Exhibit 7.5
AMENDMENT TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO STOCK PURCHASE AGREEMENT (this "AMENDMENT"), dated
as of April 10, 1997, is by and among Clear Channel Communications, Inc., a
Texas corporation ("PURCHASER"), Xxxxx Media Corporation, a Delaware corporation
(the "COMPANY"), and those persons listed on EXHIBIT A hereto (individually,
including both option holders and stockholders as identified on such exhibit,
each a "STOCKHOLDER" and collectively, the "STOCKHOLDERS"), being the beneficial
owners of all shares, and all options to acquire shares, of capital stock of the
Company issued and outstanding on the date hereof.
RECITALS
WHEREAS, the Stockholders as a group own all of the shares of Common
Stock, par value $.01 per share, of the Company, issued and outstanding or
issuable pursuant to options outstanding on the date hereof, with each
Stockholder owning or having the right to acquire the number of shares set forth
opposite such Stockholder's name on EXHIBIT A;
WHEREAS, Purchaser, the Company and certain of the Stockholders are
parties to that certain Stock Purchase Agreement, dated as of February 25, 1997
(the "STOCK PURCHASE AGREEMENT"); and
WHEREAS, Purchaser, the Company and the Stockholders now desire to
amend the Stock Purchase Agreement in the manner set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree to amend the Stock Purchase
Agreement as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings given such terms in the Stock Purchase Agreement.
2. AMENDMENTS TO THE STOCK PURCHASE AGREEMENT.
(a) EXHIBITS.
(i) EXHIBIT A is hereby amended and restated in its
entirety to read in the form attached hereto as Exhibit A.
(ii) EXHIBIT B is hereby amended and restated in its
entirety to read in the form attached hereto as Exhibit B.
(iii) EXHIBIT C is hereby amended and restated in its
entirety to read in the form attached hereto as Exhibit C.
(iv) EXHIBIT E is hereby amended and restated in its
entirety to read in the form attached hereto as Exhibit E.
(v) EXHIBIT F is hereby amended and restated in its
entirety to read in the form attached hereto as Exhibit F.
(vi) Exhibit H - New Stockholders Agreement, in the form
attached hereto as EXHIBIT H, is hereby appended as Exhibit H to the Stock
Purchase Agreement.
(vii) The exhibit index on page (iii) of the Stock Purchase
Agreement is hereby amended to add the following exhibits:
"Exhibit H - Form of New Stockholders Agreement."
(b) DISCLOSURE LETTER. The Disclosure Letter is hereby amended
and restated in its entirety to read in the form of Disclosure Letter attached
hereto. Changes in the Disclosure Letter attached hereto from the Disclosure
Letter delivered in connection with the Stock Purchase Agreement are amendments
to the Disclosure Letter for purposes of Section 15(a) of the Stock Purchase
Agreement.
(c) DEFINITIONS.
(i) The following definition of "ADCO CLAIM" shall be added
to Section 1 of the Stock Purchase Agreement:
"`ADCO CLAIM' has the meaning specified in Section 12(a)(i) of this
Agreement."
(ii) The definition of "AVERAGE SHARE PRICE" appearing in
Section 1 of the Stock Purchase Agreement is hereby amended to read in its
entirety as follows:
"`AVERAGE SHARE PRICE'" shall mean $44.8625."
(iii) The definition of "COMPANY STOCK OPTION AGREEMENTS"
appearing in Section 1 of the Stock Purchase Agreement is hereby amended to read
in its entirety as follows:
"`COMPANY STOCK OPTION AGREEMENTS' shall mean the Company stock option
agreements listed on Schedule 3(b) of this Agreement, as such agreements
may hereafter be amended and restated as contemplated by Schedule 6(d) of
this Agreement."
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(iv) The definition of "ESCROW AGREEMENT" appearing in
Section 1 of the Stock Purchase Agreement is hereby amended to read in its
entirety as follows:
"`ESCROW AGREEMENT' shall mean that certain Escrow Agreement, dated as
of the Closing Date, by and among Purchaser, Holdings, the Stockholder
Representative and the Escrow Agent, substantially in the form of EXHIBIT C
attached hereto."
(v) The definition of "ESCROWED SHARES" appearing in
Section 1 of the Stock Purchase Agreement is hereby amended to read in its
entirety as follows:
"`ESCROWED SHARES' shall mean a number of shares of Purchaser Common
Stock and any other securities or property deposited with the Escrow Agent
pursuant to this Agreement and the Escrow Agreement."
(vi) The following definition of "HOLDINGS" shall be added
to Section 1 of the Stock Purchase Agreement:
"`HOLDINGS' shall mean EM Holdings LLC, an Arizona limited liability
company."
(vii) The following definition of "NEW STOCKHOLDERS AGREEMENT"
shall be added to Section 1 of the Stock Purchase Agreement:
"`NEW STOCKHOLDERS AGREEMENT' shall mean that certain Stockholders
Agreement, dated as of April 9, 1997, by and among Purchaser, the Company
and Holdings, substantially in the form of EXHIBIT H attached hereto."
(viii) The following definition of "PHANTOM STOCK AGREEMENTS"
shall be added to Section 1 of the Stock Purchase Agreement:
"`PHANTOM STOCK AGREEMENTS' shall mean the Company phantom stock
agreements listed on Schedule 3(b) of this Agreement, as such agreements
may hereafter be amended and restated and/or documented as contemplated by
Schedule 6(d) of this Agreement."
(ix) The definition of "PHANTOM STOCK UNITS" appearing in
Section 1 of the Stock Purchase Agreement is hereby amended to read in its
entirety as follows:
"`PHANTOM STOCK UNITS' shall mean the aggregate number of units of
phantom stock issuable pursuant to the terms of the Phantom Stock
Agreements."
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(x) The following definition of "RETAINED SHARES" shall be
added to Section 1 of the Stock Purchase Agreement:
"`RETAINED SHARES' shall mean 140.450 shares of Company Common Stock
owned by Holdings which will not be sold to Purchaser on the Closing Date."
(d) SALE OF SHARES; PURCHASE PRICE.
(i) Section 2(a) of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"(a) SALE OF SHARES. On the terms and subject to the conditions
set forth in this Agreement and, subject to the immediately following
sentence hereof, each Stockholder hereby severally agrees to sell, assign
and transfer to Purchaser, and Purchaser hereby agrees to purchase from
such Stockholder, on the Closing Date, the number of shares of Company
Common Stock owned by such Stockholder on the date hereof as set forth
opposite such Stockholder's name on EXHIBIT B hereto (excluding the
Retained Shares), plus such number of additional shares of Company Common
Stock as will hereafter be acquired by such Stockholder prior to the
Closing Date upon the exercise of Company Stock Options held by such
Stockholder as set forth on EXHIBIT B, for the aggregate consideration set
forth on EXHIBIT B opposite such Stockholder's name, subject to the Escrow
Agreement provided for in Section 2(d). In the event any Optionee who on
the date hereof is an employee of the Company does not fully exercise
Company Stock Options as listed opposite such Optionee's name on EXHIBIT B
under the column "Value of Stock Consideration" on or prior to the Closing
Date, Purchaser hereby agrees to assume such options pursuant to Section
2(c) hereof and no shares of Purchaser Common Stock will be issuable at
Closing in respect of the unexercised portion of such Company Stock
Options. The Retained Shares will not be sold to Purchaser at Closing. As
used herein, `SHARES' shall mean the aggregate number of shares of Company
Common Stock to be sold by the Stockholders and purchased by the Purchaser
pursuant to this Section 2."
(ii) Section 2(b)(i) of the Stock Purchase Agreement is
hereby amended to read in its entirety as follows:
"(i) In consideration of the transactions contemplated by this
Agreement, Purchaser shall pay to the Stockholders, the Optionees and the
Phantom Stock Grantees an aggregate purchase price (the `PURCHASE PRICE')
equal to (A) $325,329,131 (the `CASH CONSIDERATION') in cash (without
interest), payable in immediately available funds, plus (B) a number of
shares of Purchaser Common Stock (the `STOCK CONSIDERATION') determined as
set forth in subsection (ii) of this Section 2(b), subject to the Escrow
Agreement described in Section 2(d) hereof. The Purchase Price shall be
allocated among the Stockholders, the Optionees and the Phantom Stock
Grantees, and allocated for the payment of expenses pursuant to Section 22
hereof in the manner set forth on
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EXHIBIT B hereto; PROVIDED, HOWEVER, that Purchaser shall pay the portion
of the Stock Consideration to be paid to the Phantom Stock Grantees as set
forth on EXHIBIT B hereto in accordance with the terms of the Phantom Stock
Agreements."
(iii) Section 2(b)(ii) of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"(ii) The Stock Consideration shall equal the number of
shares of Purchaser Common Stock obtained as a result of dividing
$351,482,592 by the Average Share Price.
(iv) Section 2(d) of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"(d) ESCROW AGREEMENT. In order to establish a procedure for the
satisfaction of any claims by Purchaser for indemnification pursuant to
Section 12 hereof, the Stockholder Representative and Holdings shall enter
into the Escrow Agreement with Purchaser pursuant to which, among other
things, (i) Purchaser shall deposit with the Escrow Agent a number of
shares of Purchaser Common Stock to be received by the Stockholders
pursuant to Section 2(b) equal to $40 million divided by the Average Share
Price multiplied by the sum of the percentages set forth opposite the names
under the caption "Stockholders" on EXHIBIT F hereto, (ii) rights with
respect to a number of shares of Purchaser Common Stock issuable upon the
exercise of Restated Options equal to $40 million divided by the Average
Share Price multiplied by the sum of the percentages set forth opposite the
names under the caption "Optionees" on EXHIBIT F hereto, shall be made
subject to an escrow fund pursuant to the Escrow Agreement, and (iii)
rights with respect to a number of shares of Purchaser Common Stock
issuable upon the exercise of certain rights granted in the New
Stockholders Agreement equal to $40 million divided by the Average Share
Price multiplied by the percentage set forth opposite the name under the
caption "Retained Shares" on EXHIBIT F hereto, shall be made subject to an
escrow fund pursuant to the terms of the Escrow Agreement. The Escrowed
Shares shall be available to secure, in accordance with the Escrow
Agreement, and shall be the sole source of payment of, the Stockholders'
indemnity obligations under Section 12 hereof. All costs of the escrow
shall be paid one-half by the Purchaser, on the one hand, and one-half by
the Stockholders collectively, on the other, all as further provided in the
Escrow Agreement."
(v) Section 2(e) is hereby added to the Stock Purchase
Agreement to read in its entirety as follows:
"(e) PHANTOM STOCK AGREEMENTS. On the Closing Date, Purchaser
shall assume and agree to perform the terms of the Phantom Stock Agreements
in the same manner and to the same extent that the Company would
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be required to perform such agreements had the transactions contemplated by
this Agreement not been consummated."
(e) REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Section
4(a) of the Stock Purchase Agreement is hereby amended to read in its entirety
as follows:
"(a) TITLE; AGREEMENTS. Except for the Stockholders Agreement
and the New Stockholders Agreement (in the case of Holdings), and except
with respect to Optionees who do not exercise their Company Stock Options
on or prior to the Closing Date, and except with respect to the lien of the
Escrow Agreement, such Stockholder holds of record and holds beneficially
the number of shares of Company Common Stock set forth opposite its or his
name on EXHIBIT A, free and clear of any and all Encumbrances or other
restrictions on transfer. Except for the Stockholders Agreement and other
than this Agreement and the New Stockholders Agreement (in the case of
Holdings), such Stockholder is not a party to any voting trust, proxy or
other agreement or understanding with respect to any capital stock of the
Company."
(f) COVENANTS OF THE STOCKHOLDERS, THE COMPANY AND PURCHASER.
(i) Section 6(d) of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"(d) CONDUCT OF BUSINESS. From and after the date hereof and
until the Closing Date, the Company shall conduct and cause the business of
the Subsidiaries to be conducted in the ordinary course, consistent with
the present conduct of their business. During such period of time, except
upon the prior written consent of Purchaser, the Company shall not and
shall not permit any Subsidiaries to: (i) amend its Certificate of
Incorporation or By-Laws or comparable organizational documents (except to
the extent reflected in the Disclosure Letter); (ii) except as disclosed on
Schedule 6(d) hereto, issue any additional shares of capital stock or
issue, sell or grant any option or right to acquire or otherwise dispose of
or commit to dispose of any of its authorized but unissued capital stock or
other corporate securities (except upon exercise of Company Stock Options
currently outstanding); (iii) declare or pay any dividends or make any
other distribution in cash or property on its capital stock or other equity
interests, except to the Company or a Subsidiary; (iv) except as disclosed
on Schedule 6(d) hereto, repurchase or redeem any shares of its stock or
other equity interests; (v) except as disclosed on Schedule 6(d),
voluntarily incur any obligation or liability, except obligations and
liabilities incurred in the ordinary course of business or permitted by
clause (x) below; (vi) except as disclosed on Schedule 6(d), enter into any
employment agreement or alter any bonus, profit-sharing, incentive, or
other compensation arrangement for any of its officers or directors (other
than make changes which do not increase the compensation or benefits
provided by the foregoing), or otherwise materially change personnel
policies, compensation programs or benefit plans, except for
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changes in the ordinary course of business; (vii) mortgage, pledge, or
otherwise encumber any part of its assets, tangible or intangible, except
Permitted Encumbrances; (viii) sell, transfer or acquire any properties or
assets, tangible or intangible, other than in the ordinary course of
business, and except as set forth in Schedule 6(d) hereto; (ix) except as
set forth on Schedule 6(d) hereto, merge or consolidate with any
corporation, acquire control or acquire any capital stock or other
securities, or all or substantially all of the assets, of any other
corporation or business entity, or take any steps incident to or in
furtherance of any such actions whether by entering into an agreement
providing therefor or otherwise; (x) other than the ADCO Note and except in
connection with the transactions set forth on Schedule 6(d) hereto or to
fund working capital requirements arising in the ordinary course of
business consistent with the 1997 budget heretofore provided to Purchaser
(the `1997 BUDGET'), incur Indebtedness in excess of the level outstanding
at December 31, 1996; (xi) incur any capital expenditures beyond those set
forth in the 1997 Budget; or (xii) take any other action not contemplated
hereby which would cause any of the representations and warranties made by
the Company and the Stockholders in this Agreement not to be true and
correct in all material respects on and as of the Closing Date with the
same force and effect as if such representations and warranties had been
made on and as of the Closing Date."
(ii) Section 6(f)(i) of the Stock Purchase Agreement is
hereby amended to read in its entirety as follows:
"(i) On the day following the Closing Date, Purchaser shall
appoint Xxxx Xxxxx to its Board of Directors, and shall thereafter cause
Xxxx Xxxxx to be included in the annual slate of directors to be proposed
by the management of Purchaser until such time as either Purchaser owns
less than a majority of the Company Common Stock or Xxxx Xxxxx is no longer
the Chief Executive Officer or Chairman of the Board of the Company."
(g) CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION. Section 7(g) of
the Stock Purchase Agreement is hereby amended to read in its entirety as
follows:
"(g) Purchaser shall have received the opinion of Xxxxxx &
Xxxxxxx, counsel for the Company, the opinion of Meyer, Hendricks, Xxxxxx &
Moyes, counsel for a certain Stockholder, and the opinion of Heller,
Ehrman, White & XxXxxxxxx, counsel for certain other Stockholders, as to
such matters to be mutually agreed upon."
(h) CLOSING DATE; CLOSING. Section 9(c) of the Stock Purchase
Agreement is hereby amended to delete clause (ix) and to add the following
paragraphs:
"(ix) Prior to the Closing Date, Purchaser, the Company and
Holdings shall enter into the New Stockholders Agreement."
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(i) INDEMNIFICATION.
(i) Section 12(a)(i) of the Stock Purchase Agreement is
hereby amended to read in its entirety as follows:
"(i) Each of the Stockholders severally (on a PRO RATA basis as
provided in the Escrow Agreement), but not jointly, agrees to indemnify and
hold Purchaser and its Affiliates harmless from and against any and all
losses, claims, demands, liabilities, obligations, damages, deficiencies,
assessments, judgments, payments, penalties, costs and expenses (including
without limitation reasonable attorneys' fees, any amounts paid in
investigation, defense or settlement of any of the foregoing and interest)
(herein, `DAMAGES') incurred in connection with, arising out of, resulting
from or incident to, (A) any breach of any representation or warranty (as
updated pursuant to Section 15 hereof and as in effect on the Closing Date)
made by the Company and the Stockholders in this Agreement (other than the
representations and warranties made in Section 4(a) hereof), (B) any breach
of any covenant or agreement made by the Company and the Stockholders in
this Agreement, (C) any liability or obligation which the Company or its
Subsidiaries pays or becomes obligated to pay after December 31, 1996 and
prior to twelve months after the Closing Date in respect of costs of
defense, settlement or resolution of any litigation matter which has been
disclosed on Schedule 3(p) to this Agreement, to the extent, and only to
the extent, that such costs in the aggregate, after giving credit for any
insurance recoveries to which the Company or the Subsidiaries is entitled,
exceeds the aggregate amount of the Company's reserves therefor on the
Balance Sheet, (D) any Pre-Agreement Disclosure Matter (as hereinafter
defined) or (E) any claim by Xxxxxxx Xxxxxxxx, ADCO Outdoor Advertising or
Pacific Coast Display for any amount or recovery in excess of, or in
addition to, the express obligation of the Company contained in the ADCO
Note and the related Asset Purchase Agreement, Security Agreement and
Registration Rights Agreement, in accordance with their respective terms,
including, without limitation, any claim, liability, expense or loss
resulting from a recession of the ADCO Note and the transactions concluded
in connection therewith (an `ADCO CLAIM'). The parties hereby acknowledge
and agree that after the Closing Date recourse against the Escrowed Shares
constitutes the sole remedy, at law or in equity, that Purchaser may have
against the Stockholders, and that the Escrowed Shares shall be Purchaser's
exclusive method of receiving indemnification from the Stockholders,
pursuant to this Section 12(a)(i). Notwithstanding the foregoing,
Purchaser may not receive any of the Escrowed Shares in connection with
Damages arising from breaches or inaccuracies pursuant to this Section
12(a)(i) unless the aggregate of such Damages indemnified against shall
exceed $10 million, in which event such indemnification shall be effective
with respect to all Damages in excess of such amount, and shall be limited
to the Escrowed Shares; PROVIDED, HOWEVER, that the foregoing $10 million
threshold will not apply to any Damages from an ADCO Claim, as to which the
indemnification obligation of the Stockholders shall accrue from the first
dollar of Damages. For purposes of determining the Stockholders'
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indemnification obligations pursuant to this Section 12(a)(i), each
representation and warranty stated in Sections 3 and 4 hereof shall be
deemed to exclude any materiality standard, materiality exception and
materiality qualification stated therein. The parties acknowledge that the
limitations on liability of the Stockholders in this Section 12(a)(i)
contained were an essential inducement to the Stockholders to cause them to
enter into and perform this Agreement, and without which they would not
have done so."
(ii) Section 12(c) of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"(c) DAMAGES. The term `DAMAGES' as used in this Section 12 is
not limited to matters asserted by third parties against any indemnified
party, but includes Damages incurred or sustained by any indemnified party
in the absence of third party claims. Any Damages otherwise due and
payable under this Section 12 shall be (i) decreased to the extent of any
reduction of Tax liability that is realizable by the indemnified party upon
payment of an indemnifiable loss and (ii) increased to the extent of any
increase in Tax liability that is imposed on the indemnified party upon the
receipt of an indemnity payment pursuant to this Section 12. In addition,
Damages shall be determined net of any insurance recoveries by any
indemnified party and shall be net of any indemnity to which the Company is
entitled pursuant to that certain Stock Purchase Agreement, dated as of
July 14, 1995, by and between Xxxxx Investment Company, Inc., an Arizona
corporation, and General Electric Capital Corporation, a New York
corporation. In the case of the ADCO Claim, Damages shall include
reasonable reimbursement for the cost of the time which employees of
Purchaser and the Company spend in resolving the ADCO Claim."
(iii) Section 12(d)(iv) is hereby added to the Stock Purchase
Agreement to read in its entirety as follows:
"(iv) Notwithstanding the foregoing, as to any items
identified as Pre-Agreement Disclosure Matters on Schedule 3(p), and as to
any item on Schedule 3(p) to the extent it could give rise to a claim for
Damages pursuant to Section 12(a)(i)(C) of this Agreement (i) notice of the
potential Claim hereby is deemed given for purposes of Section 12(d), and
(ii) Purchaser hereby is entitled to take control of the defense of such
matters and to employ and engage attorneys to handle and defend the same
and to compromise and settle such action in such manner as it may deem
necessary and appropriate, all in accordance with Section 12(d)(i). Notice
of the potential Claim is also deemed given for the ADCO Claim, which will
be defended by the Stockholders as the indemnifying party in accordance
with the procedures set forth in Section 12(d)(i)."
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(j) TERMINATION; AMENDMENTS TO DISCLOSURE LETTER. Section 15(b)
of the Stock Purchase Agreement is hereby amended to read in its entirety as
follows:
"(b) AMENDMENTS TO DISCLOSURE LETTER. Between the date hereof
and the Closing Date, the Company and the Stockholders may add to the
Disclosure Letter by notification in writing to Purchaser of the matter to
be added, which may be matters relating to events first arising after the
date of this Agreement (`POST-AGREEMENT DATE DISCLOSURE MATTERS') or may be
matters which relate to events first arising prior to the date of this
Agreement and which, if not so added to the Disclosure Letter, would
constitute a breach of the representations and warranties provided by the
Company and the Stockholders on the date of this Agreement (`PRE-AGREEMENT
DATE DISCLOSURE MATTERS' and, collectively with the Post-Agreement Date
Disclosure Matters, the `NEW DISCLOSURE MATTERS'); PROVIDED, HOWEVER, any
additions or changes to Schedule 6(d) between the date hereof and the
Closing Date shall not constitute New Disclosure Matters. If the aggregate
dollar amount involved in the New Disclosure Matters exceeds $5,000,000,
Purchaser may, at its election by written notice to the Company and the
Stockholders on or before the Closing Date, either (i) accept the
Disclosure Letter as so modified and close the transactions contemplated
hereby, in which case the Disclosure Letter as so modified will be deemed
to have been delivered on or before the date of this Agreement or
(ii) terminate this Agreement. If the aggregate dollar amount involved in
the Pre-Agreement Date Disclosure Matters exceeds $5,000,000, the Company
and the Stockholders may terminate this Agreement by written notice to
Purchaser, unless Purchaser agrees in writing that the aggregate indemnity
obligation of the Stockholders in respect of such Pre-Agreement Date
Disclosure Matters pursuant to Section 12(a)(i) will in all events be
limited to $5,000,000. Nothing contained herein will preclude Purchaser
from alleging that any matter disclosed in a proposed modification to the
Disclosure Letter which is not subject to quantification does not give rise
to a right not to close under this Agreement because of the inability of
the Company and the Stockholders to satisfy the condition set forth in
Section 7(a) hereof due to such New Disclosure Matter. Notwithstanding the
foregoing, it is understood that the Company will as soon as practicable
furnish to Purchaser its audited financial statements for the year 1996 in
substitution for its unaudited 1996 financial statements (as contemplated
by the definition `FINANCIAL STATEMENTS'), and it is agreed that Purchaser
shall have no right to object to such substitution unless the audited 1996
financial statements contain material adjustments or disclosures not
contained in the unaudited 1996 financial statements."
(k) ENTIRE AGREEMENT. Section 18 of the Stock Purchase Agreement is
hereby amended to read in its entirety as follows:
"18. ENTIRE AGREEMENT. This Agreement together with all
exhibits and schedules hereto (including the Disclosure Letter as updated
pursuant to Section 15 hereof) represent the entire understanding and
agreement among the
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parties hereto with respect to the subject matter hereof and supersedes all
prior understandings and agreements, whether written or oral, and can be
amended, supplemented or changed, and any provision hereof can be waived,
only by written instrument making specific reference to this Agreement
signed by the party against whom enforcement of any such amendment,
supplement, modification or waiver is sought, including, in the case of the
Stockholders, all Stockholders who are a party to this Agreement at the
time such enforcement is sought. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided. Upon Closing, all
rights and obligations under that certain letter, dated February 25, 1997,
regarding the ADCO Note shall terminate."
(l) EXPENSES. Section 22 of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"EXPENSES. Whether or not the transactions contemplated hereby
are consummated, (a) Purchaser shall pay all of its legal, accounting and
other out-of-pocket expenses incident to the transactions contemplated
hereby and (ii) the Stockholders and the Phantom Stock Grantees shall pay
their own and the Company's legal, accounting and other out-of-pocket
expenses incident to the transactions contemplated hereby, provided
however, that Purchaser, on the one hand, and the Stockholders, on the
other, shall divide and share equally filing fees in connection with
government filings necessary to consummate the transactions contemplated
hereby (provided that if this Agreement is terminated, each party shall
attempt to obtain any available refunds of such fees or otherwise utilize
such fees in other transactions such that expense to the parties is
minimized)."
3. EFFECT OF AMENDMENT. Except as specifically provided herein, this
Amendment does not in any way affect or impair the terms and conditions of the
Stock Purchase Agreement, and all terms and conditions of the Stock Purchase
Agreement remain in full force and effect unless otherwise specifically amended,
waived or changed pursuant to the terms and conditions hereof.
4. ADDITIONAL PARTIES. By executing this Amendment below, each party who
was an original signatory to the Stock Purchase Agreement hereby ratifies,
approves and confirms the Stock Purchase Agreement in all respects, except as
amended by this Amendment, and each Stockholder who was not an original
signatory to the Stock Purchase Agreement hereby affirms the Stock Purchase
Agreement as so amended and hereby becomes a party thereto and agrees to be
bound thereby.
5. APPLICABLE LAW. This Amendment and the rights and obligations of the
parties hereto and all other aspects hereof shall be deemed to be made under,
and shall be governed by, and shall be construed and enforced in accordance
with, the laws of the State of Delaware.
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6. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
PURCHASER
By /s/ Xxxxxxx Xxxx
----------------------------------------
Name:
Title:
XXXXX MEDIA CORPORATION
By /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
XXXXXXX & XXXXXXXX
CAPITAL PARTNERS III, L.P.
By: Its General Partner,
H&F Investors III
By: Its Managing General Partner,
Xxxxxxx & Xxxxxxxx Associates
III, L.P.
By: Its Managing General Partner,
H&F Investors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Its: Vice President
H&F ORCHARD PARTNERS III, L.P.
By: Its General Partner,
H&F Investors III
By: Its Managing General Partner,
Xxxxxxx & Xxxxxxxx Associates
III, L.P.
By: Its Managing General Partner,
H&F Investors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Its: Vice President
H&F INTERNATIONAL PARTNERS III, L.P.
By: Its General Partner,
H&F Investors III
By: Its Managing General Partner,
Xxxxxxx & Xxxxxxxx Associates
III, L.P.
By: Its Managing General Partner,
H&F Investors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Its: Vice President
EM HOLDINGS LLC
By: /s/ Xxxx Xxxxx
-------------------------
Its: Managing Member
/s/ H. Xxxxxx Xxxxxxxxx
----------------------------
H. Xxxxxx Xxxxxxxxx
AMERICAN MEDIA MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxx
-------------------------
Its: CHMN./CEO
/s/ Xxxxxxx Xxxxx, Xx.
----------------------------
Xxxxxxx Xxxxx, Xx.
/s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx, as Trustee fbo
Xxxx Xxxxxxx, Xxxxx Xxxxxxx,
Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx
/s/ X. Xxxxxx Xxxxxxxx
----------------------------
X. Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxx
----------------------------
Xxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxx Xxxxx
----------------------------
Xxxx Xxxxx
/s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
/s/ Xxxxxxxx Xxxxx Xxxxxx
----------------------------
Xxxxxxxx Xxxxx Xxxxxx
EL DORADO INVESTMENT COMPANY
By: Xxxxxxx X. Xxxxxxxx
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Its: Managing Director
/s/ Xxxx Xxxxx
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Xxxxxx X. Xxxxxxx
By: Xxxx Xxxxx
as Attorney-in-Fact
