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Exhibit 10.1
STOCK AND ASSET TRANSFER AGREEMENT
between
CBS BROADCASTING INC.
and
INFINITY BROADCASTING CORPORATION
Dated as of December 2, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Definitions.......................................................................... 2
SECTION 1.02. References........................................................................... 3
ARTICLE II
Transfer of Shares and Assets
SECTION 2.01. Transfer of Shares and Assets........................................................ 3
SECTION 2.02. Transferred Assets and Excluded Assets............................................... 3
SECTION 2.03. Assumption of Certain Liabilities.................................................... 5
SECTION 2.04. Consents of Third Parties............................................................ 6
SECTION 2.05. Closing.............................................................................. 6
ARTICLE III
Representations and Warranties of Transferor
SECTION 3.01. Organization......................................................................... 7
SECTION 3.02. Authorization........................................................................ 7
SECTION 3.03. No Conflicts or Violations; No Consents or Approvals Required........................ 8
SECTION 3.04. Title to Transferred Assets.......................................................... 8
SECTION 3.05. Contracts............................................................................ 9
SECTION 3.06. Transferred Shares................................................................... 9
ARTICLE IV
Representations and Warranties of Transferee
SECTION 4.01. Organization......................................................................... 10
SECTION 4.02. Authorization........................................................................ 10
SECTION 4.03. No Conflicts or Violations; No Consents or Approvals Required........................ 10
SECTION 4.04. Securities Act....................................................................... 11
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Page
ARTICLE V
Covenants
SECTION 5.01. Consents............................................................................. 11
SECTION 5.02. Expenses; Transfer Taxes............................................................. 11
SECTION 5.03. Collection of Receivables............................................................ 11
SECTION 5.04. Post-Closing Cooperation............................................................. 12
SECTION 5.05. Bulk Transfer Laws................................................................... 12
SECTION 5.06. Further Assurances................................................................... 12
ARTICLE VI
Conditions to Performance
ARTICLE VII
Indemnification
SECTION 7.01. Indemnification...................................................................... 13
SECTION 7.02. Survival of Representations.......................................................... 13
ARTICLE VIII
Miscellaneous
SECTION 8.01. Entire Agreement; Amendment; Waiver; No Third Party Beneficiaries.................... 13
SECTION 8.02. Severability......................................................................... 13
SECTION 8.03. Governing Law........................................................................ 14
SECTION 8.04. Captions............................................................................. 14
SECTION 8.05. Counterparts......................................................................... 14
SECTION 8.06. Notices.............................................................................. 14
SECTION 8.07. Construction......................................................................... 15
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STOCK AND ASSET TRANSFER AGREEMENT, dated as of December 2, 1998, between
CBS Broadcasting Inc., a New York corporation ("Transferor"), and Infinity
Broadcasting Corporation, a Delaware corporation ("Transferee").
W I T N E S S E T H:
WHEREAS Westinghouse CBS Holding Company, Inc., a Delaware corporation
("CBS Holding"), is a direct wholly owned subsidiary of CBS Corporation, a
Pennsylvania corporation ("CBS"), Transferor is a direct wholly owned subsidiary
of CBS Holding and Transferee is a direct wholly owned subsidiary of Transferor;
WHEREAS (i) Group W Broadcasting, Inc., a Delaware corporation ("Group W")
that was a wholly owned subsidiary of CBS, has been merged (the "Group W
Merger") with and into CBS pursuant to an Agreement and Plan of Merger, dated as
of December 2, 1998, between Group W and CBS, and (ii) Group W Broadcasting,
L.P., a Delaware limited partnership that became a wholly owned subsidiary of
CBS following the Group W Merger ("Group W L.P."), has been dissolved by CBS;
WHEREAS (i) CBS has transferred (a) certain radio and radio-related assets,
including the assets that it acquired as a result of the Group W Merger, (b) all
of the issued and outstanding shares of common stock, par value $0.002 per
share, of Infinity Media Corporation (formerly Infinity Broadcasting
Corporation), a Delaware corporation ("Old Infinity Stock"), and (c) 333 shares
of common stock, par value $0.01 per share, and 212,793 shares of Junior
Preferred Stock, par value $0.01 share, of CBS Radio, Inc. (formerly American
Radio Systems Corporation), a Delaware corporation (collectively, the "CBS Radio
Stock"), to CBS Holding pursuant to a Stock and Asset Transfer Agreement, dated
as of December 2, 1998, between CBS and CBS Holding (the "CBS Stock and Asset
Transfer Agreement"), and (ii) CBS Holding has transferred such radio and
radio-related assets and such Old Infinity Stock and CBS Radio Stock to
Transferor pursuant to a Stock and Asset Transfer Agreement, dated as of
December 2, 1998, between CBS Holding and Transferor (the "CBS Holding Stock and
Asset Transfer Agreement");
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WHEREAS, as a result of the aforementioned transactions, Transferor is the
owner of (i) the Transferred Assets (as defined in Section 2.02(a)),(ii) all of
the issued and outstanding shares of Old Infinity Stock and (iii) the CBS Radio
Stock;
WHEREAS (i) Transferee desires to acquire and Transferor desires to
transfer to Transferee (a) the Transferred Assets and (b) the CBS Radio Stock
and all of the issued and outstanding shares of Old Infinity Stock
(collectively, the "Transferred Shares"), and (ii) Transferor desires to
transfer to Transferee, and Transferee agrees to assume, the Assumed Liabilities
(as defined in Section 2.03(a)), each upon the terms and subject to the
conditions hereinafter set forth;
WHEREAS, Transferee intends to amend and restate its Certificate of
Incorporation to provide that the shares of common stock in Transferee held by
Transferor will be converted into shares of Class B Common Stock, par value
$0.01 per share, of Transferee ("Class B Common Stock"), which will have five
votes per share; and
WHEREAS, for Federal income tax purposes, it is intended that the transfer
of the Transferred Assets and the Transferred Shares be in exchange for the
issuance of such Class B Common Stock and qualify as a tax-free transaction
under Section 351 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. For purposes of this Agreement, each of the
following terms is defined in the Section set forth opposite such term:
Term Section
"Assigned Contract" 3.05(a)
"Assumed Liabilities" 2.03(a)
"CBS Radio Assets" 2.02(a)(i)
"Closing" 2.05
"Closing Date" 2.05
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"Contracts" 2.02(a)(v)
"Damages" 7.01
"Excluded Assets" 2.02(b)
"Excluded Liabilities" 2.03(b)
"Governmental Entity" 3.03
"Intercompany Agreement" 5.02
"Liens" 3.03
"Material Adverse Effect" 3.01
"Permitted Liens" 3.04(b)
"Third Party Claim" 7.05(a)
"Transferee" Recitals
"Transferor" Recitals
"Transferred Assets" 2.02(a)
"Transferred Shares" Recitals
SECTION 1.02. References. Except as otherwise specifically indicated, all
references in this Agreement to Sections refer to Sections of this Agreement,
and all references to Schedules refer to Schedules attached hereto and all such
Schedules are incorporated herein by reference.
ARTICLE II
Transfer of Shares and Assets
SECTION 2.01. Transfer of Shares and Assets. Except as otherwise provided
in Sections 2.02(b) and 2.03(b), upon the terms and subject to the conditions of
this Agreement, Transferor does hereby dispose of, transfer, assign and deliver
to Transferee any and all of Transferor's right, title and interest in, to and
under the Transferred Assets and the Transferred Shares, and Transferee does
hereby acquire and accept from Transferor the Transferred Assets and the
Transferred Shares and does hereby assume the Assumed Liabilities.
SECTION 2.02. Transferred Assets and Excluded Assets. (a) The term
"Transferred Assets" means:
(i) all assets used primarily in connection with the operation of the
radio and outdoor advertising businesses of CBS, CBS Holding and Transferor
(collectively, the "CBS Radio Assets"), including, but not limited to:
(x)(I) all licenses, permits, authorizations and other approvals
issued by the Federal
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Communications Commission (the "FCC") referred to on Schedule
2.02(a)(i) hereto and (II) all other licenses, permits,
authorizations, approvals and applications issued primarily in
connection with such businesses; and
(y) all the broadcasting and transmission equipment used primarily in
connection with such businesses together with any replacements thereof
and additions as well as spare parts for such equipment or
replacements thereof, and any cabinets, consoles or other housing
located in the space occupied by such businesses to the extent any
such equipment is housed therein, all in its and their "as is, where
is" condition as of the date of this Agreement, subject to ordinary
wear and tear, less any retirements or dispositions thereof made (I)
in the ordinary course of business as to any portion thereof which is
no longer used or useful or (II) in connection with the acquisition of
equivalent replacement property of equivalent kind and value;
(ii) all files, records and logs in Transferor's possession relating
primarily to, and reasonably necessary or appropriate to the use of, the
CBS Radio Assets, including Transferor's public inspection files; provided,
however, that Transferor may retain copies of same; and
(iii) all contracts, leases, licenses, agreements, commitments and all
other arrangements, whether oral or written (collectively, the
"Agreements"), to which CBS, CBS Holding or Transferor is a party, or by
which CBS, CBS Holding or Transferor is bound, on the date hereof that are
used, held for use or intended to be used primarily in, or that arise
primarily out of, the operation of the CBS Radio Assets, but only to the
extent such Agreements by their terms are assignable or the parties hereto
succeed in obtaining any necessary consent(s) to such assignment (the
contracts assigned pursuant to this clause being hereinafter referred to
collectively as the "Contracts").
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(b) It is expressly understood and agreed that the Transferred Assets shall
not include the following (collectively, the "Excluded Assets"):
(i) CBS's ownership interest in, and all assets of, USA Digital Radio
Partners, L.P., a New York partnership;
(ii) cash, cash equivalents, prepaid amounts, bank deposits,
certificates of deposit, Treasury bills and other marketable securities or
similar investments;
(iii) tax or other refunds, all returns, reports, forms, documents or
memoranda relating to taxes and all causes of action or claims of
Transferor which accrued prior to the Closing Date;
(iv) all rights of Transferor under this Agreement and the agreements,
certificates and instruments delivered in connection with this Agreement;
(v) all records prepared in connection with the transfer of the CBS
Radio Assets;
(vi) all rights relating to the Excluded Liabilities;
(vii) any CBS Radio Bonds (as defined in the Intercompany Agreement)
owned by CBS;
(viii) personnel records of Transferor; and
(ix) any other assets set forth on Schedule 2.02(b)(ix).
SECTION 2.03. Assumption of Certain Liabilities. (a) Upon the terms and
subject to the conditions of this Agreement, Transferee shall assume, effective
as of the date hereof, and from and after the date hereof Transferee shall pay,
perform and discharge when due, all the liabilities, obligations and
commitments, whether express or implied, liquidated, absolute, accrued,
contingent or otherwise, or known or unknown, of CBS or any of its current or
previously owned subsidiaries based upon, relating to, in connection with or
arising out of (i) the Transferred Assets and (ii) the radio or outdoor
advertising businesses conducted by CBS or any of its current or previously
owned subsidiaries on or prior to the date hereof (the "Assumed
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Liabilities"), other than any Excluded Liabilities of Transferor.
(b) Notwithstanding Section 2.03(a), or any other provision of this
Agreement, Transferee shall not assume any liability, obligation or commitment
of CBS, CBS Holding or Transferor that relates primarily to, or that arises
primarily out of, any Excluded Asset, or that arises out of the distribution to,
or ownership by, Transferor of the Excluded Assets or associated with the
realization of the benefits of any of the Excluded Assets (the "Excluded
Liabilities").
SECTION 2.04. Consents of Third Parties. (a) Notwithstanding anything in
this Agreement to the contrary, this Agreement shall not constitute an agreement
to assign any asset or any claim or right or any benefit arising under or
resulting from such asset if an attempted assignment thereof, without the
consent of a third party, would constitute a breach or other contravention of
the rights of such third party, would be ineffective with respect to any party
to an agreement concerning such asset or would in any way adversely affect the
rights of Transferor or, upon transfer, Transferee in, to or under such asset.
If any transfer or assignment by Transferor to, or any assumption by Transferee
of, any interest in, or liability, obligation or commitment under, any asset
requires the consent of a third party, then such assignment or assumption shall
be made subject to such consent being obtained.
(b) If any such consent has not been obtained prior to the date hereof,
Transferor and Transferee shall cooperate (at their own expense) in any lawful
and reasonable arrangement reasonably proposed by Transferor under which
Transferee shall obtain the economic claims, rights and benefits under the
asset, claim or right with respect to which the consent has not been obtained in
accordance with this Agreement. Such reasonable arrangement may include (i) the
subcontracting, sublicensing or subleasing to Transferee of any and all rights
of Transferor against the other party to such third-party agreement arising out
of a breach or cancelation thereof by the other party, and (ii) the enforcement
by Transferor of such rights.
SECTION 2.05. Closing. The closing (the "Closing") of the transactions
contemplated by this
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Agreement shall be held at the offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. New York City time, on the date
hereof, or at such other time, date and place as the parties shall agree upon
(the date of the Closing being referred to herein as the "Closing Date").
Subject to satisfaction of the conditions set forth in Article VI, at the
Closing, Transferor shall deliver, or cause to be delivered, to Transferee one
or more certificates representing the Transferred Shares, duly endorsed in blank
or accompanied by stock powers duly endorsed in blank in proper form for
transfer, with appropriate transfer stamps, if any, affixed or such other
documentation acceptable to Transferee, in its sole discretion, evidencing
Transferee's ownership of the Transferred Shares as of the Closing.
The parties hereto agree that all transactions at the Closing shall be
deemed to take place simultaneously, and no delivery or payment shall be deemed
to have been made until all transactions are completed and all documents are
delivered.
ARTICLE III
Representations and Warranties of Transferor
Transferor hereby represents, warrants and agrees as follows to Transferee:
SECTION 3.01. Organization. Transferor is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York.
Transferor has full corporate power and authority and possesses all governmental
franchises, licenses, permits, authorizations and approvals necessary to enable
it to own, lease or otherwise hold its properties and assets and to conduct its
business as presently conducted, other than any such items the absence of which,
individually or in the aggregate, have not had and are not reasonably expected
to have a material adverse effect on the business, assets, condition (financial
or otherwise) or results of operations of Transferor and its subsidiaries taken
as a whole (a "Material Adverse Effect").
SECTION 3.02. Authorization. Transferor has full corporate power and
authority to execute and deliver this Agreement and all other agreements,
certificates and
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documents contemplated hereby to be executed and delivered by Transferor and to
consummate the transactions contemplated hereby and thereby. Transferor has
taken all action required by its organizational documents to authorize the
execution and delivery of this Agreement and all other agreements, certificates
and documents contemplated hereby to be executed and delivered by Transferor and
to authorize the consummation of the transactions contemplated hereby and
thereby. This Agreement has been duly and validly executed and delivered by
Transferor and is a legal, valid and binding obligation of Transferor,
enforceable against it in accordance with its terms.
SECTION 3.03. No Conflicts or Violations; No Consents or Approvals
Required. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with or
violate any provision of the organizational documents of Transferor, (ii)
conflict with or violate any statute, law, rule, regulation, ordinance, order,
writ, injunction, judgment or decree applicable to Transferor, or (iii) conflict
with or result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would constitute a default) under any agreement
or other instrument to which Transferor is a party or to which any of the
Transferred Assets is subject that would result in the creation of any mortgage,
pledge, lien, claim, charge or other encumbrance of any kind (collectively,
"Liens") on any of the Transferred Assets, other than, in the case of clauses
(ii) and (iii) above, any such items or Liens that, individually or in the
aggregate, have not had and are not reasonably expected to have a Material
Adverse Effect. No notice, declaration, report or other filing or registration
with, and no waiver, consent, approval or authorization of, any Federal, state,
local or foreign court or governmental agency, authority, instrumentality or
regulatory body (other than the applicable consents granted by the FCC) (each a
"Governmental Entity") or any other person or entity is required to be made or
obtained by Transferor in connection with the execution, delivery and
performance of this Agreement by Transferor or the consummation by Transferor of
the transactions contemplated hereby, except to the extent that the failure to
make or obtain any such notice, declaration, report, filing, registration,
waiver, consent, approval or authorization has not had or is not reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect.
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SECTION 3.04. Title to Transferred Assets. (a) Transferor has good and
valid title to the Transferred Assets, free and clear of any Liens other than
Permitted Liens, except to the extent that the failure to have good and valid
title to such Transferred Assets would not reasonably be expected to have a
Material Adverse Effect.
(b) The term "Permitted Liens" shall mean (i) Liens for taxes, assessments
or governmental charges or levies not yet due and delinquent or being diligently
contested in good faith, (ii) statutory Liens of carriers, warehousemen,
mechanics, materialmen and the like arising in the ordinary course of business
that do not impair in any material respect the use of the Transferred Assets in
the manner in which they are currently used and (iii) Liens previously disclosed
to Transferee and set forth on Schedule 3.04(b) hereto.
SECTION 3.05. Contracts. Each of the Transferred Assets that is a contract
(an "Assigned Contract") is valid and binding, and all the material provisions
thereof are enforceable in accordance with their terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in
a proceeding in equity or at law), except to the extent that the failure to be
valid, binding or enforceable has not had and is not reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect. Transferor is
not, and to Transferor's knowledge no other party thereto is, in default in the
performance, observance or fulfillment of any such Assigned Contract; and, to
the knowledge of Transferor, no event has occurred which with or without the
giving of notice or lapse of time, or both, would constitute a default
thereunder, other than with respect to any default or event that, individually
or in the aggregate, have not had and are not expected to have a Material
Adverse Effect. Except as previously disclosed by Transferor to Transferee,
Transferor has not received any notice of the intention of any party to
terminate a material Assigned Contract of Transferor.
SECTION 3.06. Transferred Shares. Transferor has good and valid title to
the Transferred Shares, free and clear of any Liens. Assuming Transferee has the
requisite power and authority to be the lawful owner of the
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Transferred Shares, upon delivery to Transferee at the Closing of certificates
representing the Transferred Shares, duly endorsed by Transferor for transfer to
Transferee, and upon Transferor's receipt of certificates representing the
Transferee Shares, good and valid title to the Transferred Shares will pass to
Transferee, free and clear of any Liens other than Permitted Liens or Liens
arising from acts of Transferee or its affiliates. Other than this Agreement,
immediately following consummation of the transactions contemplated hereby, the
Transferred Shares will not be subject to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding, including any
such agreement, arrangement, commitment or understanding restricting or
otherwise relating to the voting, dividend rights or disposition of the
Transferred Shares, other than any voting trust agreement or contract,
agreement, arrangement, commitment or understanding entered into by Transferee
or its affiliates.
ARTICLE IV
Representations and Warranties of Transferee
Transferee hereby represents, warrants and agrees as follows to Transferor:
SECTION 4.01. Organization. Transferee is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Transferee has full corporate power and authority and possesses all governmental
franchises, licenses, permits, authorizations and approvals necessary to enable
it to own, lease or otherwise hold its properties and assets and to conduct its
business as presently conducted, other than any such items the absence of which,
individually or in the aggregate, have not had and are not reasonably expected
to have a Material Adverse Effect.
SECTION 4.02. Authorization. Transferee has full corporate power and
authority to execute and deliver this Agreement and all other agreements,
certificates and documents contemplated hereby to be executed and delivered by
Transferee and to consummate the transactions contemplated hereby and thereby.
Transferee has taken all corporate action required by its organizational
documents to authorize the execution and delivery of this Agreement and all
other agreements, certificates and documents
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contemplated hereby to be executed and delivered by Transferee and to authorize
the consummation of the transactions contemplated hereby and thereby. This
Agreement has been duly and validly executed and delivered by Transferee and is
a legal, valid and binding obligation of Transferee, enforceable against it in
accordance with its terms.
SECTION 4.03. No Conflicts or Violations; No Consents or Approvals
Required. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with or
violate any provision of the organizational documents of Transferee, (ii)
conflict with or violate any statute, law, rule, regulation, ordinance, order,
writ, injunction, judgment or decree applicable to Transferee, or (iii) conflict
with or result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would constitute a default) under any agreement
or other instrument to which Transferee is a party, other than, in the case of
clauses (ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and are not reasonably expected to have a Material
Adverse Effect. No material notice, declaration, report or other filing or
registration with, and no material waiver, consent, approval or authorization
of, any Governmental Entity or any other person or entity is required to be made
or obtained by Transferee in connection with the execution, delivery and
performance of this Agreement by Transferee or the consummation by Transferee of
the transactions contemplated hereby, except to the extent that the failure to
make or obtain any such notice, declaration, report, filing, registration,
waiver, consent, approval or authorization, has not had or is not reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 4.04. Securities Act. The Transferred Shares received by Transferee
pursuant to this Agreement are being acquired for investment only and not with a
view to any public distribution thereof, and Transferee shall not offer to sell
or otherwise dispose of the Transferred Shares so acquired by it in violation of
any registration requirements of the Securities Act of 1933, as amended.
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ARTICLE V
Covenants
SECTION 5.01. Consents. Each party hereto shall, and shall cause its
affiliates to, use commercially reasonable efforts (at its own expense) to
obtain, and to cooperate in obtaining, all consents from third parties necessary
or appropriate to permit the transfer of the Transferred Assets to, and the
assumption of the Assumed Liabilities by, Transferee; provided, however, that
the parties shall not be required to pay or commit to pay any amount to (or
incur any obligation in favor of) any person from whom any such consent may be
required (other than nominal filing or application fees).
SECTION 5.02. Expenses; Transfer Taxes. All costs, expenses and taxes
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid in accordance with the provisions of Article II of the
Intercompany Agreement to be entered into on or about December 15, 1998, between
CBS and Transferee (the "Intercompany Agreement"), including all costs, expenses
and taxes incurred pursuant to Sections 5.01 and 5.04.
SECTION 5.03. Collection of Receivables. From and after the date hereof,
Transferee shall have the right and authority to collect for its own account all
receivables and other related items that are included in the Transferred Assets
transferred to it pursuant to Section 2.01 and to endorse with the name of CBS
or CBS Broadcasting, as applicable, any checks or drafts received with respect
to any receivables or such other related items. Transferor shall promptly
deliver to Transferee any cash or other property received directly or indirectly
by it with respect to such receivables after the consummation of the Initial
Public Offering (as defined in the Intercompany Agreement) and such other
related items, including any amounts payable as interest.
SECTION 5.04. Post-Closing Cooperation. (a) Transferor and Transferee shall
cooperate with each other, and shall cause their officers, employees, agents,
auditors and representatives to cooperate with each other to ensure the orderly
transfer of the Transferred Assets to Transferee, and the assumption by
Transferee of the Assumed Liabilities, and to minimize any disruption to the
business
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of Transferor that might result from the transactions contemplated hereby.
(b) Neither party shall be required by this Section 5.04 to take any action
that would unreasonably interfere with the conduct of its business or
unreasonably disrupt its normal operations.
SECTION 5.05. Bulk Transfer Laws. Transferee hereby waives compliance by
Transferor with the provisions of any so-called "bulk transfer law" of any
jurisdiction in connection with the transfer of the Transferred Assets under
this Agreement.
SECTION 5.06. Further Assurances. From time to time, as and when requested
by any party, each party shall execute and deliver, or cause to be executed and
delivered, all such documents and instruments and shall take, or cause to be
taken, all such further or other actions (subject to Section 5.01), as such
other party may reasonably deem necessary or desirable to consummate the
transactions contemplated by this Agreement, including, in the case of
Transferor, executing and delivering to Transferee such assignments, deeds,
bills of sale, consents and other instruments as Transferee or its counsel may
reasonably request as necessary or desirable for such purpose.
ARTICLE VI
Conditions to Performance
The obligation of Transferor to transfer the Transferred Assets and the
Transferred Shares to Transferee is subject to the consummation of (i) the Group
W Merger and the dissolution of Group W L.P., (ii) the transfer of the
Transferred Assets and the Transferred Shares from CBS to CBS Holding pursuant
to the CBS Stock and Asset Transfer Agreement, and (iii) the transfer of the
Transferred Assets and the Transferred Shares from CBS Holding to Transferor
pursuant to the CBS Holding Stock and Asset Transfer Agreement.
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ARTICLE VII
Indemnification
SECTION 7.01. Indemnification. Each of Transferor and Transferee will be an
Indemnified Party under the Intercompany Agreement and, accordingly, will
benefit from the indemnification provisions thereunder.
SECTION 7.02. Survival of Representations. The representations, warranties,
covenants and agreements contained in this Agreement shall survive the date
hereof and shall terminate at the close of business on the first anniversary
following the date hereof unless otherwise expressly provided.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Entire Agreement; Amendment; Waiver; No Third Party
Beneficiaries. This Agreement and the Schedules annexed hereto constitute the
entire understanding between the parties with respect to the subject matter
hereof, and supersedes all other understandings and negotiations with respect
thereto. This Agreement may be amended only in a writing signed by both parties
hereto. Any provision of this Agreement may be waived only in a writing signed
by the party to be charged with such waiver. No course of dealing between the
parties shall be effective to amend or waive any provision of this Agreement.
This Agreement shall not be assignable by Transferee without the prior written
consent of Transferor. Except as provided in Sections 7.01 and 7.02, this
Agreement is for the sole benefit of the parties hereto and their permitted
assigns and nothing herein expressed or implied shall give or be construed to
give to any person (including any former subsidiary of CBS), other than the
parties hereto and such assigns, any legal or equitable rights hereunder.
SECTION 8.02. Severability. In the event that any provision contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any jurisdiction, such provision shall be ineffective as to
such jurisdiction to the extent of such invalidity, illegality or
unenforceability without invalidating or affecting the remaining provisions
hereof or affecting the
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validity, legality or enforceability of such provision in any other
jurisdiction.
SECTION 8.03. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
SECTION 8.04. Captions. The captions in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the interpretation
hereof.
SECTION 8.05. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Agreement.
SECTION 8.06. Notices. All notices, requests and other communications to
any party hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(i) if to Transferor, to:
CBS Broadcasting Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Executive Vice President and
General Counsel
19
16
(ii) if to Transferee, to:
Infinity Broadcasting Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Executive Vice President,
Chief Financial Officer,
Treasurer and Secretary
SECTION 8.07. Construction. Notwithstanding any provision in this Agreement
to the contrary, in the event and to the extent that there shall be a conflict
between the provisions of this Agreement and the provisions of the Tax Sharing
Agreement to be entered into on or about December 15, 1998, between CBS and
Transferee, such Tax Sharing Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as for the day and year first above written.
CBS BROADCASTING INC.,
by____________________________________
Name:
Title:
INFINITY BROADCASTING
CORPORATION,
by____________________________________
Name:
Title:
