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EXHIBIT 99.1
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
Amendment No. 1 (this "Amendment"), dated as of May 22, 1997, to the
Stock Purchase Agreement (the "Agreement") dated April 11, 1997 by and among
Xxxxxxx X. Xxxxxx, a resident of the state of New York ("Xxxxxx"), Xxxxx
Xxxxxxx, a resident of the state of New York ("Xxxxxxx"), Van Wagner
Communications, Inc., a New York corporation (the "Company") and Outdoor
Systems, Inc., a Delaware corporation ("Buyer").
RECITALS
WHEREAS, the parties have entered into the Agreement and desire to
amend certain of the provisions contained therein; and
AGREEMENT
The parties hereto, for and in consideration of the covenants and
agreements set forth herein and in the Agreement, and intending to be legally
bound, agree as follows:
Capitalized terms used herein but not defined herein shall have the
meaning given to them in the Agreement.
ARTICLE I
AMENDMENTS RELATING TO PROFIT SHARING AND WELFARE PLANS
1.1 Section 5.16 of the Agreement is hereby amended to delete in its
entirety therefrom the parenthetical clause appearing therein.
1.2 Section 5.18 of the Agreement is hereby deleted in its entirety.
1.3 Section 7.7 of the Agreement is hereby amended to delete in its
entirety therefrom the parenthetical clause appearing therein.
1.4 Item 5 of Part 5.3(g) of the Disclosure Schedule to the Agreement
is hereby amended to read in its entirety as follows:
"5. The Group Major Medical, Dental, and Life Insurance, the
Vision Service Plan and the Group Long Term Disability Plan
discussed in Part 3.22 of the Disclosure Schedule (the
"Scheduled Plans") will be amended as of the Closing Date to
the extent necessary to exclude from participation therein (i)
individuals who are employees of the Company as of the Closing
Date, (ii) individuals whose employment by the Company
terminated as of the Closing Date and who are not, as of such
date, employed by Porsche Outdoor Advertising Co., Inc. or its
affiliates, and (iii) the dependents of the individuals
described in (i) and (ii) above. Individuals who, immediately
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to the Closing Date, are covered under the Scheduled Plans
pursuant to COBRA shall continue to be offered such COBRA
coverage under the Scheduled Plans after the Closing Date."
1.5 Part 5.3(g) of the Disclosure Schedule to the Agreement is hereby
amended to add a new item 6 to the end thereof which shall read in its entirety
as follows:
"6. Prior to the Closing Date, the Van Wagner Communications, Inc.
Profit Sharing Plan will be terminated, and the
responsibilities of the "Employer" thereunder in respect of
such termination will be assigned to and assumed by Porsche
Outdoor Advertising Co., Inc. Prior to the Closing Date, such
plan will be amended to reflect the foregoing."
1.6 Part 5.16 of the Disclosure Schedule to the Agreement is hereby
amended to add a new item 11 to the end thereof which shall read in its entirety
as follows:
"11. The Van Wagner Communications, Inc. Profit Sharing Plan will
be terminated effective prior to the Closing Date and the
responsibilities of the "Employer" thereunder will be assigned
to Porsche Outdoor Advertising Co., Inc."
1.7 Section 2.5(b)(iii) of the Agreement is hereby amended to delete
the phrase "and each of the trustees and fiduciaries of each pension and other
plan of the Company."
1.8 The Agreement is hereby amended to add thereto a new Section 5.21
to read in its entirety as follows:
"5.21 WELFARE BENEFIT COVERAGE. Effective immediately
following the Closing Date, (i) all employees of the Company, and their
eligible dependents, shall participate in all employee welfare benefit
plans (as defined in Section 3(1) of ERISA) of Buyer, and (ii)
individuals who were employees of the Company immediately prior to the
Closing Date and who were covered under the Company's group health and
dental plan immediately prior to the Closing Date (and the eligible
covered dependents of such individuals) who are terminated by the
Company immediately following the Closing Date shall be offered COBRA
continuation coverage under Buyer's group health and dental plans."
1.9 Section 5.13 of the Agreement and Part 5.13 of the Disclosure
Schedule are hereby amended to include in the definition of the Retained
Businesses, the (i) Scheduled Plans and (ii) telephone lease between Northern
Telecom Finance Corporation and the Company dated May 13, 1994.
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ARTICLE II
AMENDMENTS RELATING TO BONUS ACCOUNT
2.1 The Agreement shall be amended by adding a new Section 5.18 which
shall read as follows:
"5.18 PAYROLL ACCOUNT. (a) Buyer acknowledges and agrees that the
Company maintains a bank account at The Chase Manhattan Bank (the
"Bank"), account number __________ (the "Payroll Account"), and the
Company has informed Buyer that the Bonus Payments shall be paid from
such account. Buyer acknowledges and agrees that, after the Closing
Date, (i) Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxx Xxxxx
shall remain the sole authorized signatories on the Payroll Account,
and (ii) Buyer shall not take any actions whatsoever with respect to
the Payroll Account without the prior written approval of Xxxxxx
including, without limitation, closing such account, changing or adding
authorized signatories thereto, authorizing or ordering stop transfer
payments or other stop orders with respect to any check or other
payment made or to be made on such account and writing checks or
otherwise withdrawing funds from such account.
(b) Xxxxxx acknowledges and agrees that (i) the Payroll Account shall
be used solely for the purpose of making payroll and accrued vacation
payments and the Bonus Payments contemplated by this Agreement, and
(ii) that all such payments, including without limitation, the
applicable tax withholding for such payments (both employer and
employee portion) shall be made from the Payroll Account on behalf of
the Company. The Sellers acknowledge and agree that (i) the arrangement
described in this Section 5.18 has been agreed to as an accommodation
to Sellers; (ii) neither the Company nor Buyer makes any representation
to Sellers as to the adequacy of the Payroll Account for the
fulfillment of the foregoing obligations; and (iii) neither Buyer nor
the Company shall have any obligations with respect to the obligations
to be satisfied from the Payroll Account or the funding of or otherwise
in connection with such Payroll Account after the Closing Date. Within
sixty (60) days after the Closing Date, Xxxxxx shall take or cause to
be taken all such actions as are necessary to terminate the Payroll
Account, and shall provide evidence thereof to Buyer."
ARTICLE III
AMENDMENTS RELATING TO PURCHASE PRICE
3.1 The following definitions shall be added to Article I: "Escrow
Agent" shall mean Xxxx Marks & Xxxxx LLP. "Escrow Agreement" shall mean that
certain Escrow Agreement among Buyer, Sellers, and Escrow Agent dated the date
hereof.
3.2 The Agreement is hereby amended by deleting Sections 2.4(a)(i) and
2.4(a)(ii).
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3.3 The Agreement is hereby amended by deleting the first two sentences
of Section 2.4(d) and replacing such language with the following:
"The Purchase Price adjustments in (a) and (b) above shall be made
post-Closing in accordance with this Section 2.4(d). Within ninety (90)
days after the Closing, the Buyer will prepare and provide to Sellers a
Closing Date Balance Sheet and calculations of adjustments to the
Purchase Price reviewed by Buyer's outside certified public
accountants."
and by adding the following language to the end of Section 2.4(d):
"Buyer agrees to deposit $1,500,000 into escrow at the Closing, which
amounts shall be used to pay Sellers any positive Purchase Price
adjustment (as finally determined), or shall be returned to Buyer in
the event such Purchase Price adjustment is negative, in accordance
with the Escrow Agreement."
3.4 The Agreement is hereby amended by deleting the first sentence and
paragraph (a) of Section 2.5 and replacing such language with the following:
"(a) At the Closing, Buyer shall (i) deliver $1,500,000 to the
Escrow Agent to be held in escrow pursuant to the Escrow Agreement and
(ii) make certain payments on behalf of Sellers from the Purchase Price
in accordance with instructions provided by Sellers to Buyer, which
payments shall not aggregate more than the Purchase Price. All of the
payments pursuant to clause (a)(ii) shall reduce the total amount of
the Purchase Price payable to the Sellers."
3.5 The Agreement is hereby amended by deleting the first sentence of
Section 5.9. and replacing it with the following:
"Sellers shall cause all Indebtedness for Borrowed Money to
have been satisfied in full on or before the Closing."
3.6 The Agreement shall be amended by adding the following sentence to
the end of Section 2.5(d):
"The parties acknowledge and agree that the proceeds of the repayment
of the Loan Amount by Adtime to the Company shall be used by the
Company to make the Bank Payment and the cash received from payment of
the Loan Amount shall not be included in current assets for purposes of
the Closing Date Net Working Capital adjustment."
3.7 Section 2.5(e) shall be amended by adding the following phrase to
the end thereof:
"including, without limitation, the Escrow Agreement."
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ARTICLE IV
AMENDMENTS RELATING TO INDEMNIFICATION
4.1 Section 10.1(e) of the Agreement is hereby amended by deleting
clause (i) and substituting in lieu thereof the following:
"(i) the Bonus Plan, the Profit Sharing Plan and the Phantom Stock Plan
of the Company,"
and by adding the following additional clause at the end thereof:
"including, without limitation, all applicable withholding Taxes (both
employer and employee portions) with respect to payments under or in
respect of the plans or agreements described in this Section 10.1(e)."
4.2 Section 10.3 of the Agreement is hereby amended by adding the
following:
"(d) if a claim is made by Metro Display Advertising Inc.
("MDA") alleging that Sellers do not have title to or other ownership
interest in the Shares ("Title Claim"), Sellers shall assume the
defense of such claims at their cost and expense. If such Title Claim
is included among other claims, one or more of which Sellers is not
otherwise required to defend hereunder, Sellers shall only be obligated
to defend the Title Claim (and such other claims which they otherwise
would be required to defend hereunder) and shall not be required to
defend any such claims which it would not otherwise be required to
defend hereunder.
4.3 Section 5.20 is hereby amended by adding the following language to
the end of such section:
"For so long as the claim is an obligation of Sellers under this
Section 5.20, Sellers agree (i) to keep Company appraised of the status
of the claim and to consult with Company in its handling of the claim;
and (ii) the provisions of Sections 10.3(b) and (c) hereof shall apply
to such claim as if such claim were a third-party claim whose defense
has been assumed by Sellers."
ARTICLE V
AMENDMENTS RELATING TO BILLBOARDS
5.1 Xxxxxx shall cause Porsche Outdoor Advertising Co., Inc.
("Porsche") to transfer to the Company as soon as practical after the Closing
the permit issued to Porsche and the lease related thereto with respect to the
billboard located at the corner of Pico Blvd. and Xxxxxxx Drive in West Los
Angeles, California.
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ARTICLE VI
MISCELLANEOUS
6.1 As amended by this Amendment, the Agreement shall remain in full
force and effect.
6.2 If any provision of this Amendment is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Amendment
will remain in full force and effect. Any provision of this Amendment held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
6.3 This Amendment 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 New York, without giving effect to the
conflicts of law provisions thereof. The Parties hereto agree to submit
exclusively to jurisdiction any federal or state court located in the State of
New York any dispute or controversy arising out of or relating to this
Amendment.
6.4 This Amendment may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Amendment 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 and delivered this
Amendment as of the date first written above.
BUYER:
Outdoor Systems, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
SELLERS:
/s/ Xxxxxxx X. Xxxxxx
______________________________________
Xxxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxx
______________________________________
Xxxxx Xxxxxxx
COMPANY:
Van Wagner Communications, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
