the prior written consent of the other party) use or permit the use of,
and shall hold, and shall cause its consultants and advisors to hold, in strict
confidence, all information concerning the other party in its possession, its
custody or under its control (except to the extent that (a) such information has
been in the public domain through no fault of such party, (b) such information
has been later lawfully acquired from a source other than the other party to
this Agreement or (c) this Agreement or any other Ancillary Agreement permits
the use or disclosure of such information), and each party shall not (without
the prior written consent of the other) otherwise release or disclose such
information to any other Person, except to such party's officers, directors,
employees, auditors, attorneys and agents, in each case on a confidential and
need-to-know basis, unless compelled to disclose such information by judicial or
administrative process or unless such disclosure is required by law and such
party has used
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commercially reasonable efforts to consult with the other affected party or
parties prior to such disclosure. To the extent that a party hereto is compelled
by judicial or administrative process to disclose such information under
circumstances in which any evidentiary privilege may be available, such party
agrees to assert such privilege in good faith prior to making such disclosure.
Each of the parties hereto agrees to immediately consult with the other party in
connection with any such judicial or administrative process, including, without
limitation, in determining whether any privilege is available, and further
agrees to allow each such relevant party and its counsel to participate in any
hearing or other proceeding (including, without limitation, any appeal of an
initial order to disclose) in respect of such disclosure and assertion of
privilege.
SECTION 7.05. Destruction of Records. In the event that a
Servicer intends to destroy any records relating to the employment of, or
participation in such Servicer's Benefit Plans by, a Recipient's employees
(including, but not limited to, personnel records and records relating to
medical and other health and welfare benefit plans), such Servicer shall provide
written notice to the Recipient of its intention to do so at least 90 days in
advance of the date that such destruction is expected to be undertaken. Such
Recipient shall have 30 days after receiving such notice to advise such Servicer
in writing whether such Recipient wishes to obtain copies of such records
pertaining to its employees. If such Recipient desires such records, such
Servicer shall, at the sole expense of the Recipient, either provide the
originals thereof to the Recipient or shall copy such records and provide them
to the Recipient.
ARTICLE VIII
Assumption and Satisfaction of Liabilities
From and after the date hereof, (i) CBS shall assume, pay,
perform and discharge all CBS Liabilities and (ii) IBC shall assume, pay,
perform and discharge all IBC Liabilities.
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ARTICLE IX
Indemnification
SECTION 9.01. General Cross Indemnification. (a) Except as
otherwise specifically set forth in any provision of this Agreement, including
Article X relating to Tax Claims, or of any Ancillary Agreement, as of the
Effective Date, CBS shall indemnify, defend and hold harmless the IBC
Indemnitees from and against any and all Indemnifiable Losses of the IBC
Indemnitees arising out of, by reason of or otherwise in connection with (i) the
CBS Liabilities, (ii) the CBS Pension Liabilities, (iii) CBS Indenture
Liabilities, (iv) the breach by CBS or any of its Subsidiaries (other than IBC
and its subsidiaries) of any provision of this Agreement or any Ancillary
Agreement and (v) any claims by a third party unrelated to any IBC Indemnitee
caused by or arising in connection with the gross negligence or willful
misconduct on the part of any employee of any member of the CBS Affiliated Group
in connection with the performance of the CBS Services or the administration of
the CBS Benefit Plans, except to the extent that Indemnifiable Losses were
caused directly or indirectly by acts or omissions of any member of the IBC
Affiliated Group; provided, however, that in the case of any of the CBS Benefit
Plans, the right of indemnification of such member of the IBC Affiliated Group
shall also extend to claims of Transferring Employees but shall not extend to
any Indemnifiable Losses that otherwise would have been suffered by such IBC
Employee(s) in the absence of such gross negligence or willful misconduct on the
part of any employee of any member of the CBS Affiliated Group.
(b) Except as otherwise specifically set forth in any
provision of this Agreement, including Article X relating to Tax Claims, or of
any Ancillary Agreement, as of the Effective Date, IBC shall indemnify, defend
and hold harmless the CBS Indemnitees from and against any and all Indemnifiable
Losses of the CBS Indemnitees arising out of, by reason of or otherwise in
connection with (i) the IBC Liabilities, (ii) the breach by IBC or any of its
Subsidiaries of any provision of this Agreement or any Ancillary Agreement,
(iii) obligations or liabilities of any member of the CBS Affiliated Group, in
whatever form, under or in respect of any guarantees (including the CBS
Guarantee Liabilities) [in respect of bank indebtedness] entered into by such
member for the benefit of any member of the IBC Affiliated Group and (iv) any
third party claims that any
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employee of any member of the IBC Affiliated Group acted with gross negligence
or willful misconduct in connection with the performance of the IBC Services or
the administration of the IBC Benefit Plans, except to the extent that
Indemnifiable Losses were caused directly or indirectly by acts or omissions of
any member of the CBS Affiliated Group; provided, however, that in the case of
any of the IBC Benefit Plans, the right of indemnification of such member of the
CBS Affiliated Group shall also extend to claims of CBS Employees but shall not
extend to any Indemnifiable Losses that otherwise would have been suffered by
such CBS Employee(s) in the absence of such gross negligence or willful
misconduct on the part of any employee of any member of the IBC Affiliated
Group. In the event that, on or after the Effective Date, CBS Radio or any of
its Subsidiaries enters into any transaction or arrangement with CBS or any of
its Subsidiaries (other than CBS Radio and its Subsidiaries) pursuant to the
terms of this Agreement that would otherwise result in a violation or default of
the provisions of any of the CBS Radio Indentures that impose restrictions on
the ability of CBS Radio or its Subsidiaries to enter into transactions with any
of their affiliates, IBC agrees to make, and to cause CBS Radio to make, such
arrangements as are necessary to ensure that CBS Radio and its Subsidiaries
remain in compliance with such provisions of the CBS Radio Indentures.
(c) The indemnification provisions contained in this Section
9.01 shall be applicable whether or not any Action or the facts or transactions
giving rise to such Action arose prior to, on or subsequent to the date of this
Agreement.
SECTION 9.02. Registration Statement Indemnification. (a) IBC
shall indemnify and hold harmless, to the full extent permitted by law, CBS and
its Subsidiaries (other than any of the IBC Affiliated Group) in respect of the
Registration Statement and Prospectus in connection with the Initial Public
Offering, Holders of Registrable Securities whose Registrable Securities are
covered by a Registration Statement or Prospectus, the officers, directors,
employees and agents of each of them, each Person who controls any of them
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, employees and agents of each such
controlling Person (each, a "Registration Indemnitee"), from and against any
and all Indemnifiable Losses arising out of or based upon any untrue
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statement or alleged untrue statement of a material fact contained in such
Registration Statement or Prospectus, or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same is based on written information furnished to IBC by or on
behalf of any Registration Indemnitee specifically for inclusion therein;
provided, however, that IBC shall not be liable to any such Registration
Indemnitee to the extent that any such Indemnifiable Losses arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if (i) having previously
been furnished by or on behalf of IBC with copies of the Prospectus, such
Registration Indemnitee (or any underwriter for such Registration Indemnitee)
failed to send or deliver a copy of the Prospectus with or prior to the delivery
of written confirmation of the sale of Registrable Securities by such
Registration Indemnitee to the Person asserting the claim from which such
Indemnifiable Losses arise and (ii) the Prospectus would have corrected in all
material respects such untrue statement or alleged untrue statement or such
omission or alleged omission; and provided further that IBC shall not be liable
in any such case to the extent that any such Indemnifiable Losses arise out of
or are based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the Prospectus, if (x) such untrue statement or alleged
untrue statement, omission or alleged omission is corrected in all material
respects in an amendment or supplement to the Prospectus and (y) having
previously been furnished by or on behalf of IBC with copies of the Prospectus
as so amended or supplemented, such Registration Indemnitee (or any underwriter
for such Registration Indemnitee) thereafter fails to deliver such Prospectus as
so amended or supplemented, prior to or concurrently with the sale of
Registrable Securities. This indemnity agreement will be in addition to any
liability that IBC may otherwise have.
(b) In connection with any Registration Statement in which a
Holder is participating, such Holder shall furnish to IBC in writing such
information as IBC reasonably requests in connection with such Registration
Statement or the related Prospectus and shall indemnify and hold harm less, to
the full extent permitted by law, IBC, its officers, directors, employees and
agents, each Person who controls IBC (within the meaning of Section 15 of the
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Securities Act or Section 20 of the Exchange Act) and the officers, directors,
employees or agents of such controlling Persons, to the same extent as the
foregoing indemnity from IBC to each Registration Indemnitee described in
Section 9.02(a), but only with reference to written information relating to such
Holder furnished to IBC by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Holder may
otherwise have.
SECTION 9.03. Limitations on Indemnification Obligations. The
amount that any party (an "Indemnifying Party") is or may be required to pay to
any other Person (an "Indemnitee") pursuant to Section 9.01 or 9.02, as
applicable, shall be reduced (retroactively or prospectively) by any Insurance
Proceeds or other amounts actually recovered by or on behalf of such Indemnitee
in respect of the relevant Indemnifiable Loss. If an Indemnitee shall have
received the payment required by this Agreement from an Indemnifying Party in
respect of an Indemnifiable Loss and shall subsequently receive Insurance
Proceeds or other amounts in respect of such Indemnifiable Loss, then such
Indemnitee shall pay to such Indemnifying Party an amount equal to the
difference between (a) the sum of the amount of such Insurance Proceeds and
other amounts actually received by or on behalf of such Indemnitee in respect of
the relevant Indemnifiable Loss and (b) the amount of such Indemnifiable Loss.
SECTION 9.04. Procedures for Indemnification. (a) Third Party
Claims. If a claim or demand is made against an Indemnitee by any Person who is
not a party to this Agreement (a "Third Party Claim") as to which such
Indemnitee is entitled to indemnification pursuant to this Agreement, such
Indemnitee shall notify the Indemnifying Party in writing, and in reasonable
detail, of the Third Party Claim promptly (and in any event within 10 Business
Days) after receipt by such Indemnitee of written notice of the Third Party
Claim; provided, however, that failure to give such notification shall not
affect the indemnification provided hereunder except to the extent the
Indemnifying Party shall have been actually prejudiced as a result of such
failure (except that the Indemnifying Party shall not be liable for any expenses
incurred during the period in which the Indemnitee failed to give such notice).
Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly
(and in any event within 10 business days)
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after the Indemnitee's receipt thereof, copies of all notices and documents
(including court papers) received by the Indemnitee relating to the Third Party
Claim.
If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party shall be entitled to participate in the defense thereof and,
if it so chooses and acknowledges in writing its obligation to indemnify the
Indemnitee therefor, to assume the defense thereof with counsel selected by the
Indemnifying Party, provided that such counsel is not reasonably objected to by
the Indemnitee. Should the Indemnifying Party so elect to assume the defense of
a Third Party Claim, the Indemnifying Party shall not be liable to the
Indemnitee for legal or other expenses subsequently incurred by the Indemnitee
in connection with the defense thereof. If the Indemnifying Party assumes such
defense, the Indemnitee shall have the right to participate in the defense
thereof and to employ counsel, at its own expense, separate from the counsel
employed by the Indemnifying Party, it being understood that the Indemnifying
Party shall control such defense. The Indemnifying Party shall be liable for the
reasonable fees and expenses of counsel employed by the Indemnitee for any
period during which the Indemnifying Party has failed to assume the defense
thereof (other than during the period prior to the time the Indemnitee shall
have given notice of the Third Party Claim as provided above). If the
Indemnifying Party so elects to assume the defense of any Third Party Claim, all
the Indemnitees shall cooperate with the Indemnifying Party in the defense or
prosecution thereof.
If the Indemnifying Party acknowledges in writing
responsibility for a Third Party Claim, then in no event shall the Indemnitee
admit any liability with respect to, or settle, compromise or discharge, such
Third Party Claim without the Indemnifying Party's prior written consent;
provided, however, that the Indemnitee shall have the right to settle,
compromise or discharge such Third Party Claim without the consent of the
Indemnifying Party if the Indemnitee releases the Indemnifying Party from its
indemnification obligation hereunder with respect to such Third Party Claim and
such settlement, compromise or discharge would not otherwise adversely affect
the Indemnifying Party. If the Indemnifying Party acknowledges in writing
responsibility for a Third Party Claim, the Indemnitee shall agree to any
settlement, compromise or discharge of a Third Party Claim that the Indemnifying
Party
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may recommend and that by its terms obligates the Indemnifying Party to pay the
full amount of the liability in connection with such Third Party Claim and
releases the Indemnitee completely in connection with such Third Party Claim and
that would not otherwise adversely affect the Indemnitee; provided, however,
that the Indemnitee may refuse to agree to any such settlement, compromise or
discharge if the Indemnitee agrees that the Indemnifying Party's indemnification
obligation hereunder with respect to such Third Party Claim shall not exceed the
difference between (i) the amount that would be required to be paid by or on
behalf of the Indemnifying Party in connection with such settlement, compromise
or discharge and (ii) the amount actually paid by or on behalf of the
Indemnifying Party in connection with the settlement, compromise or discharge of
such Third Party Claim.
Notwithstanding the foregoing, the Indemnifying Party shall
not be entitled to assume the defense of any Third Party Claim (and shall be
liable for the fees and expenses of counsel incurred by the Indemnitee in
defending such Third Party Claim) if the Third Party Claim seeks an order,
injunction or other equitable relief or relief for other than money damages
against the Indemnitee which the Indemnitee reasonably determines, after
conferring with its counsel, cannot be separated from any related claim for
money damages. If such equitable relief or other relief portion of the Third
Party Claim can be so separated from that for money damages, the Indemnifying
Party shall be entitled to assume the defense of the portion relating to money
damages.
SECTION 9.05. Indemnification Payments. Indemnification
required by this Article IX shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or loss, liability, claim, damage or expense is incurred.
SECTION 9.06. Other Adjustments. (a) The amount of any
Indemnifiable Loss shall be (i) increased to take into account any net Tax cost
actually incurred by the Indemnitee arising from any payments received from the
Indemnifying Party (grossed up for such increase) and (ii) reduced to take
account of any net Tax benefit actually realized by the Indemnitee arising from
the incurrence or payment of any such Indemnifiable Loss. In computing the
amount of such Tax cost or Tax benefit, the Indemnitee shall be deemed to
recognize all other items of income, gain,
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loss, deduction or credit before recognizing any item arising from the receipt
of any payment with respect to an Indemnifiable Loss or the incurrence or
payment of any Indemnifiable Loss.
(b) In addition to any adjustments required pursuant to
Section 9.04 or Section 9.06(a), if the amount of any Indemnifiable Loss shall,
at any time subsequent to the payment required by this Agreement, be reduced by
recovery, settlement or otherwise, the amount of such reduction, less (i) any
expenses incurred in connection therewith and (ii) any Tax imposed thereon
(determined after taking into account any Tax benefit arising from the repayment
provided for in this Section 9.06(b)), shall promptly be repaid by the
Indemnitee to the Indemnifying Party, up to the aggregate amount of any payments
received from such Indemnifying Party pursuant to this Agreement in respect of
such Indemnifiable Loss.
ARTICLE X
Tax Indemnification
SECTION 10.01. Intercompany Transfers of Property and
Services. (a) Any sales or use tax arising from or imposed upon the transfer of
property or services by CBS or any of its Subsidiaries (other than IBC and its
Subsidiaries) to IBC or any of its Subsidiaries, or by IBC or any of its
Subsidiaries to CBS or any of its Subsidiaries (other than IBC and its
Subsidiaries), after the consummation of the Initial Public Offering shall be
the liability of the company receiving such property or services.
(b) Any payroll tax attributable to 1998 that arises from the
employment by IBC after the consummation of the Initial Public Offering of
individuals who performed services for IBC or any of its Subsidiaries during
1998 shall be the liability of IBC.
SECTION 10.02. Special Procedures Regarding Tax Claims. (a)
Any claims for indemnification arising under Section 10.01 are hereinafter
referred to as "Tax Claims".
(b) Section 4 of the Tax Sharing Agreement shall govern all
Tax controversies with respect to all Tax Claims, notwithstanding any
inconsistency between any of the
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provisions of this Agreement and Section 4 of the Tax Sharing Agreement.
Further, Sections 8(p) and 9 of the Tax Sharing Agreement shall govern the
meaning, interpretation, application or enforceability of any of the provisions
of this Agreement with respect to Tax Claims, notwithstanding any inconsistency
between any of the provisions of this Agreement and Sections 8(p) and 9 of the
Tax Sharing Agreement.
(c) Indemnification required by this Article X shall be made
within 24 hours of receipt of a written request from an indemnifiable party.
Such indemnifiable party shall attach to such written request documentation in
support of such Tax Claim.
(d) The amount of any indemnification payment in respect of
any Tax Claim shall be (i) increased to take account of any net Tax cost
actually incurred by the Indemnitee arising from any indemnification payments
received from the Indemnifying Party (grossed up for such increase) and (ii)
reduced to take account of any immediate net Tax benefit actually realized by
the Indemnitee arising from the incurrence or payment of any such
indemnification payment. In computing the amount of such Tax cost or Tax
benefit, the Indemnitee shall be deemed to recognize all other items of income,
gain, loss, deduction or credit before recognizing any item arising from the
receipt of any indemnification payment in respect of any Tax Claim or the
incurrence or payment of any indemnification payment in respect of any Tax
Claim.
(e) If the amount of any indemnification claim in respect of
any Tax Claim shall, at any time subsequent to the payment required by this
Agreement, be reduced by recovery, settlement or otherwise, the amount of such
reduction, less any expenses incurred in connection therewith, shall promptly be
repaid by the Indemnitee to the Indemnifying Party, up to the aggregate amount
of any indemnification payments received from such Indemnifying Party pursuant
to this Agreement in respect of any Tax Claim.
SECTION 10.03. Tax-Free Spin-Off. Prior to a Tax-Free
Spin-Off, CBS shall amend, or shall cause CBS Broadcasting or any other member
of the CBS Affiliated Group that owns Class B Common Stock to amend, the
Restated Certificate of Incorporation of IBC to provide for the automatic
conversion of shares of Class B Common Stock into
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shares of Class A Common Stock at a specified time following the Tax-Free
Spin-Off, if CBS determines, in its sole discretion, that such conversion would
be consistent with qualification of the transaction as a Tax-Free Spin-Off.
ARTICLE XI
Term of Agreement
SECTION 11.01. Termination. (a) Except as otherwise provided
in this Article XI or as otherwise agreed to in writing by the parties hereto,
this Agreement shall be subject to termination by either CBS or IBC, upon six
months' prior written notice, after the Trigger Date.
(b) CBS may terminate any CBS Service at any time if IBC shall
have failed to perform any of its material obligations under this Agreement
relating to any such CBS Service, provided that CBS has notified IBC in writing
of such failure and such failure shall have continued for a period of 60 days
after receipt by IBC of notice of such failure.
(c) IBC may terminate any IBC Service at any time if CBS shall
have failed to perform any of its material obligations under this Agreement
relating to any such IBC Service, provided that IBC has notified CBS in writing
of such failure and such failure shall have continued for a period of 60 days
after receipt by CBS of notice of such failure.
SECTION 11.02. Effect of Termination. (a) Other than as
required by law, upon termination of any Service pursuant to Section 11.01, and
upon termination of this Agreement in accordance with its terms, CBS or IBC, as
applicable, will have no further obligation to provide the terminated Service
(or any Service, in the case of termination of this Agreement) and IBC or CBS,
as applicable, shall have no obligation to pay any costs relating to such
Services or make any other payments hereunder, provided that notwithstanding any
such termination (i) IBC and/or CBS, as applicable, shall remain liable
to CBS and/or IBC, as applicable, for costs owed and payable in respect of
Services provided prior to the effective date of such termination or any costs
attributable to, arising out of or in connection with such termination
(including severance costs, long-term lease obligations and
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rent) and (ii) CBS and/or IBC, as applicable, shall continue to charge IBC
and/or CBS, as applicable, for administrative and program costs relating to
benefits provided after but incurred prior to the termination of any Service and
other services required to be provided after the termination of such Service and
IBC and/or CBS, as applicable, shall be obligated to pay such costs in
accordance with the terms of this Agreement.
(b) Following termination of any Service under this Agreement,
CBS and IBC agree to cooperate in providing for an orderly transition of such
Service to IBC or CBS, as applicable, or to a successor service provider.
Without limiting the foregoing, (i) CBS agrees to provide to IBC, within 90 days
of the termination of all CBS Services in respect of any Transferring Employees
participating in CBS Benefit Plans, and (ii) IBC agrees to provide to CBS,
within 90 days of the termination of all IBC Services in respect of any CBS
Employees participating in IBC Benefit Plans, copies in a format designated by
CBS or IBC, as applicable, of all records relating directly or indirectly to
benefit determinations of the IBC Affiliated Group, including compensation and
service records or records required to be maintained by law and (iii) CBS and
IBC shall work with the other party in developing a reasonable transition
schedule with respect thereto.
SECTION 11.03. Survival of Termination. Notwithstanding any
provisions in this Agreement to the contrary, any obligations of or covenants
and agreements made by each of CBS and IBC under this Article XI and Articles V,
VI, VIII, IX and X and Sections 3.03 and 7.04 shall survive (i) the sale or
other transfer by either of them of any assets or businesses or the assignment
by either of them of any Liabilities, with respect to any Indemnifiable Loss of
any Indemnitee related to such assets, businesses or Liabilities and (ii) the
termination of this Agreement, and shall continue in full force and effect
(subject to the terms of such provisions).
ARTICLE XII
Miscellaneous
SECTION 12.01. Complete Agreement; Construction. This
Agreement, including the Exhibits and Schedules, and the Ancillary Agreements
shall constitute the entire
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agreement between the parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings with respect
to such subject matter. In the event of any inconsistency between this Agreement
and any Exhibit or Schedule hereto, such Exhibit or Schedule shall prevail.
Notwithstanding any other provisions in this Agreement to the contrary, in the
event and to the extent that there shall be a conflict between the provisions of
this Agreement and the provisions of any Ancillary Agreement, such Ancillary
Agreement shall control.
SECTION 12.02. Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address, the matters
specifically and expressly covered by the Ancillary Agreements. In the event of
any inconsistency between this Agreement and any Ancillary Agreement, the terms
of such Ancillary Agreement shall govern.
SECTION 12.03. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
SECTION 12.04. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and shall be deemed given on the date on
which such notice is received:
To IBC:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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To CBS:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Executive Vice President
and General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 12.05. Waivers. The failure of either party to require
strict performance by the other party of any provision in this Agreement shall
not waive or diminish that party's right to demand strict performance thereafter
of that or any other provision hereof.
SECTION 12.06. Amendments. This Agreement may not be modified
or amended except by an agreement in writing signed by the parties.
SECTION 12.07. Assignment. This Agreement shall be assignable,
other than as provided in paragraph (u) of Article VI, in whole in connection
with a merger or consolidation or the sale of all or substantially all the
assets of a party hereto so long as the resulting, surviving or transferee
entity assumes all the obligations of the relevant party hereto by operation of
law or pursuant to an agreement in form and substance reasonably satisfactory to
the other party to this Agreement. Otherwise this Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the others, and any attempt to assign any
rights or obligations arising under this Agreement without such consent shall be
void.
SECTION 12.08. Successors and Assigns. The provisions of this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective permitted successors and permitted assigns.
SECTION 12.09. Subsidiaries. Each of the parties hereto shall
cause to be performed, and hereby guarantees the performance of, all actions,
agreements, covenants and obligations set forth herein to be performed by any
Subsidiary of such party or by any entity that is
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contemplated to be a Subsidiary of such party on and after the Effective Date.
SECTION 12.10. Third Party Beneficiaries. Except as provided
in Article IX relating to Indemnitees, this Agreement is solely for the benefit
of the parties hereto and their respective Subsidiaries and affiliates and
should not be deemed to confer upon or entitle any third party, including
employees of CBS or IBC (other than as provided in Sections 9.01(a) and (b)),
any remedy, claim, liability, benefit, reimbursement, compensation, claim of
action or otherwise establish or create any rights on the part of such third
party in excess of those existing without reference to this Agreement. Nothing
in this Agreement is intended to restrict or limit CBS or IBC, as applicable, in
the exercise of its rights or the fulfillment of its duties as a plan sponsor.
SECTION 12.11. Attorney Fees. A party in breach of this
Agreement shall, on demand, indemnify and hold harmless the other party hereto
for and against all out-of-pocket expenses, including, without limitation, legal
fees, incurred by such other party by reason of the enforcement and protection
of its rights under this Agreement. The payment of such expenses is in addition
to any other relief to which such other party may be entitled hereunder or
otherwise.
SECTION 12.12. Title and Headings. Titles and headings to
section herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 12.13. Schedules and Exhibits. The Schedules and
Exhibits shall be construed with and as an integral part of this Agreement to
the same extent as if the same had been set forth verbatim herein.
SECTION 12.14. Specific Performance. Each of the parties
hereto acknowledges that there is no adequate remedy at law for failure by such
parties to comply with the provisions of this Agreement and that such failure
would cause immediate harm that would not be adequately compensable in damages,
and therefore agree that their agreements contained herein may be specifically
enforced without the requirement of posting a bond or other security, in
addition to all other remedies available to the parties hereto under this
Agreement.
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SECTION 12.15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS EXECUTED IN AND TO BE PERFORMED IN THAT STATE.
SECTION 12.16. Consent to Jurisdiction. Each of the parties
hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme
Court of the State of New York, New York County, and (b) the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each of the parties agrees to commence any
action, suit or proceeding relating hereto either in the United States District
Court for the Southern District of New York or if such suit, action or other
proceeding may not be brought in such court for jurisdictional reasons, in the
Supreme Court of the State of New York, New York County. Each of the parties
further agrees that service of any process, summons, notice or document by
United States registered mail to such party's respective address set forth above
shall be effective service of process for any action, suit or proceeding in New
York with respect to any matters to which it has submitted to jurisdiction in
this Section 12.16. Each of the parties irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or preceding arising
out of this Agreement or the transaction contemplated hereby in (i) the Supreme
Court of the State of New York, New York County, or (ii) the United States
District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
SECTION 12.17. Severability. In the event any on or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the
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economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the day and year first above written.
CBS CORPORATION,
by ________________________________
Name:
Title:
INFINITY BROADCASTING
CORPORATION,
by ________________________________
Name:
Title: