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EXHIBIT 99.9
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ASSET PURCHASE AGREEMENT
dated as of December 27, 1996
by and among
OUTDOOR SYSTEMS, INC.
VILLEPIGUE OUTDOOR ADVERTISING CORPORATION,
VILLEPIGUE INTERNATIONAL ADVERTISING, INC.,
S.B. PROPERTIES, INC.,
THIRD & EIGHTH REALTY CORP
AND
MOBILE OUTDOOR MEDIA, INC.
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TABLE OF CONTENTS
1. DEFINITIONS............................................... 1
2. PURCHASE AND SALE OF THE ASSETS; CLOSING.................. 1
2.1 Agreement to Purchase and Sell................... 1
2.2 Purchased Assets................................. 1
2.3 Agreement to Assume Certain Liabilities.......... 2
2.4 Excluded Liabilities............................. 3
2.5 Closing.......................................... 3
2.6 Purchase Price................................... 3
2.7 Transactions at the Closing...................... 4
2.8 Third Party Consents............................. 4
3. REPRESENTATIONS AND WARRANTIES OF SELLER.................. 4
3.1 Organization and Good Standing................... 4
3.2 Authority; No Conflict........................... 5
3.3 Solvency......................................... 5
3.4 Books and Records................................ 6
3.5 Structures....................................... 6
3.6 Permits.......................................... 6
3.7 Site Leases and Advertising Contracts............ 6
3.8 Owned Real Property.............................. 6
3.9 Title, Encumbrances.............................. 6
3.10 No Undisclosed Liabilities....................... 7
3.11 Taxes............................................ 7
3.12 Compliance with Legal Requirements............... 7
3.13 Legal Proceedings; Orders........................ 7
3.14 Other Contracts.................................. 7
3.15 Insurance........................................ 7
3.16 Environmental Matters............................ 7
3.17 Intangible Property.............................. 8
3.18 Relationships with Affiliates.................... 8
3.19 Brokers or Finders............................... 8
3.20 Employee Benefit Matters......................... 8
3.21 HSR Act.......................................... 8
3.22 Disclosure....................................... 8
4. REPRESENTATIONS AND WARRANTIES OF BUYER................... 9
4.1 Organization and Good Standing................... 9
4.2 Authority; No Conflict........................... 9
4.3 Certain Proceedings.............................. 9
4.4 Brokers or Finders............................... 9
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5. COVENANTS OF SELLER.............................................. 9
5.1 Access and Investigation................................ 9
5.2 Due Diligence........................................... 10
5.3 Operation of the Purchased Assets....................... 10
5.4 Negative Covenant....................................... 10
5.5 Required Approvals...................................... 10
5.6 Notification............................................ 10
5.7 No Negotiation.......................................... 10
5.8 Tax Clearance........................................... 11
6. COVENANTS OF BUYER............................................... 11
6.1 Required Approvals...................................... 11
6.2 Best Efforts............................................ 11
6.3 Imprints................................................ 11
6.4 Notification............................................ 11
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE.............. 11
7.1 Accuracy of Representations............................. 12
7.2 Sellers' Performance.................................... 12
7.3 Consents................................................ 12
7.4 Additional Documents.................................... 12
7.5 No Proceedings.......................................... 12
7.6 No Prohibition.......................................... 12
7.7 No Material Adverse Change.............................. 12
7.8 Due Diligence........................................... 12
8. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE............. 13
8.1 Accuracy of Representations............................. 13
8.2 Buyer's Performance..................................... 13
8.3 Additional Documents.................................... 13
8.4 No Proceedings.......................................... 13
8.5 No Prohibition.......................................... 13
9. TERMINATION...................................................... 13
9.1 Termination Events...................................... 13
9.2 Effect of Termination................................... 14
10. INDEMNIFICATION; REMEDIES........................................ 14
10.1 Indemnification and Payment of Damages by Seller........ 14
10.2 Indemnification and Payment of Damages by Buyer......... 15
10.3 Procedure for Indemnification -- Third Party Claims..... 15
10.4 Procedure for Indemnification -- Other Claims........... 16
10.5 Survival/Limitations.................................... 16
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11. GENERAL PROVISIONS............................................... 16
11.1 Expenses................................................ 16
11.2 Bulk Sales Waiver and Indemnification................... 16
11.3 Public Announcements.................................... 16
11.4 Availability of Equitable Remedies...................... 16
11.5 Notices................................................. 17
11.6 Further Assurances...................................... 18
11.7 Waiver.................................................. 18
11.8 Entire Agreement and Modification....................... 18
11.9 Assignments, Successors, and No Third-Party Rights...... 18
11.10 Accounts Receivable..................................... 18
11.11 Severability............................................ 18
11.12 Risk of Loss............................................ 19
11.13 Post-Closing Access..................................... 19
11.14 Headings; Construction.................................. 19
11.15 Applicable Law.......................................... 19
11.16 Counterparts............................................ 19
EXHIBITS
Exhibit A - Definitions
Exhibit B - Allocation of Purchase Price
Exhibit C - Assignment of Advertising Services Agreements
Exhibit D - Assignment of Permits
Exhibit E - Assignment of Site Leases
Exhibit F - Xxxx of Sale, Assignment and Assumption Agreement
SCHEDULES
Schedule 2.2(a) - Billboard Displays
Schedule 2.2(b) - Site Leases
Schedule 2.2(c) - Real Property
Schedule 2.2(d) - Advertising Contracts and Permits
Schedule 2.2(e) - Permits
Schedule 2.3 - Assumed Liabilities
DISCLOSURE SCHEDULE
Part 3.2 Part 3.11(a) Part 3.16
Part 3.5 Part 3.13 Part 3.18
Part 3.6 Part 3.14 Part 3.20
Part 3.7
Part 3.9(b)
Part 3.10
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is entered into as of
December 27, 1996, by and among OUTDOOR SYSTEMS, INC., a Delaware corporation
("Buyer"), VILLEPIGUE OUTDOOR ADVERTISING CORPORATION, a New York corporation,
VILLEPIGUE INTERNATIONAL ADVERTISING, INC., S.B. PROPERTIES, INC. THIRD & EIGHTH
REALTY CORP, and MOBILE OUTDOOR MEDIA, INC., (referred to collectively as the
"Sellers"). (Buyer and Sellers are sometimes herein referred to individually as
a "Party" and collectively as the "Parties".)
RECITALS
Sellers are engaged in the business of owning and operating outdoor
signs and billboards and otherwise providing outdoor advertising services in the
metropolitan New York area (the "Business"). Sellers desire to sell and assign
certain outdoor advertising assets to Buyer, and Buyer desires to purchase such
assets and to assume certain liabilities associated with such assets, pursuant
to the terms, conditions, limitations and exclusions contained in this
Agreement.
AGREEMENT
The Parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the terms listed on Exhibit A attached
hereto have the meanings specified or referred to in Exhibit A.
2. PURCHASE AND SALE OF THE ASSETS; CLOSING
2.1 AGREEMENT TO PURCHASE AND SELL. Subject to the terms and conditions
of this Agreement, Sellers hereby agree to grant, sell, assign, transfer, convey
and deliver all right, title and interest in and to the Purchased Assets, free
and clear of any liens, title claims, Encumbrances or Security Interests (except
as otherwise specifically permitted pursuant to the provisions of this
Agreement), and Buyer hereby agrees to buy and acquire the Purchased Assets from
Seller, and to assume the Assumed Liabilities upon the terms and conditions set
forth in this Agreement.
2.2 PURCHASED ASSETS. The Purchased Assets are all of the assets of
Sellers used in the Business, including:
(a) All of the billboard displays and other out-of-home
advertising structures (including rights to walls) set forth and described in
Schedule 2.2(a) attached hereto, together with all components, fixtures, parts,
appurtenances, and equipment attached to or made a part thereof that are
existing, under construction or for which Sellers have any rights (collectively,
the "Structures");
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(b) All leases, licenses, easements, other rights of ingress
or egress, and all other grants of the right to place, construct, own, operate
or maintain the Structures on land, buildings and other real property owned by
third parties, and all rights therein (collectively, the "Site Leases"), which
Site Leases are listed on Schedule 2.2(b);
(c) All of the real property owned in fee by Sellers and any
rights therein, and all buildings, facilities, structures, fixtures, leasehold
and other improvements located therein, listed on Schedule 2.2(c);
(d) All rights under existing and pending sales and
advertising contracts associated with the Structures, and all rights to the
advertising copy displayed on the Structures as of the Closing Date
(collectively, the "Advertising Contracts"), which Advertising Contracts are
listed on Schedule 2.2(d) attached hereto;
(e) All state and local licenses or permits/tags which Sellers
have with respect to the Structures and, to the extent assignable, all other
Governmental Authorizations that are required for the operation of the
Structures, (collectively, the "Permits"), which Permits are listed on Schedule
2.2(e);
(f) All pertinent Books and Records;
(g) All tangible personal property, including furniture,
vehicles, equipment, computer hardware and software, owned by Sellers and used
in the operation of the Business;
(h) All Intangible Property used in connection with the
Business except the tradename Villepigue; and
(i) All rights (including any benefits arising therefrom),
causes of action, claims and demands of whatever nature (whether or not
liquidated) of Sellers relating to the Purchased Assets, including, without
limitation, condemnation rights and proceeds, and all rights against suppliers
under warranties covering any of the Purchased Assets.
2.3 AGREEMENT TO ASSUME CERTAIN LIABILITIES. At the Closing, Buyer
shall assume and agree to discharge and perform all liabilities and obligations
that are set forth on Schedule 2.3 or arise or are attributable to events
occurring on or after the Closing Date pursuant to the Site Leases and the
Advertising Contracts (the "Assumed Liabilities") but to the extent and only to
the extent that:
(a) Such obligations are performable on or after the Closing
Date; and
(b) Such obligations are attributable to periods arising on or
after the Closing Date.
2.4 EXCLUDED LIABILITIES. All claims against and liabilities and
obligations of Sellers not specifically assumed by Buyer pursuant to Section
2.3, including, without limitation, the following claims against and liabilities
of Sellers (the "Excluded Liabilities"), are excluded, and shall not be assumed
or discharged by Buyer, and shall be discharged in full when due by Seller:
(a) Any liabilities to the extent not attributable to the
Purchased Assets;
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(b) Any liability of Sellers for Taxes arising prior to or
from the sale of the Purchased Assets under this Agreement;
(c) Any liabilities for or related to indebtedness of Sellers
to banks, financial institutions, or other Persons;
(d) Any liabilities of Sellers for or with respect to any
employees of Seller, including, without limitation, any liabilities pursuant to
any compensation, collective bargaining, pension, retirement, severance,
termination, or other benefit plan, agreement or arrangement; and
(e) Any other liabilities of Sellers that are attributable to
or arise from facts, events, or conditions that occurred or came into existence
prior to the Closing.
2.5 CLOSING. The purchase and sale of the Purchased Assets (the
"Closing") provided for in this Agreement will take place at the offices of
Xxxxxx Xxxxxxxxxxxx Xxxx & Xxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx
January 9, 1997 or such later time and place as the Parties may agree. The
effective time of the Closing shall be 12:01 a.m., Eastern Standard Time, on the
Closing Date.
2.6 PURCHASE PRICE. In consideration for the Purchased Assets, Buyer
shall assume the Assumed Liabilities, and pay an amount (the "Purchase Price")
equal to Twenty-Seven Million Dollars ($27,000,000). The Purchase Price shall be
subject to adjustment as follows:
(a) The following items shall be prorated between Sellers and
Buyer as of the Closing Date with respect to the Purchased Assets: power and
utility charges, real and personal property taxes, rents (including percentage
rents) and security deposits under Site Leases and payments and security
deposits under Advertising Contracts. Prorations will be on a dollar-for-dollar
basis based on the number of days of display before and after the Closing.
Percentage rents shall be prorated as of the Closing Date. Any prorations not
determined at the Closing shall be prorated on the basis of the most current
information available at Closing. On the Closing Date, Sellers shall provide to
Buyer a list of items and the prorations required by this Section 2.6(a)
("Preliminary Adjustment") and the Purchase Price shall be adjusted accordingly.
Sellers agree to furnish Buyer with any documents or records in Sellers'
possession that may be needed for Buyer to confirm the adjustment and prorations
in this Section 2.6(a).
(b) Within ninety (90) days after the Closing Date, Buyer will
prepare and provide to Sellers the final calculations of adjustments to the
Purchase Price (the "Closing Date Adjustment"). On the 120th day after the
Closing Date, all required refunds or payments under this Section 2.6, shall be
made on the basis of the Closing Date Adjustment.
(c) The parties agree that the Purchase Price shall be
allocated as set forth in Exhibit B attached hereto for completing the Form 8594
required to be filed with the IRS.
2.7 TRANSACTIONS AT THE CLOSING. The following transactions shall take
place at the Closing:
(a) Sellers shall deliver to Buyer (i) the Xxxx of Sale, (ii)
the Assignment of Advertising Contracts, (iii) the Assignment of Site Leases,
(iv) the Assignment of Permits, (v) the
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Deeds, (vi) all applicable Tax Clearances, and (vii) other instruments of
transfer, evidence of consent and all other related documents as may be
necessary to evidence or perfect the sale, assignment, transfer, and conveyance
of good title to all of the Purchased Assets, in each case free and clear of all
liens, Security Interests, pledges, charges, and Encumbrances. Sellers shall
also deliver to Buyer all Books and Records, including the originals of the
Advertising Contracts and Site Leases.
(b) Buyer shall deliver to Sellers the Purchase Price, as
adjusted pursuant to Section 2.6, by wire transfer of immediately available
funds.
(c) Buyer shall deliver to Sellers such assumption agreements,
instructions and other documents as may be necessary to evidence the assumption
by Buyer of the Assumed Liabilities.
(d) The Parties shall also deliver to each other the
agreements, instruments, opinions, certificates, and other documents referred to
in this Agreement.
2.8 THIRD PARTY CONSENTS. To the extent that Sellers' rights under any
Advertising Contract, Site Lease or other interest in the Purchased Assets may
not be assigned without the consent of a third party and such consent has not
been obtained, this Agreement shall not constitute an agreement to assign the
same if an attempted assignment would constitute a breach thereof or be
unlawful, and Sellers and Buyer, to the maximum extent permitted by law and any
terms of or limitations relating to such asset, shall use their Best Efforts to
obtain for Buyer the benefits thereunder, and shall cooperate to the maximum
extent permitted by law and any terms of or limitations relating to such asset
in any reasonable arrangement designed to provide such benefits to Buyer,
including any sublease or subcontract or similar arrangement, and if Buyer has
obtained such benefits, Buyer shall discharge Sellers' obligations thereunder
arising from and after the Closing Date, except for those obligations arising
because of Sellers' breach.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
The Sellers jointly and severally represent and warrant to Buyer as
follows:
3.1 ORGANIZATION AND GOOD STANDING. Each of the Sellers is a
corporation duly organized, validly existing and in good standing under the laws
of its incorporation, with full power and authority to conduct the Business as
it is now being conducted, to own or use the Purchased Assets, and to perform
all its obligations. Each of the Sellers has delivered to Buyer true and
complete copies of its respective Organizational Documents, as currently in
effect. To Seller's knowledge, each of the Sellers is duly qualified or licensed
and in good standing to do business in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification necessary.
3.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of each Seller, enforceable against each of them, respectively, in
accordance with its terms. Upon the execution and delivery by each of the
Sellers, as applicable, of any documents to be executed at Closing pursuant to
this Agreement (collectively, the "Closing Documents"), such Closing Documents
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will constitute the legal, valid, and binding obligations of each of the
Sellers, as applicable, enforceable against each of them in accordance with
their respective terms. Each of the Sellers has the absolute and unrestricted
right, power and authority to execute and deliver this Agreement and the Closing
Documents to which each is a party and to perform its obligations thereunder.
The execution, delivery and performance of this Agreement has been specifically
authorized by the Directors and shareholders of each Seller.
(b) Except as set forth in Part 3.2 of the Disclosure
Schedule, neither the execution and delivery by the Sellers of this Agreement
nor the consummation or performance by the Sellers of any of the Contemplated
Transactions will:
(i) conflict with, violate or result in a breach of
(A) any provision of the Organizational Documents of the Sellers; (B)
to the Seller's knowledge, any Legal Requirement or any Order to which
the Sellers or any of the Purchased Assets may be subject; (C) to the
Seller's knowledge, any Governmental Authorization held by the Sellers
or that otherwise relates to the Purchased Assets; or (D) any material
Contract to which any of the Sellers is a party or by which any of the
Sellers may be bound; or
(ii) contravene, conflict with, or result in a
violation or breach of any provision of, or give any Person the right
to declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any
interest or rights of Sellers in or to the Purchased Assets; or result
in the imposition or creation of any Encumbrance upon or with respect
to any of the Purchased Assets.
(c) Except as set forth in Part 3.2 of the Disclosure
Schedule, none of the Sellers is or will be required to give any notice to or
obtain any Consent from any Person in connection with the execution and delivery
of this Agreement or the consummation or performance of any of the Contemplated
Transactions.
3.3 SOLVENCY. By consummating the transactions contemplated hereby,
Sellers do not intend to hinder, delay or defraud any of Sellers' present or
future creditors. Before giving effect to the transactions contemplated hereby,
Sellers have been paying their debts in the Ordinary Course of Business and,
after giving effect to the transactions contemplated hereby, Sellers will have
paid or discharged all of their respective debts (or made adequate provision for
the payment thereof) in the Ordinary Course of Business.
3.4 BOOKS AND RECORDS. The books of account, and other Books and
Records of Sellers maintained in connection with the Purchased Assets are
complete and correct in all material respects and have been maintained in
accordance with sound business practices.
3.5 STRUCTURES. Except as set forth in Part 3.5 of the Disclosure
Schedule, Sellers own all of the Structures. Except as set forth in Part 3.5 of
the Disclosure Schedule, to Seller's knowledge, each Structure (i) is located
entirely on property covered by a Site Lease or is located entirely on the Owned
Real Property, and (ii) complies in all material respects with the terms of the
Permits pertaining to it.
3.6 PERMITS. Except as set forth in Part 3.6, to Seller's knowledge,
the Permits constitute all material licenses, permits, registrations and
approvals necessary to operate the Business. The
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Sellers are in material compliance with the terms of the Permits. The Sellers
are not aware of any fact or event which constitutes a material violation of any
Permit, and Sellers have not received written notice that any Governmental Body
issuing any Permit intends to cancel, terminate, modify or amend any Permit.
3.7 SITE LEASES AND ADVERTISING CONTRACTS. Sellers have delivered to
Buyer true and complete copies of the Advertising Contracts and the Site Leases.
Except as set forth on Part 3.7 of the Disclosure Schedule, all sales made to
advertisers in connection with the Structures have been made pursuant to
Advertising Contracts. The Site Leases and the Advertising Contracts are in full
force and effect, and are binding upon the parties thereto. Except as set forth
in Part 3.7 of the Disclosure Schedule, to the knowledge of the Sellers, (x) no
default by Sellers or any other party has occurred under the Site Leases or
Advertising Leases, and (y) no event, occurrence or condition exists which (with
or without notice or lapse of time or the happening of any further event or
condition) would become a default by Sellers thereunder or would entitle any
other party to terminate a Site Lease or Advertising Contract, to make a claim
or set-off against Sellers or otherwise to amend such Site Lease or Advertising
Contract or prevent such Site Lease or Advertising Contract from being renewed
in accordance with its terms. None of the Sellers have received any written
notice of default, termination or non-renewal under any Site Lease or
Advertising Contract.
3.8 OWNED REAL PROPERTY. Sellers have good and marketable record title
to the Owned Real Property, such title being a fee interest in the Owned Real
Property. Sellers have not received any notice of pending or Threatened claims,
Proceedings, planned public improvements, annexations, special assessments,
rezonings or other adverse claims affecting the Owned Real Property.
3.9 TITLE, ENCUMBRANCES.
(a) Except as set forth on Part 3.9(a) of the Disclosure
Schedule, Sellers own or have good title to all of the Purchased Assets, and
there are no existing agreements, options, commitments or rights with, of or
to any Person to acquire any of the Purchased Assets or any interest therein.
All of the Purchased Assets, including the Owned Real Property, are owned free
and clear of all Encumbrances except for Permitted Liens.
(b) Except as set forth in Part 3.9(b) of the Disclosure
Schedule, none of the Structures, Site Leases or the Owned Real Property are or
will be, to the Knowledge of the Sellers, subject to zoning, use, or building
code restrictions that will prohibit the continued effective ownership, leasing
or other use of such assets as currently owned and used by Sellers.
3.10 NO UNDISCLOSED LIABILITIES. Except as set forth in Part 3.10 of
the Disclosure Schedule, Sellers have no material liabilities or obligations of
any nature relating to the Purchased Assets.
3.11 TAXES. With respect to the Purchased Assets and the Real Property:
(a) Sellers have filed or caused to be filed all Tax Returns
that are or were required to be filed by Sellers, pursuant to applicable Legal
Requirements. Sellers have paid, or made provision for the payment of, all Taxes
that have or may have become due pursuant to those Tax Returns or otherwise, or
pursuant to any assessment received by Seller, except such Taxes, if any, as are
listed in Part 3.11(a) of the Disclosure Schedule and are being contested in
good faith.
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(b) No unpaid Taxes create an Encumbrance (other than
Permitted Liens) on the Purchased Assets or the Owned Real Property.
(c) Buyer shall not be liable for any Taxes of Sellers as a
result of the Contemplated Transactions.
3.12 COMPLIANCE WITH LEGAL REQUIREMENTS. Sellers have complied with all
Legal Requirements applicable to Sellers' ownership or use of the Purchased
Assets, except for noncompliances or failures that, individually or in the
aggregate, would not be reasonably expected to have a Material Adverse Effect.
3.13 LEGAL PROCEEDINGS; ORDERS. Except as set forth in Part 3.13 of the
Disclosure Schedule, there is no Proceeding pending or, to the Knowledge of the
Sellers, Threatened against any of the Sellers or affecting any of the Purchased
Assets, and there is no Order to which any the Sellers or the Purchased Assets
is subject.
3.14 OTHER CONTRACTS None of the Sellers is a party to or bound by any
Other Contract, except as disclosed in Part 3.14 of the Disclosure Schedule.
3.15 INSURANCE. Sellers maintain in full force and effect policies of
fire and other casualty, liability, title and other forms of insurance covering
the Purchased Assets and the Business, and the operation thereof, of the types
and with the amounts of coverage as are consistent with industry standards for
outdoor advertising businesses comparable to the Business.
3.16 ENVIRONMENTAL MATTERS. Except as set forth in Part 3.16 of the
Disclosure Schedule, with respect to the Purchased Assets and the use or
operation thereof: to their knowledge, (i) Sellers are, and have been, in
material compliance with all Environmental Laws; (ii) Sellers have timely filed
all material reports, obtained all required approvals and permits relating to
the Business, and generated and maintained all material data, documentation and
records under any applicable Environmental Laws; (iii) to the Knowledge of
Sellers, there has not been any release of the Hazardous Materials at or in the
vicinity of the Business or in areas for which Sellers would have responsibility
under Environmental Laws; (iv) none of the Sellers has received any written
notice from any Governmental Body or private or public entity advising it that
it is or may be responsible for response costs with respect to a Release, a
threatened Release or clean up of Hazardous Materials produced by, or resulting
from, its Business, operations or processes; and (v) Sellers have delivered to
Buyer true and complete copies and results of any reports, studies, analyses,
tests, or monitoring possessed by Sellers pertaining to Hazardous Materials in,
on, or under the properties included in the Purchased Assets.
3.17 INTANGIBLE PROPERTY. Sellers use no Intangible Property in
connection with the operation of the Purchased Assets except for the Permits,
the Books and Records, the trade names "Villepigue", and licenses for commonly
available software programs under which Sellers are the licensee.
3.18 RELATIONSHIPS WITH AFFILIATES. Except as set forth on Part 3.18 of
the Disclosure Schedule, Sellers are not a party to any contract with an
Affiliate of Sellers relating to the Purchased Assets or the Business. Neither
Sellers nor any Affiliate of Sellers are the owner (of record or as a
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beneficial owner) of an equity interest or any other financial or profit
interest in, a Person (other than the Sellers) that has business dealings or a
material financial interest in any transaction with Sellers involving the
Purchased Assets, or the Business.
3.19 BROKERS OR FINDERS. Sellers have not incurred any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement.
3.20 EMPLOYEE BENEFIT MATTERS. Except as disclosed on Part 3.20 of the
Disclosure Schedule, with respect to each Seller:
(a) Seller does not maintain and has never maintained an
"employee benefit pension plan", within the meaning of ERISA Section 3(2), that
is or was subject to Title IV of ERISA.
(b) Seller does not have and has not ever had any past,
present or future obligation or liability to contribute any "multiemployer
plan", as defined in ERISA Section 3(37).
For purposes of this Section 3.20 the term Seller shall be deemed to include any
other corporation, trade, business or other entity, other than Sellers, which
would together with the Sellers, now or in the past constitute a single employer
within the meaning of Section 414 of the IRC.
3.21 HSR ACT. None of the Sellers is a person (or included in a
person), that has total assets of $10 million or more or annual net sales of $10
million or more, within the meaning of, and as determined in accordance with,
the HSR Act.
3.22 DISCLOSURE. No representation or warranty of Sellers in this
Agreement and no statement in the Disclosure Schedule omits to state a material
fact necessary to make the statements herein or therein, in light of the
circumstances in which they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware.
4.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Upon the execution and delivery by Buyer of the Closing Documents to which Buyer
is a party, such Closing Documents will constitute the legal, valid, and binding
obligations of Buyer, enforceable against Buyer in accordance with their
respective terms. Buyer has the absolute and unrestricted right, power, and
authority to execute and deliver this Agreement and the Closing Documents and to
perform its obligations under this Agreement and the Closing Documents to which
Buyer is a party.
(b) Neither the execution and delivery of this Agreement by
Buyer nor the consummation or performance of any of the Contemplated
Transactions by Buyer will give any
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Person the right to prevent, delay, or otherwise interfere with any of the
Contemplated Transactions pursuant to (i) any provision of Buyer's
Organizational Documents; (ii) any resolution adopted by the board of directors
or the stockholders of Buyer; (iii) any Legal Requirement or Order to which
Buyer may be subject; or (iv) any material Contract to which Buyer is a party or
by which Buyer may be bound. Buyer is not and will not be required to give any
notice to or obtain any Consent from any Person in connection with the execution
and delivery of this Agreement or the consummation or performance of any of the
Contemplated Transactions.
4.3 CERTAIN PROCEEDINGS. There is no pending Proceeding that has been
commenced against Buyer and that challenges, or may have the effect of
preventing, making illegal, or otherwise interfering with, any of the
Contemplated Transactions. Except as set forth on Schedule 4.3, to Buyer's
Knowledge, no such Proceeding has been Threatened in writing and no event has
occurred or circumstance exist that may give rise to or serve as a basis for the
commencement of any Proceeding.
4.4 BROKERS OR FINDERS. Buyer has not incurred any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement.
5. COVENANTS OF SELLER
5.1 ACCESS AND INVESTIGATION. Between the date of this Agreement and
the Closing Date, Sellers will, and will cause their Representatives to, afford
Buyer and its Representatives reasonable access during normal business hours to
Sellers' personnel, properties, Books and Records, and other documents and data
relating to the Purchased Assets and the Business, and furnish Buyer and its
Representatives with copies of the same.
5.2 DUE DILIGENCE. Buyer shall have the right, and Sellers shall afford
access to Buyer and its Representatives, at all reasonable times upon advance
notice to perform due diligence on the Purchased Assets and the Business from
the date hereof through and including the date that occurs seven (7) calendar
days after the date hereof (the "Due Diligence Period").
5.3 OPERATION OF THE PURCHASED ASSETS. Between the date of this
Agreement and the Closing Date, Sellers will:
(a) operate the Business only in the Ordinary Course of
Business;
(b) use their Best Efforts to maintain the Purchased Assets,
and maintain the relations and good will with advertisers, landlords and others
associated with the operation of the Business; and
(c) confer with Buyer concerning any new Advertising Contract,
Site Lease or Other Contract which involves a term of more than three (3) months
or payment of amounts in excess of $50,000.
5.4 NEGATIVE COVENANT. Except as otherwise expressly permitted by this
Agreement, between the date of this Agreement and the Closing Date, Sellers will
operate the business consistent in all material respects with past practice,
except as otherwise provided in this Agreement.
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5.5 REQUIRED APPROVALS AND CONSENTS. As promptly as practicable after
the date of this Agreement, Sellers will make all filings required by Legal
Requirements to be made by them in order to consummate the Contemplated
Transactions and use their Best Efforts to obtain such of the Consents
identified in Section 3.2 for the transfer of the Purchased Assets.
5.6 NOTIFICATION. Between the date of this Agreement and the Closing
Date, Sellers will promptly notify Buyer in writing if Sellers become aware of
any fact or condition that causes or constitutes a material breach of any of
Sellers' representations and warranties as of the date of this Agreement, or if
Sellers become aware of the occurrence after the date of this Agreement of any
fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a material breach of any such representation or
warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition. During the same period,
Sellers will promptly notify Buyer of the occurrence of any material breach of
any covenant of Sellers in this Section 5 or of the occurrence of any event that
may make the satisfaction of the conditions in Section 7 impossible or unlikely.
5.7 NO NEGOTIATION. Until the earlier of January 20, 1997 or such time,
if any, as this Agreement is terminated pursuant to Section 9, neither Sellers
nor any Affiliate will, nor will they permit their respective Representatives
to, directly or indirectly solicit, initiate, or encourage any inquiries or
proposals from, discuss or negotiate with, provide any non-public information
to, or consider the merits of any unsolicited inquiries or proposals from, any
Person (other than Buyer or its Representatives) relating to or affecting any
transaction involving the sale of the Purchased Assets.
5.8 TAX CLEARANCE. Sellers shall obtain all certificates of clearances
for Taxes ("Tax Clearances"), if any, required by the State of New York or, if
such Tax Clearances are required but not available at the Closing, certificates
from the State of New York certifying as to the payment by or on behalf of
Sellers of all Taxes due on or prior to a date not more than thirty (30) days
prior to the Closing Date (it being agreed and understood that, notwithstanding
the foregoing, if any Tax Clearances are not obtained prior to the Closing,
Sellers shall obtain such Tax Clearances after the Closing and shall be
responsible for, and shall discharge in full, all liabilities and obligations
therefor).
6. COVENANTS OF BUYER
6.1 REQUIRED APPROVALS. As promptly as practicable after the date of
this Agreement, Buyer will make all filings required by Legal Requirements to be
made by it to consummate the Contemplated Transactions.
6.2 BEST EFFORTS. Between the date of this Agreement and the Closing
Date, Buyer will use its Best Efforts to cause the conditions in Sections 7 and
8 to be satisfied; provided that this Agreement will not require Buyer to
dispose of or make any change in any portion of its business or to incur any
other burden to obtain a Governmental Authorization.
6.3 IMPRINTS. No later than 150 days after the Closing, Buyer shall
remove from all Structures included in the Purchased Assets all imprints used by
Sellers containing Sellers' trade name; provided, however, until the earlier of
(i) such removal or (ii) the expiration of such 150- day period, Buyer may
display Sellers' trade names on such Structures.
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6.4 NOTIFICATION. Between the date of this Agreement and the Closing
Date, Buyer will promptly notify Sellers in writing if Buyer becomes aware of
any fact or condition that causes or constitutes a breach of any of Buyer's
representations and warranties as of the date of this Agreement, or if Buyer
becomes aware of the occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a breach of any such representation or warranty had such
representation or warranty been made as of the time of occurrence or discovery
of such fact or condition. During the same period, Buyer will promptly notify
Sellers of the occurrence of any breach of any covenant of Buyer in this Section
6 or of the occurrence of any event that may make the satisfaction of the
conditions in Section 8 impossible or unlikely.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Purchased Assets and to take the
other actions required to be taken by Buyer at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Buyer, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS. Sellers' representations and
warranties in this Agreement must have been accurate as of the date of this
Agreement, and must be accurate in all material respects as of the Closing Date
as if made on the Closing Date, and Buyer shall have received a certificate of
an executive officer of Sellers, dated as of the Closing Date, as to such
accuracy.
7.2 SELLERS' PERFORMANCE. The covenants and obligations that Sellers
are required to perform or to comply with pursuant to this Agreement at or prior
to the Closing must have been performed and complied with in all material
respects, and Buyer shall have received a certificate of an executive officer of
each Seller, dated as of the Closing Date, as to such compliance.
7.3 CONSENTS. Except as set forth in Part 7.3 of the Disclosure
Schedule, each of the Consents required pursuant to Section 5.5 must have been
obtained and must be in full force and effect.
7.4 ADDITIONAL DOCUMENTS. Each of the following documents must have
been delivered to Buyer:
(a) an opinion of Xxxxxx Xxxxxxxxxxxx Xxxx & Xxxxxx dated the
Closing Date, in form and substance reasonably satisfactory to Buyer;
(b) the deliveries required from Sellers in Section 2.7; and
(c) such other documents as Buyer may reasonably request for
the purpose of (i) evidencing the satisfaction of any condition referred to in
this Section 7, or (ii) otherwise facilitating the consummation or performance
of any of the Contemplated Transactions.
7.5 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced and pending or Threatened by any Person other than one
affiliated with TDI or threatened in writing by a Person affiliated with TDI any
Proceeding (i) involving any challenge to, or seeking damages or other relief in
connection with, any of the Contemplated Transactions, (ii) that
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prevents, makes illegal, or otherwise materially interferes with any of the
Contemplated Transactions or seeks to do any of the foregoing, or (iii) that
involves any material claim against Seller.
7.6 NO PROHIBITION. There must not be in effect any Legal Requirement
or any injunction or other Order that prohibits or restricts the consummation of
the Contemplated Transactions, including, without limitation, HSR Act
compliance.
7.7 NO MATERIAL ADVERSE CHANGE. There shall not have been a Material
Adverse Change since the date hereof.
7.8 DUE DILIGENCE. Buyer's due diligence investigation and review of
the Business with respect to the Purchased Assets, the Business and the Assumed
Liabilities shall not reveal any fact or circumstance not disclosed to Sellers
in the Disclosure Schedule prior to the execution hereof which in Buyer's
judgment, exercised in good faith, would cause or be likely to cause a Material
Adverse Change to the value of the Purchased Assets.
8. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Sellers' obligation to sell the Purchased Assets and Sellers'
obligations to take the other actions required to be taken by Sellers at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Seller, in whole or in
part):
8.1 ACCURACY OF REPRESENTATIONS. Buyer's representations and warranties
in this Agreement must have been accurate as of the date of this Agreement and
must be accurate in all material respects as of the Closing Date as if made on
the Closing Date, and Sellers shall have received a certificate of an executive
officer of Buyer, dated as of the Closing Date, as to such accuracy.
8.2 BUYER'S PERFORMANCE. The covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all material respects,
and Sellers shall have received a certificate of an executive officer of Buyer,
dated as of the Closing Date, as to such compliance.
8.3 ADDITIONAL DOCUMENTS. Buyer must have caused the following
documents to be delivered to Seller:
(a) an opinion of Powell, Goldstein, Xxxxxx & Xxxxxx, dated
the Closing Date, in form and substance reasonably acceptable to Sellers;
(b) the deliveries required from Buyer in Section 2.7; and
(c) such other documents as Sellers may reasonably request for
the purpose of (i) evidencing the satisfaction of any condition referred to in
this Section 8, or (ii) otherwise facilitating the consummation of any of the
Contemplated Transactions.
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8.4 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced and pending or Threatened any Proceeding (i) involving any
challenge to, or seeking damages or other relief in connection with, any of the
Contemplated Transactions, or (ii) that prevents, makes illegal, or otherwise
materially interferes with any of the Contemplated Transactions or seeks to do
any of the foregoing.
8.5 NO PROHIBITION. There must not be in effect any Legal Requirement
or any injunction or other Order that prohibits or restricts the consummation of
the Contemplated Transactions.
9. TERMINATION
9.1 TERMINATION EVENTS. This Agreement may, by notice given prior to or
at the Closing, be terminated:
(a) by mutual consent of Buyer and Sellers;
(b) (i) by Buyer if any of the conditions in Section 7 has not
been satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Buyer to comply with
its obligations under this Agreement) and Buyer has not waived such condition on
or before the Closing Date; or (ii) by Sellers, if any of the conditions in
Section 8 has not been satisfied of the Closing Date or if satisfaction of such
a condition is or becomes impossible (other than through the failure of Sellers
to comply with their respective obligations under this Agreement) and Sellers
have not waived such condition on or before the Closing Date;
(c) by Buyer, on the one hand, or Sellers, on the other hand,
if the Closing has not occurred (other than through the failure of other Party
seeking to terminate this Agreement to comply fully with its obligations under
this Agreement) on or before January 31, 1997, or such later date as the Parties
may agree upon; or
9.2 EFFECT OF TERMINATION. Each Party's right of termination under
Section 9.1 is in addition to any other rights it may have under this Agreement.
If this Agreement is terminated pursuant to Section 9.1, all further obligations
of the Parties under this Agreement will terminate, except that the obligations
in Sections 11.1 and 11.2 will survive; provided, however, that if this
Agreement is terminated by a Party because of the breach of the Agreement by the
other Party or because one or more of the conditions to the terminating Party's
obligations under this Agreement is not satisfied as a result of the other
Party's failure to comply with its obligations under this Agreement, the
terminating Party's right to pursue all legal and equitable remedies, separately
or simultaneously, (including specific performance) will survive such
termination unimpaired.
10. INDEMNIFICATION; REMEDIES
10.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER. The Sellers,
jointly and severally, will indemnify and hold harmless Buyer, stockholders,
controlling Persons, and affiliates (collectively, the "Seller Indemnified
Persons") for, and will pay to the Seller Indemnified Persons the amount of, any
loss, liability, claim, damage, expense (including reasonable costs of
investigation and
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defense and reasonable attorneys' fees), whether or not involving a third-party
claim (collectively, "Damages"), arising, directly or indirectly, from or in
connection with:
(a) any material breach of any representation or warranty made
by Sellers in this Agreement, the Disclosure Schedule, or any other certificate
or document delivered by Sellers pursuant to this Agreement;
(b) any breach by Sellers of any covenant or obligation of
Sellers in this Agreement or any certificate or document delivered by Sellers
pursuant to this Agreement;
(c) the failure of Sellers to satisfy and discharge any
Excluded Liabilities, except only the Assumed Liabilities; and
(d) the failure of Sellers to comply with bulk sales or other
similar laws in any applicable jurisdiction.
10.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER. Buyer will
indemnify and hold harmless Sellers and partners, controlling Persons,
affiliates and heirs (collectively, the "Buyer Indemnified Persons") for, and
will pay to the Buyer Indemnified Persons the amount of any Damages arising,
directly or indirectly, from or in connection with:
(a) any material breach of any representation or warranty made
by Buyer in this Agreement or in any certificate or document delivered by Buyer
pursuant to this Agreement; and
(b) any breach by Buyer of any covenant or obligation of Buyer
in this Agreement including, without limitation, any failure to pay Assumed
Liabilities after the Closing.
10.3 PROCEDURE FOR INDEMNIFICATION -- THIRD PARTY CLAIMS.
(a) Promptly after receipt by an Indemnified Person under
Section 10.1 or 10.2, of notice of any claim against it, such Indemnified
Person will, if a claim is to be made against an Indemnifying Party under such
Section , give notice to the Indemnifying Party of the commencement of such
claim, but the failure to notify the Indemnifying Party will not relieve the
Indemnifying Party of any liability that it may have to any Indemnified Person,
except to the extent that the Indemnifying Party demonstrates that the defense
of such action is prejudiced by the Indemnifying Party's failure to give such
notice.
(b) If any claim referred to in Section 10.3(a) is brought
against an Indemnified Person and it gives written notice to the Indemnifying
Party of such claim, the Indemnifying Party may, at its option, assume the
defense of such claim with counsel satisfactory to the Indemnified Person and,
after written notice from the Indemnifying Party to the Indemnified Person of
its election to assume the defense of such claim, the Indemnifying Party will
not, as long as it diligently conducts such defense, be liable to the
Indemnified Person under this Article 10 for any fees of other counsel or any
other expenses with respect to the defense of such claim, subsequently incurred
by the Indemnified Person in connection with the defense of such claim, other
than reasonable costs of investigation. If the Indemnifying Party assumes the
defense of a claim, (i) no compromise or settlement of such claims may be
effected by the Indemnifying Party without the Indemnified Person's consent
unless (A) there is no finding or admission of any violation of Legal
Requirements or any
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violation of the rights of any Person, and (B) the sole relief provided is
monetary damages that are paid in full by the Indemnifying Party; and (ii) the
Indemnified Person will have no liability with respect to any compromise or
settlement of such claims effected without its consent. Subject to Section
10.3(c), if notice is given to an Indemnifying Party of any claim and the
Indemnifying Party does not, within twenty days after the Indemnified Person's
notice is given, give notice to the Indemnified Person of its election to assume
the defense of such claim, the Indemnifying Party will be bound by any
determination made in such Proceeding or any compromise or settlement effected
by the Indemnified Person.
(c) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable probability that a claim may
adversely affect it or its affiliates other than as a result of monetary damages
for which it would be entitled to indemnification under this Agreement, the
Indemnified Person may, by notice to the Indemnifying Party, assume the
exclusive right to defend, compromise, or settle such claim, but the
Indemnifying Party will not be bound by any determination of a claim so defended
or any compromise or settlement effected without its consent (which may not be
unreasonably withheld).
10.4 PROCEDURE FOR INDEMNIFICATION -- OTHER CLAIMS. A claim for
indemnification for any matter not involving a third-party claim shall be
asserted by written notice to the Indemnifying Party from whom indemnification
is sought.
10.5 SURVIVAL/LIMITATIONS.
(a) The parties hereto agree that (i) the covenants and
agreements contained in the Agreement and any document delivered pursuant hereto
and the representations and warranties contained in Sections 3.1, 3.2(a), 3.3,
3.8, 3.9(a), 4.1, 4.2(a), 3.11, 3.16, 3.19, and 3.20 shall survive until 90 days
after the expiration of all applicable statutes of limitation with respect to
the subject matter thereof, and (iii) all other representations and warranties
shall survive until the first anniversary following the Closing Date.
(b) The Sellers' obligation to indemnify the Sellers
Indemnified Persons for Damages pursuant to Section 10.1 hereof is subject to
the following limitation: (i) in no event shall the Sellers' obligation to
indemnify the Sellers Indemnified Persons exceed 3.5 Million Dollars.
11. GENERAL PROVISIONS
11.1 EXPENSES. Except as otherwise expressly provided in this
Agreement, each Party to this Agreement will bear its respective expenses
incurred in connection with the preparation, execution, and performance of this
Agreement and the Contemplated Transactions, including all fees and expenses of
agents, representatives, brokers or finders, counsel, and accountants. In the
event of termination of this Agreement, the obligation of each Party to pay its
own expenses will be subject to any rights of such Party arising from a breach
of this Agreement by another Party.
11.2 BULK SALES WAIVER AND INDEMNIFICATION.
11.3 PUBLIC ANNOUNCEMENTS; CONFIDENTIALITY. Any public announcement or
similar publicity with respect to this Agreement or the Contemplated
Transactions will be issued, if at all, at
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such time and in such manner as Buyer and Sellers agree in writing, provided
that the parties shall reasonably cooperate in such announcements, and provided
further that nothing contained herein shall prevent any party from at any time
furnishing information required by a Governmental Body. Unless consented to by
Buyer and Sellers in advance or required by Legal Requirements, prior to the
Closing, each Party shall, and shall cause their respective Representatives to,
keep this Agreement strictly confidential and may not make any disclosure of
this Agreement to any Person.
11.4 AVAILABILITY OF EQUITABLE REMEDIES. The Parties acknowledge and
agree that (i) a breach of the provisions of this Agreement could not adequately
be compensated by money damages, and (ii) any Party shall be entitled, either
before or after the Closing, in addition to any other right or remedy available
to it, to an injunction restraining such breach and to specific performance of
this Agreement, and no bond or other security shall be required in connection
therewith.
11.5 NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
Party may designate by notice to the other Parties):
If to Sellers, to:
Xx. Xxxx X. Xxxxxxxxxx
Villepigue Outdoor Advertising Corporation
00-00 Xxx Xxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxxxxxx Xxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Buyer, to:
Outdoor Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
and
Xxxxxxx X. Xxxxxx
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
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Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx, XX, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
11.6 FURTHER ASSURANCES. The Parties agree (i) to furnish upon request
to each other such further information, (ii) to execute and deliver to each
other such other documents, and (iii) to do such other acts and things, all as
the other Party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement.
11.7 WAIVER. Neither the failure nor any delay by any Party in
exercising any right, power, or privilege under this Agreement or the documents
referred to in this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege.
11.8 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the Parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the Parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the Party to be charged with the amendment.
11.9 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. No Party may
assign any of its rights under this Agreement without the prior consent of the
other Parties except that Buyer may assign any of its rights under this
Agreement to any affiliate of Buyer. This Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the Parties, and their
successors, by liquidation or otherwise, and their permitted assigns. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the Parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement.
11.10 ACCOUNTS RECEIVABLE. Buyer agrees to forward to Sellers any
payments that Buyer may receive with respect to any accounts receivable of
Sellers (except for any payment with respect to an Advertising Contract that has
been prorated in favor or Buyer pursuant to Section 2.6 hereof).
11.11 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
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11.12 RISK OF LOSS. Material risk of loss or damage to the Purchased
Assets from any cause whatsoever prior to the Closing shall be borne by Seller,
and after the Closing shall be borne by Buyer.
11.13 POST-CLOSING ACCESS. Buyer agrees that all Books and Records
delivered to Buyer by Sellers pursuant to this Agreement shall be maintained
open for inspection by Sellers at any time during regular business hours upon
reasonable notice for a period of six (6) years (or for such longer period as
may be required by applicable Legal Requirements) following the Closing and
that, during such period, Sellers, at their expense, may make such copies
thereof as it may reasonably desire. Sellers agree that all books and records
relating to the Purchased Assets and retained by Sellers shall be maintained
open for inspection by Buyer at any time during regular business hours for a
period of six (6) years (or for such longer period as may be required by
applicable Legal Requirements) following the Closing and that, during such
period, Buyer, at its expense, may make such copies thereof as it may reasonably
desire. Nothing contained in this Section 11.13 shall obligate any Party hereto
to make available any books and records if to do so would violate the terms of
any Contract or Legal Requirement to which it is a party or to which it or its
assets are subject.
11.14 HEADINGS; CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All words used in this Agreement will be construed to be of
such gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
11.15 APPLICABLE LAW. Except as to matters pertaining to the Owned Real
Property, which matters shall be governed by the laws of the State of New York,
this Agreement shall be governed and controlled as to validity, enforcement,
interpretations, construction, effect and in all other respects by the internal
laws of the State of Delaware applicable to contracts made in that State. The
parties hereto agree to submit exclusively to any federal or state court located
in the State of Delaware any dispute or controversy arising out of or relating
to this Agreement, except for any dispute or controversy relating to Owned Real
Property and which is governed by the laws of the State of New York, which shall
be submitted to any federal or state court located in the State of New York.
11.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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IN WITNESS WHEREOF, the Parties have executed, sealed and delivered
this Agreement as of the date first written above.
BUYER:
OUTDOOR SYSTEMS, INC.
By: __________________________________
Title: _______________________________
SELLERS:
VILLEPIGUE OUTDOOR ADVERTISING
CORPORATION
By: __________________________________
Title: _______________________________
VILLEPIGUE INTERNATIONAL
ADVERTISING, INC.
By: __________________________________
Title: _______________________________
S.B. PROPERTIES, INC.
By: __________________________________
Title: _______________________________
THIRD & EIGHTH REALTY CORP.
By: __________________________________
Title: _______________________________
MOBILE OUTDOOR MEDIA, INC.
By: __________________________________
Title: _______________________________
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EXHIBIT A
DEFINITIONS
"ADVERTISING CONTRACTS" -- as defined in Section 2.2(c).
"AFFILIATES" -- when used with reference to a specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Specified
Person. For purposes of this definition of Affiliate, "control" means the
possession, directly or indirectly, of the power to direct or to cause the
direction of management and policies of the Person in question, whether through
the ownership of voting securities or by contract or otherwise.
"ASSIGNMENT OF ADVERTISING CONTRACTS" -- the Assignment and Assumption
of Advertising Contracts in the form of Exhibit C attached hereto.
"ASSIGNMENT OF PERMITS" -- the Assignment and Assumption of Permits in
the form of Exhibit D attached hereto.
"ASSIGNMENT OF SITE LEASES" -- the Assignment and Assumption of Site
Leases in the form of Exhibit E attached hereto.
"ASSUMED LIABILITIES" -- as defined in Section 2.3.
"BEST EFFORTS" -- the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances.
"XXXX OF SALE" -- the Xxxx of Sale, Assignment and Assumption Agreement
in the form of Exhibit E attached hereto.
"BOOKS AND RECORDS" -- All of Sellers' books and records relating to
the Purchased Assets, including, without limitation, all Site Lease files,
Advertising Contract files, Permit files, maintenance and other records for the
Structures, logs, advertiser, customer and supplier lists.
"BUYER" -- as defined in the first paragraph of this Agreement.
"CLOSING" -- as defined in Section 2.5.
"CLOSING DATE" -- the date and time as of which the Closing actually
takes place.
"CLOSING DOCUMENTS" -- as defined in Section 3.2(a).
"CONFIDENTIAL INFORMATION" -- any information concerning the businesses
and affairs of Sellers that is not generally available to the public.
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"CONSENT" -- any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"CONTEMPLATED TRANSACTIONS" -- all of the transactions contemplated by
this Agreement, including: (a) the purchase of the Purchased Assets by Buyer
from Sellers and assignment to and assumption by Buyer of the Assumed
Liabilities, and (b) the performance by Buyer and the Sellers of their
respective covenants and obligations under this Agreement.
"CONTRACT" -- any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
"DAMAGES" -- as defined in Section 10.1.
"DEEDS" -- limited warranty deeds (or the statutory equivalent thereof
with covenants against grantor's acts only), in recordable form, with respect to
the Owned Real Property.
"DISCLOSURE SCHEDULE" -- the disclosure schedule, delivered by Sellers
to Buyer concurrently with the execution and delivery of this Agreement.
"DUE DILIGENCE PERIOD" -- as defined in Section 5.2.
"ENCUMBRANCE" -- any charge, claim, condition, equitable interest,
lien, option, pledge, security interest, right of first refusal, or restriction
of any kind, including any restriction on use, transfer, receipt of income, or
exercise of any other attribute of ownership.
"ENVIRONMENT" -- soil, land surface or subsurface strata, surface
waters, groundwaters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life, and any other environmental
medium or natural resource.
"ENVIRONMENTAL LAW" -- any Legal Requirement pertaining to
environmental discharges, Release, emissions or spills or the manufacture, sale,
processing, handling, transportation, storage or disposal of any Hazardous
Materials, or relating to any environmental processes or condition, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), the Clean Air Act, the Clean Water Act, the Resource
Conservation and Recovery Act ("RCRA"), the Endangered Species Act, the Federal
Insecticide, Fungicide and Rodenticide Act, the Hazardous Materials
Transportation Act, the Surface Mining Control and Reclamation Act, the
Emergency Planning and Community Right to Know Act, the Safe Drinking Water Act,
the Toxic Substances Control Act, the Coastal Zone Management Act, the National
Environmental Policy Act, the Noise Control Act. As used in this Agreement,
Environmental Laws shall mean any of such laws or regulations as the same exist
now or at the Closing Date.
"ERISA" -- the Employee Retirement Income Security Act of 1974 or any
successor law, and regulations and rules issued pursuant to that Act or any
successor law.
"EXCLUDED LIABILITIES" -- as defined in Section 2.4.
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"GOVERNMENTAL AUTHORIZATION" -- any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"GOVERNMENTAL BODY" -- any federal, state, local, municipal, foreign,
or other government; or governmental or quasi-governmental authority of any
nature (including any governmental agency, branch, department, official, or
entity and any court or other tribunal).
"HAZARDOUS MATERIALS" -- any waste or other substance that is listed,
defined, designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law, and specifically including petroleum and all derivatives
thereof or synthetic substitutes therefor and asbestos or asbestos-containing
materials.
"HSR ACT" -- the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and any regulations and rules promulgated thereunder.
"INDEMNIFIED PERSON" -- any of the Seller Indemnified Persons or the
Buyer Indemnified Persons, as the context requires.
"INDEMNIFYING PARTY" -- the Buyer or the Sellers, as the context
requires.
"INTANGIBLE PROPERTY" -- All right, title and interest in and to the
goodwill and other intangible property (except for Sellers' corporate or trade
names and trade logos) used in connection with the Purchased Assets, all
licenses, permits and authorizations pertaining to the Purchased Assets or the
right to own and operate the Purchased Assets and all right, title and interest
in and to (i) any intellectual property used in connection with the Purchased
Assets, and (ii) all records and data relating specifically to the Purchased
Assets.
"IRC" -- the Internal Revenue Code of 1986, as amended from time to
time, or any successor law, and regulations issued by the IRS pursuant to the
Internal Revenue Code or any successor law.
"IRS" -- the United States Internal Revenue Service and, to the extent
relevant, the United States Department of the Treasury.
"KNOWLEDGE" -- a Person will be deemed to have "Knowledge" of a
particular fact or other matter only if such Person is actually aware of such
fact or other matter without making any independent inquiry or investigation. A
Person (other than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving as a director,
officer, partner, executor, or trustee of such Person (or in any similar
capacity) has Knowledge of such fact or other matter.
"LEGAL REQUIREMENT" -- any federal, state, local, municipal, foreign,
international, multinational, or other administrative Order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"MATERIAL ADVERSE CHANGE" -- a change that will probably cause a
Material Adverse Effect.
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"MATERIAL ADVERSE EFFECT" -- a material adverse effect on the Business,
the Purchased Assets, or the Owned Real Property or operations or conditions
(financial or otherwise) relating thereto, taken as a whole.
"ORDER" -- any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"ORDINARY COURSE OF BUSINESS" -- an action taken by a Person will be
deemed to have been taken in the "Ordinary Course of Business" if such action is
consistent with the past custom and practices of such Person and is taken in the
ordinary course of the normal day-to-day operations of such Person (including
with respect to quantity and frequency).
"ORGANIZATIONAL DOCUMENTS" -- (a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) the partnership agreement and
any statement of partnership of a general partnership; (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (d) any charter or similar document adopted or filed in connection
with the creation, formation, or organization of a Person; and (e) any amendment
to any of the foregoing.
"OTHER CONTRACT" -- any Contract (other than a Site Lease or
Advertising Contract) relating to or affecting the Purchased Assets, the Real
Property, or the operation thereof (i) under which Sellers have or may acquire
any rights, (ii) under which Sellers have or may become subject to any
obligation or liability, or (iii) by which Sellers or any of the Purchased
Assets or the Real Property is or may become bound.
"OWNED REAL PROPERTY" -- the real property referenced in Section
2.2(c).
"PARTY" -- as defined in the first paragraph of this Agreement.
"PERMITS" -- as defined in Section 2.2(d).
"PERMITTED LIENS" -- liens for taxes not yet delinquent, for
mechanic's, materialmen's and similar liens which have arisen in the ordinary
course of business, purchase money security interests, or for other liens which
are immaterial in amount or character.
"PERSON" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"PROCEEDING" -- any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"PURCHASE PRICE" -- as defined in Section 2.6.
"PURCHASED ASSETS" -- as defined in Section 2.2.
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"RELEASE" -- any spilling, leaking, emitting, discharging, depositing,
escaping, leaching, dumping, or other releasing into the Environment, whether
intentional or unintentional.
"REPRESENTATIVE" -- with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"SECURITY INTEREST" -- any mortgage, pledge, lien, encumbrance, charge
or other security interest or option or right of any third party with respect
thereto.
"SELLER" -- as defined in the first paragraph of this Agreement.
"SITE LEASES" -- as defined in Section 2.2(b).
"STRUCTURES" -- as defined in Section 2.2(a).
"TAX" -- shall mean all tax (including income tax, capital gains tax,
value added tax, sales tax, property tax, transfer tax or intangibles tax), levy
assessment, tariff, duty, deficiency or other fee and any related charge or
amount (including fine, penalty and interest) imposed, assessed or collected by
or under the authority of any Governmental Body.
"TAX CLEARANCES" -- as defined in Section 5.9.
"TAX RETURN" -- any return (including any information return), report,
statement, schedule, notice, form, or other document or information filed with
or submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection, or payment of
any Tax or in connection with the administration, implementation, or enforcement
of or compliance with any Legal Requirement relating to any Tax.
"THREATENED" -- a claim, Proceeding or dispute will be deemed to have
been "THREATENED" if any demand or statement has been made or any notice has
been given that would lead a prudent Person to conclude that such a claim,
Proceeding or dispute is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
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