________________________________________________________________________________
STOCK PURCHASE AGREEMENT
________________________________________________________________________________
by and among
THE SHAREHOLDER OF ALLUR-DETROIT, INC.
and
RADIO ONE, INC.
for the sale and purchase of
STATION WWBR(FM)
Dated as of October 26, 1998
TABLE OF CONTENTS
1. RULES OF CONSTRUCTION...................................................................... 1
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1.1. DEFINED TERMS.................................................................. 1
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1.2. OTHER DEFINITIONS.............................................................. 6
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1.3. NUMBER AND GENDER.............................................................. 6
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1.4. HEADINGS AND CROSS-REFERENCES.................................................. 7
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1.5. COMPUTATION OF TIME............................................................ 7
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2. FCC APPLICATION AND CLOSING................................................................ 7
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2.1. FCC APPLICATION................................................................ 7
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2.2. FINAL CLOSING DATE............................................................. 8
3. INITIAL ESCROW DEPOSIT..................................................................... 8
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4. PURCHASE PRICE AND METHOD OF PAYMENT....................................................... 8
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4.1. CONSIDERATION.................................................................. 8
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4.2. PAYMENT AT CLOSING............................................................. 8
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4.3. POST CLOSING ESCROW FUND....................................................... 10
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5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER REGARDING THE COMPANY............. 11
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5.1. EXISTENCE, POWER AND IDENTITY.................................................. 11
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5.2. BINDING EFFECT................................................................. 11
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5.3. NO VIOLATION................................................................... 12
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5.4. GOVERNMENTAL AUTHORIZATIONS.................................................... 12
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5.5. CONTRACTS...................................................................... 13
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5.6. INSURANCE...................................................................... 13
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5.7. FINANCIAL STATEMENTS........................................................... 13
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5.8. EMPLOYEES...................................................................... 14
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5.9. EMPLOYEE BENEFIT PLANS......................................................... 15
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5.10. REAL PROPERTY.................................................................. 18
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5.11. ENVIRONMENTAL PROTECTION....................................................... 18
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5.12. COMPLIANCE WITH LAW............................................................ 19
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5.13. LITIGATION..................................................................... 20
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5.14. INSOLVENCY PROCEEDINGS......................................................... 21
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5.15. SALES AGREEMENTS............................................................... 21
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5.16. LIABILITIES.................................................................... 21
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5.17. SUFFICIENCY OF ASSETS.......................................................... 21
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5.18. CERTAIN INTERESTS AND RELATED PARTIES.......................................... 21
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5.19. TAXES.......................................................................... 22
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5.20. BROKER......................................................................... 22
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5.21. SUBSIDIARIES................................................................... 22
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5.22. STOCK.......................................................................... 22
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5.23. PROPERTY....................................................................... 23
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5.24. CORPORATE RECORDS.............................................................. 23
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5.25. DIVIDENDS AND OTHER DISTRIBUTIONS.............................................. 23
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5.26. PROMOTIONAL RIGHTS............................................................. 23
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5.27. INDEBTEDNESS................................................................... 24
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5.28. NO MISLEADING STATEMENTS....................................................... 24
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6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER REGARDING THE SHARES.............. 24
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6.1. BINDING EFFECT................................................................. 24
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6.2. NO VIOLATION................................................................... 25
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6.3. OWNERSHIP OF STOCK............................................................. 25
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6.4. COOPERATION.................................................................... 25
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7. BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.......................................... 25
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7.1. EXISTENCE AND POWER............................................................ 26
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7.2. BINDING EFFECT................................................................. 26
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7.3. NO VIOLATION................................................................... 26
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7.4. LITIGATION..................................................................... 26
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7.5. LICENSEE QUALIFICATIONS........................................................ 26
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7.6. BROKER......................................................................... 27
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8. COVENANTS WITH RESPECT TO CONDUCT OF THE COMPANY AND SHAREHOLDER........................... 27
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8.1. ACCESS......................................................................... 27
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8.2. MATERIAL ADVERSE CHANGES; FINANCIAL STATEMENTS................................. 27
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8.3. CONDUCT OF BUSINESS............................................................ 27
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8.4. DAMAGE......................................................................... 30
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(A) RISK OF LOSS.................................................. 30
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(B) FAILURE OF BROADCAST TRANSMISSIONS............................ 31
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(C) RESOLUTION OF DISAGREEMENTS................................... 31
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8.5. ADMINISTRATIVE VIOLATIONS...................................................... 31
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8.6. CONTROL OF STATION. ........................................................... 32
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8.7. COOPERATION WITH RESPECT TO FINANCIAL AND TAX
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MATTERS........................................................................ 32
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8.8. CLOSING OBLIGATIONS............................................................ 32
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8.9. ENVIRONMENTAL ASSESSMENT....................................................... 32
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9. CONDITIONS PRECEDENT....................................................................... 33
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9.1. MUTUAL CONDITIONS.............................................................. 33
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(A) APPROVAL OF TRANSFER OF CONTROL
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APPLICATION................................................... 33
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(B) ABSENCE OF LITIGATION......................................... 33
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9.2. ADDITIONAL CONDITIONS TO BUYER'S OBLIGATION.................................. 33
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(A) REPRESENTATIONS AND WARRANTIES.................................. 33
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(B) COMPLIANCE WITH CONDITIONS...................................... 34
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(C) DISCHARGE OF LIENS.............................................. 34
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(D) THIRD-PARTY CONSENTS............................................ 34
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(E) ESTOPPEL CERTIFICATES........................................... 34
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(F) NO MATERIAL ADVERSE CHANGE...................................... 34
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(G) FINANCIAL STATEMENTS............................................ 35
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(H) CASH AND ACCOUNTS RECEIVABLE
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CALCULATION..................................................... 35
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(I) SALES AND CUSTOMER INFORMATION.................................. 35
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(J) OPINION OF COMPANY'S COUNSEL.................................... 35
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(K) PREFERRED STOCK................................................. 37
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(L) CLOSING DOCUMENTS. ............................................. 37
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(M) RESIGNATION OF DIRECTORS AND OFFICERS........................... 37
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(N) STOCK CERTIFICATES.............................................. 38
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(O) CORPORATE RECORDS............................................... 38
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(P) BANK ACCOUNTS/INSURANCE POLICIES................................ 38
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(Q) WARRANT......................................................... 38
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(R) LEASE........................................................... 38
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(S) ACCOUNTS PAYABLE................................................ 38
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(T) TRADE BALANCE................................................... 38
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(U) LICENSES........................................................ 38
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(V) RADIOFREQUENCY RADIATION........................................ 38
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(W) TAXES........................................................... 39
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(X) COMPENSATION.................................................... 39
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(Y) CONFIDENTIAL INFORMATION........................................ 39
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(Z) RELEASES........................................................ 39
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(AA) FAIRNESS OPINION................................................ 39
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9.3. ADDITIONAL CONDITIONS TO COMPANY'S AND
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SHAREHOLDER'S OBLIGATION..................................................... 39
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(A) REPRESENTATIONS AND WARRANTIES.................................. 39
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(B) COMPLIANCE WITH CONDITIONS...................................... 40
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(C) PAYMENT......................................................... 39
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(D) CLOSING DOCUMENTS............................................... 39
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10. INDEMNIFICATION/POST-CLOSING OBLIGATIONS................................................... 40
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10.1. OBLIGATIONS OF SHAREHOLDER.............................................. 40
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10.2. OBLIGATIONS OF BUYER.................................................... 41
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10.3. PROCEDURE FOR INDEMNIFICATION........................................... 41
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10.4. REMEDIES CUMULATIVE..................................................... 43
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10.5. NOTICE.................................................................. 43
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10.6. THRESHOLD CONCERNING SECTIONS 10.1 AND 10.2............................. 43
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10.7. SURVIVAL OF REPRESENTATIONS.................................................. 43
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10.8. TAX RETURNS.................................................................. 43
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(A) PREPARATION AND FILING OF RETURNS FOR
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PRE-CLOSING PERIODS.................................................. 43
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(B) PREPARATION AND FILING OF RETURNS FOR
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POST-CLOSING PERIODS................................................. 44
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10.9. ALLOCATION OF TAX LIABILITY.................................................. 44
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10.10. COOPERATION WITH RESPECT TO FINANCIAL AND TAX
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MATTERS...................................................................... 44
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10.11. NONDISCLOSURE AND CONFIDENTIALITY............................................ 45
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11. DEFAULT AND REMEDIES....................................................................... 45
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11.1. OPPORTUNITY TO CURE.......................................................... 45
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11.2. SHAREHOLDER'S REMEDIES. ..................................................... 46
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11.3. BUYER'S REMEDIES. ........................................................... 46
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12. TERMINATION OF AGREEMENT................................................................... 47
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12.1. TERMINATION OF AGREEMENT..................................................... 47
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(A) MUTUAL CONSENT.......................................................... 47
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(B) CONDITIONS TO BUYER'S PERFORMANCE NOT
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MET..................................................................... 47
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(C) CONDITIONS TO SELLER'S PERFORMANCE NOT
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MET..................................................................... 47
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(D) MATERIAL BREACH......................................................... 47
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(E) BANKRUPTCY; RECEIVERSHIP................................................ 47
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(F) FCC APPROVAL............................................................ 48
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13. GENERAL PROVISIONS......................................................................... 48
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13.1. FEES......................................................................... 48
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13.2. NOTICES. .................................................................... 48
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13.3. ASSIGNMENT. ................................................................. 49
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13.4. EXCLUSIVE DEALINGS. ......................................................... 49
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13.5. THIRD PARTIES. .............................................................. 50
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13.6. INDULGENCES. ................................................................ 50
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13.7. PRIOR NEGOTIATIONS. ......................................................... 50
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13.8. EXHIBITS AND SCHEDULES....................................................... 50
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13.9. ENTIRE AGREEMENT; AMENDMENT. ............................................... 50
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13.10. COUNSEL/INTERPRETATION. .................................................... 50
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13.11. GOVERNING LAW, JURISDICTION.................................................. 50
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13.12. SEVERABILITY................................................................. 51
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13.13. COUNTERPARTS................................................................. 51
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13.14. FURTHER ASSURANCES........................................................... 51
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TABLE OF EXHIBITS
EXHIBIT 1 INITIAL ESCROW AGREEMENT
EXHIBIT 2 POST CLOSING ESCROW AGREEMENT
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TABLE OF SCHEDULES
SCHEDULE 5.1 COMPANY DOCUMENTS
SCHEDULE 5.3 VIOLATIONS
SCHEDULE 5.4 GOVERNMENTAL AUTHORIZATIONS
SCHEDULE 5.5 CONTRACTS (MATERIAL CONTRACTS DESIGNATED WITH
AN ASTERISK)
SCHEDULE 5.6 INSURANCE POLICIES
SCHEDULE 5.7(b) OBLIGATIONS AND LIABILITIES SINCE 6/30/98
SCHEDULE 5.7(c) BANK ACCOUNTS
SCHEDULE 5.8 EMPLOYEES
SCHEDULE 5.9 EMPLOYEE BENEFIT PLANS
SCHEDULE 5.10 DESCRIPTION OF REAL PROPERTY
SCHEDULE 5.13 LITIGATION
SCHEDULE 5.15 SALES AGREEMENTS
SCHEDULE 5.18 INTERESTS OF RELATED PARTIES
SCHEDULE 5.22 RIGHTS TO STOCK
SCHEDULE 5.23 TANGIBLE PERSONAL PROPERTY
SCHEDULE 5.26 INTELLECTUAL PROPERTY
SCHEDULE 6.3 RIGHTS TO STOCK
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement")is entered into as of this
26th day of October, 1998, by and among Syndicated Communications Venture
Partners II, L.P., a Delaware limited partnership(hereinafter referred to as
"Seller" or "Shareholder") and Radio One, Inc., a Delaware corporation
("Buyer").
RECITALS
WHEREAS, Seller will be the sole shareholder of Allur-Detroit, Inc., a
Delaware Corporation ("Company") at the time of Closing.
WHEREAS, Company currently has 1,050 shares of Preferred Stock issued and
outstanding which shall be redeemed by Company simultaneously at the Closing and
therefore shall be considered Company treasury stock for purposes of this
Agreement.
WHEREAS, Company is the licensee of Station WWBR(FM), Mt. Xxxxxxx, Michigan
operating on a frequency of 102.7 MHz (the "Station").
WHEREAS, Buyer desires to obtain, and Seller desires to sell to Buyer all
of the issued and outstanding shares of the capital stock of the Company.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and, intending to be legally bound hereby, the parties agree as
follows:
1. RULES OF CONSTRUCTION.
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1.1. DEFINED TERMS. As used in this Agreement, the following terms shall
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have the following meanings:
"ACCOUNTS RECEIVABLE" means the cash accounts receivable of Company arising
from Company's operation of the Station prior to Closing.
"ACCOUNTS PAYABLE" means the liabilities of Company for services received
or goods acquired arising from Company's operation of the Station in the normal
course of business prior to Closing for which Company has received a xxxx, but
for which payment is not past due.
1
"ADMINISTRATIVE VIOLATION" means those violations described in Section 8.5
hereof.
"BUSINESS" means the business of Company consisting primarily of the
operation of the Station.
"BUYER" means Radio One, Inc., a Delaware corporation.
"BUYER DOCUMENTS" means those documents, agreements and instruments to be
executed and delivered by Buyer in connection with this Agreement as described
in Section 7.2.
"CLOSING" means the consummation of the Transaction (as hereinafter
defined).
"CLOSING DATE" means the date on which the Closing takes place, as
determined pursuant to Section 2.2.
"CODE" means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder.
"COMMISSION" means the Federal Communications Commission.
"COMMUNICATIONS ACT" shall mean the Communications Act of 1934, as amended.
"COMPANY" means Allur-Detroit, Inc., a Delaware corporation.
"COMPANY DOCUMENTS" means those documents, agreements and instruments to be
executed and delivered by Company in connection with this Agreement as described
in Section 5.1.
"CONTINGENT LIABILITY" means the amount of Five Hundred Thousand Dollars
($500,000) that Seller owes to Buyer upon a sale of the Shares held by Seller or
the assets of the Company.
"CONTRACTS" means those contracts, leases and other agreements listed or
described in Schedule 5.5 which are in effect on the date hereof and which Buyer
has agreed to assume.
"ENCUMBRANCE" means any claim, charge, easement, encumbrance, security
interest, lien, option or pledge imposed by agreement or law, except for any
restrictions on transfer generally arising under any applicable federal or state
securities law.
2
"ENVIRONMENTAL LAW" means any law, rule, order, decree or regulation of any
Governmental Authority relating to pollution or protection of human health and
the environment, including any law or regulation relating to emissions,
discharges, releases or threatened releases of Hazardous Substances (as
hereinafter defined) into ambient air, surface water, groundwater, land or other
environmental media, and including without limitation all laws, regulations,
orders, and rules pertaining to occupational health and safety.
"FCC LICENSES" means all licenses, pending applications, permits and other
authorizations issued by the Commission for the operation of the Station listed
on Schedule 5.4.
"FINAL ORDER" means any action that shall have been taken by the Commission
(including action duly taken by the Commission's staff, pursuant to delegated
authority) which shall not have been reversed, stayed, enjoined, set aside,
annulled or suspended; with respect to which no timely request for stay,
petition for rehearing, appeal or certiorari or sua sponte action of the
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Commission with comparable effect shall be pending; and as to which the time for
filing any such request, petition, appeal, certiorari or for the taking of any
such sua sponte action by the Commission shall have expired or otherwise
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terminated.
"FINANCIAL STATEMENTS" means Company's audited and unaudited financial
statements, income statements, and balance sheets as described in Section 5.7.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof, and any agency, court or other entity that
exercises executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"HAZARDOUS SUBSTANCES" means any hazardous, dangerous or toxic waste,
substance or material, as those or similar terms are defined in or for purposes
of any applicable federal, state or local Environmental Law, and including
without limitation any asbestos or asbestos-related products, petroleum, oils or
petroleum-derived compounds, CFCS, or PCBs.
"IMPROVEMENTS" means all buildings, structures, fixtures, and other
improvements now or hereafter actually or constructively attached to the Real
Property, and all modifications, additions, restorations, or replacements of the
whole or any part thereof.
3
"INDEBTEDNESS" means any debt or indebtedness, whether evidenced by a note
or otherwise, whether secured or unsecured, in each case for borrowed money.
"INDEMNIFICATION BASKET" means the amount described in Section 10.6.
"INITIAL ESCROW AGENT" means Wilmington Trust Company.
"INITIAL ESCROW AGREEMENT" means the escrow agreement described in Section
3, the form of which is attached as Exhibit 1.
"INITIAL CASH ESCROW DEPOSIT" means Five Hundred Thousand Dollars
($500,000).
"INITIAL ESCROW DEPOSIT" means the monies deposited with the Initial Escrow
Agent as described in Section 3.
"KNOWLEDGE OF BUYER" means the actual knowledge, after reasonable inquiry
of Buyer's senior management, and the books and records of Buyer.
"KNOWLEDGE OF COMPANY" means, the actual knowledge, after reasonable
inquiry of Company's senior management, and the books and records of the
Station, and the actual knowledge of Shareholder of Company.
"LAW" means any constitutional provision, statute or other law, rule,
regulation, or interpretation of any Governmental Authority and any order,
including any order of any Governmental Authority.
"LOSS" means any action, cost, damage, disbursement, expense, liability,
loss, deficiency, diminution in value, obligation, penalty or settlement of any
kind or nature, whether foreseeable or unforeseeable, including but not limited
to, interest or other carrying costs, penalties, reasonable legal, accounting
and other professional fees and expenses incurred in the investigation,
collection, prosecution and defense of claims and amounts paid in settlement,
that may be imposed on or otherwise incurred or suffered by the specified
person.
"MATERIAL CONTRACTS" means those leases, contracts and agreements
specifically designated in Schedule 5.5 as being "Material Contracts."
4
"POST CLOSING ESCROW ACCOUNT" shall mean the account specified in Section
4.3 created pursuant to the Post Closing Escrow Agreement.
"POST CLOSING ESCROW AGENT" means Wilmington Trust Company.
"POST CLOSING ESCROW AGREEMENT" shall mean the agreement specified in
Section 4.3 by and among Shareholder, Buyer and the Post Closing Escrow Agent,
dated as of the Closing Date, substantially in the form of Exhibit 2 hereto.
"POST CLOSING ESCROW FUND" shall mean the sum of One Million Dollars
($1,000,000), which will be deposited in the Post Closing Escrow Account by
Buyer from the Purchase Price in accordance with the Post Closing Escrow
Agreement and the terms hereof.
"POST CLOSING ESCROW TERMINATION DATE" shall have the meaning specified in
Section 4.3.
"PREFERRED STOCK" means the 1,050 shares of stock which will be redeemed
prior to Closing and become treasury stock.
"PURCHASE PRICE" shall mean the total consideration for the Shares, as
described in Section 4.1.
"REAL PROPERTY" means that certain real property owned, leased or under
contract by the Company and used in the operation of the Station as described in
Section 5.10.
"SALES AGREEMENTS" means agreements entered into by Company for the sale of
time on the Station for cash, as described in Section 5.15.
"SHAREHOLDER" means that entity named in the preamble to this Agreement and
also referred to herein as Seller.
"SHARES" means all the issued and outstanding capital stock of the Company
to be acquired at Closing consisting of 400 shares of Common Stock of the
Company.
"SPECIFIED EVENT" means those broadcast transmission failures described in
Section 8.4(b).
"STUDIO SITE" means the real estate located at 000 Xxxxxxxxxx Xxxxxxx,
Xxxx, Xxxxxxxx, that is currently used as the Station's studio and office
facilities.
5
"TANGIBLE PERSONAL PROPERTY" means all tangible personal property and
fixtures used or useful in the operation of the Business, including the property
and assets listed or described in Schedule 5.23, together with supplies,
inventory, spare parts and replacements thereof and improvements and additions
thereto made between the date hereof and the Closing Date.
"TRADE AGREEMENTS" means agreements entered into by Company for the sale of
time on the Station in exchange for merchandise or services.
"TRADE BALANCE" means the difference between the aggregate value of time
owed pursuant to the Trade Agreements and the aggregate value of goods and
services to which the Station is entitled prior to Closing pursuant to the Trade
Agreements, as computed in accordance with the Station's customary bookkeeping
practices. The Trade Balance is "negative" if the value of time owed exceeds
the value of goods and services to which the Station is entitled. The Trade
Balance is "positive" if the value of time owed is less than the value of goods
and services to which the Station is entitled.
"TRANSACTION" means the sale and purchase and assignments and assumptions
contemplated by this Agreement and the respective obligations of Company,
Shareholder and Buyer set forth herein.
"TRANSFER OF CONTROL APPLICATION" means the application on FCC Form 315
that Shareholder, Company and Buyer shall join in and file with the Commission
requesting its consent to the transfer of control of Company to Buyer.
"WWBR(FM) TRANSMITTER SITE" means the real estate located at Clinton,
Michigan that is currently used as the Station's transmitter site.
1.2. OTHER DEFINITIONS. Other capitalized terms used in this Agreement
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shall have the meanings ascribed to them herein.
1.3. NUMBER AND GENDER. Whenever the context so requires, words used in
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the singular shall be construed to mean or include the plural and vice versa,
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and pronouns of any gender shall be construed to mean or include any other
gender or genders.
1.4. HEADINGS AND CROSS-REFERENCES. The headings of the Sections and
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Paragraphs hereof, the Table of Contents, the Table of Exhibits, and the Table
of Schedules have been included for
6
convenience of reference only, and shall in no way limit or affect the meaning
or interpretation of the specific provisions of this Agreement. All cross-
references to Sections or Paragraphs herein shall mean the Sections or
Paragraphs of this Agreement unless otherwise stated or clearly required by the
context. All references to Schedules herein shall mean the Schedules to this
Agreement. Words such as "herein" and "hereof" shall be deemed to refer to this
Agreement as a whole and not to any particular provision of this Agreement
unless otherwise stated or clearly required by the context. The term "including"
means "including without limitation."
1.5. COMPUTATION OF TIME. Whenever any time period provided for in this
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Agreement is measured in "business days" there shall be excluded from such time
period each day that is a Saturday, Sunday, recognized federal legal holiday, or
other day on which the Commission's offices are closed and are not reopened
prior to 5:30 p.m. Washington, D.C. time. In all other cases all days shall be
counted.
2.0 FCC APPLICATION AND CLOSING.
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2.1. FCC APPLICATION. Within ten (10) business days after execution of
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this Agreement, Company, Shareholder and Buyer will join in filing the Transfer
of Control Application. Each of the parties diligently shall take or cooperate
in the taking of all steps which are reasonably necessary or appropriate to
expedite the prosecution and grant of the Application. No party by commission
or omission shall put in jeopardy its qualifications as a Commission licensee,
or impair the routine processing of the Transfer of Control Application.
Shareholder will use its best efforts and otherwise cooperate with Buyer in
responding to any information requested by the FCC related to the Transfer of
Control Application and in defending against any petition, complaint or
objection which may be filed against the Transfer of Control Application. In
the event the Transfer of Control Application as tendered is rejected for any
reason, the party liable for the rejection shall take all reasonable steps to
cure the basis for rejection and Company, Shareholder and Buyer shall jointly
resubmit the Transfer of Control Application. Company and Buyer shall share
equally in the amount of any Commission filing fees.
2.2. FINAL CLOSING DATE. Closing of the Transaction shall take place at
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the offices of Xxxxxxxx & Xxxxx, Washington, D.C. on a mutually agreeable date
and time which is no more than ten (10) business days after public notice of the
FCC's approval of the Transfer of Control Application. Buyer, at its sole
option, may
7
purchase up to four (4) additional thirty (30) day extensions of time in which
to close the Transaction by paying the sum of One Hundred Fifty Thousand Dollars
($150,000) payable by certified check or cash in advance for each such extension
or no such extension shall be granted.
3.0 INITIAL ESCROW DEPOSIT. Simultaneous with the execution of this Agreement,
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Buyer shall deposit with Wilmington Trust Company ("Initial Escrow Agent"), a
cash deposit of Five Hundred Thousand Dollars ($500,000) (the "Initial Cash
Escrow Deposit"). The Initial Cash Escrow Deposit shall be held in an interest-
bearing account with a federally insured financial institution and the Initial
Cash Escrow Deposit shall be disbursed by Initial Escrow Agent pursuant to the
terms of an escrow agreement in the form attached hereto as Exhibit 1 (the
"Initial Escrow Agreement"), which Initial Escrow Agreement has been entered
into by Company, Shareholder, Buyer and Initial Escrow Agent simultaneously
herewith. The fees, if any, of the Initial Escrow Agent shall be borne equally
between Company on the one hand, and Buyer on the other hand.
4.0 PURCHASE PRICE AND METHOD OF PAYMENT.
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4.1. CONSIDERATION. The total consideration for the Shares shall be
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Twenty-Seven Million Dollars ($27,000,000) (the "Purchase Price"), payable as
set forth in this Section 4.
4.2. PAYMENT AT CLOSING. At Closing, in consideration for acquisition of
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the Shares held by Shareholder which are fully paid for and nonassessable and
will be duly endorsed to Buyer, Buyer shall pay:
(a) Twenty Six Million Dollars ($26,000,000) to Shareholder by
certified check or wire transfer of same day funds pursuant to wire transfer
instructions which shall be delivered by Shareholder to Buyer at least five (5)
business days prior to Closing. Of that $26,000,000, Five Hundred Thousand
Dollars ($500,000) shall come from the Initial Cash Escrow Deposit and Five
Hundred Thousand Dollars ($500,000) shall come from cancellation of the
Contingent Liability and such contingency shall be satisfied upon a sale of the
Shares to Buyer.
(b) One Million Dollars ($1,000,000) to the Post Closing Escrow Fund
described in Section 4.3.
(c) The parties acknowledge that in addition to acquiring the
Shares, Buyer will acquire all cash, cash equivalents
8
or similar types of investments and all Accounts Receivable that exist as of the
Closing Date up to the aggregate amount of One Million Dollars
($1,000,000)("Cash/Receivable Maximum") and any insurance proceeds from
settlement and insurance claims made by Company, provided however, up until the
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day preceding the Closing Date Seller shall have
the right to use all revenues of Company to reduce any outstanding liabilities,
obligations, claims, costs or expenses arising from the operation of the Station
prior to Closing. Shareholder will be entitled to receive all cash, cash
equivalents or similar types of investments and all Accounts Receivable that
exist as of the Closing Date and that are in excess of the Cash/Receivable
Maximum, if collected by Buyer within six (6) months of Closing. Buyer agrees to
use commercially reasonable efforts to collect all outstanding Accounts
Receivable of Company within said six (6) months. The parties agree to proceed
to Closing based on an estimate of the Cash/Receivable Maximum contained in the
pre-closing balance sheet prepared by Company and delivered to Buyer pursuant to
Section 9.2(h); provided, however, that the parties recognize that no such
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determination shall constitute a waiver of any rights of Buyer under this
Agreement, including without limitation, the representations and warranties set
forth in Section 5.7. Within thirty (30) days of Closing, Buyer will deliver a
post-closing balance sheet as of the Closing Date. If Shareholder does not
contest the calculations contained in the post-closing balance sheet, then the
post-closing balance sheet shall be considered final. Shareholder shall notify
Buyer in writing within ten (10) days of receiving the post-closing balance
sheet if it contests the calculations contained in the post-closing balance
sheet. If Shareholder and Buyer cannot reach an agreement within twenty (20)
days of receiving Shareholder's notice, the parties agree to retain the
independent accounting firm of Price Waterhouse within twenty (20) days
thereafter or in the event that Price Waterhouse is unavailable to serve as such
then to retain the accounting firm of Ernst & Young LLP (whichever of such
accounting firms is applicable, the "Accountants"). Buyer and Shareholder shall
each assist and cooperate fully in the prompt determination of the correct
values and Shareholder shall promptly provide the Accountants and Buyer with
full access to such books and records as Buyer or the Accountants may request to
make such determination. All fees of the Accountants under this Agreement shall
be paid equally by Buyer and Shareholder and any determination of the
Accountants provided by this Agreement shall be binding and conclusive on the
parties. The Accountants shall make all determinations under this Agreement as
promptly as practicable and in any event within 20 days following receipt by the
Accountants of all relevant work papers. If the post-closing balance sheet as
agreed to by the parties or prepared by the Accountants shows an
9
amount below the Cash/Receivable Maximum, then Buyer shall have no further
obligation to Shareholder. If the post-closing balance sheet shows an amount
above the Cash/Receivable Maximum, then Buyer shall institute a procedure, such
procedure to be disclosed to Shareholder, to ensure that once Buyer has actually
received funds equal to the Cash/Receivable Maximum, that any funds in excess of
the Cash/Receivable Maximum be paid to Shareholder.
4.3. POST CLOSING ESCROW FUND.
------------------------
(a) At the Closing, Buyer, Shareholder and Post Closing Escrow Agent
shall enter into the Post Closing Escrow Agreement in substantially the form of
Exhibit 2 into which Buyer shall deposit One Million Dollars ($1,000,000) (the
"Post Closing Escrow Fund") in an account (the "Post Closing Escrow Account")
constituting a portion of the Purchase Price being reserved to meet certain
obligations of Shareholder. The Post Closing Escrow Fund shall be held and
invested in accordance with the terms of the Post Closing Escrow Agreement which
shall provide that Six Hundred Fifty Thousand Dollars ($650,000), less any
claims which have been paid or are still in dispute, be released twelve (12)
months after Closing and Three Hundred Fifty Thousand Dollars ($350,000), less
any claims which have been paid or are still in dispute, be released eighteen
(18) months after Closing (the "Post Closing Escrow Termination Date").
(b) Disbursements from the Post Closing Escrow Account may be made
from time to time pursuant to the terms of the Post Closing Escrow Agreement
with respect to indemnification obligations pursuant to Section 10.1 hereof
after submission to the Post Closing Escrow Agent of a payment notice (the
"Payment Notice") substantially in the form attached to the Post Closing Escrow
Agreement.
(c) All interest earned on the Post Closing Escrow Fund shall be
paid to Shareholder.
(d) The fees, if any, of the Post-Closing Escrow Agent shall be
borne equally between Shareholder on the one hand, and Buyer on the other hand.
5.0 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER REGARDING COMPANY.
--------------------------------------------------------------------------
Shareholder hereby makes to and for the benefit of Buyer, the following
representations, warranties and covenants:
10
5.1. EXISTENCE, POWER AND IDENTITY. The Company is a corporation duly
-----------------------------
organized and validly existing under the laws of the State of Delaware and
licensed to do business in the State of Michigan with full corporate power and
authority (a) to own, lease and use its properties and assets, (b) to conduct
the business and operation of the Station as currently conducted and (c) to
execute and deliver this Agreement and each other document, agreement and
instrument to be executed and delivered by Company in connection with this
Agreement (collectively, the "Company Documents"), and to perform and comply
with all of the terms, obligations and covenants to be performed and complied
with by Company hereunder and thereunder and (d) true and correct copies of the
Company's Certificate of Incorporation and Bylaws are attached to Schedule 5.1.
The addresses of Company's operating locations and all of Company's additional
places of business, and of all places where any of the tangible personal
property of Company is now located, or has been located during the past 180
days, are correctly listed in Schedule 5.1. Except as set forth in Schedule
5.1, during the past five years, Company has not been known by or used, nor, to
the best of Company's knowledge, has any prior owner of the Station been known
by or used, any corporate, partnership, fictitious or other name in the conduct
of the Station's business or in connection with the ownership, use or operation
of the Station.
5.2. BINDING EFFECT. The execution, delivery and performance by Company
--------------
of this Agreement has been and Company Documents will be duly authorized by all
necessary corporate action, and copies of those authorizing resolutions,
certified by Company's Secretary shall be delivered to Buyer at Closing. No
other corporate action by Company is required for Company's execution, delivery
and performance of this Agreement or any of Company Documents. This Agreement
has been duly and validly executed and delivered by Company to Buyer and
constitutes a legal, valid and binding obligation of Company, enforceable
against Company in accordance with its terms, subject to bankruptcy,
reorganization, fraudulent conveyance, insolvency, moratorium and similar laws
relating to or affecting creditors, and other obligees' rights generally and the
exercise of judicial discretion in accordance with general equitable principles.
5.3. NO VIOLATION. Except as set forth on Schedule 5.3, none of (i) the
------------
execution, delivery and performance by Company of this Agreement or any of
Company Documents, (ii) the consummation of the Transaction, or (iii) Company's
compliance with the terms or conditions hereof will, with or without the giving
of notice or the lapse of time or both, conflict with, breach the terms or
conditions of, constitute a default under, or violate (a) Company's
11
articles of incorporation or bylaws, (b) any judgment, decree, order, consent,
agreement, lease or other instrument (including any Material Contract, Sales
Agreement or Trade Agreement) to which Company is a party or by which Company or
its Business may be legally bound or affected, or (c) any law, rule, regulation
or ordinance of any Governmental Authority applicable to Company or its Business
or the operation of the Station.
5.4. GOVERNMENTAL AUTHORIZATIONS. Except for the FCC Licenses listed on
---------------------------
Schedule 5.4, no licenses, permits, or authorizations from any Governmental
Authority are required to own, use or operate the Station or to conduct the
Business as currently operated and conducted by Company. The FCC Licenses are
all the Commission authorizations held by Company with respect to the Station,
and are all the Commission authorizations used in or necessary for the lawful
operation of the Station as currently operated by Company. The FCC Licenses are
in full force and effect, are subject to no conditions or restrictions other
than those which appear on their face and are unimpaired by any acts or
omissions of Company, Company's officers, employees or agents. Company has
delivered true and complete copies of all FCC Licenses to Buyer. There is not
pending or, to the Knowledge of Company, threatened, any action by or before the
Commission or any other Governmental Authority to revoke, cancel, rescind or
modify any of the FCC Licenses (other than proceedings to amend Commission rules
of general applicability or otherwise affecting the broadcast industry
generally), and there is not now issued, outstanding or pending or, to the
Knowledge of Company, threatened, by or before the Commission or any other
Governmental Authority, any order to show cause, notice of violation, notice of
apparent liability, or notice of forfeiture or complaint against Company or
otherwise with respect to the Station. The Station is operating in material
compliance with all FCC Licenses, the Communications Act and the current rules,
regulations, policies and practices of the Commission. The Commission's most
recent renewals of the FCC Licenses were not challenged by any petition to deny
or any competing application. Company has no knowledge of any material facts
relating to it that, under the Communications Act or the current rules,
regulations, policies and practices of the Commission may cause the Commission
to deny Commission renewal of the FCC Licenses or deny Commission consent to the
Transaction.
5.5. CONTRACTS. Schedule 5.5 lists all Contracts on behalf of Company.
---------
Shareholder has provided Buyer copies of all such Contracts. The Contracts so
furnished to Buyer have not been amended or terminated and are in full force and
effect. Except for
12
the Contracts listed on Schedule 5.5, as of the date hereof, Company is not a
party to nor bound by any Material Contract.
5.6. INSURANCE. Schedule 5.6 lists all insurance policies held by Company
---------
with respect to the Business and operation of the Station. Such insurance
policies are in full force and effect, all premiums with respect thereto are
currently paid and Company is in compliance with the terms thereof. Company has
not received any notice from any issuer of any such policies of its intention to
cancel, terminate, or refuse to renew any policy issued by it. Company will
maintain the insurance policies listed on Schedule 5.6 in full force and effect
through the Closing Date.
5.7. FINANCIAL STATEMENTS.
--------------------
(a) Shareholder has furnished Buyer with the audited Financial
Statements for the fiscal year 1997 and the unaudited Financial Statements for
the years, 1995 and 1996 as well as unaudited Financial Statements for June 30,
1998. The Financial Statements: (i) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved and as compared with prior periods; and (ii)
fairly present Company's financial position, income, expenses, assets,
liabilities, Shareholder's equity and the results of operations of the Station
as of the dates and for the periods indicated. Since December 31, 1997, there
has been no material adverse change in the business, assets, properties or
condition (financial or otherwise) of the Business since the preparation of the
most recent annual Financial Statement. No event has occurred and, Company has
no knowledge that prior to Closing, any event will have occurred that would make
such Financial Statements misleading in any respect.
(b) Except as reflected in the balance sheets as of June 30, 1998,
including the notes thereto or otherwise disclosed in this Agreement or the
Schedules hereto, and except for the current liabilities and obligations
incurred in the ordinary course of business of the Station (not including for
this purpose any tort-like liabilities or breach of contract) since June 30,
1998, there exist no liabilities or obligations of Company, contingent or
absolute, matured or unmatured, known or unknown. Except as set forth on
Schedule 5.7(b) since June 30, 1998, (i) Company has not made any contract,
agreement or commitment or incurred any obligation or liability (contingent or
otherwise), except in the ordinary course of business and consistent with past
business practices, (ii) there has not been any discharge or satisfaction of any
obligation or liability owed by Company, which is not in the
13
ordinary course of business or which is inconsistent with past business
practices, (iii) there has not occurred any sale of or loss or material injury
to the Business, or any adverse material change in the Business or in the
condition (financial or otherwise) of the Station, (iv) Company has operated the
Business in the ordinary course and (v) Company has not increased the salaries
or any other compensation of any of its employees or agreed to the payment of
any bonuses. The monthly balance sheets (i) have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved and as compared with prior periods; and (ii)
fairly present Company's financial position, income, expenses, assets,
liabilities, Shareholder's equity and the results of operations of the Station
as of the dates and for the periods indicated, subject to year end adjustments
which do not materially affect the operations of Company.
(c) Company maintains only the bank accounts as shown in Schedule
5.7(c) and no other bank accounts of any kind. Buyer has been provided with
bank statements, dated as indicated on Schedule 5.7(c), related to such accounts
(the "Bank Statements"). Except as shown on such Bank Statements or on Schedule
5.7(c), and, with respect to items which have not cleared as of the last Bank
Statements, as shown on the Company's cash receipts and disbursements journal,
there have been no material receipts or disbursements, whether by cash or check,
by the Company of any kind. Since the date of the last of the Bank Statements
furnished to Buyer by the Company, no checks have been issued for any purpose
other than in the ordinary course of business.
5.8. EMPLOYEES. Except as otherwise listed in Schedule 5.8, (i) no
---------
employee of Company is represented by a union or other collective bargaining
unit, no application for recognition as a collective bargaining unit has been
filed with the National Labor Relations Board, and, to the Knowledge of Company,
there has been no concerted effort to unionize any of Company's employees and
(ii) Company has no other written or oral employment agreement or arrangement,
plan or policy with any Company employee, and no written or oral agreement
concerning bonus, sick pay, termination, hospitalization, vacation pay,
severance pay, or retiree medical coverage. As of this date there is not and at
the time of Closing there will not be any consideration of whatever nature due
and owing by Company or Shareholder to any employee or former employee of the
Company, except as otherwise listed in Schedule 5.8. Included in Schedule 5.8 is
a list of all persons currently employed at Company together with an accurate
description of the terms and conditions of their respective employment as of the
date
14
of this Agreement. Company will promptly advise Buyer of any significant changes
that occur prior to Closing with respect to such information.
5.9. EMPLOYEE BENEFIT PLANS.
----------------------
(a) Except as described in Schedule 5.9, neither the Company nor any
Affiliates (as defined below) have at any time established, sponsored,
maintained, or made any contributions to, or been parties to any contract or
other arrangement or been subject to any statute or rule requiring them to
establish, maintain, sponsor, or make any contribution to, (i) any "employee
pension benefit plan" (as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended, and regulations thereunder ("ERISA"))
("Pension Plan"); (ii) any "employee welfare benefit plan" (as defined in
Section 3(1) of ERISA) ("Welfare Plan"); or (iii) any deferred compensation,
severance pay, fringe benefit, retiree medical, bonus, stock option, stock
purchase, or other "employee benefit plan" within the meaning of ERISA Section
3(3), agreement, commitment, policy or arrangement whether oral or written, and
whether provided through the purchase of insurance or otherwise ("Other Plan")
for the benefit of any present or former officers, employees, agents, directors,
or independent contractors of Company. Shareholder has delivered to Buyer true
and complete copies of (1) each Pension Plan, Welfare Plan, and Other Plan (or,
in the case of unwritten Other Plans, descriptions thereof), (2) the most recent
annual report on Form 5500 filed with the Internal Revenue Service with respect
to each Pension Plan, Welfare Plan, and Other Plan, including all schedules
thereto and financial statements with attached opinions of independent
accountants (if required by applicable law), (3) summary plan descriptions with
respect to such plans, (4) each trust agreement and insurance or annuity
contract relating to any Pension Plan, Welfare Plan, or Other Plan, (5) the most
recent determination letter applicable to any such plan (if applicable). Except
as set forth in Schedule 5.9, there are no negotiations, demands, or proposals
that are pending or have been made which concern matters now covered, or that
would be covered by plans, agreements, or agreements of the type discussed in
this Section. Company and the Affiliates have no obligations or liabilities
(whether accrued, absolute, contingent, or unliquidated, whether or not known,
and whether due or to become due) with respect to any Pension Plan, Welfare Plan
or Other Plan that is not listed in Schedule 5.9. There are no actions (other
than routine claims for benefits) pending or, to the best of the Knowledge of
the Company, threatened against such plans or their assets, or arising out of
such plans, agreements or arrangements, and to the best of the Knowledge of
Company, no facts exist which
15
could give rise to any such actions. There are no investigations or audits by
any Governmental Authority (including, but not limited to, the Internal Revenue
Service or the Department of Labor) involving any Pension Plan, Benefit Plan, or
Other Plan. No employee, officer or director of Company shall be entitled to any
additional benefits (under a Pension Plan, Welfare Plan, or Other Plan) or any
acceleration of the time of the payment or vesting of any Pension Plan as a
result of the transactions contemplated by this Agreement. For purposes of this
Section 5.9, the term "Affiliate" shall include all persons under common control
with Company within the meaning of Sections 4001(a)(14) or (b)(1) of ERISA or
any regulations promulgated thereunder, or Sections 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended (the "Code").
(b) Each plan or arrangement listed in Schedule 5.9 (and any related
trust or insurance contract pursuant to which benefits under such plans or
arrangements are funded or paid) has been administered in all respects in
material compliance with its terms and in both form and operation is in
compliance with applicable provisions of ERISA, the Code, the Consolidated
Omnibus Budget Reconciliation Act of 1986 and regulations thereunder, and other
applicable law. Each Pension Plan listed in Schedule 5.9 intended to be a tax-
qualified plan has been determined by the Internal Revenue Service to be
qualified under Section 401(a) and Section 501(a) of the Code, and nothing has
occurred or been omitted since the date of the last such determination that
resulted or could result in the revocation of such determination, and nothing
has occurred that resulted or could result in such Pension Plan's being subject
to the tax under Section 511 of the Code. Company and the Affiliates have made
all required contributions or payments to or under each plan or arrangement
listed in Schedule 5.9 on a timely basis and have made adequate provision for
reserves to meet contributions and payments under such plans or arrangements
that have not been made because they are not yet due.
(c) The consummation of this Agreement (and the employment by Buyer
of former employees of Company or any employees of an Affiliate) will not result
in any carryover liability to Buyer for taxes, penalties, interest or any other
claims resulting from any employee benefit plan (as defined in Section 3(3) of
ERISA) or Other Plan. With respect to any Pension Plan, Welfare Plan, or Other
Plan that is a "plan" within the meaning of Section 4975(e)(1) of the Code or an
"employee benefit plan" within the meaning of Section 3(3) of ERISA, no
"prohibited transaction" (within the meaning of Section 4975(c)(1) of the Code
or Section 406 of ERISA) has occurred. In addition, Company and each
16
Affiliate make the following representations as to all of their Pension Plans:
(A) neither Company nor any Affiliate has become liable to the PBGC under ERISA
under which a lien could attach to the assets of Company or an Affiliate; (B)
Company and each Affiliate has not ceased operations at a facility so as to
become subject to the provisions of Section 4062(e) of ERISA; (C) neither
Company nor any Affiliate has made or will make prior to Closing a complete or
partial withdrawal from a multiemployer plan (as defined in Section 3(37) of
ERISA) so as to incur withdrawal liability as defined in Section 4201, of ERISA,
and (D) no Pension Plan of Company constitutes a "multiemployer plan," as
defined in Section 3(37) of ERISA, and (E) no Pension Plan is subject to Title
IV of ERISA, Section 302 of the ERISA, or Section 412 of the Code. All group
health plans maintained by Company and each Affiliate have been operated in
compliance with Section 4980B(f) of the Code. As of the Closing, no employee or
qualified beneficiary of Company or Affiliate is receiving or is eligible to
receive COBRA group health plan coverage under Section 4980B of the Code. Except
to the extent required under Section 4980B of the Code and, pursuant to
collective bargaining agreements, with respect to employees subject thereto who
have retired, Company has no written health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employees of
Company. Company has made no written agreements, covenants or commitments to
provide retiree medical benefits, other than pursuant to collective bargaining
agreement, that cannot be terminated at the discretion of the employer. To the
best of the Knowledge of Company, there has been no act or omission by Company
that has given rise to or may give rise to fines, penalties, taxes, or related
charges under Section 502(c),(I), or (1) or Section 4071 of ERISA or Chapter 43
of the Code.
5.10. REAL PROPERTY.
-------------
Company has a valid lease to the real property described in Schedule
5.10 (hereinafter "Real Property"). Except as listed on Schedule 5.10, all of
the Improvements, and all heating and air conditioning equipment, plumbing,
electrical and other mechanical facilities, and the roof, walls and other
structural components which are part of, or located in, such Improvements, are
in good operating condition and repair, comply in all material respects with
applicable zoning laws and the building, health, fire and environmental
protection codes of all applicable governmental jurisdictions, and do not
require any repairs other than normal
17
routine maintenance to maintain them in good condition and repair. None of the
Improvements have any structural defects. No portion of the Real Property
described in Schedule 5.10 is the subject of any condemnation or eminent domain
proceedings currently instituted or pending, and to the Knowledge of Company, no
such proceedings are threatened. There are no condemnation, zoning or other land
use regulations proceedings instituted or, to the Knowledge of Company, planned
to be instituted, which would materially affect the use and operations of the
Real Property for any lawful purpose, and Company has not received notice of any
special assessment proceedings materially affecting the Real Property. The Real
Property has direct and unobstructed access to all public utilities necessary
for the uses to which the Real Property is currently devoted by Company.
5.11. ENVIRONMENTAL PROTECTION.
------------------------
(a) There are no pending or, to the Knowledge of Company,
threatened actions, suits, claims, legal proceedings or any other proceedings,
arising from Company's or Shareholder's activities at or operation or occupation
of the Real Property, based on or relating to Hazardous Substances or
Environmental Law, or asserting any liabilities under Environmental Law against
Company or the Station.
(b) Seller has delivered to Buyer a copy of a Phase I Environmental
Site Assessment that was completed on the WWBR Transmitter Site and dated
December 13, 1996. Except as set forth in said report, Seller has no knowledge
of any conditions which could reasonably give rise to claims, expenses, losses,
liabilities, or governmental action against Buyer in connection with any
Hazardous Substances present at or disposed of at or from the Real Property,
including without limitation the following conditions arising out of, relating
to, resulting from, or attributable to, the assets, business, or operations of
Company at the Real Property: (i) the presence of any Hazardous Substances on
the Real Property, the release or threatened release of any Hazardous Substances
into the environment at or from the Real Property, or the migration or
threatened migration of Hazardous Substances onto, into, above or under the Real
Property; (ii) the off-site disposal of Hazardous Substances originating on or
from the Real Property or the Business or operations of Company; (iii) the
release or threatened release of any Hazardous Substances into any storm drain,
sewer, septic system or publicly owned treatment works; or (iv) any
noncompliance with federal, state or local requirements governing occupational
safety and health, or presence or release in the air and water supply systems of
the Real Property
18
of any substances that pose a hazard to human health or an impediment to working
conditions.
(c) To the Knowledge of Company, Company is not under any
obligation, is not liable for, and has not been threatened with any obligation
or liability under Environmental Law for any investigation, corrective action,
remediation or monitoring of Hazardous Substances in, on, over under or at the
Real Property. None of the Real Property is listed or proposed for listing on
the National Priorities List pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.(S)9601 et seq.,
or any similar inventory of sites requiring investigation or remediation
maintained by any state. Company has not received any notice, whether oral or
written, from any Governmental Authority or third party of any actual or
threatened liabilities under Environmental Law with respect to the Real
Property, the Station, or the conduct of Company's business.
(d) Company has provided to Buyer all environmental reports,
assessments, audits, studies, investigations, data and other written
environmental information in its custody, possession or control concerning the
Real Property.
(e) 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 standards adopted by the FCC in 1996 and explained in OET
Bulletin 65, Edition 97-01.
5.12. COMPLIANCE WITH LAW. There is no outstanding complaint, citation,
-------------------
or notice issued by any Governmental Authority asserting that Company is in
violation of any law, regulation, rule, ordinance, order, decree or other
material requirement of any Governmental Authority (including any applicable
statutes, ordinances or codes relating to zoning and land use, health and
sanitation, environmental protection, occupational safety and the use of
electric power) affecting the Business or operations of the Station, and subject
to disclosures in the schedules hereto, Company is in material compliance with
all such laws, regulations, rules, ordinances, decrees, orders and requirements.
Without limiting the foregoing:
(a) The Station's transmitting and studio equipment is in material
respects operating in accordance with the terms and conditions of the FCC
Licenses, all underlying construction permits, and the rules, regulations,
practices and policies of the Commission, including all requirements concerning
equipment authorization and human exposure to radio frequency radiation.
19
(b) Company has, in the conduct of the Business, materially
complied with all applicable laws, rules and regulations relating to the
employment of labor, including those concerning wages, hours, equal employment
opportunity, collective bargaining, pension and welfare benefit plans, and the
payment of social security and similar taxes, and Company is not liable for any
arrears of wages or any tax penalties due to any failure to comply with any of
the foregoing.
(c) All ownership reports, employment reports, and other material
documents required to be filed by Company with the Commission or other
Governmental Authority have been filed; such reports and filings are accurate
and complete in all material respects; such items as are required to be placed
in the Station's local public inspection files have been placed in such files;
all proofs of performance and measurements that are required to be made by
Company with respect to the Station's transmission facilities have been
completed and filed at the Station; and all information contained in the
foregoing documents is true, complete and accurate.
(d) Company has paid to the Commission the regulatory fees due for
the FCC Licenses for the years 1994-98.
5.13. LITIGATION. Except for proceedings affecting radio broadcasters
----------
generally and except as set forth on Schedule 5.13, there is no litigation,
complaint, investigation, suit, claim, action or proceeding pending, or to the
Knowledge of Company, threatened before or by the Commission, any other
Governmental Authority, or any arbitrator or other person or entity relating to
the Business or the operations of the Station. Except as set forth on Schedule
5.13, there is no other litigation, action, suit, complaint, claim,
investigation or proceeding pending, or to the Knowledge of Company, threatened
that may give rise to any claim against the Business or Shares or adversely
affect Company's ability to consummate the Transaction as provided herein.
Company is not aware of any facts that could reasonably result in any such
proceedings.
5.14. INSOLVENCY PROCEEDINGS. No insolvency proceedings of any character,
----------------------
including bankruptcy, receivership, reorganization, composition or arrangement
with creditors, voluntary or involuntary, affecting Company, the Business or the
Station are pending or, to the Knowledge of Company, threatened. Company has
not made an assignment for the benefit of creditors.
20
5.15. SALES AGREEMENTS. Except as set forth in Schedule 5.15, the Sales
----------------
Agreements in existence on the date hereof have been entered into in the
ordinary course of the Business, at rates consistent with Company's usual past
practices and each Sales Agreement is for a term no longer than 10 weeks or, if
longer, is terminable by the Company upon not more than 15 days notice.
5.16. LIABILITIES. There are no known liabilities or obligations of
-----------
Company relating to the Business or the Station, whether related to tax or non-
tax matters, due or not yet due, except as and to the extent set forth on the
most recent Financial Statements described in Section 5.7.
5.17. SUFFICIENCY OF ASSETS. The assets of the Business are and, on the
---------------------
Closing Date will be, sufficient to conduct the operation and business of the
Station in the manner in which they have been conducted and are being conducted
as of the date of this Agreement provided Buyer enters into leases for the
WWBR(FM) Transmitter Site and Studio Site currently being used by the Station to
conduct its operations.
5.18. CERTAIN INTERESTS AND RELATED PARTIES. Except as set forth in
-------------------------------------
Schedule 5.18, (i) no Shareholder has any material interest in any assets used
in or pertaining to the Business, nor is indebted or otherwise obligated to
Company; (ii) Company is not indebted or otherwise obligated to any Shareholder
or others except for amounts due under normal arrangements as to salary or
reimbursement of ordinary business expenses not unusual in amount or
significance; (iii) neither Company nor any Shareholder, officer or director of
Company has any interest whatsoever in any corporation, firm, partnership or
other business enterprise which has had any business transactions with Company
relating to the Business or the Station; and (iv) no Shareholder of Company has
entered into any transaction with Company relating to the Business or the
Station. Except as disclosed on Schedule 5.18, the consummation of the
transactions contemplated by this Agreement will not (either alone, or with the
occurrence of any termination or constructive termination of any arrangement, or
with the lapse of time, or both) result in any benefit or payment (severance or
other) arising or becoming due from Company to Shareholder.
5.19. TAXES. The Company has timely filed with all appropriate
-----
Governmental Authority all federal, state, commonwealth, foreign, local, and
other tax or information returns and tax reports (including, but not limited to,
all income tax, unemployment compensation, social security, payroll, sales and
use, profit, excise, privilege, occupation, property, ad valorem,
21
franchise, license, school and any other tax under the laws of the United States
or of any state or any municipal entity or of any political subdivision with
valid taxing authority) due for all periods ended on or before the date hereof
or to become due before the Closing Date. Company has paid in full all federal,
state, commonwealth, foreign, local and other governmental taxes, estimated
taxes, interest, penalties, assessments and deficiencies (collectively, "Taxes")
including interest and penalties in connection with the foregoing which have
become due pursuant to such returns or without returns or pursuant to any
assessments received by Company. Such returns and forms are true, correct and
complete in all material respects, and Company has no liability for any Taxes in
excess of the Taxes shown on such returns. Company is not a party to any pending
action or proceeding and, to the Knowledge of Company, there is no action or
proceeding threatened by any Governmental Authority against Company for
assessment or collection of any Taxes, and no unresolved claim for assessment or
collection of any Taxes has been asserted against Company.
5.20. BROKER. There is no broker or finder or other person who would have
------
any valid claim against any of the parties to this Agreement for a commission or
brokerage fee or payment in connection with this Agreement or the transactions
contemplated hereby as a result of any agreement of or action taken by Company
or Shareholder.
5.21. SUBSIDIARIES. The Company does not have any subsidiaries, does not
------------
hold title to the stock of any other corporation, is not a party to any joint
venture agreement and does not have an interest in any general or limited
partnership or any other entity.
5.22. STOCK. The authorized capital stock of Company consists of 400
-----
shares of Common Stock and 1,050 shares of Preferred Stock. There are 400 shares
of issued and outstanding Common Stock all of which are owned by Shareholder,
and 1,050 shares of issued and outstanding Preferred Stock. These 1,050 shares
of Preferred Stock shall be redeemed by Company simultaneously with the Closing
and therefore will be Company treasury stock as of the Closing. Except as
described herein, there are no other shares of capital stock of the Company
either authorized or issued. At the Closing, Buyer will acquire good and
marketable title to and complete ownership of the Shares, free and clear of any
Encumbrance. There are no outstanding stock options or stock appreciation rights
granted by Company exercisable now or in the future. Except as set forth on
Schedule 5.22, Company has no outstanding subscriptions, warrants, calls,
commitments or agreements to issue or to repurchase any
22
shares of its stock or other securities, including any right of conversion or
exchange under any outstanding security or other instrument. There are no
unsatisfied preemptive rights in respect of the Shares.
5.23. PROPERTY. Schedule 5.23 lists the tangible personal property of
--------
Company. Except for capital leases listed in Schedule 5.23, Company has and
will have at Closing good, marketable and indefeasible title to all of its
assets, free and clear of all Encumbrances of any nature whatsoever, except for
taxes, assessments, governmental charges or levies on its property, which such
assessments, governmental charges or levies shall not at the time be due and
delinquent except as permitted by agreement between the parties. Except as
disclosed separately in Schedule 5.23, the assets currently used in the Business
are in working condition and are in operation and use in the ordinary course of
the Business and are sufficient for the operation of the Business as currently
conducted.
5.24. CORPORATE RECORDS. The corporate records of Company have been made
-----------------
available to Buyer and accurately represent the status of Company.
5.25. DIVIDENDS AND OTHER DISTRIBUTIONS. There has been no dividend or
---------------------------------
other distribution by Company of cash, assets or securities of the Company
whether consisting of money, property or any other thing of value, declared,
issued or paid subsequent to June 30, 1998.
5.26. PROMOTIONAL RIGHTS. The Intellectual Property set forth on Schedule
------------------
5.26 includes all call signs and trademarks that Company holds title to and that
are used to promote or identify the Station. Except as set forth on Schedule
5.26, Company has no Knowledge of any infringement or unlawful or unauthorized
use of those promotional rights, including the use of any call sign, slogan or
logo by any broadcast or cable Station in the metropolitan Detroit area that may
be confusingly similar to those currently used by the Station. Except as set
forth on Schedule 5.26, to the Knowledge of Company, the operations of the
Station do not infringe, and no one has asserted to Company that such operations
infringe, any copyright, trademark, trade name, service xxxx or other similar
right of any other party.
5.27. INDEBTEDNESS. As of Closing, Company will have no Indebtedness and
------------
except as set forth in Schedule 5.23, there will be no Encumbrances on its
assets.
23
5.28. NO MISLEADING STATEMENTS. No provision of this Agreement relating
------------------------
to Company, the Business, or Station or any other document, Schedule, Exhibit or
other information furnished by Company to Buyer in connection with the
execution, delivery and performance of this Agreement, or the consummation of
the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
required to be stated in order to make the statement, in light of the
circumstances in which it is made, not misleading. In connection with the
preparation of this Agreement and the documents, descriptions, opinions,
certificates, Exhibits, Schedules or written material prepared by Company and
appended hereto or delivered or to be delivered hereunder, Shareholder
represents and warrants that it has disclosed, and agree it will continue to
disclose to Buyer, any fact so as to ensure the continuing accuracy of the
representations and warranties contained in this Section 5. All Exhibits and
Schedules attached hereto are materially accurate and complete as of the date
hereof.
6.0 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER REGARDING THE
----------------------------------------------------------------------
SHARES. Shareholder hereby makes to and for the benefit of Buyer, the
------
following representations, warranties and covenants:
6.1. BINDING EFFECT. This Agreement has been duly and validly executed
---------------
and delivered by Shareholder to Buyer, Shareholder has the authority to enter
into and to execute this Agreement without further action or approval of any
party or Governmental Authority and it constitutes a legal, valid and binding
obligation of Shareholder, enforceable against it in accordance with its terms,
subject to bankruptcy, reorganization, fraudulent conveyance, insolvency,
moratorium and similar laws relating to or affecting creditors, and other
obligees' rights generally and the exercise of judicial discretion in accordance
with general equitable principles.
6.2. NO VIOLATION. None of (i) the execution, delivery and performance
------------
by Shareholder of this Agreement or any of Company Documents, (ii) the
consummation of the Transaction, or (iii) Shareholder's compliance with the
terms or conditions hereof will, with or without the giving of notice or the
lapse of time or both, conflict with, breach the terms or conditions of,
constitute a default under, or violate (a) organizational documents governing
Shareholder, (b) any judgment, decree, order, consent, agreement, lease or other
instrument to which Shareholder is a party or by which Shareholder may be
legally bound or affected, or (c) any law,
24
rule, regulation or ordinance of any Governmental Authority applicable to
Shareholder.
6.3. OWNERSHIP OF STOCK. Shareholder holds title to 400 shares of
------------------
Common Stock. Such Shares are owned free and clear of any Encumbrances. The
Shares are validly issued, fully paid and nonassessable. There are no
outstanding stock options or stock appreciation rights granted by Shareholder to
any person or entity exercisable now or in the future. All Shares owned by
Shareholder shall be delivered to Buyer at Closing duly endorsed in blank.
Except as disclosed in Schedule 6.3, no Shareholder has any outstanding
subscriptions, warrants, calls, commitments or agreements to issue or to
repurchase any shares of its stock or other securities, including any right of
conversion or exchange under any outstanding security or other instrument.
There are no unsatisfied preemptive rights to which Shareholder is entitled and
any preemptive rights accorded Shareholder pursuant to the Certificate of
Incorporation or any other corporate document is hereby forever waived by
Shareholder for purposes of this Agreement. There are no Encumbrances on the
Shares.
6.4. COOPERATION. Shareholder acknowledges that this Agreement requires
-----------
that Company take or refrain from taking certain actions. Shareholder agrees to
take those steps which are necessary to cause Company to take or refrain from
taking those actions.
7.0 BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Buyer hereby makes to
-------------------------------------------------
and for the benefit of Company and Shareholder, the following representations,
warranties and covenants:
7.1. EXISTENCE AND POWER. Buyer is a corporation duly organized,
-------------------
validly existing and in good standing under the laws of the State of Delaware,
with full corporate power and authority to assume and perform this Agreement.
7.2. BINDING EFFECT. The execution, delivery and performance by Buyer
--------------
of this Agreement, and each other document, agreement and instrument to be
executed and delivered by Buyer in connection with this Agreement (collectively,
the "Buyer Documents") has been or will be duly authorized by all necessary
corporate action, and copies of those authorizing resolutions, certified by
Buyer's Secretary shall be delivered to Company at Closing. No other corporate
action by Buyer is required for Buyer's execution, delivery and performance of
this Agreement or any of the Buyer Documents. This Agreement has been, and each
of the Buyer Documents will be, duly and validly executed and delivered by Buyer
25
to Shareholder and constitutes a legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms, subject to bankruptcy, reorganization,
fraudulent conveyance, insolvency, moratorium and similar laws relating to or
affecting creditors' and other obligees' rights generally and the exercise of
judicial discretion in accordance with general equitable principles.
7.3. NO VIOLATION. None of (i) the execution, delivery and performance
------------
by Buyer of this Agreement or any of the Buyer Documents, (ii) the consummation
of the Transaction, or (iii) Buyer's compliance with the terms and conditions
hereof will, with or without the giving of notice or the lapse of time or both,
conflict with, breach the terms or conditions of, constitute a default under, or
violate (a) Buyer's certificate of incorporation or by-laws or (b) any judgment,
decree, order, consent agreement, lease or other instrument to which Buyer is a
party or by which Buyer is legally bound, provided, that, Buyer must obtain an
-------- ----
opinion from a nationally recognized investment bank that the purchase of the
Shares is fair to Buyer ("Fairness Opinion").
7.4. LITIGATION. There is no litigation, action, suit, complaint,
----------
proceeding or investigation, pending or, to the Knowledge of Buyer, threatened
that may adversely affect Buyer's ability to consummate the Transaction as
provided herein. Buyer is not aware of any facts that could reasonably result
in any such proceedings.
7.5. LICENSEE QUALIFICATIONS. To the Knowledge of Buyer there is no
-----------------------
fact that would, under the rules and regulations of the Commission, disqualify
Buyer from being the transferee of the Shares or the owner and operator of the
Station. Should Buyer become aware of any such fact, it will so inform Company,
and Buyer will use commercially reasonable efforts to remove any such
disqualification. Buyer will not take any action that Buyer knows, or has
reason to believe, would result in such disqualification.
7.6. BROKER. Buyer has not incurred any obligation for any finder's or
------
broker's or agent's fees or commissions or similar compensation in connection
with the Transaction contemplated hereby for which Company or Shareholder may
have any liability or obligation.
8.0 COVENANTS WITH RESPECT TO CONDUCT OF THE COMPANY AND SHAREHOLDER.
----------------------------------------------------------------
26
8.1. ACCESS. Between the date hereof and the Closing Date, Company
------
shall give Buyer and representatives of Buyer reasonable access to the Business,
the Station, the employees of Company and the books and records of Company
relating to the Business and the operation of the Station. It is expressly
understood that, pursuant to this Section, Buyer, at its expense, shall be
entitled to conduct such engineering inspections of the Station, surveys of the
Studio Site and the WWBR(FM) Transmitter Site and such reviews of Company's
financial records as Buyer may desire, so long as the same do not unreasonably
interfere with Company's operation of the Business. No inspection or
investigation made by or on behalf of Buyer, or Buyer's failure to make any
inspection or investigation, shall affect Shareholder's representations,
warranties and covenants hereunder or be deemed to constitute a waiver of any of
those representations, warranties and covenants.
8.2. MATERIAL ADVERSE CHANGES; FINANCIAL STATEMENTS. Through the
----------------------------------------------
Closing Date:
(a) Shareholder or Company shall promptly notify Buyer of any event
of which they obtain knowledge which has caused or is likely to cause a material
adverse change to the Business.
(b) Shareholder or Company shall furnish to Buyer (i) monthly
Financial Statements for Company and (ii) such other reports as Buyer may
reasonably request relating to Company. Each of the financial statements
delivered pursuant to this Section 8.2(b) shall be prepared in accordance with
GAAP consistently applied during the periods covered (except as disclosed
therein).
(c) Shareholder or Company shall promptly furnish to Buyer all Tax
Returns or excerpts thereof filed with any Governmental Authority relating to
Company.
8.3. CONDUCT OF BUSINESS. Between the date that this Agreement is
-------------------
executed and the Closing Date, Shareholder and Company covenant and agree that
neither Company nor Shareholder shall without the prior written consent of
Buyer:
(a) conduct the Business in any manner except in the ordinary course
consistent with past practices;
(b) issue, sell or deliver, transfer, split, reclassify, combine or
otherwise adjust, or pledge any stock, bonds or other securities of which
Company is the issuer (whether authorized and unissued or held in treasury), or
grant or issue any options,
27
warrants or other rights (including convertible securities) calling for the
issue thereof;
(c) borrow any funds or incur, assume or become subject to, whether
directly or by way of guarantee or otherwise, any obligation or liability
(absolute or contingent), except with respect to trade payables arising in the
ordinary course of business and consistent with past amounts and practice;
(d) mortgage or pledge any of Company's assets, tangible or
intangible;
(e) except in the ordinary course of business, sell, lease, exchange
or otherwise transfer, or agree to sell, lease, exchange or otherwise transfer,
any of Company's assets, property or rights or cancel any debts or claims;
(f) grant any right of first refusal, option or similar contract to
purchase any of the assets, property or rights used in the Business or held by
Company;
(g) except in the ordinary course of business or as required by Law,
make or agree to any material amendment to any FCC License relating to the
Business or to which Company is a party;
(h) except as required by law, adopt any profit-sharing, bonus,
deferred compensation, insurance, pension, retirement, severance or other
employee benefit plan, payment or arrangement or enter into any employment,
consulting or management contract;
(i) grant any increase in pay or bonuses to any employees of the
Station;
(j) merge or consolidate with any other corporation, acquire control
of any other corporation or business entity, or take any steps incident to, or
in furtherance of, any of such actions, whether by entering into an agreement
providing therefore or otherwise;
(k) make any tax election inconsistent with past practice or Buyer's
interests, or except as required by Law or GAAP, make any material alteration in
the manner of keeping its books, accounts or records, or in the accounting
practices therein reflected;
(l) solicit, either directly or indirectly, initiate, encourage or
accept any offer for the purchase or acquisition of
28
the Business, Company or any of their respective assets by any party other than
Buyer;
(m) set aside or pay any dividend or make any distribution in
respect of the Shares or make any other distributions of Company's assets,
whether consisting of money, property or any other thing of value;
(n) amend or alter the Certificate of Incorporation or Bylaws or
other charter documents of Company;
(o) enter into, extend (except as required by the terms thereof) or
amend any Contract;
(p) except for an agreement to redeem the 1,050 shares of Preferred
Stock, enter into any other transactions involving liabilities or obligations of
more than $10,000 on the part of Company;
(q) terminate without comparable replacement or fail to renew any
insurance coverage applicable to the assets or properties of Company;
(r) compromise or settle any claims or rights for or having a value,
in excess of $10,000;
(s) take any action or fail to take any action that would cause the
Company or Shareholder to breach the representations, warranties and covenants
contained in this Agreement;
(t) make any charitable contributions in excess of Three Hundred
Thousand Dollars ($300,000);
(u) disburse in any manner any proceeds in excess of $5,000 from the
sale of the Company's assets;
(v) create any Accounts Receivable that are not bona fide or settle
---- ----
or compromise any Accounts Receivable except in the ordinary course of business
and consistent with past practice; or
(w) enter into any transaction which would constitute an Accounts
Payable except in the ordinary course of business and consistent with past
practice.
8.4. DAMAGE.
------
29
(A) RISK OF LOSS. The risk of loss or damage, confiscation or
------------
condemnation of the Business, the Station and all associated assets shall be
borne by Company at all times prior to Closing. In the event of material loss or
damage, Company shall promptly notify Buyer thereof and use its best efforts to
repair, replace or restore the lost or damaged property to its former condition
as soon as possible. If the cost of repairing, replacing or restoring any lost
or damaged property is Fifty Thousand Dollars ($50,000) or less, and Company has
not repaired, replaced or restored such property prior to the Closing Date,
Closing shall occur as scheduled and Buyer may deduct from the Purchase Price
paid at Closing the amount necessary to restore the lost or damaged property to
its former condition net of any insurance proceeds paid or expected to be paid
in connection therewith which are delivered to Buyer. If the cost to repair,
replace, or restore the lost or damaged property exceeds Fifty Thousand Dollars
($50,000), and Company has not repaired, replaced or restored such property
prior to the Closing Date to the satisfaction of Buyer, Buyer may, at its
option:
(1) elect to consummate the Closing in which event Buyer may
deduct from the Purchase Price paid at Closing the amount necessary to restore
the lost or damaged property to its former condition in which event
notwithstanding any other provision contained herein to the contrary,
Shareholder shall be entitled to all proceeds under any applicable insurance
policies with respect to such claim; or
(2) elect to postpone the Closing, with prior consent of the
Commission if necessary, for such reasonable period of time (not to exceed
ninety (90) days) as is necessary for Company to repair, replace or restore the
lost or damaged property to its former condition.
If, after the expiration of such extension period the lost or
damaged property has not been fully repaired, replaced or restored to Buyer's
satisfaction, Buyer may terminate this Agreement, in which event the Initial
Escrow Deposit and all interest earned thereon shall be returned to Buyer and
the parties shall be released and discharged from any further obligation
hereunder, except that Buyer shall be entitled to demand current payment of the
Contingent Liability.
(B) FAILURE OF BROADCAST TRANSMISSIONS. Company shall give prompt
----------------------------------
written notice to Buyer if any of the following (a "Specified Event") shall
occur and continue for a period of more than four (4) hours: (i) the
transmission of regular
30
broadcast programming of the Station in the normal and usual manner is
interrupted or discontinued; or (ii) the Station is operated at less than its
licensed antenna height above average terrain or at less than eighty percent
(80%) of its licensed effective radiated power. If, prior to Closing, the
Station has not operated at its licensed operating parameters for more than
thirty-six (36) hours (or, in the event of force majeure or utility failure
----- -------
affecting generally the market served by the Station, ninety-six (96) hours),
whether or not consecutive, during any period of thirty (30) consecutive days,
or if there are three (3) or more Specified Events each lasting more than four
(4) consecutive hours, then Buyer may, at its option: (i) terminate this
Agreement, or (ii) proceed in the manner set forth in Section 8.4(a)(1) or
8.4(a)(2). In the event of termination of this Agreement by Buyer pursuant to
this Section, the Initial Escrow Deposit together with all interest accrued
thereon shall be returned to Buyer and the parties shall be released and
discharged from any further obligation hereunder, except that Buyer shall be
entitled to demand current payment of the Contingent Liability.
(C) RESOLUTION OF DISAGREEMENTS. If the parties are unable to
---------------------------
agree upon the extent of any loss or damage, the cost to repair, replace or
restore any lost or damaged property, the adequacy of any repair, replacement,
or restoration of any lost or damaged property, or any other matter arising
under this Section, the disagreement shall be referred promptly to a qualified
consulting communications engineer mutually acceptable to Company and Buyer who
is a member of the Association of Federal Communications Consulting Engineers,
whose decision shall be final, and whose fees and expenses shall be paid one-
half each by Company, or by Shareholder if such resolution is initiated after
the Closing, and Buyer.
8.5. ADMINISTRATIVE VIOLATIONS. If Company receives any finding, order,
-------------------------
complaint, citation or notice prior to Closing which states that any aspect of
the Business' operation violates or may violate any rule, regulation or order of
the Commission or of any other Governmental Authority (an "Administrative
Violation"), including, any rule, regulation or order concerning environmental
protection, the employment of labor or equal employment opportunity, Company
shall promptly notify Buyer of the Administrative Violation, use its
commercially reasonable efforts to remove or correct the Administrative
Violation, and be responsible prior to Closing for the payment of all costs
associated therewith, including any fines or back pay that may be assessed.
31
8.6. CONTROL OF STATION. The Transaction shall not be consummated until
------------------
after the Commission has given its written consent thereto and between the date
of this Agreement and the Closing Date, Shareholder shall control, supervise and
direct the operation of the Station.
8.7. COOPERATION WITH RESPECT TO FINANCIAL AND TAX MATTERS. Between the
-----------------------------------------------------
date hereof and the Closing Date, Company, its Shareholder, officers, directors
and employees shall cooperate and Company shall cause its independent accounting
firm to cooperate with Buyer for the purpose of preparing Financial Statements
reviewed by Buyer's independent accountants for purposes of including such
statements in any reports filed by Buyer with any Governmental Authority. Buyer
shall be permitted to disclose the audited Financial Statements for 1997 and the
unaudited Financial Statements for the years 1995 and 1996 as well as unaudited
Financial Statements for June 30, 1998, in any reports filed by the Buyer with
any Governmental Authority.
8.8. CLOSING OBLIGATIONS. Company and Shareholder shall make commercially
-------------------
reasonable efforts to satisfy the conditions precedent to Closing.
8.9. ENVIRONMENTAL ASSESSMENT. Within thirty (30) days after filing the
------------------------
Transfer of Control Application, Buyer may retain, at its expense, an
environmental assessment firm to perform a Phase I and Phase II Environmental
Assessment of the Real Property. Company and Shareholder agree to cooperate and
Company agrees to cause its officers, directors, employees, agents and
representatives to cooperate with Buyer and such firm in performing such
Environmental Assessment. Buyer shall provide a copy of such Environmental
Assessment to Company and Shareholder but such delivery shall not relieve
Shareholder of any obligation with respect to any representation, warranty or
covenant in this Agreement or waive any condition to Buyer's obligations under
this Agreement. If the Environmental Assessment shows the presence of any
additional condition other than as set forth in the Phase I Environmental Site
Assessment referred to in Section 5.11(b) hereof, that must be cured or removed
at a cost in excess of Ten Thousand Dollars ($10,000),then Buyer may terminate
this Agreement, in which event the Initial Escrow Deposit and all interest
earned thereon shall be returned to Buyer and the parties shall be released and
discharged from any further obligation hereunder, except that Buyer shall be
entitled to demand current payment of the Contingent Liability.
32
9.0 CONDITIONS PRECEDENT.
--------------------
9.1. MUTUAL CONDITIONS. The respective obligations of Buyer, Shareholder
-----------------
and Company to consummate the Transaction are subject to the satisfaction of
each of the following conditions:
(A) APPROVAL OF TRANSFER OF CONTROL APPLICATION. The Commission
-------------------------------------------
shall have granted the Transfer of Control Application, and such grant shall be
in full force and effect on the Closing Date.
(B) ABSENCE OF LITIGATION. As of the Closing Date, no litigation,
---------------------
action, suit or proceeding enjoining, restraining or prohibiting the
consummation of the Transaction shall be pending before any court, the
Commission or any other Governmental Authority or arbitrator; provided, however,
-------- -------
that this Paragraph may not be invoked by a party if any such litigation,
action, suit or proceeding was solicited or encouraged by, or instituted as a
result of any act or omission of, such party.
9.2. ADDITIONAL CONDITIONS TO BUYER'S OBLIGATION.
-------------------------------------------
In addition to the satisfaction of the mutual conditions contained in
Section 9.1, the obligation of Buyer to consummate the Transaction is subject,
at Buyer's option, to the satisfaction or waiver by Buyer of each of the
following conditions:
(A) REPRESENTATIONS AND WARRANTIES. The representations and
------------------------------
warranties of Company and Shareholder to Buyer shall be true, complete, and
correct in all material respects as of the Closing Date with the same force and
effect as if then made, except to the extent that any representation or warranty
is made as of a specified date, in which case such representation or warranty
shall be true in all material respects as of such date.
(B) COMPLIANCE WITH CONDITIONS. All of the terms, conditions and
--------------------------
covenants to be complied with or performed by Company and Shareholder on or
before the Closing Date under this Agreement and Company Documents shall have
been duly complied with and performed in all material respects.
(C) DISCHARGE OF LIENS.
------------------
(1) Company shall have obtained and delivered to Buyer, at
Company's expense, at least 10 days prior to Closing, a
33
report prepared by C.T. Corporation System (or similar firm reasonably
acceptable to Buyer) showing the results of searches of lien, tax, judgment and
litigation records in the State of Michigan and Macomb, Oakland and Xxxxx
Counties, demonstrating that Company, Real Property, Shares and Business are
free and clear of all Encumbrances except for Encumbrances to be discharged at
Closing using the proceeds from the Purchase Price and that there are no
judgments or pending litigation. The record searches described in the report
shall have taken place no more than 15 days prior to the Closing Date.
(2) Subject to using a portion of the Purchase Price for payment
of all Indebtedness of the Company, Company shall have no Indebtedness and shall
have received a certificate, dated the Closing Date, and signed by the President
of Company to the effect that Company has no Indebtedness. Buyer shall also have
received such releases and UCC termination statements as are necessary to
discharge of any Indebtedness.
(D) THIRD-PARTY CONSENTS. Company shall have obtained any requisite
--------------------
third-party consents and approvals for Material Contracts which may be necessary
to consummate the Transaction.
(E) ESTOPPEL CERTIFICATES. Subject to disclosures on Schedule 9.2(e),
---------------------
at Closing Company shall deliver to Buyer a certificate executed by the other
party to each Material Contract, dated no more than 15 days prior to the Closing
Date, stating (i) that such Contract is in full force and effect and has not
been amended or modified; (ii) the date to which all rent and/or other payments
due thereunder have been paid; (iii) that Company is not in breach or default
under such Material Contract, and that no event has occurred that, with notice
or the passage of time or both, would constitute a breach or default thereunder
by Company.
(F) NO MATERIAL ADVERSE CHANGE. Neither the Station nor the Business
--------------------------
shall have suffered a material adverse change since the date of this Agreement,
and there shall have been no changes since the date of this Agreement in the
business, operations, condition (financial or otherwise), properties, assets or
liabilities of Company, except changes specifically required by this Agreement
and changes which are not (either individually or in the aggregate) materially
adverse to Company, the Business or the Station.
(G) FINANCIAL STATEMENTS. The financial information set forth in the
--------------------
Station's Financial Statements for the year ending December 31, 1997, and for
the period ending thirty (30) days prior
34
to the Closing Date fairly and accurately reflect the financial performance and
results of operation of the Business for those periods.
(H) CASH AND ACCOUNTS RECEIVABLE CALCULATION. Company shall have
----------------------------------------
delivered to Buyer at least five (5) days prior to Closing, a pre-closing
balance sheet as of a date which is no more than fifteen (15) days before the
Closing Date which includes a good faith estimate calculated in accordance with
the Company's normal and customary practice of the Company's Accounts Receivable
and cash balance as of the Closing, which such Accounts Receivable and cash
shall remain with Company at Closing.
(I) SALES AND CUSTOMER INFORMATION. The sales and customer
------------------------------
information provided are accurate and complete in all material respects.
(J) OPINION OF COMPANY'S COUNSEL. At Closing, Company and Shareholder
----------------------------
shall deliver to Buyer the written opinion or opinions of Company's counsel,
dated the Closing Date, in scope and form satisfactory to Buyer, to the
following effect:
(1) Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with all requisite
corporate power and authority to enter into and perform this Agreement.
(2) This Agreement has been duly executed and delivered by
Shareholder and such action has been duly authorized by all necessary corporate
action. This Agreement constitutes the legal, valid, and binding obligation of
the Shareholder, enforceable against Company and Shareholder in accordance with
its terms subject to bankruptcy, reorganization, fraudulent conveyance,
insolvency, moratorium and similar laws relating to or affecting creditors' and
other obligees' rights generally and the exercise of judicial discretion in
accordance with general equitable principles.
(3) None of (i) the execution and delivery of this Agreement,
(ii) the consummation of the Transaction, or (iii) compliance with the terms and
conditions of this Agreement will, with or without the giving of notice or lapse
of time or both, conflict with, breach the terms and conditions of, constitute a
default under, or violate Company's certificate of incorporation or bylaws, any
law, rule, regulation or other requirement of any Governmental Authority, or any
judgment, decree, order, agreement, lease or other instrument known to counsel
to which Company or
35
Shareholder is a party or by which Company, or Shareholder, the Business or the
Station, may be bound or affected.
(4) To such counsel's knowledge, based on a search of court
dockets as shall be reasonably satisfactory to Buyer's counsel, no suit, action,
claim or proceeding is pending or threatened that questions or may affect the
validity of any action to be taken by Company pursuant to this Agreement or that
seeks to enjoin, restrain or prohibit Company from carrying out the Transaction.
(5) To such counsel's knowledge, based on a search of court
dockets as shall be reasonably satisfactory to Buyer's counsel, there is no
outstanding judgment, or any suit, action, claim or proceeding pending,
threatened or deemed by Company's counsel to be probable of assertion, or any
governmental proceeding or investigation in progress (other than proceedings
affecting radio broadcasters generally) that could reasonably be expected to
have an adverse effect upon Company, the Business or upon the business or
operations of the Station after Closing.
(6) Company is the authorized legal holder of the FCC Licenses,
the FCC Licenses are in full force and effect, and the FCC Licenses are not the
subject of any pending license renewal application. The FCC Licenses set forth
on Schedule 5.4 constitute all FCC licenses and authorizations issued in
connection with the operation of the Station and are the only such licenses and
authorizations required for the operation of the Station, as currently operated.
There are no applications pending before the Commission with respect to the
Station.
(7) The Commission has consented to the assignment of the FCC
Licenses to Buyer and that consent is in full force and effect on the Closing
Date.
(8) To the best of such Counsel's knowledge, there is no
Commission investigation, notice of apparent liability or order of forfeiture,
pending or outstanding against the Station, or any complaint, petition to deny
or proceeding against or involving Company or the Station pending before the
Commission.
(9) Shareholder holds title to 400 shares of Common Stock and
such Shares are owned free and clear of any Encumbrances. The Shares are validly
issued, fully paid and nonassessable. The Shares represent all the issued and
outstanding capital stock of the Company. There are no outstanding stock options
or stock appreciation rights granted by any Shareholder or
36
Company to any person or entity exercisable now or in the future. Shareholder
has no outstanding subscriptions, warrants, calls, commitments or agreements to
issue or to repurchase any shares of its stock or other securities, including
any right of conversion or exchange under any outstanding security or other
instrument. There are no unsatisfied preemptive rights to which Shareholder is
entitled and any preemptive rights accorded Shareholder pursuant to the
Certificate of Incorporation shall be waived for purposes of this Agreement.
The foregoing opinions shall be for the benefit of and may be
relied on by Buyer and Buyer's lenders. In rendering such opinions, Company's
counsel may rely upon such corporate records of Company and such certificates of
public officials and officers of Company.
(K) PREFERRED STOCK. Shareholder shall have redeemed the 1,050 shares
---------------
of Preferred Stock and all such obligations to be satisfied in exchange
for such redemption shall have been satisfied in full.
(L) CLOSING DOCUMENTS. At the Closing, Company and Shareholder shall
-----------------
deliver to Buyer (i) such instruments of conveyance as are necessary to vest in
Buyer title to the Shares, all of which documents shall be dated as of the
Closing Date, duly executed by Company and/or Shareholder and in form acceptable
to Buyer; (ii) a certificate, dated the Closing Date, executed by Company's
President certifying as to those matters set forth in Section 9.2(a) and (b);
(iii) copies of Company's corporate resolutions authorizing the Transaction,
each certified as to accuracy and completeness by Company's Secretary; and (iv)
an Unwind Agreement.
(M) RESIGNATION OF DIRECTORS AND OFFICERS. Documentation shall be
-------------------------------------
provided showing that the number of directors is consistent with the Company's
governing documents and that the current officers and directors were duly
elected. All the directors and officers of Company who will be identified in an
Incumbency Certificate executed by the President shall have submitted their
resignations in writing to Company. Such resignations shall be effective as of
the Closing Date.
(N) STOCK CERTIFICATES. Buyer shall receive at Closing duly executed
------------------
stock certificates duly endorsed in blank documenting transfer of the Shares to
Buyer, free of any Encumbrances, and such certificates shall represent all the
issued and outstanding capital stock of the Company.
37
(O) CORPORATE RECORDS. Buyer shall receive at Closing the original
-----------------
corporate records of Company and original copies of the Station's Records.
(P) BANK ACCOUNTS/INSURANCE POLICIES. Buyer shall receive at Closing
--------------------------------
the cash and cash equivalents on hand or in bank accounts and other cash items
and investment securities of Company, and all contracts of insurance (including
any cash surrender value thereof).
(Q) WARRANT. The warrant held by Syndicated Communications Venture
-------
Partners III, L.P. to acquire shares of Common Stock of Company representing
four percent of the equity of the Company shall have been cancelled or satisfied
so that Company has no further obligation to Syndicated Communications Venture
Partners III, L.P. under the terms of the warrant and should any shares be
issued in satisfaction of the warrant such shares shall be assigned and
delivered to Buyer at Closing.
(R) LEASE. American Signaling Corporation, the owner of the WWBR(FM)
-----
Transmitter Site, shall have entered into a written lease for the real property
described in Section 5.10 and any equipment associated with the operation of the
Station at that site for a minimum of ten years, with one five year option, and
for a commercially reasonable monthly rental rate, such lease to contain
commercially reasonable annual increases to the monthly rental rate.
(S) ACCOUNTS PAYABLE. Shareholder shall deliver a document stating
----------------
that there are no amounts to be paid to vendors whether or not within the normal
course of business other than the Accounts Payable.
(T) TRADE BALANCE. The Trade Balance, if negative, will not exceed
-------------
Five Thousand Dollars ($5,000).
(U) LICENSES. Approval to assign or transfer any licenses,
--------
authorizations or permits issued by a Governmental Authority and used in the
operation of the Station shall have been granted and such licenses,
authorizations and permits shall be assigned to Buyer to the extent such
assignment is required by law.
(V) RADIOFREQUENCY RADIATION. 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
38
the standards adopted by the FCC in 1996 and explained in OET Bulletin 65,
Edition 97-01.
(W) TAXES. Company shall have delivered to Buyer ten (10) days prior
-----
to Closing a certificate signed by the President of the Company stating that to
the Knowledge of the Company, except as disclosed in the certificate, all Tax
Returns for the Company that would be due before the Closing Date without filing
for an extension have been filed and all Taxes due (except for Taxes being
contested in good faith and by appropriate proceedings and for which adequate
reserves have been established and are being maintained), plus any interest and
penalties that have been assessed, have been paid in full.
(X) COMPENSATION. Company shall have satisfied all amounts due
------------
employees for compensation, whether pursuant to the terms of a written agreement
or otherwise, including bonuses and reimbursement of expenses, that have accrued
as of the Closing.
(Y) CONFIDENTIAL INFORMATION. Shareholder will deliver to Buyer all
------------------------
documents or papers (including diskettes or other medium for electronic storage
of information) relating to trade secrets or other confidential information
relative to the business or any proprietary rights of Company that are in their
possession or under their control without making copies or summaries of any such
material.
(Z) RELEASES. Shareholder shall deliver releases executed by such
--------
Shareholder and PNC Bank, former holder of 1,050 shares of the Preferred Stock,
stating that neither has any claims against Company, and stating that the
Shareholders' Agreement of December 4, 1992 has been terminated.
(AA) FAIRNESS OPINION. Buyer has obtained the Fairness Opinion
----------------
referred to in Section 7.3(b).
9.3. ADDITIONAL CONDITIONS TO COMPANY'S AND SHAREHOLDER'S OBLIGATION.
---------------------------------------------------------------
In addition to satisfaction of the mutual conditions contained in Section 9.1
the obligation of Company and Shareholder to consummate the Transaction is
subject, at Shareholder's option, to the satisfaction or waiver by Shareholder
of each of the following conditions:
(A) REPRESENTATIONS AND WARRANTIES. The representations and
------------------------------
warranties of Buyer to Company and Shareholder shall be true, complete and
correct in all material respects as of the Closing Date with the same force and
effect as if then made, except to the
39
extent that any representation or warranty is made as of a specified date, in
which case such representation or warranty shall be true in all material
respects as of such date.
(B) COMPLIANCE WITH CONDITIONS. All of the terms, conditions and
--------------------------
covenants to be complied with or performed by Buyer on or before the Closing
Date under this Agreement shall have been duly complied with and performed in
all material respects.
(C) PAYMENT. Buyer shall pay Shareholder the Purchase Price due at
-------
Closing as provided in Section 4.2.
(D) CLOSING DOCUMENTS. Buyer shall deliver to Shareholder at the
-----------------
Closing (i) copies of Buyer's corporate resolutions authorizing the Transaction
certified as to accuracy and completeness by Buyer's Secretary; (ii) a
certificate, dated the Closing Date, executed by Buyer's President certifying as
to those matters set forth in Section 9.3(a) and (b); and (iii) an Unwind
Agreement.
10.0 INDEMNIFICATION/POST-CLOSING OBLIGATIONS.
----------------------------------------
10.1. OBLIGATIONS OF SHAREHOLDER. Subject to the limitations of Sections
--------------------------
10.6, Shareholder agrees to and shall indemnify and hold harmless (after the
Closing) Buyer, and its respective directors, officers, employees, affiliates,
agents and assigns from and against any and all Loss of Buyer or Company,
directly or indirectly, resulting from, based upon or arising out of:
(a) any inaccuracy in or breach of any of the representations or
warranties made by Company or Shareholder in or pursuant to this Agreement; or
(b) the failure to perform any covenant of this Agreement; or
(c) any liability for Taxes or Indebtedness of Company incurred prior
to the Closing; or
(d) third party claims resulting from the actions of Shareholder or
Company in the conduct of the Business prior to the Closing including, but not
limited to, those claims described in Schedule 5.13; or
(e) any and all violations of or liabilities under Environmental Law
that (i) relate to the Real Property or Company
40
and arise on or before the Closing or (ii) arise from or relate to conditions,
actions, activities or operations, whether conducted by, caused by or
attributable to Company, Shareholder or any entity acting on behalf of Company,
on or before Closing; or
(f) any damages, penalties and taxes arising from any breach of ERISA
fiduciary duty or ERISA prohibited transaction occurring before the Closing; or
(g) all compensation, benefits, and claims arising out of the
employment or termination of employment by employees of Company before Closing.
10.2. OBLIGATIONS OF BUYER. Buyer agrees to indemnify and hold
--------------------
harmless (after the Closing) Shareholder from and against any Loss of
Shareholder, directly or indirectly, resulting from, based upon or arising out
of:
(a) any inaccuracy in or breach of any of the representations, or
warranties, made by Buyer in this Agreement; or
(b) except as to matters as to which Buyer is indemnified under the
terms of Section 10.1, third party claims (in contract, tort or otherwise)
resulting from the actions of Buyer and its conduct of the Business after
Closing; or
(c) any liability for Taxes or Indebtedness of Company incurred after
the Closing.
10.3. PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
-----------------------------
shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall give
written notice to the party from which indemnification is sought (the
"Indemnitor") promptly after the Claimant learns of any claim or proceeding
covered by the foregoing agreements to indemnify and hold harmless and failure
to provide prompt notice shall not be deemed to jeopardize Claimant's right to
demand indemnification, provided, that, Indemnitor is not prejudiced by the
delay in receiving notice. If Indemnitor is prejudiced, the Claimant's right to
indemnification shall be reduced according to the extent of the prejudice caused
by the delay.
(b) With respect to claims between the parties, following receipt of
notice from the Claimant of a claim, the Indemnitor shall have 15 days to make
any investigation of the claim that the Indemnitor deems necessary or desirable,
or such
41
lesser time if a 15-day period would jeopardize any rights of Claimant to oppose
or protest the claim. For the purpose of this investigation, the Claimant agrees
to make available to the Indemnitor and its authorized representatives the
information relied upon by the Claimant to substantiate the claim. If the
Claimant and the Indemnitor cannot agree as to the validity and amount of the
claim within the 15-day period, or lesser period if required by this Section (or
any mutually agreed upon extension hereof) the Claimant may seek appropriate
legal remedies.
(c) The Indemnitor shall have the right to undertake, by counsel or
other representatives of its own choosing, the defense of such claim, provided,
that, Indemnitor acknowledges in writing to Claimant that Indemnitor would
assume responsibility for and demonstrates its financial ability to satisfy the
claim should the party asserting the claim prevail. In the event that the
Indemnitor shall not satisfy the requirements of the preceding sentence or shall
elect not to undertake such defense, or within 15-days after notice of such
claim from the Claimant shall fail to defend, the Claimant shall have the right
to undertake the defense, compromise or settlement of such claim, by counsel or
other representatives of its own choosing, on behalf of and for the account and
risk of the Indemnitor. Anything in this Section 10.3 to the contrary
notwithstanding, (i) if there is a reasonable probability that a claim may
materially and adversely affect the Claimant other than as a result of money
damages or other money payments, the Claimant shall have the right, at its own
cost and expense, to participate in the defense, compromise or settlement of the
claim, (ii) the Indemnitor shall not, without the Claimant's written consent,
settle or compromise any claim or consent to entry of any judgment which does
not include as an unconditional term thereof the giving by the plaintiff to the
Claimant of a release from all liability in respect of such claim, and (iii) in
the event that the Indemnitor undertakes defense of any claim consistent with
this Section, the Claimant, by counsel or other representative of its own
choosing and at its sole cost and expense, shall have the right to consult with
the Indemnitor and its counsel or other representatives concerning such claim
and the Indemnitor and the Claimant and their respective counsel or other
representatives shall cooperate with respect to such claim. If any disagreement
arises in the joint handling of the claim, the Indemnitor shall have the right
to make the final determination consistent with the requirements of this
section.
(d) If any payment is made pursuant to this Section, the Indemnitor
shall be subrogated to the extent of such payment to all of the rights of
recovery of Claimant, and Claimant shall assign to
42
Indemnitor, for its use and benefit, any and all claims, causes of actions, and
demands of whatever kind and nature that Claimant may have against the person,
firm, corporation or entity giving rise to the loss for which payment was made.
Claimant agrees to reasonably cooperate in any efforts by Indemnitor to recover
such loss from any person, firm, corporation or entity.
10.4. REMEDIES CUMULATIVE. Each party to this Agreement shall have and
-------------------
retain all rights and remedies set forth in this Agreement and all of the rights
and remedies such parties have at law or equity.
10.5. NOTICE. Each party agrees to notify the other of any liabilities,
------
claims or misrepresentations, breaches or other matters covered by this Section
10 upon discovery or receipt of notice thereof.
10.6. THRESHOLD CONCERNING SECTIONS 10.1 AND 10.2. Notwithstanding
-------------------------------------------
anything to the contrary in Sections 10.1 and 10.2, the parties shall not be
entitled to indemnity under Sections 10.1 and 10.2 unless the aggregate Loss
indemnified against thereunder exceeds $25,000.00 (in which case, the Claimant
shall be entitled to recovery from the Indemnitor of the full amount of the
Loss). However, the threshold required by the preceding sentence shall not limit
in any way Buyer's or Shareholder's rights under Section 10.3.
10.7. SURVIVAL OF REPRESENTATIONS. The representations and warranties of
---------------------------
the parties set forth in this Agreement or in any certificate, document or
instrument delivered in connection herewith shall survive the execution and
delivery of this Agreement and the Closing hereunder for a period of eighteen
(18) months from the Closing Date.
10.8. TAX RETURNS.
-----------
(a) Preparation and Filing of Returns for Pre-Closing Periods.
---------------------------------------------------------
Shareholder shall be responsible for the initial preparation of all Federal,
State, commonwealth, foreign and local income tax returns of Company for taxable
periods actually ending on or before the Closing Date. Buyer shall have the
right, directly and through its designated representatives, to review at its
expense any such returns that pertain to Company at least 30 days prior to the
due date of the return. Shareholder agrees not to take, or cause Company to
take, any position or make any election on any such return inconsistent with
prior reporting practices without the prior written consent of Buyer, if the
effect of any
43
such election or position may be to increase the Taxes of Company thereof from
taxable periods (or portions thereof) beginning after the Closing Date or to
file an extension on the due date for any tax return or to file an amended
return without first obtaining Buyer's consent. Shareholder will forward any
"separate company" state and local returns due after the Closing Date to Buyer,
together with any necessary payment of Tax, interest or penalties, if
applicable, for signature and filing at least 15 days prior to the due date of
such returns.
(b) Preparation and Filing of Returns for Post-Closing Periods. Buyer
----------------------------------------------------------
shall cause to be prepared, and filed, all income tax returns of Company for all
taxable periods ending after the Closing.
10.9. ALLOCATION OF TAX LIABILITY.
---------------------------
(a) To the extent permitted by applicable law, the parties hereto agree
to cause federal, state and local tax periods of Company to be closed at the
close of business on the Closing Date. In the event applicable law does not
permit the closing of any such period, the allocation of tax liability shall be
made in accordance with Section 10.9(b).
(b) In the case of a tax return for the taxable period beginning before
and ending after the Closing Date ("Overlap Period") based upon income or gross
receipts, the amount of taxes attributable to any Pre-Closing Period or Post-
Closing Period included in the Overlap Period shall be determined by closing the
books of Company as of the close of business on the Closing Date and by treating
each of such Pre-Closing Period and Post-Closing Period as a separate taxable
year, except that exemptions, allowances or deductions that are calculated on an
annual basis shall be apportioned on a per diem basis. If the liability for the
Taxes for an Overlap Period is determined on a basis other than income or gross
receipts, the amount of Taxes attributable to any Pre-Closing Period included in
the Overlap Period shall be equal to the amount of Taxes for the Overlap Period
multiplied by a fraction, the numerator of which is the number of days in the
Pre-Closing Period included in the Overlap Period and the denominator of which
is the total number of days in the Overlap Period, and the amount of such Taxes
attributable to any Post-Closing Period included in an Overlap Period shall be
the excess of the amount of Taxes for the Overlap Period over the amount of
Taxes attributable to the Pre-Closing Period. Shareholder shall be responsible
for Taxes due for the Pre-Closing Period and Buyer shall be responsible for
Taxes due for the Post-Closing Period.
44
10.10. COOPERATION WITH RESPECT TO FINANCIAL AND TAX MATTERS. From the
-----------------------------------------------------
date of Closing and for a period of three (3) years thereafter, Shareholder
shall provide Buyer with such cooperation and information as Buyer shall
reasonably request in Buyer's: (i) filing of any tax return, amended return or
claim or refund, (ii) determining a liability for Taxes or a right to a refund
of Taxes, (iii) participating in or conducting any audit or proceeding in
respect of Taxes, (iv) analysis and review of the Financial Statements or (v)
preparation of documentation to fulfill any reporting requirements of Buyer
including reports that may be filed with the Securities and Exchange Commission.
Such cooperation and information shall include providing copies of relevant tax
returns or portions thereof, together with the accompanying schedules and
related work papers and documents relating to rulings or other determinations by
tax authorities. Shareholder shall make itself and Company's independent
accounting firm available, the cost of said firm to be paid by the Buyer, and
the information relied upon by that firm, including its opinions and Financial
Statements for the Company, to provide explanations of any documents or
information provided hereunder and to permit disclosure by Buyer, including
disclosure to any Governmental Authority.
10.11. NONDISCLOSURE AND CONFIDENTIALITY. Shareholder agrees that it will
---------------------------------
not after Closing use or disclose to others any trade secrets or other
confidential information about the business or any proprietary rights of
Company; provided, however, that such agreement shall not apply to trade secrets
-------- -------
or other confidential information that Shareholder is obligated to disclose by a
court of competent jurisdiction, or which lawfully becomes available to the
public other than as a result of a disclosure by Shareholder. If this Agreement
is terminated prior to the Closing Date, each party shall deliver, and cause its
officers, employees, agents, and representatives, including, without limitation,
attorneys, accountants, consultants and financial advisors who obtain
confidential information of another party pursuant to investigations permitted
hereunder to deliver to such other party all such confidential information that
is written (including copies or extracts thereof), whether such confidential
information was obtained before or after the execution hereof.
11.0 DEFAULT AND REMEDIES.
--------------------
11.1. OPPORTUNITY TO CURE. If any party believes the other to be in
-------------------
breach hereunder, the former party shall provide the other with written notice
specifying in reasonable detail the
45
nature of such breach. If the breach has not been cured by the earlier of: (i)
the Closing Date, or (ii) within thirty (30) days after delivery of that notice
(or such additional reasonable time as the circumstances may warrant provided
the party in breach undertakes diligent, good faith efforts to cure the breach
within such thirty (30) day period and continues such efforts thereafter), then
the party giving such notice may consider the other party to be in default and
exercise the remedies available to such party pursuant to this Section, subject
to the right of the other party to contest the alleged default through
appropriate proceedings.
11.2. SHAREHOLDER'S REMEDIES. Buyer recognizes that if the Transaction
----------------------
is not consummated as a result of Buyer's default, Shareholder would be entitled
to compensation, the extent of which is extremely difficult and impractical to
ascertain. To avoid this problem, the parties agree that if the Transaction is
not consummated due to the default of Buyer, Shareholder, provided that neither
Company nor Shareholder are in default or has otherwise failed to comply with
their respective obligations under this Agreement, shall be entitled to the
Initial Cash Escrow Deposit, with interest earned thereon and to cancellation of
the Contingent Liability. The parties agree that this sum shall constitute
liquidated damages and shall be in lieu of any other relief at law or in equity
to which Company and/or Shareholder might otherwise be entitled due to Buyer's
failure to consummate the Transaction as a result of a default by Buyer.
11.3. BUYER'S REMEDIES. Shareholder agrees that the Shares represent an
----------------
interest in unique property that cannot be readily obtained on the open market
and that Buyer will be irreparably injured if this Agreement is not specifically
enforced. Therefore, Buyer shall have the right specifically to enforce
Company's and Shareholder's performance under this Agreement, and Company and
Shareholder agree (i) to waive the defense in any such suit that Buyer has an
adequate remedy at law and (ii) to interpose no opposition, legal or otherwise,
as to the propriety of specific performance as a remedy. If Buyer elects to
terminate this Agreement as a result of Company's or Shareholder's default
instead of seeking specific performance, Buyer shall be entitled to the Initial
Cash Escrow Deposit together with all interest earned thereon, and to demand
current payment of the Contingent Liability and in addition thereto, Buyer shall
be entitled to xxx for damages due to Company's and/or Shareholder's failure to
consummate the Transaction as a result of a default by Company and/or
Shareholder, provided, that Buyer's claim for damages shall not exceed One
-------- ----
Million Dollars ($1,000,000), the amount that would be available to Seller if
Buyer breached this Agreement.
46
12.0 TERMINATION OF AGREEMENT.
------------------------
12.1. TERMINATION OF AGREEMENT. Anything herein to the contrary
------------------------
notwithstanding, this Agreement and the transactions contemplated by this
Agreement shall terminate at any time before the Closing as follows:
(A) MUTUAL CONSENT. By mutual consent in writing by Buyer and
--------------
Shareholder.
(B) CONDITIONS TO BUYER'S PERFORMANCE NOT MET. By Buyer upon written
-----------------------------------------
notice to Shareholder if any event occurs or condition exists which would render
impossible the satisfaction of one or more conditions to the obligations of
Buyer to consummate the transactions contemplated by this Agreement as set forth
in Section 9.1 or 9.2.
(C) CONDITIONS TO SHAREHOLDER'S PERFORMANCE NOT MET. By Shareholder
-----------------------------------------------
upon written notice to Buyer if any event occurs or condition exists which would
render impossible the satisfaction of one or more conditions to the obligation
of Shareholder to consummate the transactions contemplated by this Agreement as
set forth in Section 9.1 or 9.3.
(D) MATERIAL BREACH. By Buyer or Shareholder, provided such party is
---------------
not in material breach of this Agreement, if there has been a material
misrepresentation or other material breach by the other party of any
representation, warranty or covenant set forth herein; provided, however, that
-------- -------
the non-breaching party shall not be excused from its obligations under this
Agreement (i) if such breach has been cured pursuant to Section 11.1 of this
Agreement or (ii) if such breach gives rise solely to money damages that can
readily be ascertained or estimated with reasonable accuracy and the breaching
party tenders such amount to the other party within 30 days after receipt of
notice of such breach.
(E) BANKRUPTCY; RECEIVERSHIP. By Buyer, if any of the following
------------------------
events shall have occurred with respect to Company or Shareholder: (i) it has
been adjudicated a bankrupt or insolvent or has admitted in writing its
inability to pay its debts as they mature or has made an assignment for the
benefit of creditors, or has applied for or consented to the appointment of a
trustee or receiver for it or for the major part of its property; (ii) a trustee
or receiver has been appointed for it or for any part of
47
its property without its consent; or (iii) bankruptcy, reorganization,
arrangement or insolvency proceedings, or other proceedings for relief under any
bankruptcy or similar law or laws for the relief of creditors, have been
instituted by or against it and remain undismissed for 10 days or longer.
(F) FCC APPROVAL. By either Buyer or Seller, provided such party is
------------
not otherwise in default, and a grant of the Transfer of Control Application is
not obtained within nine (9) months after the FCC has accepted the Transfer of
Control Application for filing.
13.0 GENERAL PROVISIONS.
------------------
13.1. FEES. All recording costs, transfer taxes, sales tax, document
----
stamps and other similar charges shall be paid one-half by Shareholder and one-
half by Buyer. Except as otherwise provided herein, all other expenses incurred
in connection with this Agreement or the Transaction shall be paid by the party
incurring those expenses whether or not the Transaction is consummated.
13.2. NOTICES. All notices, requests, demands and other communications
-------
pertaining to this Agreement shall be in writing and shall be deemed duly given
when (i) delivered personally (which shall include delivery by Federal Express
or other recognized overnight courier service that issues a receipt or other
confirmation of delivery) to the party for whom such communication is intended,
(ii) delivered by facsimile transmission or (iii) three business days after the
date mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) If to Company or Shareholder:
Allur-Detroit, Inc.
c/x Xxxxxxx & Xxxxx, X.X.
0000 Xxxxxxxxxx Xxxx
#000
Xxxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxxx & Xxxxx
0000 Xxxxxxxxx Xx., X.X.
00
Xxxxx 000
Xxxxxxxxxx, XX 00000
ATTN: Xxxxxx X. Xxxxx, Esq.
Fax: 000-000-0000
(b) If to Buyer:
Radio One, Inc.
c/o Xxxxxx X. Xxxxxxx, III
0000 Xxxxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx X. Xxxxxx, Esq.
0000 Xxxxxxxx Xxxxxx Xxxxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Any party may change its address for notices by written notice to the other
given pursuant to this Section. Any notice purportedly given by a means other
than as set forth in this Section shall be deemed ineffective.
13.3. ASSIGNMENT. No party may assign this Agreement without the
----------
express prior written consent of the other parties, except that, Buyer may
------ ----
assign its rights and obligations pursuant to this Agreement without
Shareholder's consent prior to Closing to (i) an entity which assumes all of
Buyer's obligations under this Agreement if such assignment results in no
financial gain or profit for the Buyer or (ii) to Buyer's or its assignee's
lenders as collateral for any indebtedness incurred; and subsequent to Closing
to (a) any entity which acquires all or substantially all of the Shares or
assets of Company, or (b) to Buyer's or its assignee's lenders as collateral for
any indebtedness incurred. Subject to the foregoing, this Agreement shall be
binding on, inure to the benefit of, and be enforceable by the original parties
hereto and their respective successors and permitted assignees.
13.4. EXCLUSIVE DEALINGS. For so long as this Agreement remains in
------------------
effect, neither Company nor Shareholder nor any person acting on either party's
behalf shall, directly or indirectly, solicit or initiate any offer from, or
conduct any negotiations with, any person or entity concerning the acquisition
of all or any
49
interest in the Shares or in the assets of the Business, other than Buyer or
Buyer's permitted assignees.
13.5. THIRD PARTIES. Nothing in this Agreement, whether express or
-------------
implied, is intended to: (i) confer any rights or remedies on any person other
than Shareholder, Buyer and their respective successors and permitted assignees;
(ii) relieve or discharge the obligations or liability of any third party; or
(iii) give any third party any right of subrogation or action against either
Shareholder or Buyer.
13.6. INDULGENCES. Unless otherwise specifically agreed in writing to
-----------
the contrary: (i) the failure of any party at any time to require performance by
another party of any provision of this Agreement shall not affect such party's
right thereafter to enforce the same; (ii) no waiver by any party of any default
by another party shall be taken or held to be a waiver by such party of any
other preceding or subsequent default; and (iii) no extension of time granted by
any party for the performance of any obligation or act by any party shall be
deemed to be an extension of time for the performance of any other obligation or
act hereunder.
13.7. PRIOR NEGOTIATIONS. This Agreement supersedes in all respects all
------------------
prior and contemporaneous oral and written negotiations, understandings and
agreements between the parties with respect to the subject matter hereof. All
of such prior and contemporaneous negotiations, understandings and agreements
are merged herein and superseded hereby.
13.8. EXHIBITS AND SCHEDULES. The Exhibits and Schedules attached
----------------------
hereto or referred to herein are a material part of this Agreement, as if set
forth in full herein.
13.9. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Exhibits and
---------------------------
Schedules to this Agreement set forth the entire understanding between the
parties in connection with the Transaction, and there are no terms, conditions,
warranties or representations other than those contained, referred to or
provided for herein and therein. Neither this Agreement nor any term or
provision hereof may be altered or amended in any manner except by an instrument
in writing signed by each of the parties hereto.
13.10. COUNSEL/INTERPRETATION. Each party has been represented by its
----------------------
own counsel in connection with the negotiation and preparation of this
Agreement. This Agreement shall be fairly interpreted in accordance with its
terms and, in the event of any ambiguities, no inferences shall be drawn against
either party.
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13.11. GOVERNING LAW, JURISDICTION. This Agreement shall be governed by,
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and construed and enforced in accordance with the laws of the State of Maryland
without regard to the choice of law rules utilized in that jurisdiction. Buyer,
Shareholder and Company each hereby consent to service of process by certified
mail at the address to which notices are to be given. Each of Buyer and
Shareholder agree that its submission to jurisdiction and its consent to service
of process by certified mail is made for the express benefit of the other
parties hereto. Final judgment against Buyer or Shareholder in any such action,
suit or proceeding may be enforced in other jurisdictions by suit, action or
proceeding on the judgment, or in any other manner provided by or pursuant to
the laws of such other jurisdiction; provided, however, that any party may at
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its option bring suit, or institute other judicial proceedings, in any state or
federal court of the United States or of any country or place where the other
party or its assets, may be found.
13.12. SEVERABILITY. If any term of this Agreement is illegal or
------------
unenforceable at law or in equity, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby. Any illegal or unenforceable term shall be deemed to be void
and of no force and effect only to the minimum extent necessary to bring such
term within the provisions of applicable law and such term, as so modified, and
the balance of this Agreement shall then be fully enforceable.
13.13. COUNTERPARTS. This Agreement may be signed in any number of
------------
counterparts with the same effect as if the signature on each such counterpart
were on the same instrument. Each fully executed set of counterparts shall be
deemed to be an original, and all of the signed counterparts together shall be
deemed to be one and the same instrument.
13.14. FURTHER ASSURANCES. Shareholder shall at any time and from time to
------------------
time after the Closing execute and deliver to Buyer such further conveyances,
assignments and other written assurances as Buyer may request to vest and
confirm in Buyer (or its assignee) the title and rights to and in all the Shares
and/or assets of the Business to be and intended to be transferred, assigned and
conveyed hereunder.
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IN WITNESS WHEREOF, and to evidence their assent to the foregoing,
Shareholder and Buyer have executed this Stock Purchase Agreement under seal as
of the date first written above.
SELLER:
SYNDICATED COMMUNICATIONS VENTURE
PARTNERS II, L.P.
BY: XXXXXXX & XXXXX, X.X.,
GENERAL PARTNER
/s/ Xxxxxxx X. Xxxxxxx, Xx.,
BY: ______________________________
XXXXXXX X. XXXXXXX, XX.,
GENERAL PARTNER
BUYER:
RADIO ONE, INC.
/s/ Xxxxxx X. Xxxxxxx, III
BY: ______________________________
XXXXXX X. XXXXXXX, III
PRESIDENT
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