STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of June 7, 2002, among INTEREP NATIONAL
RADIO SALES, INC., a New York corporation (the "Company"), and the parties
listed on Exhibit A to this Agreement (together, the "Purchasers").
W I T N E S S E T H:
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WHEREAS, the Company desires to sell to the Purchasers, and the Purchasers
desire to acquire, shares of the Company's Series A Convertible Preferred Stock,
par value $0.01 per share (the "Preferred Stock"), on the terms and conditions
set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth below, the parties agree as follows:
1. Purchase and Sale of Shares.
1.1 Purchase and Sale. Subject to the terms and conditions of this
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Agreement, at the Closing (as defined in Section 2), the Company shall issue and
sell to the Purchasers, and the Purchasers shall severally purchase from the
Company, for an aggregate purchase price of $5,000,000 (the "Purchase Price"),
an aggregate of 50,000 shares of the Preferred Stock (the "Shares") and Warrants
in form and substance satisfactory to the Company and the Purchasers (the
"Warrants") to purchase an aggregate of 312,500 shares of the Company's Class A
Common Stock, par value $0.01 per share (the "Class A Common Stock"), at an
exercise price of $4.00 per share. The Preferred Stock shall have the
designation and the relative powers, rights, preferences and limitations set
forth in the Company's Certificate of Amendment of its Restated Certificate of
Incorporation filed with the Department of State of the State of New York on May
3, 2002,a copy of which is attached as Exhibit B (the "Certificate of
Amendment"). Each Purchaser shall purchase the number of Shares and the number
of Warrants, for the portion of the Purchase Price, all as set forth opposite
its name in Exhibit A. The Shares shall initially be convertible into 1,250,000
shares of the Class A Common Stock at an initial conversion price of $4.00 per
share.
1.2 Free and Clear Delivery. The Company shall issue all of the Shares and
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the Warrants to Purchasers free and clear of all claims, liens, security
interests, charges, encumbrances, interests and restrictions of any kind, except
any imposed under the Securities Act of 1933 (the "1933 Act") or the securities
registration provisions of any applicable state securities laws.
2. Closing. The closing of the transactions contemplated by Section 1 (the
"Closing") shall occur at the offices of Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx &
Xxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 on June 18, 2002 (or such
earlier date on which the conditions set forth in Section 3 have been satisfied
or waived), at 10:00 a.m. New York City time or at such other time, place or
date as the parties may agree. At the Closing, the purchase and sale of the
Shares and Warrants referred to in Section 1.1 shall be consummated. At the
Closing, the Company shall deliver to each Purchaser a stock certificate and a
warrant certificate, registered in the name of such Purchaser, evidencing the
Shares and the Warrants being
purchased by such Purchaser against such Purchaser's payment of the Purchase
Price therefor by certified or bank check made payable to the order of the
Company or by wire transfer of immediately available funds to an account
designated by the Company.
3. Conditions to Closing.
3.1 Conditions to the Obligations of All Parties. The obligation of each
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party to consummate the purchase and sale of the Shares and Warrants shall be
subject to the satisfaction or waiver at or prior to the Closing of each of the
following conditions:
(a) No temporary restraining order, preliminary or permanent injunction or
other order issued by any court, tribunal or governmental agency or authority or
other legal or regulatory restraint or prohibition preventing or impairing the
issuance and sale of the Shares or the Warrants shall be in effect. No claim,
action, suit, investigation or proceeding shall be pending or threatened against
any of the parties which, if adversely determined, would (i) prevent or hinder
consummation of the transactions contemplated by this Agreement or (ii)
materially and adversely affect the business or assets of the Company.
(b) The parties shall have received all material consents of third parties, and
any authorizations, orders, grants, consents, permits and approvals of all
relevant governmental authorities, required in connection with the consummation
of the transactions contemplated under this Agreement, all of which shall
continue to be in full force and effect on the date of the Closing.
Notwithstanding the foregoing, it is understood that the Company shall file
after the Closing, within the time periods allowed under applicable law, a Form
D with the Securities and Exchange Commission (the "SEC") and any other relevant
state securities commission or authority.
3.2 Conditions to the Obligations of the Company. The obligation of the Company
to consummate the purchase and sale of the Shares and the Warrants shall be
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) All of the representations and warranties of the Purchasers set forth
in this Agreement shall be true and correct as if made on and as of the date of
the Closing (the "Closing Date").
(b) The Purchasers shall have in all material respects fully performed and
complied with all agreements and conditions required under this Agreement to be
performed or complied by them on or prior to the Closing Date.
(c) Each Purchaser shall have delivered to the Company a certificate of one
of its officers to the effect set forth in Sections 3.2(a) and (b).
(d) Each Purchaser shall have paid the portion of the Purchase Price
allocable to such Purchaser as set forth in Exhibit A and in the manner set
forth in Section 2.
(e) Each Purchaser shall have executed and delivered to the Company a
Registration Rights Agreement in form and substance reasonably satisfactory to
the Company and the Purchasers (the "Rights Agreement").
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(f) The Certificate of Amendment shall have been filed with the Department
of State of the State of New York.
(g) The Company shall have received confirmation from The Nasdaq Stock
Market, Inc. (the "Nasdaq"), in form and substance reasonably satisfactory to
the Company, to the effect that, under the Nasdaq's rules and policies, the
issuance and sale of the Shares and the Warrants may be made without the
approval of the Company's shareholders and without the imposition of conditions
or limitations on the Company deemed unduly burdensome by the Company.
(h) All corporate and other proceedings taken or to be taken in connection
with the transactions contemplated by this Agreement at or before the Closing,
and all instruments and other documents incident thereto, shall be satisfactory
in form and substance to the Company and its counsel.
3.3 Conditions to the Obligations of the Purchasers. The obligation of the
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Purchasers to consummate the purchase and sale of the Shares and the Warrants
shall be subject to the satisfaction at or prior to the Closing of the following
conditions:
(a) All of the representations and warranties of the Company set forth in
this Agreement shall be true and correct as if made on and as of the Closing
Date.
(b) The Company shall have in all material respects fully performed and
complied with all agreements and conditions required under this Agreement to be
performed or complied by it on or prior to the Closing Date.
(c) The Company shall have delivered to each Purchaser a certificate of one
of its officers to the effect set forth in Sections 3.3(a) and (b).
(d) The Certificate of Amendment shall have been filed with the Department
of State of the State of New York and the Company shall have delivered to each
Purchaser a copy thereof certified by the Department of State of the State of
New York or other reasonably satisfactory evidence of such filing.
(e) The Company shall have delivered to each Purchaser a stock certificate
representing the Shares, and a warrant certificate representing the Warrants, to
be issued and sold to such Purchaser at the Closing.
(f) The Company shall have executed and delivered to each of the Purchasers
the Rights Agreement.
(g) The Purchasers shall have received an opinion of Salans Xxxxxxxxx
Xxxxxxxxx Xxxxxxx & Xxxxxx in form and substance reasonably satisfactory to the
Purchasers.
(h) The Purchasers shall have received copies of resolutions of the
Company's Board of Directors, certified by the Secretary of the Company,
approving the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
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(i) The Company shall have delivered to each Purchaser a copy of its
Restated Certificate of Incorporation, including the Certificate of Amendment,
and By-Laws certified by its Secretary or an Assistant Secretary as true and
correct as of the Closing Date.
(j) The Company shall have delivered to each Purchaser a certificate of its
Secretary or an Assistant Secretary as to the incumbency and signatures of the
officers of the Company executing this Agreement, the Rights Agreement, the
Warrants and the certificates representing the Shares, together with evidence of
the incumbency of such Secretary or Assistant Secretary.
(k) The Company shall have delivered to each Purchaser a certificate of the
Department of State of the State of New York as to the good standing of the
Company in such state, dated as of a date not more than seven days prior to the
Closing Date.
(l) The Company shall have executed and delivered to each Purchaser for
which it is applicable a regulatory side letter and such other forms and
documents as are necessary for each Purchaser subject to the rules and
regulations of the Small Business Administration to comply therewith.
(m) The Purchasers shall have received reasonably satisfactory evidence
that, under the Nasdaq's rules and policies, the issuance and sale of the Shares
and the Warrants may be made without the approval of the Company's shareholders
and without the imposition of conditions or limitations on the Company deemed
unduly burdensome by the Purchasers.
(n) All corporate and other proceedings taken or to be taken in connection
with the transactions contemplated by this Agreement at or before such Closing,
and all instruments and other documents incident thereto, shall be satisfactory
in form and substance to the Purchasers and their counsel.
4. Waiver of Conditions. Each of the parties shall have the right to waive,
in whole or in part, any of the conditions to its performance set forth in this
Agreement and, on such waiver, the waiving party may proceed with the
consummation of the transactions contemplated herein, it being understood that
such waiver shall not constitute a waiver of any right which such party may have
by reason of the breach by the other party of any representation, warranty or
agreement contained herein, or by reason of any misrepresentation made by such
other party herein.
5. Representations and Warranties of the Company. The Company represents
and warrants to the Purchasers, on behalf of itself and each of its
subsidiaries, as follows:
5.1 Due Incorporation and Qualification. The Company is a corporation duly
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incorporated, validly existing and in good standing under the laws of the State
of New York. Each of the Company's subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of New York or the State of Delaware, as the case may be. The Company and each
of its subsidiaries has full corporate power and authority to own, lease and
operate its properties and to carry on its business in the places and in the
manner currently conducted. The Company and each of its subsidiaries is
qualified to do business and is
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in good standing as a foreign corporation in each jurisdiction in which the
nature of the activities conducted by it or the character of the properties
owned or leased by it makes such qualification necessary and the failure to so
qualify would have a material adverse effect on its business.
5.2 Authority; Authorization; Valid Obligation. The Company has all
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requisite corporate power and authority to execute and deliver, and to perform
under, this Agreement, the Rights Agreement and the Warrants and to consummate
the transactions contemplated hereunder and thereunder. Subject to receiving the
confirmation referred to in Section 3.2(g), the Company has taken all corporate
action necessary for the execution and delivery by it of this Agreement, the
Rights Agreement and the Warrants, for the execution and filing with the
Department of State of the State of New York of the Certificate of Amendment,
and for the consummation of the transactions contemplated hereby and thereby.
This Agreement constitutes, and the Rights Agreement and the Warrants shall,
when executed and delivered, constitute, the Company's valid and binding
obligations, each enforceable in accordance with its terms, except as may be
limited by principles of equity or by bankruptcy, insolvency, moratorium or
other similar laws affecting the enforcement of creditors' rights generally.
5.3 No Conflicts or Defaults. The execution, delivery and performance of
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this Agreement, the Rights Agreement and the Warrants by the Company and the
consummation of the transactions contemplated hereby and thereby do not and
shall not (a) contravene the Restated Certificate of Incorporation or By-Laws of
the Company, (b) with or without the giving of notice or the passage of time,
(i) materially violate or conflict with, or result in a material breach of, or a
material default or loss of rights under, any material agreement, mortgage,
indenture, lease, instrument, permit or license to which the Company is a party
or by which it or any material portion of its assets are bound or (ii) result in
the creation of, or give any party the right to create, any lien, charge,
encumbrance or any other right or adverse interest upon any material portion of
the assets of the Company, or (c) result in any violation of any law, rule,
regulation, order, judgment or decree applicable to the Company or by which it
or any material portion of its assets are bound.
5.4 Capitalization. The authorized capital stock of the Company consists of
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(i) 20,000,000 shares of the Class A Common Stock, of which there are issued and
outstanding on the date hereof 5,152,401 shares, (ii) 10,000,000 shares of the
Company's Class B Common Stock, par value $0.01 per share (the "Class B Common
Stock"), of which there are issued and outstanding on the date hereof 4,073,891
shares and (iii) 1,000,000 shares of preferred stock, par value $0.01 per share,
of which 400,000 shares are designated as the Series A Convertible Preferred
Stock, of which there are issued and outstanding 60,000 shares. All of the
shares of the Company's capital stock issued and outstanding on the date hereof
are duly authorized, validly issued, fully paid and nonassessable and were not
issued in violation of any preemptive right of shareholders. On the date of the
Closing, the Company shall have reserved for issuance all of the shares of the
Class A Common Stock issuable on conversion of the Shares or on exercise of the
Warrants. As of the date hereof, (i) 4,893,089 shares of the Class A Common
Stock are issuable on exercise of employee stock options, (ii) 1,500,000 shares
of the Class A Common Stock are issuable on conversion of the 60,000 shares of
the Series A Convertible Preferred Stock outstanding on the date hereof and
(iii) 375,000 shares of the Class A Common Stock are issuable on exercise of
warrants issued in connection with such 60,000 shares of the Series A
Convertible Preferred Stock, and the Company has reserved all such shares for
issuance on such
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exercise or conversion. Except as set forth in this Section 5.4 and as
contemplated under this Agreement, there are no outstanding options, warrants or
rights, commitments or arrangements to acquire any shares of the Company's
capital stock or any securities convertible or exercisable into such capital
stock and no shares of the Company's capital stock are reserved for any purpose.
The Company is not obligated, and has no options or rights, to repurchase,
redeem or retire any outstanding shares of its capital stock. The Company is not
a party to any shareholders' agreement, voting trust, pledge agreement or
buy-sell or right of first offer or refusal arrangements or understandings with
respect to any of the Company's capital stock and the Company is not aware of
any such arrangements or understandings among other parties.
5.5 Authorizations. No authorization, approval, order, license, permit or
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consent of, or filing or registration with, any court or governmental authority,
is required in connection with the execution, delivery and performance of this
Agreement, the Rights Agreement or the Warrants by the Company, except (i) the
filing of the Certificate of Amendment with the Department of State of the State
of New York, which was effected on May 3, 2002, (ii) the filing with the Nasdaq
of a notice of the transactions contemplated in this Agreement in order to
obtain the confirmation referred to in Section 3.2(g), (iii) the filing with the
SEC of the Shelf Registration Statement (as defined in the Rights Agreement) and
the SEC's declaring it effective and the filing with the Nasdaq of a listing
application covering the shares of the Class A Common Stock issuable on
conversion or exercise of the Shares and the Warrants and the Nasdaq's approval
thereof, (v) the filing of such reports with the SEC under the Securities
Exchange Act of 1934 (the "1934 Act") as may be required in connection with the
transactions contemplated hereunder and (vi) the filing of a Form D or other
applicable forms with the SEC and such state securities authorities as may be
relevant.
5.6 SEC Documents. The Company has made available to the Purchasers true
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and complete copies of each report, registration statement and definitive proxy
statement filed by the Company with the SEC with respect to periods after
December 31, 1998 (the "SEC Documents"), which are all of the documents that the
Company was required to file since such date. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
1933 Act or the 1934 Act, as applicable, and the applicable rules and
regulations of the SEC thereunder, and none of the SEC Documents, at the time of
filing of each such document, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. The consolidated financial statements of the Company
contained in the SEC Documents were prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the periods
involved (except as indicated in the notes thereto or, in the case of unaudited
statements, as permitted under applicable rules of the SEC) and present fairly
the consolidated financial position of the Company, and the consolidated results
of operations and cash flows of the Company, at the dates, and for the periods,
indicated.
5.7 Compliance with Law. The Company holds all permits, certificates,
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licenses, approvals and other authorizations of governmental authorities as are
materially necessary to the conduct of its business. The Company is in material
compliance with the terms of each thereof and has not received any notice or
claim pertaining to the failure to obtain any such authorization. To the best of
the Company's knowledge, the Company is conducting its
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business and affairs in material compliance with all applicable federal,
state and local laws, ordinances, rules, regulations and court or administrative
orders and decrees.
5.8 Litigation. Other than as disclosed in the SEC Documents, there is no
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claim, action, suit, proceeding or investigation pending against or affecting
the Company or any material portion of its assets, at law or in equity, before
any federal, state, local or other governmental authority or any arbitration
tribunal or other forum, which would materially adversely affect the Company if
adversely determined or which challenges the validity or propriety of the
transactions contemplated by this Agreement. There is no outstanding judgment,
order, writ, ruling, injunction, stipulation or decree of any court, arbitrator
or governmental authority against or materially affecting the Company or any
material portion of its assets.
5.9 No Defaults; Commitments. Neither the Company nor, to the best of its
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knowledge, any other party, is in material breach of, or in material default
under, any material agreement, lease or instrument to which the Company is a
party, and no event has occurred, is pending or, to the best of the Company's
knowledge, is threatened, which, after the giving of notice, passage of time or
otherwise, could constitute or result in such a material breach or default by
the Company.
5.10 Ordinary Course; No Adverse Change. Since December 31, 2001, the
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Company has conducted its business and maintained its properties substantially
in the same manner as previously conducted or maintained and solely in the
ordinary course. Since such date, there has not been any material adverse change
in the business of the Company or the financial or other condition thereof.
5.11 Offering of the Shares. Neither the Company nor any agent acting on
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its behalf has offered the Shares or the Warrants for sale to, or solicited any
offer to buy the Shares or the Warrants from, any party other than Purchasers
and a limited number of other institutional "accredited investors" (as such term
is used in Regulation D under the 1933 Act. Neither the Company nor any agent
acting on its behalf has taken any action which would subject the issuance or
sale of the Shares to the provisions of Section 5 of the 1933 Act.
5.12 No Reliance. The Company has not relied on any representation,
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warranty or agreement of the Purchasers except as set forth in this Agreement.
5.13 Miscellaneous. No representation or warranty of the Company set forth
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in this Agreement contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make such representation or
warranty, in light of the circumstances under which it is made, not false or
misleading.
6. Representations, Warranties and Agreements of the Purchasers. Each
Purchaser, severally and not jointly, represents and warrants to the Company as
follows:
6.1 Due Organization. The Purchaser is a corporation, limited liability
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company, limited partnership or other entity duly incorporated or organized ,
validly existing and in good standing under the laws of the state of its
incorporation or organization. The Purchaser has full corporate or other power
and authority to own, lease and operate its properties and to carry on its
business in the places and in the manner currently conducted. The Purchaser has
not
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been organized, reorganized or recapitalized specifically for the purpose of
investing in the Company.
6.2 Authority; Due Authorization; Valid Obligation. The Purchaser has all
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requisite corporate or other power and authority to execute and deliver this
Agreement and the Rights Agreement and to consummate the transactions
contemplated hereunder and thereunder. Purchaser has taken all corporate or
other action necessary for the execution and delivery by it of this Agreement
and the Rights Agreement and for the consummation of the transactions
contemplated hereby and thereby, and this Agreement constitutes, and the Rights
Agreement shall, when executed and delivered, constitute, its valid and binding
obligations, each enforceable in accordance with its terms, except as may be
limited by principles of equity or by bankruptcy, insolvency, moratorium or
other similar laws affecting the enforcement of creditors' rights generally.
6.3 Authorizations. No authorization, approval, order, license, permit or
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consent of, or filing or registration with, any court or governmental authority,
is required in connection with the execution, delivery and performance of this
Agreement by the Purchaser.
6.4 Litigation. There is no claim, action, suit, proceeding or
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investigation pending against or affecting the Purchaser or any material portion
of its assets, at law or in equity, before any federal, state, local or other
governmental authority or any arbitration tribunal or other forum, which
challenges the validity or propriety of the transactions contemplated by this
Agreement.
6.5 Investment Intent. The Purchaser is acquiring the Shares and the
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Warrants and the shares of the Class A Common Stock issuable on conversion or
exercise thereof (the "Conversion Shares") for its own account and not with a
view to the resale or distribution of all or any part thereof, except pursuant
to the Shelf Registration Statement or pursuant to an exemption from
registration afforded by the 0000 Xxx. The Purchaser does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Shares, Warrants or Conversion Shares.
6.6 Non-Registration. The Purchaser understands that the Shares and the
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Warrants are not, and the Conversion Shares may not for some period be,
registered under the 1933 Act on the ground that the sale provided for in this
Agreement and the issuance of securities hereunder is exempt from the
registration requirements of the 1933 Act pursuant to Section 4(2) thereof and
Regulation D thereunder, and that the Company's reliance on such exemption is
predicated in part on the Purchasers' representations set forth in this
Agreement. The Purchaser represents that it is an "accredited investor" as
defined in Rule 501 of Regulation D under the Securities Act. Such Purchaser is,
and as of the Closing Date shall be, a resident of the state indicated on
Exhibit A.
6.7 Informed Investment. Each Purchaser has reviewed the SEC Documents, and
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has acquired sufficient information about the Company to reach an informed and
knowledgeable decision about the purchase of the Shares and the Warrants.
Purchaser has had access to information about the Company that it has requested
during the course of the
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transactions contemplated hereunder and has had an opportunity to discuss the
business affairs and financial condition of the Company with officers of the
Company and to obtain additional information (to the extent the Company
possessed such information or could acquire it without unreasonable effort or
expense) necessary to verify the accuracy of any information furnished to it or
to which it had access. The Purchaser is able to look after its own interests in
the transactions contemplated by this agreement and has the ability to bear the
economic risks of an investment in the Shares, Warrants and Conversion Shares.
6.8 Legends. To the extent applicable, each certificate or other document
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evidencing any of the Shares, Warrants or Conversion Shares shall be endorsed
with the legends set forth below, and Purchaser agrees that, except to the
extent such restrictions are waived by the Company, Purchaser shall not transfer
the shares represented by any such certificate without complying with the
restrictions on transfer described in the legends endorsed on such certificate:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
INTEREP NATIONAL RADIO SALES, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR ANOTHER
APPLICABLE EXEMPTION.
A STATEMENT OF THE RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS
GRANTED TO OR IMPOSED ON EACH CLASS OR SERIES OF CAPITAL STOCK
AUTHORIZED TO BE ISSUED AND ON THE HOLDERS THEREOF WILL BE FURNISHED
WITHOUT CHARGE TO ANY SHAREHOLDER ON WRITTEN REQUEST TO THE SECRETARY
OF INTEREP NATIONAL RADIO SALES, INC."
6.9 Miscellaneous. No representation or warranty of the Purchaser set forth
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in this Agreement contains any untrue statement of a material fact or omits any
material fact necessary in order to make such representation or warranty, in
light of the circumstances under which it is made, not false or misleading.
7. Miscellaneous.
7.1 Expenses. Except as provided in the Rights Agreement, the Company and
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the Purchasers shall bear and pay, without any right of reimbursement from any
other party, all costs, expenses and fees incurred by them or on their behalf
incident to the preparation, execution and delivery of this Agreement and the
performance of such party's obligations hereunder, whether or not the
transactions contemplated by this Agreement are consummated, including, without
limitation, the fees and disbursements of attorneys, accountants and consultants
employed by such party.
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7.2 Communications. All notices, consents and other communications given
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under this Agreement shall be in writing and shall be deemed to have been duly
given (a) when delivered by hand or by Fedex or a similar overnight courier to,
(b) seven days after being deposited in any United States post office enclosed
in a postage prepaid registered or certified air mail envelope addressed to, or
(c) when successfully transmitted by facsimile (with a confirming copy of such
communication to be sent as provided in (a) or (b) above) to, the party for whom
intended, at the address or facsimile number for such party set forth below, or
to such other address or facsimile number as may be furnished by such party by
notice in the manner provided herein; provided, however, that any notice of
change of address or facsimile number shall be effective only upon receipt.
If to the Company:
Xx. Xxxxx X. Guild
Chairman of the Board
Interep National Radio Sales, Inc.
000 Xxxx Xxxxxx. 0xx Xxxxx.
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
with a copies to:
Xx. Xxxxxxx X. XxXxxxx, Xx.
Chief Financial Officer
Interep National Radio Sales, Inc.
0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
and
Xxxxxxxx X. Xxxxxxxxx, Esq.
Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
If to the Purchasers:
at the addresses set forth in Exhibit A
7.3 Entire Agreement; No Waivers. This Agreement sets forth the entire
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understanding of the parties with respect to its subject matter, merges and
supersedes all prior and contemporaneous understandings with respect to its
subject matter and may not be waived or modified, in whole or in part, except by
a writing signed by each of the parties. No waiver of any provision of this
Agreement in any instance shall be deemed to be a waiver of the same or
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any other provision in any other instance. Failure of any party to enforce
any provision of this Agreement shall not be construed as a waiver of its rights
under such or any other provision.
7.4 Successors and Assigns. This Agreement shall be binding on, enforceable
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against and inure to the benefit of, the parties and their respective successors
and permitted assigns, and nothing herein is intended to confer any right,
remedy or benefit upon any other person. No party may assign its rights or
delegate its obligations under this Agreement without the prior written consent
of the other party.
7.5 Further Assurances. Whenever reasonably requested to do so by a party
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to this Agreement, on or after the Closing, any other party shall do, execute,
acknowledge and deliver all such acts, assignments, confirmations, consents and
any and all such further instruments and documents, in form reasonably
satisfactory to the requesting party, as shall be reasonably necessary or
advisable to carry out the intent of this Agreement.
7.6 Brokers and Finders. Each party represents to the others that no agent,
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broker, investment banker, financial advisor or other person or entity is or
shall be entitled to any broker's or finder's fee or other commission or similar
fee in connection with the transactions contemplated by this Agreement. Each
party shall indemnify and hold harmless the others from and against any claim,
liability or obligation with respect to any fees, commissions or expenses
asserted by any person or entity on the basis of any act or statement alleged to
have been committed or made by such indemnifying party or any of its affiliates.
7.7 Governing Law. This Agreement shall in all respects be governed by and
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construed in accordance with the laws of the State of New York applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law principles.
7.8 Severability. If any provision of this Agreement is held to be invalid
------------
or unenforceable by any court or tribunal of competent jurisdiction, the
remainder of this Agreement shall not be affected by such judgment, and such
provision shall be carried out as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
7.9 Counterparts. This Agreement may be executed in multiple counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.10 Construction. Headings used in this Agreement are for convenience only
------------
and shall not be used in the interpretation of this Agreement. References herein
to Sections and Exhibits are to the sections and exhibits of this Agreement. As
used herein, the singular includes the plural and the masculine, feminine and
neuter genders each includes the others where the context so indicates.
7.11 Publicity. No party shall issue any press release or otherwise make
---------
any statements to any third party or any public disclosure with respect to
either this Agreement or the transactions contemplated hereby, other than the
issuance by the Company and the Purchasers of a joint press release announcing
this Agreement in a form acceptable to the Company and the Purchasers, or as
required by applicable law.
11
7.12 Exculpation Among the Purchasers. Each Purchaser acknowledges and
--------------------------------
agrees that it is not relying on any other Purchaser, or any officer, director,
employee partner or affiliate of any other Purchaser, in making its investment
or decision to invest in the Company. Each Purchaser agrees that no Purchaser
nor any controlling person, officer, director, stockholder, partner, agent or
employee of any Purchaser, shall be liable for any action heretofore or
hereafter taken or omitted to be taken by any of them relating to or in
connection with the Shares, the Warrants or the Conversion Shares.
[signature page follows]
12
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first set forth above.
INTEREP NATIONAL RADIO SALES, INC.
By: /s/ Xxxxx X. Guild
-----------------------------
Xxxxx X. Guild
Chairman of the Board
EOS PARTNERS L.P.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
General Partner
EOS PARTNERS SBIC II, L.P.
By: Eos SBIC General II,
its General Partner
By: Eos SBIC II, Inc.,
its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
President
EOS PARTNERS (OFFSHORE) L.P.
By: Eos General, LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Managing Member
13
EXHIBIT A
---------
PURCHASERS
----------------------------------------------------------------------------------------------------------------------
Number of Number of
of of
Name and Address Shares Warrants Purchase Price
----------------------------------------------------------------------------------------------------------------------
Eos Partners L.P. 2,500 15,625 $ 250,000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
Eos Partners SBIC II, L.P. 45,920 287,000 $ 4,592,000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
Eos Partners (Offshore) L.P. 1,580 9,875 $ 158,000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
14
