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EXHIBIT 10.2
STOCK TRANSFER AGREEMENT
between
CBS CORPORATION
and
INFINITY BROADCASTING CORPORATION
Dated as of December 3, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. References................................................. 2
ARTICLE II
Transfer of Shares
SECTION 2.01. Transfer of Shares......................................... 2
SECTION 2.02. Consideration.............................................. 2
SECTION 2.03. Closing.................................................... 2
ARTICLE III
Representations and Warranties of Transferor
SECTION 3.01. Organization............................................... 3
SECTION 3.02. Authorization.............................................. 3
SECTION 3.03. No Conflicts or Violations; No Consents or Approvals
Required................................................... 3
SECTION 3.04. Transferred Shares......................................... 4
SECTION 3.05. Securities Act............................................. 5
ARTICLE IV
Representations and Warranties of Transferee
SECTION 4.01. Organization............................................... 5
SECTION 4.02. Authorization.............................................. 5
SECTION 4.03. No Conflicts or Violations; No Consents or Approvals
Required................................................... 5
SECTION 4.04. Transferee Shares.......................................... 6
SECTION 4.05. Securities Act............................................. 6
ARTICLE V
Conditions to Performance................................. 7
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ARTICLE VI
Indemnification
SECTION 6.01. Indemnification.......................................... 7
SECTION 6.02. Survival of Representations.............................. 7
ARTICLE VII
Miscellaneous
SECTION 7.01. Entire Agreement; Amendment; Waiver...................... 7
SECTION 7.02. Severability............................................. 8
SECTION 7.03. Governing Law............................................ 8
SECTION 7.04. Captions................................................. 8
SECTION 7.05. Counterparts............................................. 8
SECTION 7.06. Notices.................................................. 8
SECTION 7.07. Construction............................................. 9
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STOCK TRANSFER AGREEMENT, dated as of December 3, 1998,
between CBS Corporation, a Pennsylvania corporation ("Transferor"), and Infinity
Broadcasting Corporation, a Delaware corporation ("Transferee").
W I T N E S S E T H:
WHEREAS, Transferor is the owner of 667 of the issued and
outstanding shares of common stock, par value $0.01 per share, and 425,585
shares of Junior Preferred Stock, par value $0.01 per share, of CBS Radio, Inc.
(formerly American Radio Systems Corporation), a Delaware Corporation
(collectively, the "CBS Radio Stock");
WHEREAS, Transferee desires to acquire and Transferor desires
to transfer to Transferee the CBS Radio Stock (the "Transferred Shares") upon
the terms and subject to the conditions hereinafter set forth;
WHEREAS, as consideration for the transfer of the Transferred
Shares from Transferor to Transferee, Transferee intends to issue 90 shares of
common stock, par value $1.00 per share ("Common Stock"), of Transferee to
Transferor;
WHEREAS, Transferee intends to amend and restate its
Certificate of Incorporation to provide that the shares of Common Stock issued
by Transferee hereunder to Transferor will be converted into shares of Class B
Common Stock, par value $0.01, of Transferee ("Class B Common Stock"), which
will have five votes per share; and
WHEREAS, for Federal income tax purposes, it is intended that
the transfer of the Transferred Shares be in exchange for the issuance of shares
of Class B Common Stock and qualify as a tax-free transaction under Section 351
of the Internal Revenue Code of 1986, as amended.
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NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. For purposes of this Agreement,
each of the following terms is defined in the Section set forth opposite such
term:
Term Section
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"Closing" 2.03
"Closing Date" 2.03
"Damages" 7.01
"Governmental Entity" 3.03
"Liens" 3.04(a)
"Material Adverse Effect" 3.01
"Third Party Claim" 7.05(a)
"Transferee" Recitals
"Transferee Shares" 2.02
"Transferor" Recitals
"Transferred Shares" Recitals
SECTION 1.02. References. Except as otherwise specifically
indicated, all references in this Agreement to Sections refer to Sections of
this Agreement, and all references to Schedules refer to Schedules attached
hereto and all such Schedules are incorporated herein by reference.
ARTICLE II
Transfer of Shares
SECTION 2.01. Transfer of Shares. Except as otherwise provided
below, upon the terms and subject to the conditions of this Agreement,
Transferor does hereby dispose of, transfer, assign and deliver to Transferee,
and Transferee does hereby acquire and accept from Transferor, all of
Transferor's right, title and interest in, to and under the Transferred Shares,
in exchange for the consideration set forth in Section 2.02 below.
SECTION 2.02. Consideration. On the date hereof, in exchange
for the Transferred Shares, Transferee shall deliver, or cause to be delivered,
to Transferor
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certificates representing 90 shares of newly-issued common stock, par value
$1.00 per share, of Transferee (the "Transferee Shares"), evidencing
Transferor's ownership of the Transferee Shares as of the Closing.
SECTION 2.03. Closing. The closing (the "Closing") of the
transactions contemplated by this Agreement shall be held at the offices of
Cravath, Swaine & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 a.m.
New York City time, on the date hereof, or at such other time, date and place as
the parties shall agree upon (the date of the Closing being referred to herein
as the "Closing Date"). Subject to satisfaction of the conditions set forth in
Article V, at the Closing:
(a) Transferor shall deliver, or cause to be delivered, to
Transferee certificates representing the Transferred Shares, duly endorsed in
blank or accompanied by stock powers duly endorsed in blank in proper form for
transfer, with appropriate transfer stamps, if any, affixed or such other
documentation acceptable to Transferee, in its sole discretion, evidencing
Transferee's ownership of the Transferred Shares as of the Closing; and
(b) Transferee shall deliver, or cause to be delivered, to
Transferor certificates representing the Transferee Shares, as set forth in
Section 2.02.
The parties hereto agree that all transactions at the Closing
shall be deemed to take place simultaneously, and no delivery or payment shall
be deemed to have been made until all transactions are completed and all
documents are delivered.
ARTICLE III
Representations and Warranties of Transferor
Transferor hereby represents, warrants and agrees as follows
to Transferee:
SECTION 3.01. Organization. Transferor is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania. Transferor has full corporate power and authority
and possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own,
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lease or otherwise hold its properties and assets and to conduct its business as
presently conducted, other than any such items the absence of which,
individually or in the aggregate, have not had and are not reasonably expected
to have a material adverse effect on the business, assets, condition (financial
or otherwise) or results of operations of Transferor and its subsidiaries taken
as a whole (a "Material Adverse Effect").
SECTION 3.02. Authorization. Transferor has full corporate
power and authority to execute and deliver this Agreement and all other
agreements, certificates and documents contemplated hereby to be executed and
delivered by Transferor and to consummate the transactions contemplated hereby
and thereby. Transferor has taken all action required by its organizational
documents to authorize the execution and delivery of this Agreement and all
other agreements, certificates and documents contemplated hereby to be executed
and delivered by Transferor and to authorize the consummation of the
transactions contemplated hereby and thereby. This Agreement has been duly and
validly executed and delivered by Transferor and is a legal, valid and binding
obligation of Transferor, enforceable against it in accordance with its terms.
SECTION 3.03. No Conflicts or Violations; No Consents or
Approvals Required. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with or
violate any provision of the organizational documents of Transferor, (ii)
conflict with or violate any statute, law, rule, regulation, ordinance, order,
writ, injunction, judgment or decree applicable to Transferor, or (iii) conflict
with or result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would constitute a default) under any agreement
or other instrument to which Transferor is a party other than, in the case of
clauses (ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and are not reasonably expected to have a Material
Adverse Effect. No notice, declaration, report or other filing or registration
with, and no waiver, consent, approval or authorization of, any Federal, state,
local or foreign court or governmental agency, authority, instrumentality or
regulatory body (each a "Governmental Entity") or any other person or entity is
required to be made or obtained by Transferor in connection with the execution,
delivery and performance of this Agreement by Transferor or the
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consummation by Transferor of the transactions contemplated hereby, except to
the extent that the failure to make or obtain any such notice, declaration,
report, filing, registration, waiver, consent, approval or authorization has not
had or is not reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect.
SECTION 3.04. Transferred Shares. Transferor has good and
valid title to the Transferred Shares, free and clear of any mortgage, pledge,
lien, claim, charge or other encumbrance of any kind (collectively, "Liens").
Assuming Transferee has the requisite power and authority to be the lawful owner
of the Transferred Shares, upon delivery to Transferee at the Closing of
certificates representing the Transferred Shares, duly endorsed by Transferor
for transfer to Transferee, and upon Transferor's receipt of certificates
representing the Transferee Shares, good and valid title to the Transferred
Shares will pass to Transferee, free and clear of any Liens other than Liens
arising from acts of Transferee or its affiliates. Other than this Agreement,
immediately following consummation of the transactions contemplated hereby, the
Transferred Shares will not be subject to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding, including any
such agreement, arrangement, commitment or understanding restricting or
otherwise relating to the voting, dividend rights or disposition of the
Transferred Shares, other than any voting trust agreement or contract,
agreement, arrangement, commitment or understanding entered into by Transferee
or its affiliates.
SECTION 3.05. Securities Act. The Transferee Shares received
by Transferor pursuant to this Agreement are being acquired for investment only
and not with a view to any public distribution thereof, and Transferor shall not
offer to sell or otherwise dispose of the Transferee Shares so acquired by it in
violation of any registration requirements of the Securities Act of 1933, as
amended.
ARTICLE IV
Representations and Warranties of Transferee
Transferee hereby represents, warrants and agrees as follows
to Transferor:
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SECTION 4.01. Organization. Transferee is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Transferee has full corporate power and authority and possesses all
governmental franchises, licenses, permits, authorizations and approvals
necessary to enable it to own, lease or otherwise hold its properties and assets
and to conduct its business as presently conducted, other than any such items
the absence of which, individually or in the aggregate, have not had and are not
reasonably expected to have a Material Adverse Effect.
SECTION 4.02. Authorization. Transferee has full corporate
power and authority to execute and deliver this Agreement and all other
agreements, certificates and documents contemplated hereby to be executed and
delivered by Transferee and to consummate the transactions contemplated hereby
and thereby. Transferee has taken all corporate action required by its
organizational documents to authorize the execution and delivery of this
Agreement and all other agreements, certificates and documents contemplated
hereby to be executed and delivered by Transferee and to authorize the
consummation of the transactions contemplated hereby and thereby. This Agreement
has been duly and validly executed and delivered by Transferee and is a legal,
valid and binding obligation of Transferee, enforceable against it in accordance
with its terms.
SECTION 4.03. No Conflicts or Violations; No Consents or
Approvals Required. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with or
violate any provision of the organizational documents of Transferee, (ii)
conflict with or violate any statute, law, rule, regulation, ordinance, order,
writ, injunction, judgment or decree applicable to Transferee, or (iii) conflict
with or result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would constitute a default) under any agreement
or other instrument to which Transferee is a party, other than, in the case of
clauses (ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and are not reasonably expected to have a Material
Adverse Effect. No notice, declaration, report or other filing or registration
with, and no waiver, consent, approval or authorization of, any Governmental
Entity or any other person or entity is required to be made or obtained by
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Transferee in connection with the execution, delivery and performance of this
Agreement by Transferee or the consummation by Transferee of the transactions
contemplated hereby, except to the extent that the failure to make or obtain any
such notice, declaration, report, filing, registration, waiver, consent,
approval or authorization has not had or is not reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.
SECTION 4.04. Transferee Shares. Assuming Transferor has the
requisite power and authority to be the lawful owner of the Transferee Shares,
upon delivery to Transferor of certificates representing the Transferee Shares
and upon Transferee's receipt of the Transferred Assets and certificates
representing the Transferred Shares, good and valid title to the Transferee
Shares will pass to Transferor free and clear of any Liens, other than Liens
arising from acts of Transferor or its affiliates. Other than this Agreement,
immediately following consummation of the transactions contemplated hereby, the
Transferee Shares will not be subject to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding, including any
such agreement, arrangement, commitment or understanding restricting or
otherwise relating to the voting, dividend rights or disposition of the
Transferee Shares, other than any voting trust agreement or contract, agreement,
arrangement, commitment or understanding entered into by Transferor or its
affiliates.
SECTION 4.05. Securities Act. The Transferred Shares received
by Transferee pursuant to this Agreement are being acquired for investment only
and not with a view to any public distribution thereof, and Transferee shall not
offer to sell or otherwise dispose of the Transferred Shares so acquired by it
in violation of any registration requirements of the Securities Act of 1933, as
amended.
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ARTICLE V
Conditions to Performance
The obligation of Transferor to transfer the Transferred
Shares to Transferee is subject to the consummation of the transfer of (i) the
Transferred Assets (as such term is defined in the Stock and Asset Transfer
Agreement, dated as of December 2, 1998, between CBS Broadcasting Inc., a New
York corporation, and Transferee (the "CBS Broadcasting Stock and Asset Transfer
Agreement")) and (ii) all of the issued and outstanding shares of common stock,
par value $0.002 per share, of Infinity Media Corporation (formerly Infinity
Broadcasting Corporation), a Delaware corporation, from CBS Broadcasting to
Transferee, pursuant to the CBS Broadcasting Stock and Asset Transfer Agreement.
ARTICLE VI
Indemnification
SECTION 6.01. Indemnification. Each of Transferor and
Transferee will be an Indemnified Party under the Intercompany Agreement to be
entered into on or about December 15, 1998, between Transferor and Transferee
and, accordingly, will benefit from the indemnification provisions thereunder.
SECTION 6.02. Survival of Representations. The
representations, warranties, covenants and agreements contained in this
Agreement shall survive the date hereof and shall terminate at the close of
business on the first anniversary following the date hereof unless otherwise
expressly provided.
ARTICLE VII
Miscellaneous
SECTION 7.01. Entire Agreement; Amendment; Waiver; No Third
Party Beneficiaries. This Agreement and the Schedules annexed hereto constitute
the entire understanding between the parties with respect to the subject matter
hereof, and supersedes all other understandings and negotiations with respect
thereto. This
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Agreement may be amended only in a writing signed by both parties hereto. Any
provision of this Agreement may be waived only in a writing signed by the party
to be charged with such waiver. No course of dealing between the parties shall
be effective to amend or waive any provision of this Agreement. This Agreement
shall not be assignable by Transferee without the prior written consent of
Transferor. Except as provided in Sections 6.01 and 6.02, this Agreement is for
the sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person
(including any former subsidiary of Transferor), other than the parties hereto
and such assigns, any legal or equitable rights hereunder.
SECTION 7.02. Severability. In the event that any provision
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any jurisdiction, such provision shall be ineffective as to
such jurisdiction to the extent of such invalidity, illegality or
unenforceability without invalidating or affecting the remaining provisions
hereof or affecting the validity, legality or enforceability of such provision
in any other jurisdiction.
SECTION 7.03. Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New York.
SECTION 7.04. Captions. The captions in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the
interpretation hereof.
SECTION 7.05. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 7.06. Notices. All notices, requests and other
communications to any party hereunder shall be deemed given if delivered
personally, telecopied (which is confirmed) or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
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such other address for a party as shall be specified by like notice):
(i) if to Transferor, to:
CBS Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Executive Vice President and
General Counsel
(ii) if to Transferee, to:
Infinity Broadcasting Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
SECTION 7.07. Construction. Notwithstanding any provision 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 the
Tax Sharing Agreement to be entered into on or about December 15, 1998, between
Transferor and Transferee, such Tax Sharing Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as for the day and year first above written.
CBS CORPORATION,
by
___________________________
Name:
Title:
INFINITY BROADCASTING
CORPORATION,
by
___________________________
Name:
Title:
