1
Exhibit-10.8
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of June 7,
2000 (the "Effective Date"), by and among Midwestern Broadcasting Company,
Inc., an Ohio corporation (the "Company"), the stockholders of the Company as
listed on the signature page(s) of this Agreement (collectively, "Seller"), and
Xxx Radio, Inc., a Delaware corporation ("Buyer").
Recitals
The Company owns one hundred (100) percent of the issued and
outstanding capital stock of Ring Radio Company ("Ring"), a Georgia
corporation, which, along with the Company, owns and operates pursuant to
certain licenses, permits and authorizations (as further defined below, the
"FCC Authorizations") issued by the Federal Communications Commission (the
"FCC") WALR(FM), Athens, Georgia (a radio broadcasting station which is owned
by Ring) (referred to herein as a "Station").
Seller owns all of the issued and outstanding shares of capital stock
of the Company, and Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, the Shares, subject to the terms and conditions of this
Agreement.
Immediately after the effective time of the Closing, Buyer intends to
cause Ring to transfer to Salem Communications Corporation and its wholly-owned
subsidiary, South Texas Broadcasting, Inc. (collectively, "Salem") certain
assets and properties, including the FCC Authorizations, used in the operation
of the Station.
Agreement
NOW, THEREFORE, taking the foregoing into account, and in
consideration of the mutual covenants and agreements set forth herein, the
parties, intending to be legally bound, hereby agree as follows:
ARTICLE 1: DEFINITIONS
As used herein, the following items shall have the following meaning
unless the context requires otherwise:
"Adjustment Date" means the close of business on the day immediately
preceding the Closing Date.
"Affiliate" of any particular person means any other person
controlling, controlled by, or under common control with, such particular
person, where "control" means the possession, directly or indirectly, of the
power to direct the management and policies of a person whether through the
ownership of voting securities, contract or otherwise.
"Agreement" means this Stock Purchase Agreement.
2
"Assets" means all right, title and interest of Corporations in all
properties, assets, privileges, rights, interests and claims, real and
personal, tangible and intangible, of every type and description, wherever
located, including their business and goodwill, including, without limitation,
the FCC Authorizations, Tangible Personal Property, Real Property, Time Sales
Agreements, Station Contracts, Intangible Property, Programming and Copyrights,
Files and Records and Websites, except for the Excluded Assets.
"Assumed Obligations" means (i) the Closing Company Liabilities; and
(ii) the obligations arising during and attributable to any period after the
Closing under the Station Contracts (other than those required by this
Agreement to be terminated at or prior to Closing); excluding, however, (A) any
obligations or liabilities under any Station Contracts resulting from (1) the
failure to obtain any consent required under any Station Contract in connection
with the transactions contemplated by the Agreement and (2) any default under
any Station Contract prior to or as a result of the Closing, (B) any oral
agreements which may exist with the General Sales Manager and the National
Sales Manager of the Station regarding promotion to General Manager and General
Sales Manager, respectively, of the Station, and (C) the obligation to pay or
provide any sales severance or other stay bonus, payment or benefit under any
employment agreement conditioned upon or payable in connection with or as a
result of the Closing, or calculated with reference to the financial terms of
the transaction contemplated by this Agreement.
"Buyer Indemnitees" has the meaning set forth in Section 10.2(a) of
this Agreement.
"Cap" has the meaning set forth in Section 10.2(a) of this Agreement.
"Closing" means the closing of the transaction contemplated hereby.
"Closing Accounts Receivable" means the accounts receivable of the
Company and Ring as of the Adjustment Date, as determined on a consolidated
basis in accordance with GAAP, that have arisen from the operation of the
Station in the ordinary course consistent with past practice, excluding any
non-cash receivables under barter agreements.
"Closing Adjusted Net Worth" means the Closing Current Assets as of
the Adjustment Date minus the Closing Company Liabilities as of the Adjustment
Date.
"Closing Current Assets" means the sum of (i) the Closing Accounts
Receivable, plus (ii) the prepaid expenses of Company and Ring as of the
Adjustment Date (but excluding any such prepaid expenses constituting a part of
the Excluded Assets), plus (iii) the financial value of the goods and services
to be received after the Closing Date under barter agreements, but excluding
the portion, if any, of such value under barter agreements constituting a part
of the Excluded Assets and excluding the remaining portion of such value, if
any, that exceeds the Trade Liability (as defined in the definition of "Closing
Company Liabilities"), all as determined for the Company and Ring on a
consolidated basis in accordance with GAAP; provided, however, that the
aggregate amount of prepaid expenses included in the Closing Current Assets
shall in no event exceed $225,000.
"Closing Date" means the calendar date on which the Closing occurs.
2
3
"Closing Company Liabilities" means all Indebtedness and other items
(other than Excluded Liabilities) that would be included as liabilities on a
consolidated balance sheet of the Company and Ring as of the Adjustment Date
prepared in accordance with GAAP, including without limitation (i) the
financial value of all advertising to be provided after the Closing Date under
barter agreements (the "Trade Liability") and (ii) all indebtedness for
borrowed money and all severance or change of control payments which either the
Company or Ring is obligated to make as a result of the transactions
contemplated by this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and any
reference to any particular Code section shall be interpreted to include any
revision of or successor to that section regardless of how numbered or
classified.
"Communications Act" means the Communications Act of 1934.
"Company" means Midwestern Broadcasting Company, Inc., an Ohio
corporation.
"Contaminant" has the meaning set forth in Section 3.17 of this
Agreement.
"Contest Notice" has the meaning set forth in Section 10.5(b) of this
Agreement.
"Corporations" means Company and/or Ring.
"Xxxxxxx Money" means as of a given date, the amount deposited as of
such date with the Escrow Agent under the Escrow Agreement, together with the
interest and other earnings thereon as of such date.
"Effective Date" shall mean the date set forth in the preamble of this
Agreement.
"ERISA" means the Employee Retirement Income Security act of 1974, as
amended.
"Escrow Agent" means Wachovia Bank, N.A.
"Escrow Agreement" means the Escrow Agreement, in the form of Exhibit
1 attached hereto and dated as of the date hereof, by and among Seller, Buyer
and the Escrow Agent relating to the deposit, holding, investment and
disbursement of the Xxxxxxx Money.
"Excluded Assets" means (i) all employee benefit plans described in
Section 3.15, (ii) all assets of the Company and Ring which are not primarily
used in and do not primarily relate to the operation of the Station, including
without limitation those assets identified on Schedule 1, and (iii) cash and
cash equivalents.
"Excluded Liabilities" means all liabilities and obligations of the
Company and Ring as of the Adjustment Date (whether secured or unsecured,
absolute, accrued, contingent, known or unknown, due or to become due, and
regardless of whether required by GAAP to be reflected in a balance sheet or
disclosed in the related notes), other than the Assumed Obligations.
"FCC" means the Federal Communications Commission.
3
4
"FCC Application" has the meaning set forth in Section 2.8(a) of this
Agreement.
"FCC Authorizations" means all of the FCC authorizations issued to
either of the Corporations, including without limitation all rights in and to
the Station call letters and any variations thereof, and all of those FCC
authorizations listed and described on Schedule 3.9 attached hereto, and all
applications therefor, together with any renewals or extensions thereof and
additions thereto.
"FCC Consent" has the meaning set forth in Section 2.8(b) of this
Agreement.
"Files and Records" means all FCC logs and all files and other records
of the Corporations which relate to the Station (other than duplicate copies of
such files ("Duplicate Records")), including without limitation all schematics,
blueprints, engineering data, customer lists, reports, specifications,
projections, statistics, promotional graphics, original art work, mats, plates,
negatives and other advertising, marketing or related materials, and all other
technical and financial information.
"Final Action" means an action of the FCC that has not been reversed,
stayed, enjoined, set aside, annulled or suspended; with respect to which no
timely petition for reconsideration or administrative or judicial appeal or sua
sponte action of the FCC with comparable effect is pending; and as to which the
normally applicable time for filing any such petition or appeal (administrative
or judicial) or for the taking of any such sua sponte action of the FCC has
expired.
"Final Determination" means the final resolution of liability for any
Tax for a Taxable Period, including any related interest or penalties, that is
final and nonappealable, including by reason of the expiration of the
applicable statute of limitations.
"Financial Statements" has the meaning set forth in Section 3.6 of
this Agreement.
"GAAP" means generally accepted accounting principles as of the date
hereof consistently applied throughout the specified period and in prior
periods.
"Holdback" has the meaning set forth in Section 2.5 of this Agreement.
"Holdback Escrow Agent" has the meaning set forth in Section 2.5 of
this Agreement.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976.
"Indebtedness" means all indebtedness, liabilities and obligations
required to be accrued on a balance sheet prepared in accordance with GAAP.
"Indemnifying Party" has the meaning set forth in Section 10.2(c) of
this Agreement.
"Independent Accounting Firm" means KPMG Peat Marwick.
4
5
"Intangible Property" means all interests of the Corporations as of
the date of this Agreement in all trademarks, trade names, service marks,
franchises, patents, jingles, slogans, logotypes and other intangible rights,
including without limitation all right, title and interest in and to the marks
consisting of the Station call letters and any variations thereof, and those
acquired by the Corporations between the date hereof and the Closing Date, but
in each case excluding any such items constituting a part of the Excluded
Assets.
"Knowledge", including the phrases "to the knowledge of" or "to the
best knowledge of" any person and any similar phrase means, with respect to the
Seller or the Corporations, the knowledge of the following individuals: Xxxxx
X. Xxxxxx, Xx., Xxxxx Xxxxxx, Xx., Xxxxx Xxxxxx, and the General Manager, Sales
Manager and Chief Engineer of the Station.
"Legal Expenses" has the meaning set forth in Section 10.7 of this
Agreement.
"Liens" has the meaning set forth in Section 2.1 of this Agreement.
"Material Adverse Effect" shall mean any material adverse effect on
the assets, business, results of operation, operations or financial condition
of the Corporations, taken as a whole, but excluding any material adverse
effect on the Excluded Assets or the business, results of operation or
financial condition of the Corporations relating solely to the Excluded Assets;
provided that a material adverse effect on the financial condition of the
Corporations relating to the Excluded Assets will constitute a Material Adverse
Effect unless Seller and Buyer agree in writing prior to Closing on security
satisfactory to Buyer, in addition to the Holdback, for performance of any
Seller's indemnity obligations that may arise relating to such material adverse
effect on the financial condition of the Corporations.
"Material Station Contracts" means all Station Contracts which involve
the payment or receipt in excess of $10,000 per year.
"Minimum Loss" has the meaning set forth in Section 10.2(a) of this
Agreement.
"Owned Real Property" has the meaning set forth in Section 3.11 of
this Agreement.
"Operating Expense Amount" means the operating expenses of the Station
for the 90-day period preceding the Closing Date determined in accordance with
GAAP.
"Permitted Encumbrances" means: (i) inchoate or other liens for real
estate taxes not yet due and payable (all such taxes for the periods prior to
Closing being Closing Company Liabilities); (ii) liens securing only one or
more of the Closing Company Liabilities; and (iii) matters of public record
which do not adversely affect the use of any of the Real Property by the
Corporations in any material respect.
"Programming and Copyrights" means all interests of Corporations as of
the date of this Agreement in all programs and programming materials and
elements of whatever form or nature, whether recorded on tape or any other
substance or intended for live performance, and whether completed or in
production, and all related common-law and statutory copyrights,
5
6
together with all such programs, materials, elements and copyrights acquired by
Corporations between the date hereof and the Closing Date.
"Purchase Price" has the meaning set forth in Section 2.2 of this
Agreement.
"Real Property" means all interests of Corporations as of the date of
this Agreement in all land, leaseholds, licenses, rights-of-way and other
interests of every kind and description in and to all of the real property and
buildings and other improvements thereon (other than the Excluded Assets),
including without limitation those listed and described on Schedule 3.12
attached hereto, and any additions and improvements thereto between the date of
this Agreement and the Closing Date.
"Real Property Leases" has the meaning set forth in Section 3.11 of
this Agreement.
"Regulatory Clearances" shall mean: (i) the FCC Consent; and (ii)
expiration or early termination of the waiting period under the HSR Act.
"Release" has the meaning set forth in Section 3.17 of this Agreement.
"Ring" means Ring Radio Company, a Georgia corporation, which is a
wholly-owned subsidiary of the Company.
"Salem" has the meaning set forth in the recitals of this Agreement.
"Seller" means the stockholders of the Company as listed on the
signature page of this Agreement.
"Seller Indemnitees" has the meaning set forth in Section 10.2(b) of
this Agreement.
"Shares" has the meaning set forth in Section 3.2.1 of this Agreement.
"Station" means WALR(FM).
"Station Contracts" means all contracts, agreements and other
commitments (other than those constituting Excluded Assets) to which Company or
Ring is a party or by which Company, Ring or their respective property is bound
or encumbered.
"Tangible Personal Property" means all interests of Corporations as of
the date of this Agreement in all equipment, electrical devices, antennas,
cables, vehicles, furniture, fixtures, towers, office materials and supplies,
hardware, tools, spare parts, and other tangible personal property of every
kind and description, and any additions and improvements thereto between the
date of this Agreement and the Closing Date, but in any case excluding, any
tangible personal property constituting a part of the Excluded Assets.
"Target Closing Adjusted Net Worth" means the greater of (i)
$2,000,000 or (ii) the Operating Expense Amount.
6
7
"Tax" means all forms of taxation, whenever created or imposed,
whether imposed by a local, municipal, state, foreign, federal or other
governmental body or authority, and, without limiting the generality of the
foregoing, shall include income, gross receipts, ad valorem, excise,
value-added, sales, use, transfer, franchise, license, stamp, occupation,
withholding, employment, payroll, property or environmental tax or premium,
together with any interest, penalty, addition to tax or additional amount
imposed by any governmental body or authority responsible for the imposition of
any such tax.
"Tax Benefit" means, with respect to any Taxable Period, the amount of
the actual reduction in an indemnified party's liability for Taxes payable for
the Taxable Period as a result of the payment or accrual of any Deficiency
indemnifiable under this Agreement. The amount, if any, of a Tax Benefit with
respect to a Taxable Period arising from the payment or accrual of any
Deficiency indemnifiable under this Agreement shall be determined after first
reducing Taxes for the Taxable Period by taking into account all other
applicable credits and items of loss, deduction and similar items.
"Tax Cost" means, with respect to any Taxable Period, the amount of
the actual increase in an indemnified party's liability for Taxes payable for
the Taxable Period (including as a result of any decrease in a Tax refund or
credit) as a result of the accrual or receipt of payment for any Deficiency for
which the indemnified party is entitled to indemnification under this
Agreement.
"Taxable Period" means any taxable year or any other period that is
treated as a taxable year with respect to which any Tax may be imposed under
any applicable statute, rule or regulation.
"Websites" means all interests of Corporations in any internet domain
leases and domain names (but excluding any such leases or names constituting a
part of the Excluded Assets), the unrestricted right to the use of HTML content
located and publicly accessible from those domain names, and the "visitor"
email data base for those sites.
ARTICLE 2: SALE AND PURCHASE
2.1. Sale of Shares. Upon the terms and subject to the conditions
set forth in this Agreement, Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, the Shares free and clear of any mortgages, liens,
deeds of trust, security interest, pledges, restrictions, prior assignments,
choses, claims, defects in tile and encumbrances of any kind of type whatsoever
("Liens"). Such sale, transfer, conveyance, and delivery shall be evidenced by
the delivery to Buyer of duly endorsed blank share certificates or share
certificates accompanied by duly executed stock powers.
2.2. Consideration. The purchase price to be paid by Buyer to
Seller for the Shares (the "Purchase Price") shall be an aggregate cash amount
equal to Two Hundred Eighty Million Dollars ($280,000,000) (which amount is
subject to adjustment pursuant to Section 2.4).
7
8
2.3. Payment. Buyer in full payment for the Shares shall pay to
Seller at Closing a cash amount equal to (i) the Purchase Price (as
preliminarily adjusted pursuant to Section 2.4); less (ii) the amount of the
Xxxxxxx Money; and less (iii) the amount of the Holdback. The payment shall be
made in immediately available funds pursuant to written wire transfer
instructions of Seller to be delivered by Seller to Buyer no later than three
(3) business days prior to Closing. Also, at Closing, an amount equal to the
Xxxxxxx Money shall be paid by the Escrow Agent's disbursement of the Xxxxxxx
Money to Seller by wire transfer of immediately available funds pursuant to
joint written instructions from Seller and Buyer.
2.4. Purchase Price Adjustment.
2.4.1. The Purchase Price shall be adjusted as follows:
(a) The Purchase Price shall be reduced by the
amount, if any, by which the Closing
Adjusted Net Worth is less than the Target
Closing Adjusted Net Worth; or
(b) The Purchase Price shall be increased by
the amount, if any, by which the Closing
Adjusted Net Worth is greater than the
Target Closing Adjusted Net Worth.
(c) The adjustment will first be made on a
preliminary basis for purposes of Closing
in accordance with Section 2.4.2. A final
adjustment to the Purchase Price will be
made after the Closing based upon the final
determination of the Closing Adjusted Net
Worth and Target Closing Adjusted Net Worth
as provided in Section 2.4.3.
2.4.2. Three (3) business days prior to the Closing Date,
Seller shall provide Buyer with a reasonably detailed statement (the
"Preliminary Adjustment Report") setting forth Seller's reasonable and good
faith estimate of the Closing Current Assets, the Closing Company Liabilities,
the Operating Expense Amount, the Target Closing Adjusted Net Worth, and the
Closing Adjusted Net Worth. The Purchase Price payable on the Closing Date
shall be adjusted in accordance with Section 2.4.1 based on the Preliminary
Adjustment Report.
2.4.3. After the Closing Date, Buyer shall make its
determination of the items set forth in the Preliminary Adjustment Report and
deliver a written report of such determination to Seller within ninety (90)
days after the Closing Date. The items shown in Buyer's report shall be final
and binding on the parties for purposes of determining the adjusted Purchase
Price under this Section 2.4.3 unless within thirty (30) business days after
receiving such report, Seller objects to such determination by giving Buyer
written notice setting forth its determination and the basis for its
determination. In the event of such an objection and the failure of the parties
within twenty (20) business days thereafter to reach agreement, the Independent
Accounting Firm shall make a final determination of the adjusted Purchase Price
based on its determination of the items set forth in the Preliminary Adjustment
Report. Seller and Buyer shall each inform the Independent Accounting Firm in
writing of their respective determinations of such items and the adjusted
Purchase Price, and shall cooperate as reasonably requested by the Independent
Accounting Firm in its determination of all such items. The Independent
Accounting Firm shall
8
9
be instructed to complete its determination of the adjusted Purchase Price
within thirty (30) days from the date of its engagement and upon completion to
inform the parties in writing of its determination, the basis for its
determination and whether Seller's or Buyer's written statement of the adjusted
Purchase Price is closer to its own determination. The determination by the
Independent Accounting Firm shall be final and binding upon the parties for
purposes of determining the adjusted Purchase Price under this Section 2.4.3.
The fees of the Independent Accounting Firm shall be paid (A) by Buyer if
Seller's determination is closer to the Independent Accounting Firm's
determination, (B) by Seller if Buyer's determination is closer to the
Independent Accounting Firm's determination, and (C) otherwise 50% by Seller
and 50% by Buyer. In the event the adjusted Purchase Price as finally
determined under this Section 2.4.3 exceeds or is less than the preliminary
determination of the adjusted Purchase Price under Section 2.4.2, Seller or
Buyer, as appropriate, shall pay the other the amount of such excess or
deficiency within ten (10) business days after the final determination of the
adjusted Purchase Price.
2.5. Holdback. At Closing, Buyer shall deposit $10,000,000 in cash
(the "Holdback") in escrow with Wachovia Bank, N.A. (the "Holdback Escrow
Agent"), pursuant to the Holdback Escrow Agreement as of the Closing Date (in
the form attached hereto as Exhibit 2.5) among Buyer and Seller and the
Holdback Escrow Agent. Such funds shall be applied as follows: (i) if after
Closing a Deficiency (as defined in Section 10.3(a)) is established pursuant to
Article 10, then Buyer shall be entitled to recover part or all of the Holdback
reflecting the amount of such Deficiency; (ii) on the date twelve months after
Closing, Buyer shall deliver (or shall in writing instruct the Holdback Escrow
Agent to deliver) to Seller the Holdback balance less any such Deficiency
amounts retained by Buyer and less the amount of any unresolved indemnification
claims made by Buyer under Article 10; and (iii) thereafter any Holdback
balance reserved for unresolved claims shall be retained by Buyer or paid to
Seller as appropriate upon resolution thereof in accordance with procedures set
forth in Section 10.4.
2.6. Xxxxxxx Money.
(a) Concurrently with the execution of this Agreement,
Buyer has deposited with the Escrow Agent in immediately available funds the
sum of Seventeen Million Dollars ($17,000,000).
(b) The Escrow Agent shall hold the Xxxxxxx Money under
the terms of the Escrow Agreement in trust for the benefit of Seller and Buyer.
(c) If Closing does not occur, the Xxxxxxx Money shall
be delivered to Seller or returned to Buyer in accordance with Section 11.1.2,
and if Closing does occur, the Xxxxxxx Money shall be applied at Closing as
provided in Section 2.3.
2.7. Closing. The Closing shall take place at a date and time
designated by Seller within 10 days after the Regulatory Clearances have been
granted.
9
10
2.8. FCC Application.
(a) As soon as possible (but in no event later than ten
business days after the date of this Agreement) Seller shall cause Ring and
Buyer shall cause Salem to file an application with the FCC (the "FCC
Application") requesting the FCC's written consent to the assignment of the FCC
Authorizations from Ring to Salem immediately following the Closing. Seller and
Buyer shall diligently take all steps, and Buyer shall cause Salem to
diligently take all steps that are necessary, proper or desirable to expedite
the prosecution of the FCC Application to obtain the FCC Consent without any
conditions materially adverse to Ring or Salem or the Station and to cause the
FCC Consent to become a Final Action without any such conditions. Seller shall
promptly provide Buyer with a copy of any pleading, order or other document
served on Seller or Ring relating to the FCC Application, shall furnish all
information required by the FCC, and shall be represented at all meetings or
hearings scheduled to consider the FCC Application. Buyer shall promptly
provide Seller with a copy of any pleading, order or other document served on
it or Salem relating to the FCC Application and shall furnish and shall cause
Salem to furnish all information required by the FCC. Buyer and Salem shall be
represented at all meetings or hearings scheduled to consider the FCC
Application.
(b) The FCC staff's initial grant of consent to the FCC
Application is referred to herein as the "FCC Consent."
2.9. Xxxx-Xxxxx-Xxxxxx. As soon as possible (but in no event later
than ten (10) days after the Effective Date), Buyer and Seller shall prepare
and file with the Federal Trade Commission and the United States Department of
Justice any documents that may be necessary to comply with the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx") (including
a request for early termination of the waiting period thereunder) in respect of
the purchase and sale of the Shares and shall thereafter promptly furnish all
materials thereafter requested by such agencies.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES RELATING TO THE CORPORATIONS
To induce Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, Seller represents and warrants to Buyer as
follows:
3.1. Organization. Each of the Company and Ring is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization (as first set forth above), and is qualified to do business and is
in good standing in each state or other jurisdiction in which its assets are
located or in which its business or operations as presently conducted make such
qualification necessary and where the absence of such qualification would have
a Material Adverse Effect. Each of Company and Ring has the requisite power and
authority to own and operate its assets, to carry on its business as now
conducted by it, and to execute and deliver this Agreement and all other
documents in connection with the transactions contemplated hereby (the "Other
Documents"), to consummate the transactions contemplated hereby and thereby and
to comply with the terms, conditions and provisions hereof and thereof. True
and complete copies of the Company's Charter and the Company's By-Laws and
Ring's Charter and Ring's By-Laws, each as amended to date and currently in
full force and effect, have been made available to Buyer. All corporate minutes
of the Company and Ring and the stock records of the Company
10
11
and Ring have been made available to Buyer. Such corporate minutes do not fail
to disclose any action or omission to act by the shareholders of the Company or
Ring, by the board of directors of the Company or Ring, or by any committee of
either such board which is material to the assets, business, results of
operation, operations or financial condition of the Station or the
Corporations.
3.2. Capitalization.
3.2.1. The entire authorized capital stock of Company
consists of 7,000 shares of Series A common stock, of which an aggregate of
6,754 shares are issued and outstanding and 63,000 shares of Series B common
stock of which 60,786 shares are issued and outstanding (such issued and
outstanding shares of Series A and Series B common stock herein referred to
collectively as the "Shares"). All of the Shares have been duly authorized, are
validly issued, fully paid, and nonassessable, and are held of record and
beneficially by the Seller free and clear of any Liens. The Shares constitute
all of the outstanding shares of capital stock of Company. 6,692 shares of
Class A common stock and 60,228 shares of Class B common stock are held of
record and beneficially by Xxxxx X. Xxxxxx, Xx., free and clear of any Liens,
42 shares of Class A common stock and 378 shares of Class B common stock are
held of record and beneficially by Xxxxxxxx X. Xxxxxx free and clear of any
Liens, and 20 shares of Class A Common Stock and 180 shares of Class B Common
Stock are held of record and beneficially by Xxxxxxxx X. Xxxxxx, free and clear
of any Liens. No shares of the Company are held in the treasury of the Company.
There are no outstanding subscriptions, options, warrants, rights, calls,
commitments, conversion rights, rights of exchange, plans or other agreements
of any character providing for the purchase, issuance or sale of any shares of
the Company, and neither Seller nor Company has granted directly, or indirectly
through any affiliate or otherwise, any such rights. There are no outstanding
or authorized stock appreciation, phantom stock, profit participation, or
similar rights with respect to Company. There are no stockholder agreements,
voting trusts, proxies, or other agreements or understandings with respect to
the voting or transfer of any of the Shares.
3.2.2. The entire authorized capital stock of Ring consists
of 100,000 shares of common stock, par value $.01 per share, of which only
8,000 shares are issued and outstanding (the "Ring Shares"), and 10,000 shares
of preferred stock, none of which shares of preferred stock are issued or
outstanding. All of the Ring Shares have been duly authorized, are validly
issued, fully paid, and nonassessable, and are held of record and beneficially
by the Company free and clear of any Liens, other than the lien in favor of Key
Bank securing indebtedness which Seller shall cause the Corporations to pay in
full prior to or at Closing. No shares of Ring are held in the treasury of
Ring. There are no outstanding subscriptions, options, warrants, rights, calls,
commitments, conversion rights, rights of exchange, plans or other agreements
of any character providing for the purchase, issuance or sale of any shares of
Ring, and neither Company nor Ring has granted directly, or indirectly through
any affiliate or otherwise, any such rights. There are no outstanding or
authorized stock appreciation, phantom stock, profit participation or similar
rights with respect to Ring. There are no stockholder agreements, voting
trusts, proxies, or other agreements or understandings with respect to the
voting or transfer of any of the Ring Shares.
3.3. Subsidiaries and Investments. Neither the Company nor Ring is
a member of (nor is any part of its business conducted through) any
partnership, nor is the Company a participant in any joint venture or similar
arrangement. The Company does not own (except for its shares of
11
12
Ring), and Ring does not own, directly or indirectly, any capital stock or
other equity or ownership or proprietary interest in any corporation,
partnership, association, trust, joint venture or other entity.
3.4. Authority. The execution, delivery and performance of this
Agreement have been duly authorized and approved by all necessary action of
Company and Ring and do not require any further authorization or consent of
Company or Ring. This Agreement and the Other Documents, when executed and
delivered by Company and the other parties thereto, will be legal, valid and
binding agreements of Company enforceable against the Company in accordance
with their respective terms, except in each case as such enforceability may be
limited by bankruptcy, moratorium, insolvency, reorganization or other similar
laws affecting or limiting the enforcement of creditors' rights generally and
except as such enforceability is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
3.5. No Conflicts. Neither the execution and delivery by Seller or
Company of this Agreement or the Other Documents nor the consummation by Seller
or Company of the purchase and sale of the Shares provided for herein
(exclusive, for the purposes of this representation, of the transactions
provided for in the transfer proposed by Buyer whereby it will cause Ring to
transfer certain of Ring's assets and properties to Salem and all transactions
related thereto, including without limitation, Buyer's retention of the
intellectual property and programming of the Station and use of same by
WJZF-FM), nor compliance by Seller or Company with or fulfillment by Seller or
Company of the terms, conditions and provisions hereof or thereof will:
(a) contravene or conflict with the Charter, By-Laws or
other organizational documents of the Company or Ring; (b) contravene or
conflict with or constitute a violation of any provision of any law,
regulation, judgment, injunction, order or decree binding upon or applicable to
the Company, Ring or Seller; (c) constitute a default or breach, or give rise
to any right of termination, cancellation or acceleration of any right or
obligation of the Company, Ring or Seller, or give rise to the loss of any
benefit to which the Company, Ring or Seller is entitled, under any Material
Station Contract; (d) result in the creation or imposition of any Lien upon any
assets of the Company, Ring or Seller; or require the approval, consent,
authorization or act of, or the making by Seller, Company or Ring of any
declaration, filing or registration with, any third party or any foreign,
federal, state or local court, governmental or regulatory authority or body,
except for such of the foregoing as are necessary pursuant to the HSR Act and
the Communications Act.
3.6. Financial Statements; Liabilities. Seller has furnished Buyer
with (i) audited financial statements of Ring for calendar years 1998 and 1999
(including a balance sheet as of the end of such year and an income statement
for each such year), (ii) unaudited interim financial statements of Ring for
the three (3) month period ended March 31, 2000 (the "Date of Interim Financial
Statements"), including a balance sheet as of the end of each such month and
income statements for each such month and the portion of the current year ended
as of the end of each such month, (iii) unaudited financial statements of
Company for calendar years 1998 and 1999 (including balance sheets as of the
end of each such year and an income statement for each such year), and (iv)
unaudited interim financial statements of Midwestern for the three (3) months
month period ended March 31, 2000 [last month ending not less than forty-five
(45) days prior to execution of this Agreement], including a balance sheet as
of the end of each such month and
12
13
income statements for each such month and the portion of the current year ended
as of the end of each such month. The financial statements described in the
preceding sentence shall be collectively referred to as "Financial Statements".
The Financial Statements: (x) have been prepared in all material respects in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods involved and as compared with prior
periods; and (y) fairly present in all material respects the financial
position, income, expenses, assets, liabilities, and the results of operations
of Company and Ring and of the Station on a consolidated basis as of the dates
and for the periods indicated.
Neither the Company nor Ring is in default under any loan or other
indebtedness, and except as otherwise disclosed in Schedule 3.6, all such loans
and indebtedness may be repaid and discharged in whole or in part at any time
without premium, penalty or other prepayment charge. Neither the Company nor
Ring has any debt, liability or obligation (whether secured or unsecured,
absolute, accrued, contingent, known or unknown, due or to become due, and
required by generally accepted accounting principles to be reflected in a
balance sheet or disclosed in the related notes), except (i) liabilities to the
extent accrued or reserved against in the Financial Statements, (ii) current
liabilities incurred in the ordinary course of operating the Station, all of
which will be satisfied in full prior to Closing or included as Closing Company
Liabilities, (iii) Excluded Liabilities, and (iv) the obligations of the
Company or Ring (other than for breach) under Station Contracts.
3.7. Tax Matters. Except as disclosed in Schedule 3.7, (a) the
Company and Ring (i) have timely filed (or caused to be filed) all tax returns
required to be filed by the Company or Ring prior to the date of this
Agreement, and all such tax returns are correct and complete in all material
respects, and (ii) have paid or caused to be paid all taxes shown to be due and
payable on such tax returns, (b) no federal, state, local or foreign audits or
other administrative or court proceedings are presently pending or, to Seller's
Knowledge, threatened with regard to any tax returns or taxes of the Company or
Ring and (c) there are no Liens for taxes on the assets of the Company or Ring,
except for taxes which are not yet due and payable, and there is no pending or,
to Seller's Knowledge, threatened tax audit, examination, refund litigation or
adjustment in controversy. Neither the Company nor Ring is a party to any tax
sharing agreement. Neither the Company nor Ring has filed any consent of the
type described under Section 341(f) of the Code or made any election or deemed
election pursuant to Section 338 of the Code. Neither the Company nor Ring has
extended or waived any statute of limitation with respect to any tax. The
charges, accruals and reserves with respect to taxes on the books of the
Corporations are adequate (determined in accordance with GAAP). To the
Knowledge of Seller, there exists no proposed tax assessment against the
Company except as disclosed in the Financial Statements. Seller has furnished
Buyer with accurate and complete copies of the Corporations' state and federal
tax returns for the ended tax years 1997 and 1998 and agrees to provide Buyer
with such returns for the tax year 1999 promptly after such returns become
available.
3.8. Assets. Either the Company or Ring holds title to, or a valid
lessee's or licensee's interest (pursuant to one or more Material Station
Contracts described in Schedule 3.12) in, all of the assets, properties of
every type and description, real, personal and mixed, tangible and intangible,
necessary for the operation of the Station as now operated, in each case free
and clear of all Liens except Permitted Encumbrances. None of the Excluded
Assets is necessary for the operation of the Station as now operated. Except as
set forth in Schedule 3.8, neither Seller nor
13
14
any of their Affiliates has any interest in any assets or property used in the
operation of the Station.
3.9. FCC Authorizations.
(a) Corporations are the holder of the FCC
Authorizations for the Station listed and described on Schedule 3.9. Such FCC
Authorizations constitute all of the licenses and authorizations required under
the Communications Act of 1934, as amended (the "Communications Act"), or the
rules, regulations and policies of the FCC for, and used in the operation of,
the Station. The FCC Authorizations are in full force and effect and have not
been revoked, suspended, canceled, rescinded or terminated and have not
expired. There is not pending or, to the Knowledge of the Corporations,
threatened any action by or before the FCC to revoke, suspend, cancel, rescind
or modify any of the FCC Authorizations (other than proceedings to amend FCC
rules of general applicability), and there is not now issued or outstanding or
pending or, to the Knowledge of the Corporations, threatened, by or before the
FCC, any order to show cause, notice of violation, notice of apparent
liability, or notice of forfeiture or complaint against the Corporations or the
Station. The Station is operating in compliance in all material respects with
the FCC Authorizations, the Communications Act, and the rules, regulations and
policies of the FCC. Any action of the FCC with respect to each FCC
Authorization is a Final Action. Other than as set forth in the FCC
Authorizations, none of the FCC Authorizations is subject to any restriction or
condition which limits in any material respect the full operation of the
Station as now conducted. Schedule 3.9 includes, with respect to each FCC
Authorization, the name of the entity in whose name such authorization is
issued and the date of expiration of such authorization. True, correct and
complete copies of each FCC Authorization have been delivered to Buyer.
(b) All reports and filings required to be filed with,
and all regulatory fees required to be paid to, the FCC by Company or Ring with
respect to the Station have been timely filed and paid. All such reports and
filings are accurate and complete. Corporations maintain public files for the
Station as required by FCC rules. With respect to FCC licenses, permits and
authorizations, Corporations are operating only those facilities for which an
appropriate FCC Authorization has been obtained and is in effect, and
Corporations are meeting the conditions of each such FCC Authorization.
(c) Corporations are aware of no facts indicating that
they or the Station is not in compliance with all requirements of the FCC, the
Communications Act, or any other applicable federal, state and local statutes,
regulations and ordinances. Corporations are aware of no facts and Corporations
have received no notice or communication, formal or informal, indicating that
the FCC is considering revoking, suspending, canceling, rescinding or
terminating any FCC Authorization.
(d) The operation of the Station does not cause or
result in exposure of workers or the general public to levels of radio
frequency radiation in excess of the "Radio Frequency Protection Guides"
recommended in "American National Standard Safety Levels with Respect to Human
Exposure to Radio Frequency Electromagnetic Fields 3 kHz to 300 GHz" (ANSI/IEEE
C95.1-1992) issued by the American National Standards Institute, adopted by the
FCC effective October 15, 1997, and described in OET Bulletin No. 65. Renewal
of the FCC Authorizations would not constitute a "major action" within the
meaning of Section 1.1301, et
14
15
seq., of the FCC's rules.
(e) Each communications tower structure used in the
operation of the Station (whether owned or leased) has been registered under
the rules and regulations of the FCC, and the Federal Aviation Administration
has issued a determination of no hazard to air navigation with respect to each
such tower for which such a determination is required.
3.10. Personal Property. The Assets include all machinery,
equipment, vehicles, furniture and other tangible personal property necessary
for the operation of the Station, including but not limited to the personal
property listed on Schedule 3.10. Each item of Tangible Personal Property is in
good operating condition and repair, is free from material defect or damage, is
functioning in the manner and purposes for which it was intended, and has been
maintained in accordance with industry standards.
3.11. Real Property. Schedule 3.11 contains a description of all
Real Property. The Company or Ring has good and marketable fee simple title to
all owned Real Property (the "Owned Real Property"), including all Real
Property described on Schedule 3.11 as owned, and including all buildings and
other improvements thereon, subject to the Permitted Encumbrances. Schedule
3.11 includes a description of each lease or similar agreement (including the
rental, expiration date, renewal and the location of the real property covered
by such lease or other agreement) under which Company or Ring is lessee or
licensee of, or holds, uses or operates, any Real Property (the "Real Property
Leases"). The Owned Real Property includes, and the Real Property Leases
provide, sufficient access to the Station facilities without the need to obtain
any other access rights. To the knowledge of Corporations and Seller, neither
the whole nor any part of any Real Property is subject to any pending or
threatened suit for condemnation or other taking by any public authority. All
buildings and other improvements included in the Real Property are in good
operating condition and repair, and free from material defect or damage, and
comply in all material respects with applicable zoning, health and safety laws
and codes.
3.12. Contracts. Schedule 3.12 contains a complete and correct list
of all Material Station Contracts. Each of the Material Station Contracts
(including without limitation each of the Real Property Leases) constitutes a
valid and binding obligation of Company or Ring and the other parties thereto
(subject to bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights generally) and is
in full force and effect, and neither Company nor Ring is in, or, to the
Knowledge of Corporations, alleged to be in, breach or default under any of the
Material Station Contracts, and, to the Knowledge of Corporations, no other
party to any of the Material Station Contracts has breached or defaulted
thereunder, and no event has occurred and no condition or state of facts exists
which, with the passage of time or the giving of notice or both, would
constitute such a default or breach by Company, Ring or, to the Knowledge of
Corporations, by any such other party.
3.13. Intangible Property. Corporations have all right, title and
interest in and to all trademarks, service marks, trade names, copyrights,
Websites and all other intangible property necessary to conduct the operations
of the Station as presently operated. Except as set forth on Schedule 3.13,
neither Company nor Ring has received notice of any claim that any Intangible
Property or the use thereof conflicts with, or infringes upon, any rights of
any third party (and there is no basis for any such claim of conflict). To the
knowledge of the Corporations, no service provided by the Station or any
programming or other material used, broadcast or
15
16
disseminated by the Station infringes upon any copyright, patent or trademark
of any other party.
3.14. Employees. Schedule 3.14 sets forth a correct and complete
list of the names, titles or positions, salaries, currently accrued and unused
vacation (including both the number of days and dollar value), bonus
arrangements, and all other compensation of employees or independent
contractors employed or retained by either the Company or Ring, including, but
not limited to, termination pay or other severance benefits and any change or
control payments or arrangements. Except as disclosed in Schedule 3.14, all
employees of either the Company or Ring are employees at-will. Company and Ring
have complied in all material respects with all labor and employment laws,
rules and regulations applicable to the Station business, including without
limitation those which relate to prices, wages, hours, discrimination in
employment and collective bargaining, and is not liable for any arrears of
wages or any taxes or penalties for failure to comply with any of the
foregoing. Neither the Company nor Ring is a party to any collective bargaining
agreement and no collective bargaining agreement is currently being negotiated
by the Company or Ring. There is no (i) unfair labor practice charge or
complaint against Company or Ring in respect of its business pending or, to the
Knowledge of the Corporations, threatened before the National Labor Relations
Board, any state labor relations board or any court or tribunal, or (ii)
strike, dispute, request for representation, slowdown or stoppage pending or
threatened in respect of the business of Company or Ring. Buyer shall have the
right, but not the obligation, to offer employment to any employees of the
Company or Ring concurrent with Closing.
3.15. Employee Benefit Matters. A schedule of all employee benefits
sponsored, contributed to, established or maintained by the Company or Ring (or
by any entity which, together with Company or Ring would be treated a single
employer under Section 414 of the Code) with respect to or for the benefit of
any present or former employee or independent contractor of Company or Ring or
their beneficiaries or dependents (including but not limited to "employee
benefit plans" within the meaning of Section 3(3) of ERISA) is set forth as
Schedule 3.15 hereto. Except as set forth in Schedule 3.15, neither the Company
nor Ring has ever maintained, sponsored or contributed to, or been obligated to
contribute to, any employee pension benefit plan as defined in Section 3(2) of
ERISA. All other employee benefit plans that have been maintained, sponsored or
contributed to by the Company or Ring have been maintained in compliance with
their terms and, both as to form and operation, with the requirements
prescribed by any and all statutes, orders, rules and regulations which are
applicable to such plans, including but not limited to ERISA and the Code.
Neither the Company, Ring nor any such employee benefit plan will have at
Closing any present or future obligation to make any payment to or with respect
to any present or former employee of the Company or Ring pursuant to any
retiree medical benefit plan or other retiree welfare plan (within the meaning
of Section 3(1) of ERISA. No condition, provision, restriction or prohibition
exists which would prevent the Company or Ring from amending or terminating,
and Company and Ring have the right to amend or terminate, any employee benefit
plan.
3.16. Compliance with Law; Litigation. Company and Ring have
complied in all material respects with all laws, regulations, rules, writs,
injunctions, ordinances, franchises, decrees or orders of any court or of any
foreign, federal, state, municipal or other governmental authority which are
applicable to Company or Ring. There is no action, suit or proceeding pending
or, to the Knowledge of the Corporations, threatened against Company or Ring.
There
16
17
are no claims or investigations pending or, to the Knowledge of Corporations,
threatened against Company or Ring.
3.17. Environmental. To the knowledge of Corporations, no hazardous
or toxic substance or waste (including without limitation petroleum products)
or other material regulated under any applicable environmental, health or
safety law (each a "Contaminant") has been generated, stored, transported or
released (each a "Release") on, in, from or to any of the Assets or any
property previously owned or leased by Company or Ring. Neither the Company,
Ring nor any of the Assets is subject to any order from or agreement with any
governmental authority or private party respecting (i) any environmental,
health or safety law, (ii) any environmental clean-up, removal, prevention or
other remedial action or (iii) any obligation or liability arising from the
Release of a Contaminant. Except as provided on Schedule 3.17, to the Knowledge
of Corporations, neither the Company, Ring nor any of the Assets includes any
underground storage tanks or surface impoundments, any asbestos containing
material, or any polychlorinated biphenyls. Neither Company nor Ring has
received any notice or claim to the effect that it is or may be liable as a
result of the Release of a Contaminant. To the Corporations' knowledge, neither
the Company nor Ring is the subject of any investigation by any governmental
authority with respect to a Release of a Contaminant. Corporations have
delivered to Buyer copies of all environmental surveys, analyses and
assessments in its possession relating to any of the Real Property.
3.18. No Finder. No broker, finder or other person is entitled to a
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of Seller, Company or Ring or any party acting on behalf of Seller,
Company or Ring.
3.19. Insurance Policies. Schedule 3.19 (i) lists the policies of
defamation, theft, fire, liability, worker's compensation and other forms of
insurance held by or otherwise insuring the Company or Ring, including the
names of the insurers, the types of coverage, the coverage limits and the
deductible amounts, (ii) describes any self insurance program in effect with
respect to the Company or Ring, and (iii) sets forth a claims history for the
past five (5) years with respect to the Company and Ring. Neither Seller nor
Corporations have any Knowledge of any threat made during the 180-day period
preceding the Effective Date by any insurance carrier to terminate any such
insurance policies or materially increase any of their premiums. There has not
been a failure to comply with any conditions contained in any such insurance
policies that would adversely affect any rights of the Company or Ring under or
with respect to any such policies.
3.20. Changes. Except as set forth on Schedule 3.20 hereto, since
the Date of the Interim Financial Statements through the Effective Date,
neither the Company nor Ring has taken any action or entered into any agreement
that if it were to have occurred subsequent to the Effective Date would
constitute a breach of Section 6.1 of this Agreement.
3.21. Disclosure. To Seller's Knowledge, neither this Agreement
(including the Schedules) nor any other document furnished by or on behalf of
Seller contains any untrue statement of a material fact or omits to state a
material fact necessary to make any statement in this Agreement or any such
document not misleading.
3.22. Business Conducted. Except as set forth on Schedule 3.22, (i)
the business of the
17
18
Company since its inception has been and is limited to the operation of radio
stations WALR(AM), WCNN(AM) and WFOM-AM, and directly related business
activities, and (ii) the business of Ring since December 31, 1993 has been and
is limited to the operation of the Station and directly related business
activities.
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, Seller represents and warrants to Buyer as
follows:
4.1. Authority. Each Seller has the requisite power and authority
to execute and deliver this Agreement and the Other Documents, to consummate
the transactions contemplated hereby and thereby and to comply with the terms,
conditions and provisions hereof and thereof.
4.2. Binding Effect. This Agreement has been, and each of the
Other Documents at or prior to Closing will be, duly executed and delivered by
Seller. This Agreement and the Other Documents, when executed and delivered by
Seller and the other parties thereto, will be legal, valid and binding
agreements of Seller enforceable against Seller in accordance with their
respective terms, except in each case as such enforceability may be limited by
bankruptcy, moratorium, insolvency, reorganization or other similar laws
affecting or limiting the enforcement of creditors' rights generally and except
as such enforceability is subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
4.3. Ownership of Shares. Each Seller is the lawful owner of the
Shares as described in Section 3.2 hereof as owned by such Seller, free and
clear of all Liens. There are no outstanding subscriptions, options, warrants,
rights, calls, commitments, conversion rights, rights of exchange, plans or
other agreements of any character providing for the purchase, issuance or sale
of any of the Shares, and Seller has not granted directly, or indirectly
through any affiliate or otherwise, any such rights.
4.4. No Conflicts. Each Seller has the full legal right, power and
authority to enter into this Agreement and to sell, assign, transfer and convey
the Shares so owned by such Seller pursuant to this Agreement without the
consent or action of any other person, and the delivery to Buyer of the Shares
pursuant to the provisions hereof will transfer to Buyer good title thereto,
free and clear of all Liens.
4.5. No Finder. No broker, finder or other person is entitled to a
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of any Seller or any party acting on any Seller's behalf.
ARTICLE 5: REPRESENTATIONS AND WARRANTIES OF BUYER
To induce Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, Buyer represents and warrants to Seller as
follows:
5.1. Organization. Buyer is duly organized, validly existing and
in good standing
18
19
under the laws of the jurisdiction of its organization (first set forth above).
Buyer has the requisite power and authority to execute and deliver this
Agreement and all of the other agreements and instruments to be executed and
delivered by Buyer (collectively, the "Buyer Ancillary Agreements"), to
consummate the transactions contemplated hereby and thereby and to comply with
the terms, conditions and provisions hereof and thereof.
5.2. Authority. The execution, delivery and performance of this
Agreement and the Buyer Ancillary Agreements by Buyer have been duly authorized
and approved by all necessary action of Buyer and do not require any further
authorization or consent of Buyer. This Agreement is, and each Buyer Ancillary
Agreement when executed and delivered by Buyer and the other parties thereto
will be, a legal, valid and binding agreement of Buyer enforceable in
accordance with its respective terms, except in each case as such
enforceability may be limited by bankruptcy, moratorium, insolvency,
reorganization or other similar laws affecting or limiting the enforcement of
creditors' rights generally and except as such enforceability is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.3. No Conflicts. Neither the execution and delivery by Buyer of
this Agreement and the Buyer Ancillary Agreements or the consummation by Buyer
of any of the transactions contemplated hereby or thereby nor compliance by
Buyer with or fulfillment by Buyer of the terms, conditions and provisions
hereof or thereof will: (i) conflict with the charter or other organizational
documents of Buyer or any judgment, order or decree to which Buyer is subject;
or (ii) require the approval, consent, authorization or act of, or the making
by Buyer of any declaration, filing or registration with, any third party or
any foreign, federal, state or local court, governmental or regulatory
authority or body, except for such of the foregoing as are necessary pursuant
to the HSR Act and the Communications Act.
5.4. No Finder. No broker, finder or other person is entitled to a
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of Buyer or any party acting on Buyer's behalf.
5.5. Qualification. Salem is qualified under the Communications
Act and the rules, regulations and policies of the FCC to control the FCC
Authorizations.
5.6. Investment Intent. Buyer is purchasing the Shares for
investment purposes and acknowledges that the Shares are not registered under
the Securities Act of 1933 or any state securities law. Buyer agrees not to
resell any of the Shares except pursuant to registration under, or an
applicable exemption from, the Securities Act of 1933 and applicable state
securities laws.
ARTICLE 6: COVENANTS OF COMPANY AND SELLER
Company and Seller covenant and agree that from the date hereof until
the completion of the Closing:
6.1. Operation of the Business. Seller covenants and agrees with
Buyer that from the date of this Agreement through the Closing Date, or the
termination of this Agreement, if earlier, unless Buyer otherwise consents in
writing (which consent shall not be unreasonably withheld or
19
20
delayed), the Company and Ring shall, and Seller shall cause the Company and
Ring to:
(a) Operate the Station and its business in the ordinary
course consistent with past practice, including (i) incurring promotional
expenses consistent with the amount currently budgeted, (ii) making capital
expenditures prior to the Closing Date as are necessary to repair or replace
assets that are damaged or destroyed, (iii) using commercially reasonable
efforts to preserve the Station's present business operations, organization and
goodwill and its relationships with customers, employees, advertisers,
suppliers and other contractors (including independent contractors providing
on-air or production services) and to maintain programming for the Station
consistent in all material respects with the type and quantity of the Station's
programming as of the date of this Agreement, and (iv) continuing the Station's
usual and customary policy with respect to extending credit and collection of
accounts receivable;
(b) Operate the Station and conduct its business in
accordance with, and otherwise comply with, the terms and conditions of the FCC
Authorizations, the Communications Act, and all other applicable laws, rules
and regulations, and applicable orders of governmental agencies or authorities;
(c) Maintain their books and records in accordance with
GAAP;
(d) Promptly notify Buyer in writing of any event or
condition known to Seller which, with notice or the lapse of time or both,
would constitute an event of default under any Material Station Contract;
(e) Timely pay all monetary obligations when due and
otherwise timely comply with and perform under all Material Station Contracts;
(f) Not sell, lease, grant any rights in or to or
otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of
its assets or property, except for any Excluded Assets and except for
dispositions of assets that (i) are in the ordinary course of business
consistent with past practice and (ii) if material, are replaced by similar
assets or property of comparable value or utility;
(g) Not make or commit to make capital expenditures
exceeding $10,000 in the aggregate;
(h) Not enter into any agreement requiring the
Corporations to acquire goods or services exclusively from a single supplier or
provider or prohibiting the Corporations from providing certain goods or
services to any person or entity other than a specified person or entity; and
not enter into any other Material Station Contract, or amend any Material
Station Contract, except (A) termination of the Station Affiliation Agreement
with OURBUS in accordance with Section 6.8 or (B) in the ordinary course of the
business of the Corporations consistent with past practice;
(i) Maintain its equipment (except for Excluded Assets)
currently in use in good operating condition and repair;
(j) Not adopt or materially amend any bonus,
profit-sharing, compensation,
20
21
deferred compensation, severance or other arrangement for the benefit of, or
increase in any manner the compensation (including severance pay or plans) or
benefits of, any directors, officers, employees, independent contractors,
consultants or commission agents, except in the ordinary course of business
consistent with past practice;
(k) Not engage in any business other than operation of
the Station, the Excluded Assets and directly related business activities in
the ordinary course consistent with past practice;
(l) Not voluntarily enter into any collective bargaining
agreement applicable to any employees of the Station or otherwise voluntarily
recognize any union as the bargaining representative of any such employees; and
not enter into or amend any collective bargaining agreement applicable to any
employees of the Station to provide that it shall be binding upon any successor
employer of such employees;
(m) Not take or agree to take any action that would
materially delay the consummation of the Closing as contemplated by this
Agreement;
(n) Promptly notify Buyer in writing of any change that
has or is reasonably likely to have a Material Adverse Effect;
(o) Not incur any indebtedness for borrowed money other
than indebtedness incurred in the ordinary course of business which, if not
repaid prior to the Closing, will constitute a Closing Company Liability, and
not create or incur any Lien on any of their assets other than Permitted
Encumbrances;
(p) Not assume, guarantee, endorse or otherwise become
responsible for the obligations of any other person or entity except for
endorsements for collection or deposit in the ordinary course of business and
guarantees that it will be terminated on or before the Closing Date; and not
make any loans or advances to any other person or entity unless repaid prior to
Closing;
(q) Not amend its Charter or By-Laws; not enter into,
agree to enter into or effect any merger or consolidation;
(r) Not take or agree to take any action inconsistent
with consummation of the Closing as contemplated by this Agreement;
(s) Not make any change in the number of shares of its
capital stock authorized, issued or outstanding; not issue any shares of its
capital stock; and not grant or issue any option, warrant or other right to
purchase, or to convert any obligation into, shares of its capital stock;
(t) Not purchase or redeem any shares of its capital
stock or any other security;
(u) Not declare, set aside, make or pay any dividend or
any other distribution in respect of any issued and outstanding capital stock,
except (i) dividends paid in cash and (ii)
21
22
dividends of non-barter accounts receivable that have not arisen in the
ordinary course of the Station's business; and
(v) Not enter into any agreement (other than agreements
that will be terminated prior to Closing) with, or forgive any debts or
obligations of, Seller or an Affiliate of Seller or make any payment to or on
behalf of Seller or an Affiliate of Seller, other than payments required under
Station Contracts in effect on the date of this Agreement and customary
compensatory arrangements.
In the event of the nonperformance of or noncompliance with one or
more of the covenants under this Section 6.1 due to any cause beyond the
reasonable control of Seller and Company, such nonperformance or noncompliance
shall not be taken into account in determining satisfaction of the condition
precedent in the second sentence of Section 8.1 regarding Company's and
Seller's performance of and compliance with their covenants and agreements
under this Agreement.
6.2. Access. Between the date hereof and the Closing Date, Buyer
and the officers, employees, accountants, counsel, agents, consultants and
representatives of Buyer shall be given reasonable access to all Assets,
employees of Company and Ring, and the Station, accounts, statements, books,
records, minutes, deeds, title papers, insurance policies, licenses,
agreements, contracts, commitments, state and federal tax returns, records and
files of every character, equipment, machinery, fixtures, furniture, vehicles,
notes and accounts payable and receivable of Company and Ring, and any other
information concerning the affairs of Company or Ring as Buyer may reasonably
request. It is expressly understood that, pursuant to this Section, Buyer, at
its expense, shall be entitled to conduct such inspections and reviews of the
assets and financial records relating to the Company or Ring as Buyer may
desire, so long as the same do not unreasonably interfere with the operation of
Company's or Ring's business. No inspection or investigation made by or on
behalf of Buyer, or Buyer's failure to make any inspection or investigation,
shall affect Seller's representations, warranties and covenants hereunder or be
deemed to constitute a waiver of any of those representations, warranties and
covenants. Immediately after the date hereof, Seller at Seller's expense shall
take such action as necessary to cause audited financial statements for Company
and Ring to be prepared and furnished to Buyer prior to the Closing Date by
PriceWaterhouseCoopers as of and for the 12-month periods ending on December
31, 1998 and 1999; in connection with such audits, Seller shall provide a
customary management representation letter to PriceWaterhouseCoopers; and
Seller shall consent, and shall at Seller's expense obtain
PriceWaterhouseCoopers' consent, to Buyer's inclusion of Seller's audited
financial statements in reports or registration statements filed by Buyer with
any governmental or regulatory authority, including the Securities and Exchange
Commission.
6.3. Excluded Assets and Excluded Liabilities. Prior to the
Closing, Seller shall cause Company and Ring to distribute all Excluded Assets
to an Affiliate of the Seller and such Affiliate shall assume all of the
Excluded Liabilities of the Company and Ring pursuant to documents and
instruments that (i) disclaim any express or implied representation or warranty
by Corporations, including but not limited to any representation or warranty
regarding title to, or condition, merchantibility or fitness for a particular
purpose of, any Excluded Asset, (ii) release Corporations from all claims,
liabilities and obligations relating or with respect to any of the Excluded
Assets and (iii) are otherwise satisfactory to Buyer within its reasonable
judgment.
22
23
6.4. Publicity. The parties agree that no public release or
announcement concerning the transactions contemplated hereby shall be issued by
any party or any party's Affiliate without the prior written consent of the
other party, except as required by applicable law or regulations.
6.5. Reasonable Best Efforts. Subject to the terms and conditions
of this Agreement, each party will use its reasonable best efforts to take all
action and to do all things necessary, proper or advisable to satisfy any
condition hereunder in its power to satisfy and to consummate and make
effective as soon as practicable the transactions contemplated by this
Agreement.
6.6. No Solicitation. From the date hereof until the earlier of
Closing or termination of this Agreement, neither the Company, Ring, Seller nor
any Affiliate of Seller shall directly or indirectly (a) knowingly solicit or
encourage submission of any proposal or offer from any person or entity
relating to the acquisition or purchase of any interest in the Corporations or
any material assets of the Corporations or any merger, consolidation or other
business combination with either of the Corporations (each an "Acquisition
Proposal"), or (b) otherwise knowingly assist or negotiate with any person or
entity with respect to an Acquisition Proposal. Seller shall promptly notify
Buyer in writing if an Acquisition Proposal is made after the date of this
Agreement.
6.7. Resignations and Releases. On the Closing Date, Seller shall
submit, and shall cause each of the Corporation's and Ring's other officers and
directors to submit, his or her resignation as an officer or director, and his
or her release of all claims against the Corporations, in each case effective
as of the Closing Date and otherwise in form and substance satisfactory to
Buyer's counsel within such counsel's reasonable judgment.
6.8. OURBUS. Seller shall cause the Station Affiliation Agreement
with OURBUS to be terminated prior to Closing without any continuing liability
or obligations on the part of the Corporations under such agreement.
ARTICLE 7: CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are, at Seller's
option, subject to the fulfillment of the following conditions prior to or on
the Closing Date:
7.1. Representations, Warranties and Covenants. Each of the
representations and warranties of Buyer contained in this Agreement shall have
been true and correct as of the date when made and shall be deemed to be made
again on and as of the Closing Date and shall then be true and correct, except
to the extent changes are permitted pursuant to this Agreement. Buyer shall
have performed and complied with each and every covenant and agreement required
by this Agreement to be performed or complied with by it prior to or on the
Closing Date. Buyer shall have furnished Seller with a certificate, dated the
Closing Date and duly executed by an officer of Buyer authorized on behalf of
Buyer to give such a certificate, to the effect that the conditions set forth
in this Section have been satisfied.
7.2. Proceedings. None of Seller, the Company or Buyer shall be
subject to any restraining order or injunction restraining or prohibiting the
consummation of the transactions contemplated hereby.
23
24
7.3. FCC Consent. The FCC Consent shall have been granted by the
FCC.
7.4. Xxxx-Xxxxx-Xxxxxx. The waiting period under the HSR Act shall
have expired or been terminated (hereinafter referred to as "HSR Clearance").
7.5. Deliveries. Buyer shall have complied with its obligations
set forth in Section 9.2.
ARTICLE 8: CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement are, at its option,
subject to the fulfillment of the following conditions prior to or on the
Closing Date:
8.1. Representations, Warranties and Covenants. Each of the
representations and warranties of Seller contained in this Agreement shall have
been true and correct as of the date when made and true and correct as of the
Closing Date (except for representations and warranties that were made
expressly as of a particular date) as if none of such representations and
warranties contained any qualifications as to materiality or the absence of
Material Adverse Effect; provided, however, that notwithstanding the foregoing,
this condition shall be deemed to be satisfied if all inaccuracies in such
representations and warranties (with such inaccuracies determined as if none of
such representations and warranties contained any qualifications as to
materiality or the absence of Material Adverse Effect) do not cumulatively
constitute a Material Adverse Effect. In addition, Company and Seller shall
have performed and complied in all material respects with each and every
covenant and agreement required by this Agreement to be performed or complied
with by each prior to or on the Closing Date, except to the extent
nonperformance or noncompliance is not material to the assets, business,
results of operation, operations or financial condition of the Station or the
Corporations. Seller shall have furnished Buyer with a certificate, dated the
Closing Date and duly executed to the effect that the conditions set forth in
this Section have been satisfied.
8.2. Proceedings. None of Company, Ring, Seller or Buyer shall be
subject to any restraining order or injunction restraining or prohibiting the
consummation of the transactions contemplated hereby.
8.3. FCC Consent. The FCC Consent shall have been granted by the
FCC without any conditions materially adverse to Salem.
8.4. Xxxx-Xxxxx-Xxxxxx. HSR Clearance shall have occurred.
8.5. Deliveries. Seller shall have complied with their obligations
set forth in Section 9.1.
8.6. OURBUS. The Station Affiliation Agreement with OURBUS shall
have been terminated without any continuing liability or obligations on the
part of the Corporations under such agreement.
ARTICLE 9: ITEMS TO BE DELIVERED AT THE CLOSING
9.1. Deliveries by Seller. At the Closing, Seller shall deliver to
Buyer duly executed
24
25
by Company, Seller or such other signatory as may be required by the nature of
the document:
(a) the certificates representing the Shares accompanied
by stock powers duly endorsed in blank, sufficient to sell, convey, transfer
and assign to Buyer all right, title and interest in and to the Shares free and
clear of Liens;
(b) certified copies of resolutions duly adopted by
Sellers and the board of directors of the Company, which shall be in full force
and effect at the time of the Closing, authorizing the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby;
(c) the certificate referred to in Section 8.1;
(d) the corporate minute books, stock ledger and all
other original and duplicate corporate records of the Company and Ring;
(e) copies of the certificates of incorporation of the
Company and Ring, including all amendments thereto, certified by the Secretary
of State or other appropriate official of the jurisdiction of incorporation
dated within 10 days of the Closing Date;
(f) copies of the By-Laws of the Company and Ring,
certified by an officer as being true and correct and in effect on the Closing
Date;
(g) certificates from the Secretaries of State or other
appropriate officials of the jurisdiction of incorporation of the Company and
Ring and any jurisdiction in which the Company or Ring has qualified to do
business, dated within 10 days of the Closing Date and showing that the Company
(or Ring) is duly incorporated and in good standing in its jurisdiction of
incorporation and that it is in good standing in each jurisdiction in which it
has qualified to do business;
(h) resignations (as applicable) and releases by Seller
and all officers and directors of the Company and Ring;
(i) a written instruction of Seller to Escrow Agent
instructing the Escrow Agent to distribute the Xxxxxxx Money as prescribed in
Section 2.6; and
(j) the Holdback Escrow Agreement.
9.2. Deliveries by Buyer. At the Closing, Buyer shall deliver to
Seller:
(a) the Purchase Price, which shall be paid in the
manner specified in Section 2.3;
(b) a written instruction to Buyer to Escrow Agent
instructing the Escrow Agent to distribute the Xxxxxxx Money as prescribed in
Section 2.6;
(c) certified copies of resolutions authorizing the
execution, delivery and performance by Buyer of this Agreement, which shall be
in full force and effect at the time of the Closing; and
25
26
(d) the certificate referred to in Section 8.1.
ARTICLE 10: SURVIVAL; INDEMNIFICATION
10.1. Survival. All representations, warranties, covenants and
agreements of the parties made in this Agreement, any Other Document or Buyer
Ancillary Agreement, shall survive the Closing regardless of any investigation,
inquiry or knowledge on the part of any party, and the Closing shall not be
deemed a waiver by any party of the representations, warranties, covenants or
agreements of any other party in this Agreement, any Other Document or Buyer
Ancillary Agreement; provided however, that the period of survival shall (i)
with respect to the representations and warranties pertaining to taxes under
Section 3.7, end for each tax sixty (60) days after expiration of the statute
of limitations applicable to the tax; and (ii) with respect to the
representations and warranties in Sections 3.1, 3.2, 3.4, 4.1, 4.2, and 4.3,
continue indefinitely; and (iii) in the case of any other representation and
warranty, end one (1) year after the Closing Date (in each case, the "Survival
Period"). No claim for breach of any representation or warranty may be brought
under this Agreement, any other Document or Buyer Ancillary Agreement unless
written notice describing in reasonable detail the nature and basis of such
claim is given on or prior to the last day of the applicable Survival Period.
In the event such notice of such a claim is so given, the right to
indemnification with respect to such claim shall survive the applicable
Survival Period until the claim is finally resolved and any obligations with
respect to the claim are fully satisfied.
10.2. Indemnification.
(a) Seller (an "Indemnifying Party") hereby agrees to
indemnify and hold harmless the Corporations (if Closing occurs), Buyer, the
shareholders, directors, officers and employees of Buyer and (if Closing
occurs) of the Corporations and all persons which directly or indirectly,
through one or more intermediaries, control, are controlled by, or are under
common control with Buyer, and their respective successors and assigns
(collectively, the "Buyer Indemnitees") from, against and in respect of, and
reimburse each of them for and with respect to, all Deficiencies (as defined in
Section 10.3(a)). Notwithstanding anything in this Agreement to the contrary,
if Closing occurs, the obligation of Seller to indemnify Buyer shall be subject
to the following:
(i) The Buyer shall not be entitled to recover
for any Deficiencies for breach of any representation or
warranty until the aggregate of all such Deficiencies exceeds
One Million Five Hundred Thousand Dollars ($1,500,000) (the
"Minimum Loss"), in which case, Buyer may then recover an
aggregate amount of such Deficiencies equal to 50% of the
Minimum Loss plus 100% of any excess over the Minimum Loss,
provided that (i) the maximum aggregate recovery for
Deficiencies for Seller's breach of representations or
warranties shall not exceed $20,000,000 (the "Cap") and (ii)
notwithstanding the foregoing, any Deficiencies for breach of
any representation or warranty in Sections 3.1, 3.2, 3.4,
4.1, 4.2, or 4.3 shall not be subject to the Minimum Loss or
Cap limitations.
(ii) Buyer's maximum aggregate recovery for
Deficiencies for Seller's breach of representations,
warranties, covenants or agreements shall not exceed
$50,000,000.
(iii) No indemnity claim for any Deficiency
relating to, arising out of
26
27
or resulting from any Excluded Liability may be brought
unless written notice describing in reasonable detail the
nature and basis of such claim is given within three (3)
years after the Closing Date. In the event such notice of
such a claim is so given, the right to indemnification with
respect to such claim shall survive such three (3)-year
period until the claim is finally resolved and any
obligations with respect to the claim are fully satisfied.
(b) Buyer shall recover amounts for Deficiencies from
the Holdback as defined in Section 2.5 hereof prior to recovering any amounts
directly from any Seller.
(c) If Closing occurs, Buyer (an "Indemnifying Party")
hereby agrees to indemnify and hold harmless Seller and its respective
successors and assigns (collectively, the "Seller Indemnitees") from, against
and in respect of, and to reimburse the Seller Indemnitees for, the amount of
any and all Deficiencies (as defined in Section 10.3(b)).
(d) Indemnification provided by this Section 10.2 shall
be Buyer's sole and exclusive remedy with respect to Deficiencies (as defined
in Section 10.3(a)), with the exception of the Buyer's additional remedy of
specific performance as provided in Section 11.2. Indemnification provided by
this Section 10.2 shall be Seller's sole and exclusive remedy with respect to
Deficiencies (as defined in Section 10.3(b)).
(e) Any Deficiency for which indemnification is provided
under this Agreement shall be increased by any Tax Cost and reduced by any Tax
Benefit which the indemnified party incurs or receives prior to or during the
Taxable Period in which the corresponding indemnification payment is made. In
the event any indemnification paid by an Indemnifying Party is reduced by a Tax
Benefit, or the indemnified party pays the Indemnifying Party the amount of any
Tax Benefit, and there is a subsequent Final Determination denying the Tax
Benefit, the Indemnifying Party shall promptly reimburse the indemnified party
for the amount of the Tax Benefit that was denied. In the event any
indemnification paid by an Indemnifying Party is increased by a Tax Cost, or
the indemnified party receives payment for any Tax Cost, and there is a
subsequent Final Determination reducing the Tax Cost, the Indemnifying Party
shall promptly be reimbursed by the indemnified party for the amount of the Tax
Cost that was reduced. To the extent permitted by law, any indemnity payments
due hereunder shall be treated as an adjustment to the Purchase Price.
(f) Any party seeking indemnification for any damages
for which it is entitled to seek indemnification shall use its commercially
reasonable efforts to mitigate its damages in connection with such indemnity
claim.
10.3. Deficiencies.
(a) As used in this Article 10, the term "Deficiencies"
when asserted by Buyer Indemnitees or arising out of a third party claim
against Buyer Indemnitees shall mean any and all losses, damages, liabilities,
claims, obligations, deficiencies, demands, penalties, assessments, judgments,
actions, proceedings and suits of whatsoever kind or nature, and all costs and
expenses relating thereto (including court costs and reasonable attorney fees),
whether or not resulting from third party claims, relating to, arising out of
or resulting from (i) any breach by any Seller of any of Seller's
representations or warranties in this Agreement or any Other
27
28
Document, (ii) any breach by any Seller of any of Seller's covenants or
agreements in this Agreement or any Other Document, (iii) all taxes of the
Company or Ring for any period ending on or before the Adjustment Date, except
to the extent such taxes are included as Closing Company Liabilities, (iv) any
employee benefit plan described in Section 3.15, including but not limited to
(A) termination of any employee's participation in any such plan, (B)
withdrawal of the Company or Ring from any such plan, or (C) the obligation
under any such plan to pay any employee a bonus or any severance or change of
control payments as a result of the transactions contemplated by this
Agreement, or (v) any other Excluded Liability.
(b) As used in this Article 10, the term "Deficiencies"
when asserted by Seller Indemnitees or arising out of a third party claim
against Seller Indemnitees shall mean any and all losses, damages, liabilities
and claims sustained by the Seller Indemnitees and arising out of, based upon
or resulting from: (i) any misrepresentation, breach of warranty, or any
failure to comply with any covenant, obligation or agreement on the part of
Buyer contained in or made pursuant to this Agreement; (ii) any failure by
Company or Ring to pay or perform any of the Closing Company Liabilities; or
(iii) any litigation, proceeding or claim by any third party relating to the
business or operation of the Company or Ring after Closing, excluding, however,
all Excluded Liabilities. Such Deficiencies include without limitation any and
all acts, suits, proceedings, demands, assessments and judgments, and all fees,
costs and expenses of any kind, related or incident to any of the foregoing
(including, without limitation, any and all Legal Expenses (as defined in
Section 10.6 below)).
10.4. Procedures.
(a) In the event that any claim shall be asserted by any
third party against the Buyer Indemnitees or Seller Indemnitees (Buyer
Indemnitees or Seller Indemnitees, as the case may be, hereinafter, the
"Indemnitees"), which, if sustained, would result in a Deficiency, then the
Indemnitees, as promptly as practicable after learning of such claim, shall
notify the Indemnifying Party of such claim, and shall extend to the
Indemnifying Party a reasonable opportunity to defend against such claim, at
the Indemnifying Party's sole expense and through legal counsel acceptable to
the Indemnitees, provided that the Indemnifying Party proceeds in good faith,
expeditiously and diligently. The Indemnitees shall, at their option and
expense, have the right to participate in any defense undertaken by the
Indemnifying Party with legal counsel of their own selection. No settlement or
compromise of any claim which may result in a Deficiency may be made by the
Indemnifying Party without the prior written consent of the Indemnitees unless:
(A) prior to such settlement or compromise the Indemnifying Party acknowledges
in writing its obligation to pay in full the amount of the settlement or
compromise and all associated expenses; (B) the Indemnitees are furnished with
a full release from the party or parties asserting the claim; and (C) the
Indemnifying Party has the ability (financial or otherwise) to pay or perform
such settlement or compromise.
(b) In the event that the Indemnitees assert the
existence of any Deficiency against the Indemnifying Party, they shall give
written notice to the Indemnifying Party of the nature and amount of the
Deficiency asserted. If the Indemnifying Party, within a period of sixty (60)
days after the giving of notice by the Indemnitees, shall not give written
notice to the Indemnitees announcing its intent to contest such assertion of
the Indemnitees (such notice by the Indemnifying Party being hereinafter
referred to as the "Contest Notice"), such assertion of the Indemnitees shall
be deemed accepted and the amount of the Deficiency shall be deemed
28
29
established. In the event, however, that a Contest Notice is given to the
Indemnitees within said 60-day period, then the Indemnitees shall be entitled
to pursue all remedies at law or in equity to establish and collect the
contested Deficiency.
(c) The Indemnitees and the Indemnifying Party may agree
in writing, at any time, as to the existence and amount of a Deficiency, and,
upon the execution of such agreement such Deficiency shall be deemed
established.
(d) Failure or delay by an Indemnitee to give a
reasonably prompt notice of any claim (if given prior to expiration of any
applicable Survival Period) shall not release, waive or otherwise affect an
Indemnifying Party's obligations with respect to the claim, except to the
extent that the Indemnifying Party can demonstrate actual loss or prejudice as
a result of such failure or delay. Buyer shall not be deemed to have notice of
any claim by reason of any knowledge acquired on or prior to the Closing Date
by an employee or independent contractor of the Corporations.
10.5. Payment. The Indemnifying Party hereby agrees to pay the
amount of established Deficiencies within 15 days after the establishment
thereof. The amount of established Deficiencies shall be paid in cash. At the
option of the Indemnitees, the Indemnitees may offset any Deficiency or any
portion thereof that has not been paid by the Indemnifying Party to the
Indemnitees against any obligation the Indemnitees, or any of them, may have to
the Indemnifying Party.
10.6. Legal Expenses. As used in this Article 10, the term "Legal
Expenses" shall mean any and all fees (whether of attorneys, accountants or
other professionals), costs and expenses of any kind reasonably incurred by any
person identified herein and its counsel in investigating, preparing for,
defending against, or providing evidence, producing documents or taking other
action with respect to any threatened or asserted claim.
ARTICLE 11: MISCELLANEOUS
11.1.1. Right of Termination. This Agreement may be
terminated prior to Closing:
(a) By written agreement of Seller and Buyer; or
(b) By written notice from a party that is not then in
material breach of this Agreement if:
(i) The other party has continued in material breach of
this Agreement for thirty (30) days after written notice of such
breach from the terminating party is received by the other party and
such breach is not cured during such 30-day period or a commercially
reasonable cure is not undertaken during such cure period (if it
cannot be reasonably cured during such period) and not pursued with
reasonable diligence thereafter; or
(ii) By written notice from Seller to Buyer if within 45
days after filing of the documents required to be filed under the HSR
Act with the Federal Trade Commission
29
30
and the United States Department of Justice in connection with the
transactions contemplated by this Agreement, the waiting period under
the HSR Act shall have failed to expire or be terminated and the
reason for such failure shall be facts or circumstances relating to
Buyer; or
(iii) Closing does not occur within twelve (12) months
after the date hereof.
11.1.2. Effect of Termination.
(a) Upon termination of this Agreement, each party shall
thereafter remain liable for (i) breach of this Agreement prior to such
termination and (ii) payment and performance of the party's obligations under
Sections 6.5 and 11.3 and under Article 10 and this Article 11, which in each
case shall survive termination of this Agreement; provided, however, that if
Closing does not occur, the aggregate liability of Buyer for breach or default
under this Agreement shall be limited as provided in Section 11.1.2(d).
(b) If this Agreement is terminated prior to Closing for
any reason other than by Seller pursuant to Section 11.1.1(b)(i) or (ii) of
this Agreement, Buyer shall be entitled to the return of the Xxxxxxx Money, in
which case Escrow Agent shall promptly return the Xxxxxxx Money to Buyer.
(c) If this Agreement is terminated prior to Closing by
Seller pursuant to Section 11.1.1(b)(i) or (ii) of this Agreement, Seller shall
be entitled to the Xxxxxxx Money, in which case Escrow Agent shall promptly
deliver the Xxxxxxx Money to Seller.
(d) If Closing shall not have occurred because of a
material breach by Buyer under this Agreement, Seller's sole remedy at law or
in equity under this Agreement shall be (i) the termination by Seller of this
Agreement, and (ii) the recovery from Buyer of (A) an amount equal to the
Xxxxxxx Money (the "Seller's Liquidated Damage Amount") and (B) Seller's
reasonable attorneys' fees and other costs of collection incurred by Seller in
enforcing its right to recover Seller's Liquidated Damage Amount (such fees and
other costs herein referred to as "Seller's Enforcement Costs"). In the event
of such termination by Seller, Seller shall be entitled to receive the Xxxxxxx
Money in payment of Seller's Liquidated Damage Amount, and Buyer and Seller
shall cooperate in taking such action as required under the Escrow Agreement to
effect the Escrow Agent's distribution of the Xxxxxxx Money to Seller. Seller
shall also be entitled to pursue any other remedy available to Seller at law or
in equity to recover the entire Seller's Liquidated Damage Amount and Seller's
Enforcement Costs, provided that the total monetary damages (including any
amount received from the Escrow Agent under the Escrow Agreement) to which
Seller shall be entitled shall not exceed the sum of Seller's Liquidated Damage
Amount plus Seller's Enforcement Costs. BUYER ACKNOWLEDGES AND AGREES THAT
SELLER'S RECEIPT OF SELLER'S LIQUIDATED DAMAGE AMOUNT SHALL CONSTITUTE PAYMENT
OF LIQUIDATED DAMAGES HEREUNDER AND NOT A PENALTY AND THAT SELLER'S LIQUIDATED
DAMAGE AMOUNT IS REASONABLE IN LIGHT OF THE SUBSTANTIAL BUT INDETERMINATE HARM
ANTICIPATED TO BE CAUSED BY BUYER'S MATERIAL BREACH OR DEFAULT UNDER THIS
AGREEMENT, THE DIFFICULTY OF PROOF OF LOSS AND DAMAGES, THE INCONVENIENCE AND
NON-FEASIBILITY OF OTHERWISE OBTAINING AN ADEQUATE REMEDY, AND THE VALUE OF THE
TRANSACTIONS TO BE CONSUMMATED HEREUNDER.
30
31
11.1.3. Termination Notice. Each notice given by a party
pursuant to Section 11.1.1 to terminate this Agreement shall specify the
Subsection of Section 11.1.1 pursuant to which the notice is given. If at the
time a party gives a termination notice, the party is entitled to give the
notice pursuant to more than one Subsection of Section 11.1.1, the Subsection
pursuant to which the notice is given and termination is effected shall be
deemed to be the Subsection specified in the notice provided that the party
giving the notice is at such time entitled to terminate this Agreement pursuant
to the specified Subsection.
11.2. Specific Performance. In the event of a breach or threatened
breach by Seller of any representation, warranty, covenant or agreement under
this Agreement, at Buyer's election, in lieu of termination of this Agreement
and in addition to any other remedy available to it, Buyer shall be entitled to
an injunction restraining any such breach or threatened breach and, subject to
obtaining any requisite approval of the FCC, to enforcement of this Agreement
by a decree of specific performance requiring Seller to fulfill their
obligations under this Agreement, in each case without the necessity of showing
economic loss or other actual damage and without any bond or other security
being required. The remedies provided Buyer in this Agreement shall be
cumulative and shall not preclude the assertion by Buyer of any other rights or
the seeking of any other remedies against Seller.
11.3. Expenses. Each party hereto shall bear all of its expenses
incurred in connection with the transactions contemplated by this Agreement,
including without limitation, accounting and legal fees incurred in connection
herewith; provided that Buyer and Seller shall each pay 50% of the HSR Act
filing fees and the FCC filing fees required to be paid in connection with the
FCC Application.
11.4. Further Assurances. From time to time prior to and after
Closing, each party hereto will execute all such instruments and take all such
actions as any other party shall reasonably request, without payment of further
consideration, in connection with carrying out and effectuating the intent and
purpose hereof and all transactions contemplated by this Agreement, including
without limitation the execution and delivery of any and all confirmatory and
other instruments in addition to those to be delivered at Closing, and any and
all actions which may reasonably be necessary to complete the transactions
contemplated hereby. The parties shall cooperate fully with each other and with
their respective counsel and accountants in connection with any steps required
to be taken as part of their respective obligations under this Agreement.
11.5. Cooperation. From the date of Closing and for a period of
three (3) years thereafter, Seller shall provide Buyer with such cooperation
and information as Buyer shall reasonably request in Buyer's: (i) analysis and
review of Financial Statements or information provided or created hereunder, or
(ii) preparation of any reports or analyses prepared by Buyer. Seller shall
also make its accountants available, including any work papers, opinions and
financial statements relating to the Company or Seller, to provide explanations
of any documents or information provided hereunder and to permit disclosure of
such information by Buyer, including disclosure to any governmental authority,
including the Securities and Exchange Commission.
11.6. Employee Matters. Immediately prior to the Closing Date,
Seller shall cause the Company and Ring, as applicable, to cease to be a
participating employer under, and terminate
31
32
its sponsorship of, each employee benefit plan identified on Schedule 3.15 or
otherwise described in Section 3.15. Employees of the Corporations after
Closing shall be eligible to participate in Buyer's 401(k) plan in accordance
with the terms and provisions of such plan, and Buyer shall use commercially
reasonable efforts to process enrollment of such employees in such plan as soon
as practicable after the Closing Date. Subject to applicable law, all such
employees will be eligible to roll over cash distributions from the
Corporations' 401(k) plan to Buyer's 401(k) plan.
11.7. Intercompany Accounts. Prior to the Closing Date, Seller
shall cause all intercompany payables or other indebtedness owed by the Company
or Ring to any of their Affiliates to be canceled and discharged in full.
ARTICLE 12: GENERAL PROVISIONS
12.1. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, and their respective
representatives, successors and assigns. Seller may not assign any of Seller's
rights or delegate any of Seller's duties hereunder without the prior written
consent of Buyer, and any such attempted assignment or delegation without such
consent shall be void. Buyer may not assign its rights and obligations
hereunder in whole or in part without consent of Seller except to: (a) any
person which directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with Buyer; or (b)
Buyer's senior lenders as collateral. Except in the case of Indemnitees under
Article 10, nothing in this Agreement, expressed or implied, shall confer on
any person, other than the parties to this Agreement and their respective
successors or permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
12.2. Amendments; Waivers. The terms, covenants, representations,
warranties and conditions of this Agreement may be changed, amended, modified,
waived, or terminated only by a written instrument executed by the party
waiving compliance. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right of such party at a later date to enforce the same. No waiver by any party
of any condition or the breach of any provision, term, covenant, representation
or warranty contained in this Agreement, whether by conduct or otherwise, in
any one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other
provision, term, covenant, representation or warranty of this Agreement.
12.3. Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
(which shall include notice by telex or facsimile transmission) and shall be
deemed to have been duly made and received when personally served, or when
delivered by Federal Express or a similar overnight courier service, expenses
prepaid, or, if sent by telex, graphic scanning or other facsimile
communications equipment, delivered by such equipment, addressed as follows:
32
33
if to Company or Seller: Xxxxx X. Xxxxxx, Xx.
00000 Xxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxxxxx
Xxxxx Xxxx Xxxxx, XX 00000.
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Buyer: Xxx Radio, Inc.
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
Any party may alter the address to which communications are to be sent by
giving notice of such change of address in conformity with the provisions of
this Section providing for the giving of notice.
12.4. Captions. The captions of Articles and Sections of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any of the provisions of this Agreement.
12.5. Governing Law. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement shall be governed by
and construed in accordance with the laws of the State of Georgia, without
giving effect to principles of conflicts of laws.
12.6. Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof, and supersedes all prior agreements, understandings,
inducements or conditions, express or implied, oral or written, relating to the
subject matter hereof. The express terms hereof control and supersede any
course
33
34
of performance and/or usage of trade inconsistent with any of the terms hereof.
This Agreement has been prepared by all of the parties hereto, and no inference
of ambiguity against the drafter of a document therefore applies against any
party hereto.
12.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
12.8. Severability. Except to the extent that such unenforceability
would deprive either party of the substantial value of its bargain, if any
court shall determine that any aspect of this Agreement is unenforceable, it is
the intention of the parties that it shall not thereby terminate, but shall be
deemed amended to the extent required to render it valid and enforceable and
such provision shall be deemed severed from this Agreement, but in any event,
every other provision of this Agreement shall remain in full force and effect.
12.9. Interpretation. If there are multiple Sellers, references
herein to Seller shall be construed case by case to refer to any, some or all
Sellers as the context requires to enable Buyer to obtain the fullest benefit
of this Agreement, and all Sellers shall be jointly and severally liable for
all representations, warranties, covenants, agreements, liabilities and other
obligations of any one or all of the Sellers under this Agreement or any Other
Document whether or not so indicated in any other provision of this Agreement
or any Other Document.
[SIGNATURE PAGE FOLLOWS]
34
35
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
BUYER: XXX RADIO, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
COMPANY: MIDWESTERN BROADCASTING
COMPANY, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SELLER: ----------------------------------
Xxxxx X. Xxxxxx, Xx., an individual
----------------------------------
Xxxxxxxx X. Xxxxxx, an individual
----------------------------------
Xxxxxxxx X. Xxxxxx, an individual
35
