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_________________________________________________________________
AGREEMENT AND PLAN OF MERGER
by and among
JACOR COMMUNICATIONS, INC.,
JCAC, INC.
and
CITICASTERS INC.
Dated as of February 12, 1996
_________________________________________________________________
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Table of Contents
Page
ARTICLE 1 THE MERGER; EFFECTIVE TIME; CLOSING 1
1.1 The Merger. 1
1.2 The Closing. 2
1.3 Effective Time. 2
ARTICLE 2 ARTICLES OF INCORPORATION, BY-LAWS, DIRECTORS
AND OFFICERS OF THE SURVIVING CORPORATION 2
2.1 Articles of Incorporation. 2
2.2 By-Laws. 2
2.3 Directors. 2
ARTICLE 3 CONVERSION OF SHARES 3
3.1 Conversion of Shares; Options. 3
3.2 Exchange Procedures. 5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 6
4.1 Organization and Standing. 6
4.2 Authorization, Validity and Effect. 7
4.3 Capitalization. 7
4.4 Company Subsidiaries. 8
4.5 No Conflict; Required Filings and Consents. 9
4.6 Company Reports; Financial Statements. 10
4.7 Tax and Accounting Matters. 11
4.8 Properties. 12
4.9 Compliance with Laws; FCC Authorizations. 12
4.10 Employee Benefit Plans. 13
4.11 Material Contracts. 15
4.12 Legal Proceedings. 16
4.13 Certain Information. 17
4.14 No Brokers. 17
4.15 Opinion of Financial Advisor. 18
4.16 Environmental. 18
4.17 Personnel. 19
4.18 Takeover Statutes. 19
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF ACQUIROR
AND SUB 19
5.1 Organization and Standing. 20
5.2 Authorization, Validity and Effect. 20
5.3 Capitalization. 20
5.4 No Conflict; Required Filings and Consents 20
5.5 Acquiror Reports; Financial Statements. 21
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5.6 Legal Proceedings. 22
5.7 Certain Information. 23
5.8 Ownership of Company Common Stock. 23
5.9 Merger Sub. 24
5.10 Acquiror's Financing. 24
5.11 Qualification as a Licensee. 24
5.12 No Brokers. 24
ARTICLE 6 COVENANTS AND AGREEMENTS 24
6.1 No Solicitation and Other Actions. 24
6.2 Interim Operations of the Company. 26
6.3 Shareholder Approval. 28
6.4 Information Statement; Registration Statement. 29
6.5 Notification. 30
6.6 Employee Benefits. 30
6.7 Investigation and Confidentiality. 31
6.8 Filings; Other Action. 31
6.9 Indemnification and Insurance. 32
6.10 Publicity. 32
6.11 Transfer Taxes. 33
6.12 Letter of Credit. 33
6.13 Environmental Inspection. 33
6.14 Acknowledgement of Consents. 33
6.15 Rule 145 Affiliates. 33
6.16 Actions With Respect to the Warrants. 34
ARTICLE 7 CONDITIONS TO CONSUMMATION OF THE MERGER 34
7.1 Conditions to Obligations of the Parties. 34
7.2 Conditions to Obligations of the Company. 35
7.3 Conditions to Obligations of Acquiror and Sub. 36
ARTICLE 8 TERMINATION OF AGREEMENT 37
8.1 Termination. 37
8.2 Effect of Termination. 38
ARTICLE 9 MISCELLANEOUS AND GENERAL 40
9.1 Expenses. 40
9.2 Successors and Assigns. 40
9.3 Third Party Beneficiaries. 40
9.4 Notices. 40
9.5 Complete Agreement. 41
9.6 Captions; References. 42
9.7 Amendment. 42
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9.8 Waiver. 42
9.9 Governing Law. 42
9.10 Non-Survival of Representations, Warranties and Covenants. 42
9.11 Severability. 42
9.12 Enforcement of Agreement. 43
9.13 Counterparts. 43
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of February
12, 1996, among CITICASTERS INC. (the "Company"), a Florida corporation, JACOR
COMMUNICATIONS, INC. ("Acquiror"), an Ohio corporation, and JCAC, INC. ("Sub"),
a Florida corporation and a direct wholly owned Subsidiary of Acquiror.
RECITALS
WHEREAS, the respective Boards of Directors of the Company, Acquiror and
Sub have determined that a business combination between the Company, Acquiror
and Sub is in the best interests of their respective companies and
shareholders;
WHEREAS, concurrently with the execution hereof, in order to induce
Acquiror to enter into this Agreement, Acquiror is entering into a Stockholders
Agreement (the "Stockholders Agreement") with Great American Insurance Company,
American Financial Corporation, American Financial Enterprises, Inc., Xxxx X.
Xxxxxxx, S. Xxxxx Xxxxxxx and The Xxxx X. Xxxxxxx Foundation (the "Consenting
Stockholders") providing for certain voting and other restrictions with respect
to the shares of Company Common Stock (as defined in subsection ) beneficially
owned by the Consenting Stockholders upon the terms and conditions specified
therein; and
WHEREAS, Acquiror, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
subject to the terms and conditions set forth herein, the Company, Acquiror and
Sub hereby agree as follows:
ARTICLE 1
THE MERGER; EFFECTIVE TIME; CLOSING
1.1 The Merger. (a) Subject to the terms and conditions contained in
this Agreement, at the Effective Time (as defined in Section ), Sub shall be
merged with and into the Company in accordance with the applicable provisions
of the Florida Business Corporation Act (the "FBCA"), and the separate
corporate existence
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of Sub shall thereupon cease (the "Merger"). Following the Merger, the Company
shall continue as the surviving corporation (sometimes hereinafter referred to
as the "Surviving Corporation") and shall be a wholly owned Subsidiary of
Acquiror.
(b) At the Effective Time, the corporate existence of the Company, with
all its rights, privileges, powers and franchises, shall continue unaffected
and unimpaired by the Merger. The Merger shall have the effects specified in
the FBCA.
1.2 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxxx, Head &
Xxxxxxx, 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, at 10:00 a.m., local time,
on the first business day immediately following the date on which the last of
the conditions (excluding conditions that by their terms cannot be satisfied
until the Closing Date) set forth in Article 7 is satisfied or waived in
accordance herewith, or at such other date, time and place as the Company and
Acquiror may agree in writing. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date".
1.3 Effective Time. At or as promptly as practicable after the Closing,
the parties hereto shall cause articles of merger, in the form attached hereto
as Schedule 1.3 (the "Articles of Merger"), executed in accordance with the
relevant provisions of the FBCA, to be filed with the Department of State of
the State of Florida as provided in Section 607.1105 of the FBCA. Upon the
completion of such filing, or at such other time as may be specified in such
filing, the Merger shall become effective in accordance with the FBCA. The
time and date on which the Merger becomes effective is herein referred to as
the "Effective Time".
ARTICLE 2
ARTICLES OF INCORPORATION, BY-LAWS, DIRECTORS
AND OFFICERS OF THE SURVIVING CORPORATION
2.1 Articles of Incorporation. At the Effective Time and without any
further action on the part of the Company or Sub, the articles of incorporation
of Sub, as in effect immediately prior to the Effective Time and amended as set
forth in the Articles of Merger, shall become the articles of incorporation of
the Surviving Corporation until thereafter amended as provided therein and
under the FBCA.
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2.2 By-Laws. At the Effective Time and without any further action on the
part of the Company or Sub, the by-laws of Sub, as in effect immediately prior
to the Effective Time, shall become the by-laws of the Surviving Corporation
until thereafter amended or repealed in accordance with their terms and the
articles of incorporation of the Surviving Corporation and as provided under
the FBCA.
2.3 Directors. The directors and officers of Sub at the Effective time
shall, from and after the Effective Time, be the directors and officers of the
Surviving Corporation until the successors of all such persons shall have been
duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's articles
of incorporation and by-laws.
ARTICLE 3
CONVERSION OF SHARES
3.1 Conversion of Shares; Options.
(a) At the Effective Time, each share of Class A Common Stock, par
value $.01 per share, of the Company (the "Company Common Stock") issued and
outstanding immediately prior to the Effective Time (other than Company Common
Stock owned by the Company, Acquiror, Sub or any direct or indirect Subsidiary
of the Company, Acquiror or Sub, or any Company Common Stock held in the
treasury of the Company) shall, by virtue of the Merger and without any action
on the part of the holders thereof, be converted into and represent the right to
receive: (i) $29.50 in cash, plus, in the event that the Closing does not occur
prior to October 1, 1996, for each full calendar month ending prior to the
Closing, commencing with October, 1996, an additional amount of $.22125 in cash
(the "Cash Consideration"); plus (ii) a warrant to acquire a fractional share
(determined as provided below) of the Acquiror Common Stock (as defined below)
(the "Warrant Consideration") (the Cash Consideration and the Warrant
Consideration being collectively referenced as the "Merger Consideration") on
the terms described in the Warrant Agreement to be executed at Closing
substantially in the form attached hereto as Exhibit 3.1 (a "Warrant"). The
Warrant Consideration shall consist of a fractional share the numerator of which
is 4,400,000 and the denominator of which is the number of shares of Company
Common Stock, on a fully diluted basis, outstanding on the Closing Date.
Subject to the terms of the Warrant Agreement, the Warrants
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shall expire on the fifth anniversary of the Effective Time and shall have an
exercise price of $28.00 per full share if the Effective Time is prior to
October 1, 1996 and $26.00 per full share if the Effective Time is on or after
October 1, 1996. The Merger Consideration shall be paid net to the shareholders
(without interest) upon surrender of the certificate or certificates that,
immediately prior to the Effective Time, represented issued and outstanding
Company Common Stock (the "Certificates"). At the time of the exercise of the
Warrant each holder of a Warrant shall receive, in lieu of any fractional share
of Acquiror Common Stock, the fair market value of such fractional share
determined at the time of the exercise of the Warrant.
(b) At the Effective Time, all of the Company Common Stock issued and
outstanding immediately prior to the Effective Time, by virtue of the Merger
and without any action on the part of the holders thereof, shall no longer be
outstanding and shall be cancelled and retired and shall cease to exist, and
each holder of a Certificate representing any such Company Common Stock shall
thereafter cease to have any rights with respect to such Company Common Stock,
except each holder (other than the Company, Acquiror or Sub or any direct or
indirect Subsidiary of the Company, Acquiror or Sub) will have the right to
receive, without interest, the Merger Consideration for such Company Common
Stock upon the surrender of such Certificate or Certificates in accordance with
subsection .
(c) At the Effective Time, by virtue of the Merger and without any action
on the part of the holders thereof, each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time and owned by the
Company, Acquiror, Sub or any direct or indirect Subsidiary of the Company,
Acquiror or Sub, or held in the treasury of the Company immediately prior to
the Effective Time, shall no longer be outstanding, shall be cancelled without
payment of any consideration therefor and shall cease to exist, and each holder
of a Certificate representing any such Company Common Stock shall thereafter
cease to have any rights with respect to such Company Common Stock.
(d) At the Effective Time, each share of common stock, of Sub issued and
outstanding immediately prior to the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof, shall be converted
into and become one fully-paid and non-assessable share of common stock, par
value $.01 per share, of the Surviving Corporation.
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(e) The Company shall use its reasonable best efforts to (i) cause all
outstanding options to purchase shares of Company Common Stock (each, an
"Option") issued pursuant to the Company's 1993 Stock Option Plan or the 1994
Directors Stock Option Plan (collectively, the "Stock Option Plans") to become
fully vested and exercisable and (ii) obtain from each holder of any Option an
agreement, in form and substance reasonably satisfactory to Acquiror, to
surrender as of the Effective Time all outstanding Options, in consideration of
the payment at the Effective Time of an amount of cash per share subject to each
such Option equal to the difference between the exercise price of such Option
and the Cash Consideration (less an amount equal to all taxes required to be
withheld from such payment), plus for each share subject to such Option, the
Warrant Consideration, or, alternatively, acquire upon payment of the exercise
price an amount of cash equal to the Cash Consideration, less an amount equal to
all taxes required to be withheld, in lieu of each share formerly covered
thereby, plus for each share covered by such Option, the Warrant Consideration.
3.2 Exchange Procedures.
(a) Securities Transfer Company shall act as exchange agent (the
"Exchange Agent") for the payment of the Merger Consideration upon surrender of
Certificates converted into the right to receive the Merger Consideration
pursuant to the Merger. Immediately after the Effective Time, Acquiror shall
make available, or cause Sub or the Surviving Corporation to make available, to
the Exchange Agent immediately available funds in an amount necessary for the
payment of the Cash Consideration (the "Funds"), and the Warrants necessary for
payment of the Warrant Consideration.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to
each Person (as defined in Section hereof) who was, at the Effective Time, a
holder of record of a Certificate or Certificates (other than the Company,
Acquiror or Sub or any direct or indirect Subsidiary of the Company, Acquiror or
Sub), a letter of transmittal and instructions for use in effecting the
surrender of the Certificates, in exchange for payment of the Merger
Consideration therefor. The letter of transmittal shall specify that delivery
shall be effected, and risk of loss and title shall pass, only upon proper
delivery to and receipt of such Certificates by the Exchange Agent and shall be
in such form and have such provisions as Acquiror shall reasonably specify. Upon
surrender to the Exchange Agent of such Certificates, together with the letter
of transmittal, duly
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executed and completed in accordance with the instructions thereto and such
other documents as may be reasonably required by the Exchange Agent, the
Exchange Agent shall promptly issue to the persons entitled thereto, out of the
Funds, by check, the amount of cash to which such Persons are entitled pursuant
to Section after giving effect to any required tax withholdings, and the
Warrants to which such Persons are entitled, and such Certificates shall
forthwith be marked to evidence cancellation. No interest will be paid or will
accrue on any portion of the Merger Consideration. If payment is to be made to
a Person other than the registered holder of the Certificates surrendered, it
shall be a condition of such payment that the Certificates so surrendered shall
be properly endorsed or otherwise in proper form for transfer and that the
Person requesting such payment shall pay any transfer or other taxes required by
reason of the payment to a Person other than the registered holder of the
Certificates surrendered or establish to the satisfaction of the Surviving
Corporation or the Exchange Agent that such tax has been paid or is not
applicable. Until surrendered as contemplated by this Section , each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the Merger Consideration into
which the Company Common Stock represented by such Certificate shall have been
converted pursuant to Section 0.
(c) One hundred eighty days following the Effective Time, Acquiror shall
be entitled to cause the Exchange Agent to deliver to it any Funds (including
any interest, dividends, earnings or distributions received with respect
thereto which shall be paid as directed by Acquiror) and Warrants made
available to the Exchange Agent by Acquiror which have not been disbursed, and
thereafter holders of Certificates who have not theretofore complied with the
instructions for exchanging their Certificates shall be entitled to look only
to the Acquiror for payment as general creditors thereof with respect to the
cash payable and Warrants issuable upon due surrender of their Certificates.
(d) Acquiror shall pay all charges and expenses, including those of the
Exchange Agent, in connection with the exchange of the Merger Consideration for
Certificates.
(e) Notwithstanding anything to the contrary in this Section , none of the
Exchange Agent, Acquiror, the Company, the Surviving Corporation or Sub shall
be liable to a holder of a Certificate formerly representing Company Common
Stock for any amount properly delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
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(f) From and after the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of Company Common Stock
that was outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to Acquiror, the Surviving
Corporation or the Exchange Agent, they shall be cancelled and exchanged for the
Merger Consideration, as provided in this Article 3.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure letter delivered at or prior to the
execution hereof to Acquiror (the "Company Disclosure Memorandum") or in the
Company Reports (as defined in Section 4.6), the Company represents and
warrants to Acquiror as of the date of this Agreement as follows:
4.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida. The Company is duly qualified to do business, and in good standing,
in the states of the United States in which the character of the properties
owned or leased by it or the conduct of its business requires it to be so
qualified, except where the failure to be so qualified or to be in good
standing would not have a Material Adverse Effect. For purposes of this
Agreement, the term "Material Adverse Effect" means, with respect to the
Company, the Surviving Corporation, Acquiror or Sub, a material adverse effect
on the business, assets, liabilities, financial condition or results of
operations of such party and its Subsidiaries taken as a whole or a material
adverse effect on the ability of such party to perform its obligations
hereunder; provided, however, that results of operations shall not be a
component of Material Adverse Effect for events that occur after the date of
this Agreement, provided, further, however, that no Material Adverse Effect
shall be deemed to have occurred by reason of a general deterioration in the
economy or in the broadcasting industry after the date of this Agreement. The
Company has furnished to Acquiror complete and correct copies of its Articles
of Incorporation and By-laws, as amended through the date hereof. Such
Articles of Incorporation and By-laws are in full force and effect and no other
organizational documents are applicable to or binding upon the Company.
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4.2 Authorization, Validity and Effect. The Company has the requisite
corporate power and authority to execute and deliver this Agreement and all
agreements and documents contemplated hereby to be executed and delivered by it,
and, subject to receipt of necessary shareholder approval, to consummate the
transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and such other agreements and documents, and the consummation of
the transactions contemplated herein and therein, have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
the Company, subject, with respect to this Agreement, to the approval of the
shareholders of the Company as set forth below. This Agreement has been duly
and validly executed and delivered by the Company and represents the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
4.3 Capitalization. (a) The authorized capital stock of the Company
consists of (i) 500,000,000 shares of Company Common Stock, of which, as of
February 9, 1996, 20,236,633 shares were issued and outstanding, (ii)
125,000,000 shares of Class B Common Stock, par value $.01 per share (the
"Class B Shares"), of which no shares are issued and outstanding, and (iii)
9,500,000 shares of Preferred Stock, par value $.01 per share (the "Company
Preferred Shares"), of which no shares are issued and outstanding (the Company
Common Stock, the Class B Shares and the Company Preferred Shares are referred
to herein, collectively, as the "Company Capital Stock"). All of the issued
and outstanding shares of Company Common Stock are duly and validly issued and
outstanding and are fully paid and nonassessable. As of February 9, 1996, the
Company had outstanding Options representing the right to acquire from the
Company not more than 1,611,437.5 shares of Company Common Stock. All such
Options, the recipient of the Option, the grant date, exercise price, vesting
and other material terms are described in Section 4.3(b) of the Company
Disclosure Memorandum.
(b) Except as set forth in subsection , there are no shares of capital
stock or other equity securities of the Company outstanding, and except as set
forth in subsection 4.3(b) of the Company Disclosure Memorandum, no outstanding
options, warrants or rights to subscribe for, securities or rights convertible
into or exchangeable for, or contracts, commitments or arrangements by which the
Company is or may be required to issue or sell (collectively, "Equity Rights")
additional shares of the Company Capital Stock.
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(c) Since February 9, 1996, the Company has not (i) issued any shares
of Company Capital Stock or Equity Rights for shares of Company Capital Stock,
other than pursuant to the exercise of Options that were issued and outstanding
on February 9, 1996, (ii) purchased, redeemed or otherwise acquired, directly or
indirectly through one or more Company Subsidiaries, any shares of Company
Capital Stock, or (iii) declared, set aside, made or paid to the shareholders of
the Company dividends or other distributions on the outstanding Company Common
Stock.
4.4 Company Subsidiaries. (a) Subsection 4.4(a) of the Company
Disclosure Memorandum lists all material Subsidiaries of the Company (the
"Material Company Subsidiaries") and all other Subsidiaries. No Subsidiary
other than the Material Company Subsidiaries has any material operations, or
any liabilities. Except as indicated in subsection 4.4(a) of the Company
Disclosure Memorandum, all of the outstanding shares of capital stock of each
such Material Company Subsidiary are owned by the Company either directly or
indirectly through another Material Company Subsidiary. Except as set forth in
subsection 4.4(a) of the Company Disclosure Memorandum, no equity securities of
any Material Company Subsidiary may be required to be issued (other than to the
Company or another Material Company Subsidiary) by reason of any Equity Rights
for shares of the capital stock of any Material Company Subsidiary. Except as
set forth in subsection 4.4(a) of the Company Disclosure Memorandum, there are
no contracts, commitments, understandings or arrangements by which the Company
or any Material Company Subsidiary is or may be obligated to transfer any
shares of the capital stock of any Material Company Subsidiary. Except as set
forth in subsection 4.4(a) of the Company Disclosure Memorandum, all of the
outstanding shares of capital stock of each Material Company Subsidiary held by
the Company or any Material Company Subsidiary are fully paid and nonassessable
and are owned by the Company or such Material Company Subsidiary free and clear
of any claim, lien or encumbrance. Each Material Company Subsidiary is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated or organized, has the corporate power
and authority necessary for it to own or lease its properties and assets and to
carry on its business as it is now being conducted, and is duly qualified to do
business and in good standing in the states of the United States in which the
ownership of its property or the conduct of its business requires it to be so
qualified, except for such jurisdictions in which the failure to be so
qualified and in good standing would not have a Material Adverse Effect. As
used in this Agreement, the term "Subsidiary"
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shall mean, with respect to the Company or Acquiror, any corporation or other
legal entity of which such party or any of its subsidiaries controls or owns,
directly or indirectly, more than 50% of the stock or other equity interest
entitled to vote on the election of members to the board of directors or similar
governing body.
(b) Except for interests in the Company's Subsidiaries and except as
set forth in subsection 4.4(b) of the Company Disclosure Memorandum, neither the
Company nor any of the Material Company Subsidiaries owns, directly or
indirectly, any interest or investment (whether equity or debt) in any
corporation, partnership, joint venture, business, trust or entity, other than
(i) investments of less than $1,000,000 in the aggregate and (ii) promotional
activities undertaken in the ordinary course of business.
4.5 No Conflict; Required Filings and Consents. (a) None of the execution
and delivery of this Agreement by the Company, nor the consummation by the
Company of the transactions contemplated herein, nor compliance by the Company
with any of the provisions hereof, will (i) conflict with or result in a breach
of any provision of the articles of incorporation or by-laws or equivalent
organizational documents of the Company or any of the Material Company
Subsidiaries, (ii) except as set forth in clause 4.5(a)(ii) of the Company
Disclosure Memorandum, constitute or result in the breach of any term,
condition or provision of, or constitute a default under, or give rise to any
right of termination, cancellation or acceleration with respect to, or result
in the creation of any lien, charge or encumbrance upon, any property or assets
of the Company or the Material Company Subsidiaries, pursuant to any note,
bond, mortgage, indenture, license, agreement, lease or other instrument or
obligation to which any of them is a party or by which any of them or any of
their properties or assets may be subject, and that would, in any such event,
have a Material Adverse Effect, or (iii) subject to receipt of the requisite
approvals referred to in subsection 4.5(b), violate any order, writ,
injunction, decree, statute, rule or regulation of any governmental,
quasi-governmental, judicial, quasi-judicial or regulatory authority with
jurisdiction, domestic or foreign (each, a "Governmental Authority") applicable
to the Company or any of the Material Company Subsidiaries or any of their
properties or assets.
(b) Other than (i) in connection or compliance with the provisions of
applicable state and federal securities laws, and the rules and regulations of
the Securities and Exchange
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Commission (the "SEC") thereunder, (ii) notices under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (iii) applicable
approvals of the Federal Communications Commission (the "FCC") pursuant to
applicable laws and regulations ("Communications Law"); (iv) filings with the
Department of State of the State of Florida required to effect the Merger under
the FBCA, (v) in connection or compliance with the applicable requirements of
the Internal Revenue Code of 1986, as amended, (the "Code") and state, local and
foreign tax laws, (vi) as set forth in subsection 4.5(b) of the Company
Disclosure Memorandum, and (vii) where the failure to give such notice, make
such filing or receive such order, authorization, exemption, consent or approval
would not have a Material Adverse Effect, no notice to, filing with,
authorization of, exemption by or consent or approval of any Governmental
Authority is necessary for the consummation by the Company of the transactions
contemplated in this Agreement.
(c) The affirmative written consents of the Consenting Stockholders are
the only votes or consents of the holders of any class or series of Company
Capital Stock necessary to approve this Agreement, the Merger and the
transactions contemplated hereby on behalf of the Company.
4.6 Company Reports; Financial Statements. (a) The Company has filed all
forms, reports and documents required to be filed by it with the SEC since
January 1, 1994 (collectively, the "Company Reports"). As of their respective
dates, the Company Reports and any such reports, forms and other documents
filed by the Company with the SEC after the date of this Agreement (i) complied
when made, or shall comply when made, as to form in all material respects with
the applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder and (ii)
did not when made, or shall not when made, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading. The representation in clause (ii)
of the preceding sentence does not apply to any misstatement or omission in any
Company Report filed prior to the date of this Agreement that was superseded by
a subsequent Company Report filed prior to the date of this Agreement.
(b) The consolidated balance sheets of the Company and its Subsidiaries
as of December 31, 1993 and December 31, 1994
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and the related statements of operations, changes in shareholders' equity and
cash flows for the year ended December 31, 1994, together with the notes
thereto, are included in the Company's Annual Reports on Form 10-K for the
fiscal years ended December 31, 1993 and December 31, 1994, respectively, as
filed with the SEC, and the unaudited consolidated balance sheets of the Company
and its Subsidiaries as of March 31, 1995, June 30, 1995 and September 30, 1995,
and the related unaudited statements of operations, changes in shareholders'
equity and cash flows for the periods then ended are included in the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995, June 30,
1995 and September 30, 1995, respectively, as filed with the SEC (together, the
"Company Financial Statements"). The Company Financial Statements have been
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis (except as disclosed therein)
and fairly present, in all material respects, the consolidated financial
position and the consolidated results of operations, changes in shareholders'
equity and cash flows of the Company and its consolidated Subsidiaries as of the
dates and for the periods indicated (subject, in the case of interim financial
statements, to normal recurring year-end adjustments, none of which are expected
to be material, and the absence of footnote disclosure).
(c) As of the date of this Agreement, except as set forth in the
Company Financial Statements or the notes thereto, or as described in the
Company Disclosure Memorandum, neither the Company nor any Subsidiary has any
material outstanding claims against it, liabilities or indebtedness, contingent
or otherwise, nor does there exist any condition, fact or circumstances which
the Company reasonably anticipates will create such claim or liability, other
than liabilities incurred subsequent to September 30, 1995, in the ordinary
course of business, consistent with past practices and which individually and in
the aggregate do not have a Material Adverse Effect.
(d) Since December 31, 1994 and except as disclosed in the Company
Reports, the Company and the Material Company Subsidiaries have conducted their
respective businesses only in the ordinary course and consistent with past
practices and have not subjected any of their assets or properties to any Liens
(except in connection with acquisitions disclosed in the Company Reports).
(e) From December 31, 1994 through the date of this Agreement, except
as disclosed in the Company Disclosure
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Memorandum and the Company Reports, there has been no event, condition or
operation that has caused or is reasonably anticipated to cause a Material
Adverse Effect on the Company.
4.7 Tax and Accounting Matters. The Company and each of the Material
Company Subsidiaries have filed all material federal, state, county, local and
foreign tax returns, including information returns, required to be filed by it,
and paid or made adequate provision for the payment of all taxes shown on such
returns to be owed by it, including those with respect to income, withholding,
social security, unemployment, workers compensation, franchise, ad valorem,
premium, excise and sales taxes. The federal income tax returns of the Company
and the Material Company Subsidiaries for the fiscal year ended December 31,
1985 and for all fiscal years prior thereto and fiscal years ended December 31,
1989, December 31, 1990 and December 31, 1991 are closed by the relevant
statute of limitations, and no claims for additional taxes for such fiscal
years are pending. Except as disclosed in Section 4.7 of the Company
Disclosure Memorandum, neither the Company nor any of the Material Company
Subsidiaries is a party to any pending action or proceeding, nor, to the actual
knowledge of the officers of the Company listed in Section 4.7 of the Company
Disclosure Memorandum (the "Company's Knowledge"), is any such action or
proceeding threatened, by any Governmental Authority for the assessment or
collection of taxes, interest, penalties or deficiencies that would reasonably
be expected to have a Material Adverse Effect.
4.8 Properties. Except as disclosed or reserved against in the Company
Financial Statements, the Company and the Material Company Subsidiaries have
good and marketable title to all of the material properties and assets,
tangible or intangible, reflected in the Company Financial Statements as being
owned by the Company and the Material Company Subsidiaries as of the dates
thereof, free and clear of all liens, encumbrances, charges, defaults or
equities of whatever character, except such imperfections or irregularities of
title, liens, encumbrances, charges or defaults that are publicly disclosed or
such imperfections or irregularities of title as do not affect the use thereof
in any material respect and statutory liens securing payments not yet due
("Liens"). All leased buildings and all leased fixtures, equipment and other
property and assets that are material to its business on a consolidated basis
are held under leases or subleases that are valid instruments enforceable in
accordance with their respective terms. Section 4.8 of the Company Disclosure
Memorandum contains a list of all real estate owned or leased by the Company or
a Material Company Subsidiary,
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identifying which properties are owned and which are leased. All such leases
were entered into in the ordinary course of business. Other than as indicated
in the Company Disclosure Memorandum, none of the leases are with an Affiliate
or contain any material terms or conditions which make any such lease
unreasonably onerous or commercially unreasonable.
4.9 Compliance with Laws; FCC Authorizations. (a) Except as set forth in
subsection 4.9(a) of the Company Disclosure Memorandum, and except for
environmental matters, which shall be covered by Section and which shall not be
covered by this Section , to the Company's Knowledge, each of the Company and
the Material Company Subsidiaries:
(i) is in material compliance with all laws, regulations,
reporting and licensing requirements and orders applicable to its
business or employees conducting its business, the breach or
violation of which would have a Material Adverse Effect;
(ii) has received no notification or communication from any
Governmental Authority (i) asserting that the Company or any of
the Material Company Subsidiaries is not in compliance with any of
the statutes, regulations or ordinances that such Governmental
Authority enforces, which noncompliance would have a Material
Adverse Effect or (ii) threatening to revoke any license,
franchise, permit or authorization of any Governmental Authority,
which revocation would have a Material Adverse Effect.
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(b) Set forth in subsection 4.9(b) of the Company Disclosure Memorandum is
a list of the FCC licenses (the "Station Licenses") that are required for the
lawful conduct of the radio and television broadcasting business and operations
of the Company and its Material Company Subsidiaries (the "Stations") in the
manner and to the full extent they are now conducted. The Company or a
Subsidiary thereof is the authorized legal holder of the Station Licenses, none
of which is subject to any material restriction or condition which would limit
the full operation of the Stations as now operated. Except as set forth in
subsection 4.9(b) of the Company Disclosure Memorandum, there are no
applications, complaints or proceedings pending or, to the Company's Knowledge,
threatened before the FCC relating to the business or operations of the Stations
other than applications, complaints or proceedings which generally affect the
radio or television broadcasting industries or those that would not have,
individually or in the aggregate, a Material Adverse Effect on the Company. The
Station Licenses listed in subsection 4.9(b) of the Company Disclosure
Memorandum are validly held, are in good standing and are in full force and
effect and are unimpaired by any act. Except as set forth in subsection 4.9(b)
of the Company Disclosure Memorandum, to the Company's Knowledge, there is no
reason related to the Company why the FCC would not approve the transfer of
control of the Company to Acquiror or any of its Subsidiaries and the renewal of
the Station Licenses upon the expiration of the current term of each such
Station License. Except as set forth in subsection 4.9(b) of the Company
Disclosure Memorandum, all reports, forms and statements required to be filed by
the Company with the FCC with respect to the Stations since the grant of the
last renewal of the Station Licenses have been timely filed and are complete and
accurate, except where the failure to so file or where the failure to be
complete and accurate would, individually or in the aggregate, not have a
Material Adverse Effect on the Company. Except as set forth in subsection
4.9(b) of the Company Disclosure Memorandum, each Station is being operated in
compliance with the Communications Law and the specifications of the Station
Licenses, in each case in all material respects.
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4.10 Employee Benefit Plans.
(a) Except as specified in the Company Disclosure Memorandum, neither
the Company nor any Material Company Subsidiary has an "employee pension benefit
plan" as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), including any "multiemployer plan" as defined in
Section 3(37) of ERISA (such plans so noted shall be referred to as the
"Retirement Plans"), "employee welfare benefit plan" as defined in Section 3(1)
of ERISA including without limitation post-employment benefit and retiree
medical plans, funds and programs ("Benefit Plans") or a "specified fringe
benefit plan" as defined in Section 6039D of the Code ("SFB Plans") (together,
the Retirement Plans, Benefit Plans and SFB Plans noted in the Company
Disclosure Memorandum shall be referred to collectively as the "Plans" and
individually as a "Plan"). All Plans are maintained by the Company.
(b) Each Plan is, and has been at all times, operated in material
compliance with all statutes, orders or governmental rules or regulations,
including but not limited to ERISA and the Code, and any and all collective
bargaining agreements and other contracts applicable thereto.
(c) The Retirement Plans, and their related trusts, if any, are
qualified and tax-exempt under Sections 401 and 501 of the Code. The Company
has received favorable determination letters from the Internal Revenue Service
with respect to the qualification and tax exempt status of the Retirement Plans
and their related trusts, if any, under the Code, and nothing has occurred (or
failed to occur) since the receipt of such determination letters to cause a loss
of the Plans' qualification and tax-exempt status.
(d) All material required reports and descriptions of the Plans
(including IRS Form 5500 Annual Reports, Summary Annual Reports and Summary Plan
Descriptions) have been appropriately filed and distributed.
(e) All material notices required by ERISA, the Code or any other
state or federal law, ruling or regulation with respect to the Plans have been
appropriately filed.
(f) All contributions to the Plans for all periods ending on or before
the Closing Date will be made prior to the Closing Date by the Company and each
Material Company Subsidiary
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in accordance with past practice and no Plans are currently or shall be unfunded
or underfunded as of the Closing Date.
(g) All insurance premiums (including premiums to the Pension Benefit
Guaranty Corporation) relating to the Plans have been paid in full in a timely
manner.
(h) With respect to the Plans, no prohibited transactions (as defined in
Section 406 of ERISA or Section 4975 of the Code) that would result in
liability to the Company have occurred and no reportable events (as defined in
Section 4043 of ERISA) have occurred.
(i) There is not, and has not been, an accumulated funding deficiency with
respect to the Retirement Plans subject to the minimum funding requirements of
Section 412 of the Code or Section 302 of ERISA that has resulted in any
material liability to the Company that has not been satisfied in full.
(j) No material action, suit, grievance, arbitration or other manner of
litigation, or claim with respect to the Plans or the assets thereof (other
than routine claims for benefits made in the ordinary course of plan
administration) are pending, threatened against or with respect to the Plans,
the Company, any Material Company Subsidiary or any fiduciaries (as defined in
Section 3(21) of ERISA) of the Plans (including any action, suit, grievance,
arbitration or other manner of litigation, or claim regarding conduct which
allegedly interferes with the attainment of rights under a Plan).
(k) Except as set forth in the Company Disclosure Memorandum, neither the
Company nor any Material Company Subsidiary has ever contributed, nor has it
ever been required to contribute, to any "multiemployer plans" (as defined in
Section 3(37) of ERISA) and neither the Company nor any Material Company
Subsidiary has or will incur any withdrawal liability with respect to any such
plans.
(l) Except as set forth in the Company Disclosure Memorandum, neither the
Company nor any Material Company Subsidiary has any stock purchase plan, stock
option plan, phantom stock plan, stock appreciation rights plan, bonus plan or
any severance, deferred compensation or retirement plans or similar agreements
(whether or not subject to ERISA).
(m) The Company and each Material Company Subsidiary has complied with
COBRA in all material respects.
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(n) Any and all post-employment benefit plans, funds and programs and
retiree medical plans, funds and programs of the Company or its Material Company
Subsidiaries have been fully funded and neither the Company nor any Material
Company Subsidiary has any further obligation to make any additional
contributions to such plans.
4.11 Material Contracts. Set forth in Section 4.11 of the Company
Disclosure Memorandum is a list, as of the date hereof, of the following
agreements (the "Company Contracts"):
(a) each partnership or joint venture agreement to which the Company or
any Material Company Subsidiary is a party;
(b) each agreement limiting the right of the Company or any Material
Company Subsidiary to engage in or compete with any Person in any business or
geographical area;
(c) each agreement or other arrangement of or involving the Company or any
Material Company Subsidiary with respect to indebtedness for money borrowed,
including letters of credit, guaranties, indentures, swaps and similar
agreements;
(d) each management, consulting, employment, severance or similar
agreement requiring the payment of compensation in excess of $150,000 annually,
to which the Company or any of the Material Company Subsidiaries is a party,
other than agreements with on-air talent;
(e) each collective bargaining agreement to which the Company or any
Material Company Subsidiary is a party;
(f) each agreement with a national sales representative to which the
Company or any Material Company Subsidiary is a party;
(g) each network affiliation agreement to which the Company or any
Material Company Subsidiary is a party; and
(h) each agreement with any Affiliate of the Company (other than
employment agreements) to which the Company or any Material Company Subsidiary
is a party which involves total payments or liabilities to or from the Company
or any Material Company Subsidiary in excess of $60,000.
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Each of the Company Contracts is in full force and effect and is a legal, valid
and binding contract or agreement, and there is no default or breach (or, to the
Company's Knowledge, any event that, with the giving of notice or lapse of time
or both would result in a material default or breach) by the Company or any of
the Material Company Subsidiaries, or, to the Company's Knowledge, any other
party, in the timely performance of any obligation to be performed or paid
thereunder or any other material provision thereof, that, individually or in the
aggregate, would have a Material Adverse Effect. The Company acknowledges that
there are certain material contracts (including without limitation agreements
concerning radio syndicated programming and network affiliation and other
material agreements which are not available at the Company's corporate offices
on the date hereof), some of which are listed on Section 4.11 of the Company
Disclosure Memorandum and some of which are not, that have not been furnished to
Acquiror as of the date of this Agreement (the "Undisclosed Contracts"). Within
ten days after the date hereof, the Company will deliver to Acquiror copies of
all Undisclosed Contracts.
4.12 Legal Proceedings. As of the date of this Agreement, except as
disclosed in the Company Reports or as set forth in Section 4.12 of the Company
Disclosure Memorandum, there are no actions, suits, investigations or
proceedings instituted or pending, or to the Company's Knowledge, overtly
threatened, against the Company or any of the Material Company Subsidiaries, or
against any property, asset, interest or right of any of them, that involve
more than $100,000 in controversy, or that seek relief other than money damages
from the Company or a Subsidiary, or that would have, either individually or in
the aggregate, a Material Adverse Effect if adversely decided. Neither the
Company nor any of the Material Company Subsidiaries is subject to any
judgment, order, writ, injunction or decree that would have a Material Adverse
Effect.
4.13 Certain Information. (a) When the Registration Statement (as
defined in Section ) to be filed with the SEC by Acquiror pursuant to Section
hereof or any post-effective amendment thereto shall become effective, and at
all times subsequent to such effectiveness up to and including the Effective
Time, such Registration Statement and all amendments or supplements thereto,
with respect to all information set forth therein furnished by the Company
relating to the Company or its Subsidiaries, shall comply as to form in all
material respects with the provisions of all applicable securities laws. Any
written information supplied or to be supplied by the Company specifically for
inclusion in the Registration Statement will not
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contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made not misleading.
(b) None of the information supplied or to be supplied by the Company for
inclusion in the Information Statement (as defined in Section ) shall, at the
time such document is filed with the SEC and when it is first mailed to the
shareholders of the Company, be false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading. If at any time prior to the Effective Time any event
occurs which should be described in the Information Statement or any supplement
or amendment thereto, the Company will file and disseminate, as required, a
supplement or amendment which complies as to form in all material respects with
the provisions of all applicable securities laws. Prior to its filing with the
SEC, the Information Statement and each amendment or supplement thereto shall
be delivered to Acquiror and its counsel. All documents that the Company is
responsible for filing with the SEC or any other Governmental Authority in
connection with the transactions contemplated hereby shall comply as to form in
all material respects with the provisions of applicable law and the applicable
rules and regulations thereunder.
4.14 No Brokers. The Company has not entered into any contract,
arrangement or understanding with any Person or firm that may result in the
obligation of the Company, Acquiror or Sub to pay any finder's fees, brokerage
or agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the transactions
contemplated hereby, except that the Company has retained Salomon Brothers Inc
as its financial advisor (the "Company Financial Advisor"), which Financial
Advisor may be entitled to an advisor fee of up to $3.0 million in connection
with the transactions contemplated hereby. In addition, the Company may
reimburse certain third parties for legal expenses incurred by such third
parties not to exceed $250,000 in the aggregate.
4.15 Opinion of Financial Advisor. The Company has received the opinion
of the Company Financial Advisor to the effect that, as of the date hereof, the
consideration to be received by the holders of the Company Common Stock in the
Merger is fair to such holders from a financial point of view. A copy of
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such opinion shall be delivered to Acquiror within 24 hours of its receipt by
the Company.
4.16 Environmental. Except insofar as inaccuracies in the following
statements would not have a Material Adverse Effect on the Company: (i) The
properties owned or leased by the Company or any Subsidiary and properties
formerly owned or leased by the Company or any Subsidiary for which the Company
has contractual liability (the "Company Properties") are in compliance in all
material respects with all applicable federal, state and local environmental and
hazardous waste laws and regulations; (ii) no enforcement actions are pending or
threatened against the Company or any Subsidiary and no notice of potential
liability or administrative or judicial proceedings (including notices regarding
clean up of off-site third party hazardous waste sites) has been received; (iii)
there does not now exist on the Company Properties, and there has not occurred
on, from or under the Company Properties, a material disposal or release of,
Hazardous Substances, Hazardous Wastes or Contaminants; (iv) the Company
Properties contain no unregistered underground storage tanks; (v) neither the
Company nor any Subsidiary nor any of their respective predecessors has any
contingent liability in connection with the release of any Hazardous Substances,
Hazardous Wastes or Contaminants into the environment; (vi) all broadcast
facilities operated by the Company or any Subsidiary are, and at all times prior
hereto were, in compliance with all applicable rules and regulations relating to
RF radiation produced by a broadcast station; and (vii) neither the Company or
any Subsidiary nor any of their respective predecessors has (A) given any
release or waiver of liability that would waive or impair any claim based on
Hazardous Substances, Hazardous Wastes or Contaminants to any current or prior
tenant or owner of any real property owned or leased at any time by either the
Company or any Subsidiary or to any party who may be potentially responsible for
the presence of Hazardous Substances, Hazardous Wastes or Contaminants on any
such real property; or (B) made any promise of indemnification to any party
regarding Hazardous Substances, Hazardous Wastes or Contaminants that may be
located on any real property owned or leased at any time by either the Company
or any Subsidiary or any of their respective predecessors. Section 4.16 of the
Company Disclosure Memorandum contains a description of environmental
indemnities of which either the Company or any Subsidiary is a beneficiary.
4.17 Personnel.
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(a) Except as disclosed in Sections 4.10 and 4.11 of the Company Disclosure
Memorandum, or as required pursuant to Section 6.6(c) hereof, there is no
employment agreement, employee benefit or incentive compensation plan or program
or severance policy or program to which the Company or any Material Company
Subsidiary is a party (i) that is or could, pursuant to its terms, be triggered
or accelerated by reason of or in connection with the execution of this
Agreement or the consummation of the transactions contemplated by this Agreement
or (ii) which contains "change in control" provisions pursuant to which the
payment, vesting or funding of compensation or benefits is or by reason of or in
connection with the execution of or consummation of the transactions
contemplated by this Agreement or the transactions contemplated by this
Agreement.
(b) Except as set forth on Section 4.11 of the Company Disclosure
Memorandum, there are no labor disputes existing, or to the Company's
Knowledge, threatened, involving strikes, work stoppages, slow downs or
lockouts. There are no grievance proceedings or claims of unfair labor
practices filed or, to the Company's Knowledge, threatened to be filed with the
National Labor Relations Board against the Company or any Material Company
Subsidiary. To the Company's Knowledge, there is no union representation or
organizing effort pending or threatened against the Company or any Material
Company Subsidiary. Neither the Company nor any Material Company Subsidiary
has agreed to recognize any union or other collective bargaining unit except
those governed by the terms of the agreements listed in Section 4.11 of the
Company Disclosure Memorandum.
4.18 Takeover Statutes. No "fair price", "moratorium", "control share
acquisition" or other similar anti-takeover statute or regulation enacted under
any federal or state or other foreign law, applicable to the Company is
applicable to the Merger or the other transactions contemplated hereby.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND SUB
Except as set forth in the disclosure letter delivered at or prior to the
execution hereof to the Company (the "Acquiror Disclosure Memorandum"),
Acquiror and Sub represent and warrant to the Company as of the date of this
Agreement as follows:
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5.1 Organization and Standing. Each of Acquiror and Sub is a corporation
duly organized, validly existing and in good standing under the laws of the
State of its incorporation. Each of Acquiror and Sub is duly qualified to do
business, and in good standing, in the states of the United States in which the
character of the properties owned or leased by it or in which the conduct of its
business requires it to be so qualified, except where the failure to be so
qualified or to be in good standing would not have a Material Adverse Effect.
Acquiror has furnished to the Company complete and correct copies of its
Articles of Incorporation and Code of Regulations as amended, through the date
hereof. Such Articles of Incorporation and Code of Regulations are in full force
and effect and no other organizational documents are applicable to or binding
upon Acquiror.
5.2 Authorization, Validity and Effect. Each of Acquiror and Sub has the
requisite corporate power and authority to execute and deliver this Agreement
and all agreements and documents contemplated hereby to be executed and
delivered by it, and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and such other
agreements and documents, and the consummation of the transactions contemplated
herein and therein, have been duly and validly authorized by all necessary
corporate action in respect thereof on the part of each of Acquiror and Sub.
This Agreement has been duly and validly executed and delivered by each of
Acquiror and Sub and represents the legal, valid and binding obligation of each
of Acquiror and Sub, enforceable against each of them in accordance with its
terms.
5.3 Capitalization. The authorized capital stock of Acquiror consists of
40,000,000 Common Shares, of which, as of February 1, 1996, 18,163,425 shares
were issued and outstanding (the "Acquiror Common Stock"). The Automatic
Conversion (as such term is defined in the Amended and Restated Articles of
Acquiror) has occurred. Except as set forth in this Section or Section 5.3 of
the Acquiror Disclosure Memorandum, there are no shares of capital stock or
other equity securities of Acquiror outstanding and there are no outstanding
Equity Rights for additional shares of Acquiror Capital Stock. All of the
issued and outstanding shares of Acquiror Common Stock are duly and validly
issued and outstanding and are fully paid and nonassessable.
5.4 No Conflict; Required Filings and Consents. (a) None of the execution
and delivery of this Agreement by Acquiror or Sub, nor the consummation by
Acquiror or Sub of the transactions contemplated herein, nor compliance by
Acquiror or Sub with any of
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the provisions hereof, will (i) conflict with or result in a breach of any
provision of the articles of incorporation or by-laws or equivalent
organizational documents of Acquiror or Sub, (ii) constitute or result in the
breach of any term, condition or provision of, or constitute a default under, or
give rise to any right of termination, cancellation or acceleration with respect
to, or result in the creation of any lien, charge or encumbrance upon, any
property or assets of Acquiror or Sub or, pursuant to any note, bond, mortgage,
indenture, license, agreement, lease or other instrument or obligation to which
either of them is a party or by which either of them or their respective
properties or assets may be subject, and that would, in any such event, have a
Material Adverse Effect, or (iii) subject to receipt of the requisite approvals
referred to in subsection 5.4(b) of the Acquiror Disclosure Memorandum, to the
actual knowledge of the officers of Acquiror listed in clause 5.4(a)(iii) of the
Acquiror Disclosure Memorandum ("Acquiror's Knowledge"), violate any order,
writ, injunction, decree, statute, rule or regulation of any Governmental
Authority applicable to Acquiror, Sub or any of their respective properties or
assets.
(b) Other than (i) in connection or compliance with the provisions of
applicable state and federal securities laws, and the rules and regulations of
the SEC thereunder, including the registration of Warrants issuable in the
Merger at the Effective Time pursuant to the Registration Statement, (ii)
notices and completion of waiting periods under the HSR Act, (iii) applicable
approvals of the FCC, (iv) filings with the Department of State of the State of
Florida required to effect the Merger under the FBCA, (v) in connection or
compliance with the applicable requirements of the Code and state, local and
foreign tax laws, (vi) as set forth in subsection 5.4(b) of the Acquiror
Disclosure Memorandum, and (vii) where the failure to give such notice, make
such filing, or receive such authorization, exemption, consent or approval
would not have a Material Adverse Effect, no notice to, filing with,
authorization of, or exemption by, or consent or approval of any Governmental
Authority is necessary for the consummation by Acquiror or Sub of the
transactions contemplated in this Agreement.
(c) The affirmative vote of the shares of Acquiror Common Stock
beneficially owned by The Xxxx/Chilmark Fund L.P. at a meeting of the
shareholders of Acquiror duly called for such purpose is sufficient, and no
further vote or consent of any class or series of capital stock of Acquiror is
necessary, to approve the authorization for issuance by Acquiror of shares of
Acquiror
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Common Stock and Warrants in an amount necessary for payment of the Merger
Consideration.
5.5 Acquiror Reports; Financial Statements. (a) The Acquiror has filed all
forms, reports and documents required to be filed by it with the SEC since
January 1, 1994 (collectively, the "Acquiror Reports"). As of their respective
dates, the Acquiror Reports and any such reports, forms and other documents
filed by the Acquiror with the SEC after the date of this Agreement (i) complied
when made, or shall comply when made, as to form in all material respects with
the applicable requirements of the Securities Act, the Exchange Act and the
rules and regulations promulgated thereunder and (ii) did not when made, or
shall not when made, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. The representation in clause (ii) of the preceding
sentence does not apply to any misstatement or omission in any Acquiror Report
filed prior to the date of this Agreement that was superseded by a subsequent
Acquiror Report filed prior to the date of this Agreement.
(b) The consolidated balance sheets of the Acquiror and its Subsidiaries
as of December 31, 1993 and December 31, 1994 and the related statements of
operations, changes in shareholders' equity and cash flows for the year ended
December 31, 1994, together with the notes thereto, are included in the
Acquiror's Annual Reports on Form 10-K for the fiscal years ended December 31,
1993 and December 31, 1994, respectively, as filed with the SEC, and the
unaudited consolidated balance sheets of the Acquiror and its Subsidiaries as
of March 31, 1995, June 30, 1995 and September 30, 1995, and the related
unaudited statements of operations, changes in shareholders' equity and cash
flows for the periods then ended are included in the Acquiror's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1995, June 30, 1995 and
September 30, 1995, respectively, as filed with the SEC (together, the
"Acquiror Financial Statements"). The Acquiror Financial Statements have been
prepared in accordance with GAAP applied on a consistent basis (except as
disclosed therein) and fairly present, in all material respects, the
consolidated financial position and the consolidated results of operations,
changes in shareholders' equity and cash flows of the Acquiror and its
consolidated Subsidiaries as of the dates and for the periods indicated
(subject, in the case of interim financial statements, to normal recurring
year-end adjustments, none of which are expected to be material, and the
absence of footnote disclosure).
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The Acquiror and its Subsidiaries do not have any material liabilities not
disclosed on the Acquiror Financial Statements.
5.6 Legal Proceedings. As of the date of this Agreement and except as set
forth in Section 5.6 of the Acquiror Disclosure Memorandum, there are no
actions, suits or proceedings instituted or pending, or to Acquiror's Knowledge,
overtly threatened, against Acquiror or Sub, or against any property, asset,
interest or right of any of them, that involve more than $100,000 in
controversy, or that seek relief other than money damages from the Acquiror or
any Subsidiary, or that would have, either individually or in the aggregate, a
Material Adverse Effect on Acquiror if adversely decided. Neither Acquiror nor
Sub is subject to any judgment, order, writ, injunction or decree that would
have a Material Adverse Effect.
5.7 Certain Information.
(a) When the Registration Statement or any post-effective amendment
thereto shall become effective, and at times subsequent to such effectiveness
up to and including the Effective Time, the Registration Statement and all
amendments or supplements thereto, shall comply as to form in all material
respects with the provisions of all applicable securities laws. If at any time
prior to the Effective Time any event occurs which should be described in the
Registration Statement or any supplement or amendment thereto, Acquiror will
file and disseminate, as required, a supplement or amendment which complies as
to form in all material respects with the provisions of all applicable
securities laws. Prior to its filing with the SEC, the Registration Statement
and each amendment or supplement thereto shall be delivered to the Company and
its counsel. With respect to any information supplied by Acquiror, the
Registration Statement will not, at the time the prospectus included therein is
mailed to shareholders of the Company, and at the Effective Time, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(b) None of the information supplied or to be supplied by Acquiror or Sub
for inclusion in the Information Statement shall, at the time such document is
filed with the SEC or when it is first mailed to the shareholders of the
Company, be false or misleading with respect to any material fact, or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they are made,
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not misleading. All documents that Acquiror or Sub are responsible for filing
with the SEC or any other Governmental Authority in connection with the
transactions contemplated hereby shall comply as to form in all material
respects with the provisions of applicable law and the applicable rules and
regulations thereunder.
(c) When the Registration Statement or any post-effective amendment thereto
shall become effective, and at times subsequent to such effectiveness up to and
including the Effective Time, the Registration Statement and all amendments or
supplements thereto, except with respect to information set forth therein
provided by the Company, shall not be false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
5.8 Ownership of Company Common Stock. Except as set forth in Section 5.8
of the Acquiror Disclosure Memorandum, none of Acquiror nor, to Acquiror's
Knowledge, any Affiliates (as defined below) of Acquiror or Sub, owns any
shares of Company Common Stock or other securities convertible into shares of
Company Common Stock. For purposes of this Agreement, an "Affiliate" of a
specified Person is a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified.
5.9 Merger Sub. Sub was formed solely for the purpose of engaging in the
transactions contemplated hereby. Sub is, and shall be on the Closing Date, a
wholly owned direct Subsidiary of Acquiror. Except for obligations or
liabilities incurred in connection with its incorporation or organization, and
the transactions contemplated hereby, Sub has not incurred any obligations or
liabilities or engaged in any business or activities of any type or kind
whatsoever or entered into any agreements or arrangements with any Person or
entity.
5.10 Acquiror's Financing. Acquiror has or will have sufficient funds
available to consummate the transactions contemplated by this Agreement and to
pay all transaction related fees and expenses.
5.11 Qualification as a Licensee. Acquiror will, from and after the date
upon which Acquiror executes the applications described in subsection , be
legally, financially and otherwise qualified under the Communications Law to be
owner and operator of
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the properties and assets of the Surviving Corporation, any of its Material
Company Subsidiaries, or any Station. Except as disclosed in Section 5.11 of
the Acquiror Disclosure Memorandum or in the Acquiror Reports, no fact exists
that would under the Communications Law disqualify Acquiror as the owner and
operator of the properties or assets of any Station.
5.12 No Brokers. Neither Acquiror nor Sub has entered into a contract,
arrangement or understanding with any Person or firm that may result in the
obligation of Acquiror, Sub or the Company to pay any finder's fees, brokerage
or agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the transactions
contemplated hereby.
ARTICLE 6
COVENANTS AND AGREEMENTS
6.1 No Solicitation and Other Actions. (a) From and after the date of
this Agreement and except as set forth in subsection , the Company shall not,
and the Company shall direct and use its reasonable best efforts to cause the
officers, directors, employees, agents, advisors and other representatives of
the Company not to, directly or indirectly, (i) solicit, initiate, knowingly
encourage, or participate in discussions or negotiations regarding, any
proposals or offers from any individual, corporation, partnership, limited
liability corporation, joint venture, trust, association, unincorporated
organization, other entity, group or Governmental Authority ("Person") relating
to any Competing Transaction (as defined in subsection ) or (ii) furnish to any
other Person any nonpublic information or access to such information with
respect to, or otherwise concerning, any Competing Transaction. The Company
shall immediately cease and cause to be terminated any existing discussions or
negotiations with any third parties conducted heretofore with respect to any
proposed Competing Transaction. The Company shall promptly disclose the
identity of any Person who attempts to initiate any discussions contemplating a
Competing Transaction.
(b) Notwithstanding anything to the contrary contained in this Section or
in any other provision of this Agreement, until the consents required by the
Stockholders Agreement have been duly executed and delivered, the Company shall
not be prohibited by this Agreement from (i) participating in
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discussions or negotiations with, and, during such period, the Company may
furnish information to, a Person that seeks to engage in discussions or
negotiations, requests information or makes a proposal to acquire the Company
pursuant to a Competing Transaction, if the Company's directors determine in
good faith that such action is required for the discharge of their fiduciary
obligations, based upon the written advice of independent legal counsel, who may
be the Company's regularly engaged legal counsel (a "Director Duty"); (ii)
complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with
regard to a tender or exchange offer; (iii) making any disclosure to the
Company's shareholders in accordance with a Director Duty; (iv) failing to make,
modifying or amending its recommendations, consents or approvals referred to
herein in accordance with a Director Duty; or (v) terminating this Agreement and
entering into an agreement providing for a Competing Transaction in accordance
with a Director Duty. In the event that the Company or any of its officers,
directors, employees, agents, advisors or other representatives participate in
discussions or negotiations with, or furnish information to a Person that seeks
to engage in such discussions or negotiations, requests information or makes a
proposal to acquire the Company pursuant to a Competing Transaction pursuant to
this subsection , then: (i) the Company shall immediately disclose to the
Acquiror the decision of the Company's directors; (ii) the identity of the
Person; and (iii) copies of all information or material not previously furnished
to Acquiror which the Company, or its agents, provides or causes to be provided
to such Person or any of its officers, directors, employees, agents, advisors or
representatives.
(c) For the purposes of this Agreement, "Competing Transaction" shall mean
any of the following involving the Company: (i) any merger, consolidation,
share exchange, business combination or other similar transaction; (ii) any
sale, lease, exchange, transfer or other disposition of all or substantially
all of the assets of the Company and the Material Company Subsidiaries, taken
as a whole, in a single transaction or series of related transactions; or (iii)
any tender offer or exchange offer for shares of Company Common Stock.
6.2 Interim Operations of the Company. Prior to the Effective Time,
except as contemplated by any other provision of this Agreement or as set forth
in Section 6.2 of the Company Disclosure Memorandum, unless Acquiror has
previously consented in writing thereto (which consent may be withheld only
after substantive discussions with representatives of the Company) the
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Company shall not, and shall not permit any of the Material Company Subsidiaries
to:
(a) grant any general increase in compensation or benefits to its employees
or to its officers, except in the ordinary course consistent with past practice
or as required by law; pay any bonus compensation except in the ordinary course
consistent with past practice or in accordance with the provisions of any
applicable program or plan adopted by the Board of Directors of the Company or
such Material Company Subsidiary prior to the date hereof; enter into or amend
the terms of any severance agreements with its officers; or effect any change in
retirement benefits for any class of its employees or officers (unless such
change is required by applicable law) that would materially increase the
retirement benefit liabilities of the Company and the Material Company
Subsidiaries on a consolidated basis; provided, however, that nothing in this
subsection (a) shall prevent the payment or other performance of any award or
grant made prior to the date hereof and disclosed in the Company Reports filed
prior to the date hereof, the Company Disclosure Memorandum or pursuant to this
Agreement;
(b) amend, alter or revise any existing employment contract,
understanding, arrangement or agreement between the Company or any of the
Material Company Subsidiaries and any Person receiving compensation (including
salary and bonus) in excess of $150,000 per year (unless such amendment is
required by law) to increase the compensation (including bonus) or benefits
payable thereunder or pursuant thereto or enter into any new employment
contract, understanding, arrangement or agreement with any Person having a
salary thereunder in excess of $150,000 that the Company or such Material
Company Subsidiary does not have the unconditional right to terminate without
liability (other than liability for services already rendered) at any time on
or after the Effective Time;
(c) adopt any new employee benefit plan or make any change in or to any
existing Company ERISA Plans or Company Benefit Arrangements other than any
such change that (i) is required by law, (ii) in the opinion of counsel is
necessary or advisable to maintain the tax qualified status of any such, plan,
or (iii) would not materially increase, in the aggregate, the employee benefit
plan liabilities of the Company and the Material Company Subsidiaries, taken as
a whole;
(d) sell, lease or otherwise dispose of any of its assets (including
capital stock of Material Company Subsidiaries)
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or acquire any business or assets, except in the ordinary course of business, in
each case for an amount not exceeding $1,000,000;
(e) incur any material amount of indebtedness for borrowed money or make
any loans, advances or capital contributions to, or investments (other than
non-controlling investments in the ordinary course of business) in, any other
Person other than a Subsidiary of the Company, or issue or sell any debt
securities, other than (i) borrowings in connection with acquisitions permitted
by subsection , (ii) borrowings under existing lines of credit in the ordinary
course of business not to exceed $5,000,000 in the aggregate at any time
outstanding and (iii) borrowings made or indebtedness incurred to fund payments
made in connection with the exercise of Options pursuant to Section .
(f) except as set forth in subsection 6.2(f) of the Company Disclosure
Memorandum, authorize, commit to or make capital expenditures in each case in an
amount exceeding $6,000,000;
(g) mortgage or otherwise encumber or subject to any Lien any material
amount of properties or assets owned by the Company or any of the Material
Company Subsidiaries as of the date of this Agreement except for such of the
foregoing as are in the normal course of business;
(h) make any material change to its accounting (including tax accounting)
methods, principles or practices, except as may be required by GAAP;
(i) amend or propose to amend its articles of incorporation or by-laws or
equivalent organizational documents;
(j) declare or pay any dividend or distribution with respect to the
Company Capital Stock;
(k) except pursuant to Options already granted as of the date of this
Agreement, issue, sell, deliver or agree to issue, sell, deliver (whether
through issuance or granting of options, warrants, commitments, subscriptions
or rights to purchase) any Company Capital Stock or split, combine, reclassify
or subdivide the Company Capital Stock;
(l) make any tax election or settle or compromise any material tax
liability for an amount greater than reflected on the Company's Financial
Statements;
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(m) except pursuant to Options already granted as of the date of this
Agreement, directly or indirectly redeem, purchase or otherwise acquire any
shares of its capital stock or other securities;
(n) enter into any new lines of business or otherwise make material
changes to the operation of its business;
(o) except as to liabilities accrued on the books of the Company as of the
date of this Agreement, pay or agree to pay in settlement or compromise of any
suits or claims of liability against the Company, its directors, officers,
employees or agents, more than an aggregate of $100,000 for all such suits and
claims;
(p) enter into any agreement providing the acceleration or payment or
performance or other consequence as a result of a change in control of the
Company;
(q) purchase any radio or television stations, enter into any local
marketing arrangements, joint sales agreement or similar agreements;
(r) except as permitted under Sections , , and , enter into any contract,
agreement or understanding, whether in the ordinary course of business or not,
which would be the type of agreement which, if entered into prior to the date
hereof, would have to be disclosed pursuant to Section 4.11 or which would
obligate the Company or any Subsidiary to make payments of more than $150,000
per year;
(s) take any action or agree, in writing or otherwise, to take any of the
foregoing actions or any action which would make any representation or warranty
in Article 4 hereof materially untrue or incorrect; or
(t) commit to any of the foregoing.
6.3 Shareholder Approval. (a) With respect to the Company, this
Agreement, the Merger, and the other transactions contemplated hereby are
subject to approval of the shareholders of the Company, and in connection
therewith, the Consenting Stockholders have entered into the Stockholders
Agreement, which requires the Consenting Stockholders to execute written
consents in favor of this Agreement and the Merger by 5:00 p.m. Eastern
Standard Time on the thirtieth day after the execution of this
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Agreement by the Company unless the Agreement is terminated prior to such date.
(b) The authorization for issuance of shares of Acquiror Common Stock and
Warrants is subject to the approval of the shareholders of Acquiror and in
connection therewith, Xxxx/Chilmark L.P., the holder of in excess of 69% of the
outstanding Acquiror Common Stock has entered into the Jacor Shareholder
Agreement, the form of which is attached as Exhibit 6.3, pursuant to which
Xxxx/Chilmark L.P. has granted an irrevocable proxy to the Company solely for
the purpose of voting its shares of Acquiror Common Stock in favor of any
proposal for the authorization for issuance of such number of shares of
Acquiror Common Stock and Warrants as are necessary for payment of the Merger
Consideration.
(c) The Company and Acquiror shall each cause an information statement to
be mailed to their respective shareholders, and the Company and Acquiror shall
each furnish to the other all information concerning itself that the other may
reasonably request in connection with the preparation, filing and mailing of
such information statement.
6.4 Information Statement; Registration Statement. (a) As soon as
practicable following the date hereof, Acquiror and the Company shall cooperate
to prepare promptly and file with the SEC an Information Statement with respect
to the Merger (the "Information Statement") and a registration statement on
Form S-4 relating to the Warrants issuable in the Merger at the Effective Time
(the "Registration Statement"), subject, however, to deferral until such time
as Acquiror and the Company may reasonably agree in writing. As soon as
practicable following receipt of final comments from the staff of the SEC on
the Information Statement and Registration Statement (or advice that such staff
will not review such filing), Acquiror shall use its best efforts to have the
Registration Statement declared effective by the SEC and to maintain the
effectiveness of such Registration Statement until completion of the Merger.
Promptly after the effectiveness of the Registration Statement, the Company
shall mail the Information Statement to all holders of Company Common Stock and
holders of Acquiror Common Stock. Acquiror and the Company shall cooperate
with each other in the preparation of the Information Statement and the
Registration Statement and shall advise the other in writing if, at any time
prior to the Effective Time, any such party shall obtain knowledge of any facts
that might make it necessary or appropriate to amend or supplement the
Information Statement or the Registration Statement in order to make the
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statements contained or incorporated by reference therein not misleading or to
comply with applicable law. Notwithstanding the foregoing, each party shall be
responsible for the information and disclosures which it makes or incorporates
by reference in all regulatory filings, the Information Statement and the
Registration Statement.
(b) Acquiror shall file, no later than the third business day following
the Closing, a registration statement with the SEC relating to the issuance of
shares of Acquiror Common Stock issuable upon exercise of the Warrants ("Warrant
Shares") (such registration statement to be referred to herein as the "Warrant
Shares Registration Statement"). Acquiror shall use its reasonable best efforts
to have the Warrant Shares Registration Statement declared effective and to
cause the issuance of Warrant Shares to be registered, qualified or exempted
under applicable state securities laws as soon as is reasonably practicable.
Acquiror shall use its reasonable best efforts to amend or supplement the
Warrant Shares Registration Statement or the prospectus contained therein and to
take such actions as may be necessary to cause the Warrant Shares Registration
Statement to remain effective until the earlier of (i) the seventh anniversary
of the Closing and (ii) the expiration or exercise of all outstanding Warrants.
Prior to the Effective Time, Acquiror will exercise its reasonable best efforts
to cause the Warrants to be included for trading in the National Association of
Securities Dealers quotation system.
6.5 Notification. Each of the Company and Acquiror shall, after obtaining
knowledge of the occurrence, non-occurrence or threatened occurrence or
non-occurrence of any fact or event that would cause or constitute a material
breach or failure of any of the representations and warranties, covenants or
conditions set forth herein, or that would constitute or result in a Material
Adverse Effect to such party, notify the other parties in writing thereof with
reasonable promptness.
6.6 Employee Benefits. (a) For a period of at least two years after the
Effective Time, Acquiror shall cause the Surviving Corporation and each
Material Company Subsidiary to maintain compensation and benefit arrangements,
plans and programs for the benefit of current, former and retired salaried
employees of the Company and such subsidiaries and their respective
predecessors that are, in the aggregate, considering all compensation and
benefits, not less favorable than those provided by Acquiror or any of its
Affiliates to their similarly situated current, former and retired salaried
employees; provided, however, that nothing in
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this Agreement shall preclude or restrict the Surviving Corporation from
terminating the employment of any employee.
(b) If any salaried employee of the Company or any Material Company
Subsidiary becomes a participant in any employee benefit plan, practice or
policy of Acquiror, any of its Affiliates or the Surviving Corporation,
Acquiror shall cause such employee to be given credit under such plan, practice
or policy for all service prior to the Effective Time with the Company and its
subsidiaries, or any predecessor employer, for all purposes (including
eligibility, vesting and determination of benefits) for which such service is
either taken into account or recognized.
(c) Following the Effective Time, Acquiror shall, or shall cause the
Surviving Corporation to, honor the terms of all consulting, employment,
severance and similar agreements set forth in Section 4.11 of the Company
Disclosure Memorandum that were in effect immediately prior to the date hereof.
Within sixty days after the date hereof, the Company shall offer to enter into
Employment Continuation Agreements which will be binding upon the Surviving
Corporation with each of the persons and at the compensation listed on Exhibit
6.6(c) substantially in the forms attached hereto as Exhibit 6.6(c)(i) and
Exhibit 6.6.(c)(ii).
6.7 Investigation and Confidentiality. Prior to the Effective Time,
Acquiror and the Company each shall keep the other advised of all material
developments relevant to the transactions contemplated hereby and may make or
cause to be made such investigation, if any, of the business and properties of
the other party and its subsidiaries and of their respective financial and
legal condition as Acquiror or the Company reasonably deems necessary or
advisable to familiarize itself and its advisors with such business, properties
and other matters; provided, however, that such investigation shall be
reasonably related to the transactions contemplated hereby and shall not
interfere unnecessarily with normal operations. Acquiror and, except as
otherwise may be required by a Director Duty, the Company each agree to furnish
the other party and the other party's advisors with such financial and
operating data and other information with respect to its businesses, properties
and employees as Acquiror or the Company shall from time to time reasonably
request. All information furnished to the Company or Acquiror by the other
party hereunder (including, without limitation, all environmental information
obtained pursuant to Section or otherwise) shall be maintained by such party
pursuant to the terms of the confidentiality agreement (the "Confidentiality
Agreement") between the Company and Acquiror dated February 1, 1996, which
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shall survive the execution of this Agreement and remain in full force and
effect until the Effective Time.
6.8 Filings; Other Action. Subject to the terms and conditions herein
provided, the parties shall (a) within seven business days hereof make their
respective filings and thereafter make any other required submissions under the
HSR Act and the Communications Law; (b) use their reasonable best efforts to
cooperate with each other in (i) determining which filings are required to be
made prior to the Effective Time with, and which consents, approvals, permits or
authorizations are required to be obtained prior to the Effective Time from,
Governmental Authorities in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and (ii)
timely making all such filings and timely seeking all such consents, approvals,
permits or authorizations; and (c) use their reasonable best efforts to take, or
cause to be taken, all other action and do, or cause to be done, all other
things necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement and satisfy the conditions to the
transactions contemplated hereby; provided, however, that nothing in this
Section 0 shall require the Acquiror or Sub, or require the Acquiror or Sub to
cause the Surviving Corporation, to divest or hold separate any Station or
Stations, or asset or groups of assets, or enter into new arrangements or
terminate any existing arrangement, or take any other specific action requested
by any Governmental Authorities. If, at any time after the Effective Time, any
further action is necessary or desirable to carry out the purposes of this
Agreement, subject to the remaining provisions hereof, the officers and
directors of the parties shall promptly take all such necessary action.
6.9 Indemnification and Insurance.
(a) For not less than six years following the Effective Time, Acquiror
shall indemnify and hold harmless each present and former employee, agent,
director or officer of the Company and its Subsidiaries ("Indemnified Parties")
from and against any and all claims arising out of or in connection with
activities in such capacity, or on behalf of, or at the request of, the
Company, its Subsidiaries or their Affiliates, and shall advance expenses
incurred with respect to the foregoing, as they are incurred, to the fullest
extent permitted under applicable law; provided, however, that if any claim or
claims are asserted or made within such six-year period, all rights to
indemnification in respect of such claims shall continue until the final
disposition of any and all such claims.
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(b) Acquiror shall cause the Surviving Corporation to keep in effect
provisions in the Company's Restated Articles of Incorporation and By-laws
providing for exculpation of director and officer liability and its
indemnification of or advancement of expenses to the Indemnified Parties to the
fullest extent permitted under the FBCA, which provisions shall not be amended
except as required by applicable law or except to make changes permitted by law
that would enhance the Indemnified Parties' right of indemnification or
advancement of expenses.
(c) If, after the Effective Time, Acquiror or any of its successors or
assigns (i) consolidates with or merges into any other Person and shall not be
the continuing or surviving corporation or entity of such consolidation or
merger, or (ii) transfers all or substantially all of its property and assets
to any Person, then, in each such case, proper provision shall be made so that
the successors and assigns of Acquiror assume all of the obligations set forth
in this Section . The provisions of this Section are intended to be for the
benefit of, and shall be enforceable by each Person who is now, or has been at
any time prior to the date of this Agreement, or who becomes prior to the
Effective Time, an officer, director, employee or agent of the
Company or any of its Subsidiaries (and their heirs and representatives).
6.10 Publicity. Acquiror and the Company shall each issue press releases
relating to this Agreement. Each such release will be reviewed by the other
party and all such initial press releases shall be mutually satisfactory to the
parties. Thereafter the Company and Acquiror shall, subject to their
respective legal obligations (including requirements of national securities
exchanges and other similar regulatory bodies), consult with each other
regarding the text of any press release before issuing any such press release
with respect to the transactions contemplated hereby and in making any filings
with any Governmental Authority or with any national securities exchange with
respect thereto.
6.11 Transfer Taxes. Acquiror shall pay any and all transfer taxes
(including, without limitation, any real estate transfer taxes) incurred in
connection with the Merger, whether such taxes are imposed on Acquiror, the
Company, their respective Subsidiaries or their shareholders.
6.12 Letter of Credit. Simultaneously with the execution and delivery of
the consents of the Consenting Stockholders in accordance with Section 0, the
parties shall enter into the Letter
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of Credit Escrow Agreement substantially in the form attached hereto as Exhibit
6.13 (the "Letter of Credit Escrow Agreement"). Pursuant to the Letter of
Credit Escrow Agreement, the Acquiror will deliver or cause to be delivered to
the Escrow Agent (as defined in the Letter of Credit Escrow Agreement) an
irrevocable letter of credit in the amount of $75,000,000 to be issued by an
issuer reasonably acceptable to the Company (the "Letter of Credit"). The
Letter of Credit shall be held and drawn on only as provided in Section 8.2(b)
and in the Letter of Credit Escrow Agreement.
6.13 Environmental Inspection. Within 100 days of the date of this
Agreement, Acquiror and Sub shall have the right, at their own expense, to
cause the inspection of the properties of the Company and its subsidiaries to
verify the accuracy of the Company's representations and warranties in Section
4.16. Any invasive testing or sampling, including, without limitation, testing
of soil, ground or surface water, at any of such properties shall be conducted
only following reasonable advance written notice to the Company and without any
unreasonable interference with the conduct of the Company's business.
6.14 Acknowledgement of Consents. The Company shall promptly forward to
Acquiror a copy of all consents received from the Consenting Stockholders and
shall promptly acknowledge in writing to Acquiror that consents have been
received from the holders of a majority of the outstanding voting stock of the
Company and that accordingly the Agreement and Plan of Merger has been duly
approved pursuant to Florida law.
6.15 Rule 145 Affiliates. At least 40 days prior to the Closing, the
Company shall deliver to Acquiror a letter identifying all persons who are, at
the time the Consenting Stockholders approve this Agreement and the Merger,
deemed to be "affiliates" of the Company for purposes of Rule 145 under the
Securities Act (the "Rule 145 Affiliates"). The Company shall use its
reasonable best efforts to cause each Rule 145 Affiliate to deliver to Acquiror
at least 30 days prior to the Closing an agreement substantially in the form of
Exhibit 6.15 to this Agreement.
6.16 Actions With Respect to the Warrants. If, after the date hereof and
prior to issuance of the Warrants, Acquiror shall take any action which, if the
Warrants had been issued and outstanding as of the date of any such action,
would have required an adjustment in the exercise price of the Warrants or in
the number of shares purchasable upon exercise of the Warrants, then
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the exercise price of the Warrants or such number of shares shall be adjusted
upon issuance of the Warrants to give effect to the adjustment which would have
been required as a result of such action.
ARTICLE 7
CONDITIONS TO CONSUMMATION OF THE MERGER
7.1 Conditions to Obligations of the Parties. The respective
obligations of the Company, Acquiror and Sub to effect the Merger shall be
subject to the satisfaction or waiver at or prior to the Closing of each of the
following conditions:
(a) This Agreement and the transactions contemplated
hereby shall have been approved in the manner required by applicable law by the
holders of a majority of the Company Common Stock as required by the
Stockholders Agreement and by the holders of Acquiror Common Stock as required
by the By-Laws of the National Association of Securities Dealers.
(b) The waiting period applicable to the consummation of
the Merger under the HSR Act shall have expired or been terminated.
(c) None of the parties hereto shall be subject to any
order or injunction of a court or Governmental Authority of competent
jurisdiction that prohibits the consummation of the transactions contemplated by
this Agreement. In the event any such order or injunction shall have been
issued, each party agrees to use its reasonable best efforts to have any such
order overturned or injunction lifted.
(d) All orders, approvals, and consents of the FCC
required in connection with the consummation of the transactions contemplated
hereby shall have been obtained or granted, whether or not any appeal or request
for reconsideration of such order is pending, or whether the time for filing any
such appeal or request for reconsideration or for any sua sponte action by the
FCC has expired.
(e) All consents, authorizations, orders and approvals of
(or filings or registrations with) any Governmental Authority (other than the
FCC) required in connection with the execution, delivery and performance of this
Agreement shall have been obtained or made, except for filings in connection
with the
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Merger and any other documents required to be filed after the Effective Time and
except where the failure to have obtained or made any such consent,
authorization, order, approval, filing or registration would not have a Material
Adverse Effect on the Surviving Corporation following the Effective Time.
(f) The Registration Statement shall have become
effective in accordance with the provisions of the Securities Act and no stop
order suspending the effectiveness of the Registration Statement shall have been
issued by the SEC and remain in effect.
7.2 Conditions to Obligations of the Company. The obligations of
the Company to effect the Merger shall be subject to the satisfaction or waiver
at or prior to the Closing of each of the following additional conditions:
(a) The representations and warranties of Acquiror and
Sub set forth in this Agreement shall be true and correct in all respects as of
the date of this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as of the
Effective Time (except for any such representations and warranties made as of
specified date, which shall be true and correct in all respects as of such
date), except to the extent that the aggregate effect of the inaccuracies in
such representations and warranties as of the applicable times (each considered
without any exclusions for lack of Material Adverse Effect set forth in the
individual representation or warranty) does not constitute a Material Adverse
Effect on Acquiror when compared to the state of facts which would exist if all
such representations and warranties were true in all respects as of the
applicable times.
(b) Each of the agreements and covenants of Acquiror and
Sub to be performed and complied with by Acquiror and Sub pursuant to this
Agreement prior to the Effective Time shall have been duly performed and
complied with in all material respects.
(c) Acquiror shall have delivered to the Company a
certificate, dated as of the Closing Date and signed on its behalf by its chief
executive officer and its chief financial officer, as to the satisfaction by it
of the conditions set forth in subsections 0 and 0.
7.3 Conditions to Obligations of Acquiror and Sub. The obligations
of Acquiror and Sub to effect the Merger shall be subject to the satisfaction or
waiver at or prior to the Closing of the following conditions:
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(a) The representations and warranties of the Company set forth in
this Agreement shall be true and correct in all respects as of the date of this
Agreement and as of the Effective Time with the same effect as though all such
representations and warranties had been made on and as of the Effective Time
(except for (i) any such representations and warranties made as of specified
date, which shall be true and correct in all respects as of such date) and (ii)
the representations and warranties in Section 0, the accuracy of which shall be
tested pursuant to Section 0 and therefore shall not be a condition to the
obligations of Acquiror and Sub to effect the Merger), except to the extent that
the aggregate effect of the inaccuracies in such representations and warranties
as of the applicable times (each considered without any exclusions for lack of
Material Adverse Effect set forth in the individual representation or warranty)
does not constitute a Material Adverse Effect on the Company when compared to
the state of facts which would exist if all such representations and warranties
were true in all respects as of the applicable times.
(b) Each of the agreements and covenants of the Company to be
performed and complied with by the Company pursuant to this Agreement prior to
the Effective Time shall have been duly performed and complied with except to
the extent that the aggregate effect of any non-performance or noncompliance by
the Company (each considered without any exclusions for lack of Material Adverse
Effect set forth in the individual covenant or agreement) does not constitute a
Material Adverse Effect on the Company when compared to the state of facts which
would exist if all such agreements and covenants had been performed and complied
with by the Company.
(c) From the date of this Agreement through June 30, 1996, the
Cash Flow (as defined in Section 7.3 of the Company Disclosure Memorandum) of
the Company shall have been at least 90% of that projected in the forecast set
forth in Section 7.3 of the Company Disclosure Memorandum (the "Forecast"), and
from July 1, 1996 through September 30, 1996 (or through the end of the month
preceding the month in which the Closing occurs if the Closing occurs after
August 1, 1996, but earlier than September 30, 1996), the Cash Flow of the
Company shall have been at least 75% of that projected in the Forecast.
(d) The Company shall have delivered to Acquiror a certificate,
dated as of the Closing Date and signed on its behalf by its chief executive
officer and its chief financial officer, as
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to the satisfaction by it of the conditions set forth in subsections 0, 0 and 0.
ARTICLE 8
TERMINATION OF AGREEMENT
8.1 Termination. Notwithstanding any other provision of this
Agreement, this Agreement may be terminated at any time prior to the Effective
Time:
(a) by mutual written consent of the Company and
Acquiror;
(b) by the Company or Acquiror, upon written notice to
the other party, if the Merger shall not have been consummated on or prior to
May 31, 1997 (the "Outside Date"), unless such failure of consummation shall be
due to the failure of the party seeking such termination to perform or observe
in all material respects the covenants and agreements hereof to be performed or
observed by such party;
(c) by the Company or Acquiror, upon written notice to
the other party, if a Governmental Authority of competent jurisdiction shall
have issued an injunction, order or decree enjoining or otherwise prohibiting
the consummation of the transactions contemplated by this Agreement, and such
injunction, order or decree shall have become final and non-appealable or if a
Governmental Authority has otherwise made a final determination that any
required Regulatory Authorization would not be forthcoming; provided, however,
that the party seeking to terminate this Agreement pursuant to this clause has
used all required efforts as specified in Section 6.8 to remove such injunction,
order or decree;
(d) by the Company or Acquiror, if any condition to such
party's obligations to consummate the transactions contemplated hereby is
incapable of being satisfied on or prior to the Outside Date; provided, however,
that (i) the terminating party has not breached the terms of this Agreement;
(ii) if the Company is the terminating party, the Consenting Stockholders have
not breached the terms of the Stockholders Agreement; and (iii) if Acquiror is
the terminating party, Xxxx/Chilmark Fund L.P. has not breached the terms of the
Jacor Shareholders Agreement, in each case in any manner that proximately
contributes to the failure to consummate the Merger by the Outside Date;
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(e) by the Company or Acquiror, if the FCC shall have
issued an order or ruling or taken other action denying approval of the
transactions contemplated by this Agreement, and such order, ruling or other
action shall have become final and non-appealable; provided, however, that the
party seeking to terminate this Agreement pursuant to this clause has used all
required efforts as specified in Section 6.8 to obtain such FCC approval;
(f) by the Company, if prior to the delivery of the
consents of the Consenting Stockholders delivered pursuant to the Stockholder
Agreement, the Board of Directors of the Company determines in accordance with a
Director Duty that such termination is required by reason of a Competing
Transaction being proposed;
(g) by the Company or Acquiror, if prior to the delivery
of the consents of the Consenting Stockholders delivered pursuant to the
Stockholders Agreement, the Board of Directors of the Company shall have
withdrawn or modified in a manner materially adverse to Acquiror its approval of
the adoption of this Agreement or the approval of the Merger, because the Board
of Directors has determined to recommend to the Company's shareholders or
approve a Competing Transaction, in accordance with a Director Duty;
(h) by Acquiror, if any Consenting Stockholder shall have
breached any material representation or warranty, or failed to perform any
covenant or duty contained in, the Stockholders Agreement, other than a breach
or noncompliance that would not materially affect the benefits Acquiror is
receiving from the Stockholders Agreement;
(i) by Acquiror, within 100 days of the date of this
Agreement, if Acquiror reasonably believes, on the basis of the inspection
conducted pursuant to Section 6.13, that the Company's representations and
warranties in Section 4.16 are not true and correct both as of the date of this
Agreement and at all times within 100 days after the date of this Agreement;
(j) by Acquiror, within 20 days of the date of this
Agreement, if (i) the termination, if any, of any of the Undisclosed Contracts
because of the consummation of the Merger would constitute a Material Adverse
Effect on the Company or (ii) any or all of the Undisclosed Contracts constitute
a Material Adverse Effect on the Company when compared to the state of facts
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which would exist if the Company were not a party to any or all of the
Undisclosed Contracts; or
(k) by the Company if (i) Xxxx/Chilmark Fund L.P. shall
have breached any material representation or warranty, or failed to perform any
covenant or duty contained in, the Jacor Shareholders Agreement, other than a
breach or noncompliance that would not materially affect the benefits the
Company is receiving from the Jacor Shareholders Agreement, or (ii) in the event
that all required authorizations of the shareholders of Acquiror to effect the
transactions contemplated by this Agreement shall not be obtained.
8.2 Effect of Termination. (a) In the event that (i) this Agreement is
terminated pursuant to clause 0, clause 0, or clause 8.1(h) and (ii) at the time
of termination, there has been no misrepresentation by or breach of any
obligation of Acquiror or Sub under this Agreement other than a breach of or
noncompliance with any obligation which would not constitute a Material Adverse
Effect on Acquiror, then the Company shall pay the Acquiror a fee of
$20,000,000, which amount shall be payable by wire transfer of same day funds
within two business days after the date this Agreement is terminated. Such
amount shall be in addition to the amounts payable by certain of the Consenting
Stockholders to the Acquiror pursuant to the Stockholders Agreement.
(b) If after the execution of the Letter of Credit Escrow
Agreement and the issuance of the Letter of Credit this Agreement is terminated:
(i) pursuant to Section 0, except if there has been a failure to satisfy any of
the conditions specified in Section 0; (ii) pursuant to Section 0; (iii) by the
Company, pursuant to Section 0; (iv) pursuant to Section 0; or (v) pursuant to
Section 0, then the Company shall be permitted to draw on the Letter of Credit.
The Company shall not be permitted to draw on the Letter of Credit under any
other circumstances. The obligations of the parties to this Agreement under the
last sentence of Section 0 and under Sections 0 and 0 shall survive any
termination of this Agreement.
(c) From and after the execution of the Letter of Credit
Escrow Agreement and the issuance of the Letter of Credit and except as set
forth in Section 0, the right to terminate this Agreement and receive $75
million pursuant to a draw on the Letter of Credit under the circumstances
permitted in Sections 0 and 0 shall be the Company's exclusive remedy and $75
million shall be the maximum measure of damages for any claim the Company might
have against Acquiror or its Affiliates in connection with the
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transactions contemplated by this Agreement, including without limitation, any
claim for breach or nonperformance of this Agreement or any tort claim.
(d) If (i) the Merger has not been consummated, (ii) this
Agreement has not been terminated by the Company, (iii) the Letter of Credit
Escrow Agreement has been executed and the Letter of Credit has been issued, and
(iv) the Company believes that Acquiror has wilfully breached this Agreement,
the Company may choose to irrevocably waive the right to draw on the Letter of
Credit and instead bring an action against Acquiror or its Affiliates for such
alleged wilful breach of this Agreement (a "Letter of Credit Waiver"). A Letter
of Credit Waiver must be made in writing and delivered by the Company to
Acquiror and the Escrow Agent (as defined in the Letter of Credit Escrow
Agreement). If the Company makes a Letter of Credit Waiver, the Company and the
Acquiror will take all necessary steps to cancel the Letter of Credit.
(e) Prior to the execution of the Letter of Credit Escrow
Agreement and the issuance of the Letter of Credit, the Company's sole remedies
in connection with the transactions contemplated in this Agreement shall be to
terminate this Agreement (if permitted under Section 8.1) and/or bring an action
against Acquiror or its Affiliates for wilful breach of this Agreement if the
Company believes that Acquiror has wilfully breached this Agreement; provided,
however, that the bringing of such an action shall not affect Acquiror's right
to immediately receive any fee it is entitled to under Section 0 and that if
such a lawsuit is brought or the Company exercises such a right of termination,
the Letter of Credit Escrow Agreement shall not be executed and the Letter of
Credit shall not be issued.
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ARTICLE 9
MISCELLANEOUS AND GENERAL
9.1 Expenses. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses except as
expressly provided herein and except that (a) the filing fee in connection with
the HSR Act filing, (b) the filing fee in connection with the filing of the
Information Statement with the SEC, (c) the filing fees in connection with
necessary applications to the FCC, and (d) the expenses incurred in connection
with printing and mailing the Information Statement shall be shared equally by
the Company and Acquiror.
9.2 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, but shall not be assignable by any party hereto without the prior
written consent of the other parties hereto, provided however that Acquiror may
assign its rights under this Agreement to an Affiliate at any time and to a
non-Affiliate if the Acquiror, in its sole discretion, determines that it is
appropriate to do so because of difficulties encountered in satisfying the
conditions in Article 0 of this Agreement. Any such assignment shall not affect
Acquiror's liability hereunder.
9.3 Third Party Beneficiaries. Except as set forth in Article 0 and
Sections 0, 0 and 0 (all of which shall inure to the benefit of the persons or
entities benefitting from the provisions thereof, which persons are intended to
be third party beneficiaries thereof), each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto.
9.4 Notices. Any notice or other communication provided for herein or
given hereunder to a party hereto shall be sufficient if in writing, and sent by
facsimile transmission (electronically confirmed), delivered in Person, mailed
by first class registered or certified mail, postage prepaid, or sent by Federal
Express or other overnight courier of national reputation, addressed as follows:
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If to Acquiror or Sub:
Xxxxx Xxxxxxxx
Jacor Communications, Inc.
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxx, Head & Xxxxxxx
1900 Fifth Third Center
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
and
Xxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to the Company:
Citicasters Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address with respect to a party as such party shall notify the
other parties in writing as above provided.
9.5 Complete Agreement. This Agreement, the Company Disclosure
Memorandum, the Acquiror Disclosure Memorandum and the
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other documents and agreements delivered by the parties in connection herewith,
together with the Confidentiality Agreement, contain the complete agreement
among the parties hereto with respect to the Merger and the other transactions
contemplated hereby and thereby and supersede all prior agreements and
understandings among the parties hereto with respect thereto.
9.6 Captions; References. The captions contained in this Agreement are
for convenience of reference only and do not form a part of this Agreement. When
a reference is made in this Agreement to a clause, a Section, a subsection or an
Article, such reference shall be to such clause, Section, subsection or Article
of this Agreement unless otherwise indicated.
9.7 Amendment. At any time, the parties hereto, by action taken by
their respective Board of Directors or pursuant to authority delegated by their
respective Boards of Directors, may amend this Agreement; provided, however,
that no amendment after approval by the shareholders of the Company shall be
made that changes in a manner adverse to such shareholders the Merger
Consideration without the further approval of such shareholders. This Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto.
9.8 Waiver. At any time prior to the Effective Time, the parties hereto
may (a) extend the time for the performance of any of the obligations or other
acts of the parties hereto, (b) waive any inaccuracies in the representations
and warranties contained herein or in any document delivered pursuant hereto, or
(c) waive compliance with any of the agreements or conditions contained herein,
to the extent permitted by applicable law. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
writing signed on behalf of such party.
9.9 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Florida, without
regard to its rules of conflict of laws.
9.10 Non-Survival of Representations, Warranties and Covenants. Except
as set forth in this Section 0, no representation, warranty or covenant
contained in this Agreement shall survive the Merger or, except as set forth in
Section 0, the earlier termination of this Agreement. The obligations set forth
in Article 0 and Sections 0, 0, 0 and 0 shall survive the Merger.
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9.11 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
9.12 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
9.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year first above written.
CITICASTERS INC.
By:________________________
Its:_______________________
JACOR COMMUNICATIONS, INC.
By:________________________
Its:_______________________
JCAC, INC.
By:________________________
Its:_______________________
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INDEX OF DEFINED TERMS
Page
Acquiror .............................................................. 1
Acquiror Common Stock ................................................. 20
Acquiror Disclosure Memorandum ........................................ 19
Acquiror Financial Statements ......................................... 22
Acquiror Reports ...................................................... 21
Acquiror's Knowledge .................................................. 21
Affiliate ............................................................. 23
Agreement ............................................................. 1
Articles of Merger .................................................... 2
Benefit Plans ......................................................... 14
Cash Consideration .................................................... 3
Certificates .......................................................... 3
Class B Shares ........................................................ 7
Closing ............................................................... 2
Closing Date .......................................................... 2
Code .................................................................. 10
Communications Law .................................................... 10
Company ............................................................... 1
Company Capital Stock ................................................. 7
Company Common Stock .................................................. 3
Company Contracts ..................................................... 15
Company Disclosure Memorandum ......................................... 6
Company Financial Advisor ............................................. 18
Company Financial Statements .......................................... 11
Company Preferred Shares .............................................. 7
Company Properties .................................................... 18
Company Reports ....................................................... 10
Company's Knowledge ................................................... 12
Competing Transaction ................................................. 25
Confidentiality Agreement ............................................. 31
Consenting Stockholders ............................................... 1
Director Duty ......................................................... 25
Effective Time ........................................................ 2
Employee pension benefit plan ......................................... 13
Employee welfare benefit plan ......................................... 14
Equity Rights ......................................................... 8
ERISA ................................................................. 13
Exchange Act .......................................................... 10
Exchange Agent ........................................................ 5
FBCA .................................................................. 1
FCC ................................................................... 10
Funds ................................................................. 5
GAAP .................................................................. 11
Governmental Authority ................................................ 9
HSR Act ............................................................... 9
Indemnified Parties ................................................... 32
55
Information Statement ................................................. 29
Letter of Credit ...................................................... 33
Letter of Credit Escrow Agreement ..................................... 33
Liens ................................................................. 12
Material Adverse Effect ............................................... 6
Material Company Subsidiaries ......................................... 8
Merger ................................................................ 1
Merger Consideration .................................................. 3
Multiemployer plan .................................................... 13
Multiemployer plans ................................................... 15
Option ................................................................ 4
Outside Date .......................................................... 37
Person ................................................................ 25
Plan .................................................................. 14
Plans ................................................................. 14
Registration Statement ................................................ 29
Retirement Plans ...................................................... 14
Rule 145 Affiliates ................................................... 34
SEC ................................................................... 9
Securities Act ........................................................ 10
SFB Plans ............................................................. 14
Station Licenses ...................................................... 13
Stations .............................................................. 13
Stock Option Plans .................................................... 4
Stockholders Agreement ................................................ 1
Sub ................................................................... 1
Subsidiary ............................................................ 9
Surviving Corporation ................................................. 1
Undisclosed Contracts ................................................. 16
Warrant ............................................................... 3
Warrant Consideration ................................................. 3
Warrant Shares ........................................................ 29
Warrant Shares Registration Statement ................................. 29
ii
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