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Exhibit 4.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of March 13, 2000, by and between Sunrise Television Partners, L.P., a
Delaware limited partnership ("Seller"), and Xxxxx Broadcasting Partners, L.P.,
a Delaware limited partnership ("Buyer"), and is joined in by Sunrise
Television Corp., a DELAWARE corporation (the "Company"), and the other
signatories hereto (the "Other Parties"), for the limited purposes set forth in
this Agreement.
R E C I T A L
Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, one (1) share (the "Share") of common stock, par value $0.01 per share,
of the Company, in consideration for the Purchase Price (hereinafter defined),
upon the terms and subject to the conditions set forth herein.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants, agreements and conditions hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARE
1.1 Purchase and Sale of the Share. Upon the terms and subject to
the conditions set forth in this Agreement, at the Closing (hereinafter
defined), Seller shall sell to Buyer, and Buyer shall purchase from Seller, the
Share, free and clear of all liens, security interests, claims, charges, rights
of another, defects in title and encumbrances of any kind or character
("Liens").
1.1. Purchase Price. The purchase price payable by Buyer to Seller
in consideration for the issuance and sale of the Share shall be equal to $200
(the "Purchase Price"). Payment of the Purchase Price shall be made at the
Closing by or on behalf of Buyer in cash or by wire transfer of immediately
available funds to Seller.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of Seller. Seller hereby
represents and warrants to Buyer as follows (with the understanding that Buyer
is relying on such representations and warranties in entering into and
performing this Agreement):
(a) Ownership of the Share. Seller is the holder of
record and owns beneficially the Share. At the Closing, Seller will transfer to
Buyer good and valid title to the Share, free and clear of all Liens.
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(b) Organization. Seller is a limited partnership
organized and validly existing under the laws of the State of Delaware.
(c) Authority. Seller has the requisite power and
authority to enter into this Agreement and each other agreement, document and
instrument required to be executed in accordance herewith (collectively, and
including this Agreement, the "Transaction Documents") and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of the
Transaction Documents by Seller and the consummation by Seller of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of Seller. Each Transaction Document has been, or when
executed and delivered in accordance herewith or therewith, will be duly
executed and delivered by Seller and, assuming that such Transaction Document
constitutes a valid and binding obligation of the other party(ies) thereto,
constitutes or, upon execution and delivery, will constitute a valid and
binding obligation of Seller, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
(d) Consents; Noncontravention. The execution, delivery
and performance of the Transaction Documents by Seller does not require the
consent of any governmental entity or third party, except for (1) the approval
by the Federal Communications Commission of the transactions contemplated by
this Agreement and the proposed recapitalization (the "Recapitalization") of
the Company pursuant to which, among other things, each issued and outstanding
share of common stock of the Company will be converted into a share of
nonvoting common stock, except that the Share to be held by Buyer will be
converted into one share of voting common stock of the Company, (2) the consent
of the network under each network affiliate agreement to which the Company and
any of its subsidiaries is a party, (3) the filing of a premerger notification
report under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended ("Xxxx-Xxxxx Act"), and the expiration or termination of any waiting
period in connection therewith, and (4) the consent of the sole stockholder to
the Second Amended and Restated Certificate of Incorporation of the Company to
be filed in connection with the Recapitalization. The execution, delivery and
performance of the Transaction Documents by Seller will not conflict with or
violate any applicable law or any judgment, order or ruling of any government
authority having jurisdiction over Seller, will not, directly or indirectly,
conflict with or constitute a breach or default under any agreement, license or
permit to which Seller is a party or is subject, and will not result in the
creation of any Lien on the assets of the Company.
(e) No Valuation. Seller understands and acknowledges
that Buyer has not performed, directly or indirectly, any valuation of the
Share or of the Company and this Agreement shall not be construed as a
valuation of the Share or of the Company.
2.2. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows (with the understanding that Seller is relying on
such representations and warranties in entering into and performing this
Agreement):
(a) Organization. Buyer is a limited partnership
organized and validly existing under the laws of the State of Delaware.
(b) Authority. Buyer has the requisite power and
authority to enter into the Transaction Documents to which Buyer is to be a
party and to consummate the transactions contemplated hereby and thereby. The
execution and delivery by Buyer of the Transaction Documents to which Buyer is
to be a party and the consummation by Buyer of the transactions contemplated
thereby have been duly authorized by all necessary action on the part of Buyer.
Each Transaction Document to which Buyer is to be a party has been,
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or when executed and delivered in accordance herewith or therewith will be,
duly executed and delivered by Buyer and, assuming that such Transaction
Document constitutes a valid and binding obligation of the other party(ies)
thereto, constitutes or, upon execution and delivery, will constitute a valid
and binding obligation of Buyer, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
(c) Amendment and Restatement of Charter and Bylaws.
Buyer acknowledges and understands that the Amended and Restated Certificate of
Incorporation of the Company, dated February 25, 1997, and the Amended and
Restated Bylaws of the Company, as adopted on February 24, 1997, will be
amended and restated to read substantially as each appears, respectively, in
Exhibit A and Exhibit B hereto, in connection with the Recapitalization.
(d) Investment Intent. The Share to be acquired by Buyer
hereunder is being acquired for its own account, for investment and with no
intention of distributing or reselling such Share or any part thereof or
interest therein in any transaction which would be a violation of the
securities laws of the United States of America or any state or any foreign
country or jurisdiction.
(e) Investment Status. Buyer is an "Accredited Investor"
as defined in Rule 501 under the Securities Act of 1933 (the "Securities Act"),
and Buyer has such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating an investment in the Share,
and is able to bear the economic risks of such investment.
(f) Access. The Buyer has carefully reviewed and is
familiar with the terms of each Transaction Document to which it is or will be
a party. Seller and the Company have made available to Buyer all agreements,
documents, records, and books that Buyer has requested relating to the purchase
of the Share. The Buyer has had a full opportunity to ask questions of and
receive answers from Seller or the Company or a person acting on behalf of
Seller or the Company concerning the terms and conditions of the purchase of
the Share, and all questions asked by Buyer have been adequately answered to
the full satisfaction of Buyer. The Buyer is familiar with the business and
financial condition, properties, operations and prospects of the Company.
(g) Restricted Securities. Buyer understands (i) that
the Share has not been and will not be registered under the Securities Act or
registered or qualified under any applicable state or securities or "blue-sky"
laws by reason of their issuance in transactions exempt from the registration
requirements of the Securities Act or registration or qualification
requirements of any applicable state securities or "blue-sky" laws, (ii) that
the Share must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or registered or qualified under any
applicable state securities or "blue-sky" laws or is exempt from such
registration, (iii) that Seller is under no obligation to so register the Share
and (iv) that the certificate evidencing the Share will be imprinted with a
legend that prohibits the transfer thereof unless they are registered or such
registration is not required.
(h) State of Principal Place of Business. The principal
place of business of Buyer is located in the state of Florida, and Buyer has no
present intention of moving its principal place of business to any other state
or jurisdiction.
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ARTICLE III
COVENANTS
3.1. Side Letter Agreement. At the Closing, Buyer, the Other
Parties, and the Company shall execute and enter into a side letter agreement
substantially in the form attached hereto as Exhibit C (the "Side Letter
Agreement").
3.2. Assurances. Each of Buyer, Seller, and the Company shall use
its commercially reasonable efforts to consummate, or cause to be consummated,
the transactions contemplated by this Agreement and the Recapitalization,
provided that the Company shall be entitled, in its sole and absolute
discretion, not to consummate the Recapitalization.
ARTICLE IV
CLOSING CONDITIONS
4.1. Conditions to each Party's Obligations. The obligations of
each party hereto to consummate the transactions contemplated hereby are
subject to the satisfaction of the following conditions on or before the
Closing:
(a) No temporary restraining order, preliminary or
permanent injunction, or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated under this Agreement shall be in
effect;
(b) No action shall have been taken nor any statute,
rule, or regulation shall have been enacted by any governmental entity that
makes the consummation of the transactions contemplated under this Agreement
illegal;
(c) No litigation or administrative proceeding or
investigation (whether formal or informal) shall be pending or, to any party's
knowledge, threatened which challenges the transactions contemplated hereby;
(d) All necessary approvals by the Federal
Communications Commission shall have been obtained;
(e) Any applicable waiting periods under the Xxxx-Xxxxx
Act, if applicable to the transaction contemplated by this Agreement or the
Recapitalization, shall have expired or been terminated;
(f) All necessary consents and waivers from the lenders
under the Amended and Restated Credit Agreement dated July 2, 1998, as amended
from time to time, by and among the Company, STC Broadcasting, Inc., and the
lenders party thereto shall have been received;
(g) All necessary consents or waivers under each network
affiliate agreement to which the Company or any of its subsidiaries is a party
shall have been received without any adverse conditions or requirements being
imposed on the Company or any of its subsidiaries as a condition to any network
affiliate's consent or waiver and to which the Company or any of its
subsidiaries does not agree.
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4.2. Conditions to Obligations of Buyer. The obligation of Buyer
to effect the transactions contemplated hereby is subject to the satisfaction
of the following conditions unless waived, in whole or in part, by Buyer:
(a) The representations and warranties of Seller in this
Agreement shall be true and correct as of the Closing Date;
(b) Seller shall have performed all obligations under
its covenants and agreements in this Agreement on or before the Closing Date;
and
(c) All items required to be delivered by Seller and the
Company pursuant to Section 5.2 shall have been delivered.
4.3. Conditions to Obligations of Seller. The obligation of Seller
to effect the transactions contemplated hereby is subject to the satisfaction
of the following conditions unless waived, in whole or in part, by Seller:
(a) The representations and warranties of Buyer in this
Agreement shall be true and correct as of the Closing Date;
(b) Buyer shall have performed all obligations under its
covenants and agreements in this Agreement before the Closing Date; and
(c) All items required to be delivered by Buyer and SBP
pursuant to Section 5.2 shall have been delivered.
ARTICLE V
CLOSING
5.1. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall be on a date (the "Closing Date"), and at a
time and place, mutually acceptable to Buyer and Seller; provided, however,
that the Closing Date shall be no later than the effective time of the merger
contemplated by the Agreement and Plan of Merger, among Clear Channel
Communications, Inc., CCU Merger Sub, Inc. and AMFM Inc., dated as of October
2, 1999 (the "Merger Agreement"). For purposes of this Agreement, each and
every event referred to in this Agreement that is to occur at the Closing shall
be deemed to have occurred contemporaneously.
5.2. Actions to Occur at Closing.
(a) At the Closing, Buyer shall deliver to Seller an
amount equal to the Purchase Price in cash or by wire transfer of immediately
available funds.
(b) At the Closing, Seller shall deliver to Buyer a
certificate representing the Share, accompanied by a stock power duly endorsed
in blank, and otherwise in proper form for transfer.
(c) At the Closing, Buyer, the Other Parties, and the
Company shall deliver to each other a duly executed copy of the Side Letter
Agreement.
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ARTICLE VI
TERMINATION
6.1. Termination. This Agreement may be terminated at any time
prior to Closing as follows:
(a) by mutual consent of Buyer and Seller; or
(b) by written notice of Buyer to Seller or Seller to
Buyer, if the other party breaches any of its representations, warranties,
covenants or agreements contained herein which (i) would give rise to the
failure of a condition to the Closing set forth in Article IV, as applicable,
and (ii) cannot be or has not been cured within 30 days after the date notice
of such breach or default is served by the party seeking to terminate this
Agreement; or
(c) by written notice of Buyer to Seller or Seller to
Buyer, if there shall be in effect any judgment, decree or order that would
prevent or make unlawful the Closing of the transactions contemplated by this
Agreement; or
(d) automatically, without further action by either
Buyer or Seller, if the Company elects, in its sole and absolute discretion,
not to consummate the Recapitalization;
provided, however, that no party hereto may effect a termination hereof if such
party is then in material breach or default of this Agreement; and provided
further, that the termination of this Agreement pursuant to this section shall
not relieve any party of any liability for breach of this Agreement prior to
the date of termination. Articles VI and VII shall survive termination of this
Agreement.
ARTICLE VII
MISCELLANEOUS
7.1. Indemnification; Survival Period. Each party acknowledges and
understands the meaning and legal consequences of the representations,
warranties, covenants and agreements set forth herein and that the other
parties hereto have relied or will rely upon such representations, warranties,
covenants and agreements, and such party hereby agrees to indemnify and hold
harmless each other party hereto and, to the extent applicable, such other
party's officers, directors, controlling persons, agents and employees, from
and against any and all loss, claim, damage, liability or expense, and any
action in respect thereof, joint or several, to which any such person may
become subject, due to or arising out of a breach of any such representation,
warranty, covenant or agreement, together with all reasonable costs and
expenses (including attorneys' fees) incurred by any such person in connection
with any action, suit, proceeding, demand, assessment or judgment incident to
any of the matters so indemnified against. All representations and warranties
contained in this Agreement, and the indemnification contained herein, shall
survive the sale of the Share in full force and effect until the expiration of
the applicable statute of limitations. To the extent that such are performable
after the Closing, each of the covenants and agreements contained in this
Agreement shall survive the Closing indefinitely.
7.2. Expenses and Obligations. Except as otherwise expressly
provided in this Agreement or as provided by law, as between the parties
hereto, all costs and expenses incurred by the parties hereto in connection
with the transactions contemplated in this Agreement or in the other related
documents shall be borne solely and entirely by the Company, including any fees
associated with any filings or applications under the Xxxx-Xxxxx Act or with
the Federal Communications Commission related to the transactions contemplated
herein.
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7.3. Parties in Interest. This Agreement shall be binding upon
and, except as provided in Section 7.1, inure solely to the benefit of each
party hereto and their successors and assigns, and nothing in this Agreement,
except as set forth in Section 7.1, express or implied, is intended to confer
upon any other person any rights or remedies of any nature whatsoever under or
by reason of this Agreement.
7.4. Specific Performance. The parties recognize that, in the
event any party should refuse to perform under the provisions of this
Agreement, monetary damages alone will not be adequate. Each party shall
therefore be entitled, in addition to any other remedies which may be
available, including money damages, to obtain specific performance of the terms
of this Agreement. In the event of any action to enforce this Agreement
specifically, each party hereby waives the defense that there is an adequate
remedy at law.
7.5. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Buyer, to
Xxxxx Broadcasting Partners, L.P.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
(b) If to Seller, to
Sunrise Television Partners, L.P.
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to
Xxxxxx & Xxxxxx L.L.P.
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
7.6. Entire Agreement. This Agreement (which term shall be deemed
to include the other certificates, documents and instruments delivered
hereunder) constitutes the entire agreement of the parties
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hereto and supersedes all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof.
7.7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
7.8. Interpretation. All references in this Agreement to Articles,
Sections, subsections, and other subdivisions refer to the corresponding
Articles, Sections, subsections, and other subdivisions of this Agreement
unless expressly provided otherwise. Titles appearing at the beginning of any
Articles, Sections, subsections or other subdivision of this Agreement are for
convenience only, do not constitute any part of such Articles, Sections,
subsections, or other subdivisions, and shall be disregarded in construing the
language contained therein. The words "this Agreement," "herein," "hereby,"
"hereunder," and "hereof," and words of similar import, refer to this Agreement
as a whole and not to any particular subdivision unless expressly so limited.
The word "including" (in its various forms) means "including without
limitation." Pronouns in masculine, feminine, or neuter genders shall be
construed to state and include any other gender and words, terms, and titles
(including terms defined herein) in the singular form shall be construed to
include the plural and vice versa, unless the context otherwise expressly
requires. Unless the context otherwise requires, all defined terms contained
herein shall include the singular and plural and the conjunctive and
disjunctive forms of such defined terms. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.9. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in any number of counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
7.10. Assignment; Amendment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either of
Seller or Buyer, whether by operation of law or otherwise without the prior
written consent of the other party hereto. No amendment, waiver of compliance
with any provision or condition hereof or consent pursuant to this Agreement
shall be effective unless evidenced by an instrument in writing signed by the
party against whom enforcement of any waiver, amendment or consent is sought.
7.11. Further Assurances. From time to time following the Closing,
the parties hereto shall execute and deliver such other instruments of
assignment, transfer and delivery and shall take such other actions as the
other reasonably may request in order to consummate, complete and carry out the
transactions contemplated by this Agreement.
7.12. Severability. Buyer and Seller agree that if one or more
provisions contained in this Agreement shall be deemed or held to be invalid,
illegal or unenforceable in any respect under any applicable law, this
Agreement shall be construed with the invalid, illegal or unenforceable
provision deleted, and the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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IN WITNESS WHEREOF, the undersigned have each caused this Agreement to
be executed as of the date first written above.
BUYER:
XXXXX BROADCASTING PARTNERS, L.P.
By: Xxxxx Broadcasting Group, Inc.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: CFO, EVP
SELLER:
SUNRISE TELEVISION PARTNERS, L.P.
By: HM3/Sunrise L.P.,
its general partner
By: HM3/Sunrise, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
COMPANY:
SUNRISE TELEVISION CORP.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: CFO
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XXXXX BROADCASTING GROUP, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: CFO, EVP
/s/ Xxxxx XxXxxxxxxx
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Xxxxx XxXxxxxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxxx X. Xxxx
-------------------------------
Xxxxx Xxxx
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EXHIBIT A
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
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EXHIBIT B
SECOND AMENDED AND RESTATED BYLAWS
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EXHIBIT C
FORM OF SIDE LETTER AGREEMENT
