Exhibit 10.1(d)
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of August 29, 1997 (the
"Agreement") by and between Xxxxxx Media Corp., a Delaware corporation (the
"Company") and 21st Century Communications Partners, L.P, a Delaware limited
partnership, 21st Century Communications T-E Partners, L.P., a Delaware limited
partnership, 21st Century Communications Foreign Partners, L.P., a Delaware
limited partnership, and Pulitzer Publishing Company (collectively, the "Initial
Investors").
WHEREAS, the Company desires to sell and deliver to the Initial
Investors and the Initial Investors desire to purchase and receive from the
Company, upon the terms and conditions herein set forth, shares of the Series C
Senior Cumulative Compounding Convertible Preferred Stock, $1.00 par value per
share, of the Company (the "Series C Preferred Stock");
NOW, THEREFORE, the parties hereto in consideration of the mutual
covenants herein contained and intending to be legally bound hereby, agree as
follows:
SECTION 1. DEFINITIONS.
1.1. Definitions. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated
and include the plural as well as the singular:
"Affiliate" means with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with, such Person. For the purposes of this definition, "control" (including the
terms "controlled by" and "under common control with"), as used with respect to
any Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Stock Purchase Agreement, as the same may be
amended, supplemented or modified in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in either New York, New York, or the city and
state in which the principal executive offices of the Company within the United
States are located are not open for business.
"Certificate of Amendment" means the Certificate of Amendment to the
Company's Certificate of Incorporation substantially in the form attached hereto
as Exhibit A.
"Closing" has the meaning set forth in Section 2.3.
"Closing Date" has meaning set forth in Section 2.3.
"Code" means the Internal Revenue Code of 1986, as amended.
"Co-Investment Agreement" means a stock purchase agreement pursuant
to which Lazard, Freres & Co. or any of its Affiliates or any Person identified
by Lazard, Freres & Co. and acceptable to the Company acquires shares of the
Series C Preferred Stock after the Closing Date and that either is (i)
substantially in the form of this Agreement and provides for the purchase of not
more than 12,988 shares of Series C Preferred Stock for a total purchase price
of not less than $1,000,000 and provides for the closing thereunder to occur not
later than 15 Business Days after the Closing Date or (ii) is in such form and
provides for the purchase and sale of such number of shares of Series C
Preferred Stock for such price, at such time and on such terms and conditions as
may be approved by a majority of the Board of Directors of the Company, which
majority includes the Series B Director and the Series C Director, in each case
as the same may be amended from time to time in accordance with its terms and
with the prior written consent of the Investors.
"Company" means Xxxxxx Media Corp., a Delaware corporation and its
successors.
"Company Parties" has the meaning set forth in Section 6.1.
"Company Plans" has the meaning set forth in Section 2.20.
"Common Stock" has the meaning set forth in Section 3.4.
"Concurrent Transactions" has the meaning set forth in Section 2.4.
"Contract" means any agreement, contract, commitment, indenture,
lease, license, instrument, note, bond, security, agreement in principle, letter
of intent, undertaking, promise, covenant, arrangement or understanding, whether
written or oral.
"Debt" means, with respect to any Person, at any time, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable that arise
in the ordinary course of business, or professional fees and similar accounts
payable that arise in connection with any transaction not prohibited by this
Agreement, but only if and so long as the same are payable on customary terms,
(iv) all obligations of such Person as lessee under capital leases, (v) all Debt
secured by a lien on any asset of such Person, whether or not such Debt is
assumed by such Person and (vi) all Debt of others guaranteed by such Person.
"Disclosure Schedule" means Schedule 3 hereto.
"ERISA" has the meaning set forth in Section 2.20.
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"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any court, panel, judge, board,
bureau, commission, agency or other entity, body or other Person exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Intangible Property" has the meaning set forth in Section 3.13.
"Investors" means the Initial Investors and each other Person, other
than the Company or an Affiliate of the Company who at any time acquires any
shares of capital stock of the Company directly or indirectly from any Initial
Investor in a transaction or chain of transactions not involving a public
offering within the meaning of and registered under the Securities Act, for so
long as such Person continues to hold such securities.
"Investors' Shares" means any and all of the shares of Series C
Preferred Stock purchased by any Investor pursuant to this Agreement.
"Issue Date" means the date of this Agreement.
"IRS" has the meaning set forth in Section 3.18.
"Xxxxx Agreement" means the Agreement, dated September 25, 1996,
among Xxxxxx X. Xxxxx, the Company and the TFC Partnerships relating, among
other things, to indebtedness of the Company to Xxxxx evidenced by the Xxxxx
Note.
"Xxxxx Agreement Amendment" means the First Amendment to Agreement,
dated the date hereof and substantially in the form of Exhibit B hereto, among
the Company, Xxxxxx X. Xxxxx and the Initial Investors.
"Xxxxx Note" means the Promissory Note, dated September 25, 1996 and
in the original principal amount of Two Million Three Hundred Seventy-Five
Thousand Five Hundred Dollars ($2,375,500.00), issued by the Company and payable
to Xxxxxx X. Xxxxx.
"Xxxxx Note Amendment" means the Allonge to the Xxxxx Note dated as
of the date hereof and substantially in the form of Exhibit C hereto.
"Judgment" means any order, judgment, writ, decree, award or other
determination, decision or ruling of any court, judge, justice or magistrate,
any other Governmental Authority or any arbitrator.
"Licenses" has the meaning set forth in Section 3.16.
"Material Adverse Effect" means any event, fact, circumstance or
occurrence which results or would result in a material adverse change in or a
material adverse effect on any of (i) the
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condition (financial or otherwise), business, performance, operations or
properties of the Company and its Subsidiaries taken as one enterprise, (ii) the
legality, validity or enforceability of any Transaction Document or (iii) the
ability of the Company or any of its Subsidiaries to perform its material
obligations hereunder or under any other Transaction Document.
"Other Stock Purchase Agreements" means the Stock Purchase
Agreements, dated as of the date hereof, among the Company and certain other
purchasers of Series C Preferred Stock as the same may be amended from time to
time in accordance with their respective terms.
"PBGC" has the meaning set forth in Section 3.20.
"Pension Plans" has the meaning set forth in Section 2.20.
"Permitted Liens" has the meaning set forth in Section 3.12.
"Permitted Transferees" has the meaning as set forth in the
Stockholders' Agreement.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
or other entity of any kind or any Governmental Authority.
"Preemptive Rights Agreement" means the Preemptive Rights Agreement,
dated as of September 25, 1996, among the Company and the TFC Partnerships.
"Preemptive Rights Agreement Amendment" means the First Amendment to
Preemptive Rights Agreement, dated the date hereof and substantially in the form
of Exhibit D hereto, among the Company and the Initial Investors.
"Prior Purchase Agreement" means the Stock Purchase Agreement, dated
September 25, 1996, among the Company and the TFC Partnerships pursuant to which
the TFC Partnerships purchased shares of the Series B Preferred Stock.
"Xxxxxxxx Employment Agreement" means the Employment Agreement
between the Company and Xxxxxx Xxxxxxxx, dated August 1, 1990, as amended
pursuant to an amendment dated September 25, 1996.
"Xxxxxxxx Employment Agreement Amendment" means the Second Amendment
to Employment Agreement between the Company and Xxxxxx Xxxxxxxx, dated as of the
date hereof and substantially in the form of Exhibit E hereto.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of September 25, 1996, among the Company, the TFC
Partnerships and certain other stockholders of the Company.
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"Registration Rights Agreement Amendment" means the First Amendment
to Registration Rights Agreement, dated the date hereof and substantially in the
form of Exhibit F hereto, among the Company, the Initial Investors and certain
stockholders of the Company.
"Requirement of Law" means, as to any Person, the charter and bylaws
or other organizational or governing documents of such Person, and all federal,
state and local laws, rules, regulations, orders, judgments, decrees or other
determinations of an arbitrator, court or other Governmental Authority,
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Rights" means, with respect to any Person, any subscription,
option, warrant, right, convertible security or other agreement, instrument or
commitment of any character obligating (contingently or absolutely) such Person
to issue or sell any capital stock or other securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute, and (unless the context otherwise
requires) the rules and regulations promulgated thereunder.
"Series A Preferred Stock" means the Series A 8.25% Convertible
Preferred Stock of the Company.
"Series A Amendment" means the Certificate of Amendment of the
Amended Certificate of Designation for the Series A Preferred Stock
substantially in the form of Exhibit G hereto.
"Series B Preferred Stock" means the Series B Senior Cumulative
Compounding Convertible Redeemable Preferred Stock of the Company.
"Series B Amendment" means the Certificate of Amendment of the
Certificate of Designation for the Series B Preferred Stock substantially in the
form of Exhibit H hereto.
"Series C Preferred Stock" has the meaning set forth in the
introductory paragraphs.
"Series C Certificate of Designation" means the Certificate setting
forth a copy of the resolution adopted by the Board of Directors of the Company,
pursuant to authority expressly vested in it by the provisions of the
Certificate of Incorporation of the Company, as amended, which resolution
provides for the designation, powers and rights of the series designated thereby
as the Series C Preferred Stock of the Company, as filed with the Secretary of
State of the State of Delaware on or prior to the date hereof, in the form
attached hereto as Exhibit I.
"Stockholders Agreement" means the Stockholders Agreement, dated as
of September 25, 1996, among the Company, the TFC Partnerships and certain other
stockholders of the Company.
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"Stockholders' Agreement Amendment" means the First Amendment to
Stockholders' Agreement, dated the date hereof and in the form of Exhibit J
hereto, by and among the Company, the Initial Investors and certain other
stockholders of the Company.
"Subsidiary" means with respect to any Person as of any time, each
entity as to which any of the following statements is true as of such time:
(a) such entity is an Affiliate of such Person which is
controlled by such Person, or
(b) such Person owns or controls, directly or indirectly
through one or more intermediaries, 50% or more of the outstanding
equity interests in such entity having ordinary voting power to
elect a majority of the members of the board of directors or joint
venture, partnership or other management committee, trustees,
managers or other Persons ordinarily having the power, authority or
responsibility for managing or directing the management of such
entity, or
(c) such Person, directly or indirectly through one or more
intermediaries, is entitled under ordinary circumstances to 50% or
more of the profits or losses of such entity or to receive upon
dissolution and liquidation of such entity 50% or more of the assets
available for distribution to the holders of equity interests in
such entity,
and in the case of any of clauses (a), (b) and (c), disregarding any voting
power, equity interests or other rights or interests which any Person other than
such Person or another Subsidiary of such Person would or might have upon the
happening of any contingency, the satisfaction of any condition or the
occurrence of any event which has not happened, been satisfied or occurred as of
such time.
"Tax" means any federal, state, local and foreign income, profits,
franchise, gross receipts, payroll, sales, employment, use, property,
withholding, excise and other tax, duty or assessment of any nature whatsoever,
together with all interest, penalties and additions imposed with respect
thereto.
"TFC Partnerships" means 21st Century Communications Partners, L.P,
a Delaware limited partnership, 21st Century Communications T-E Partners, L.P.,
a Delaware limited partnership, 21st Century Communications Foreign Partners,
L.P., a Delaware limited partnership.
"Transactions" means the transactions contemplated by the
Transaction Documents and all other transactions consummated in connection
therewith.
"Transaction Documents" means this Agreement, the Stockholders'
Agreement, the Series C Certificate of Designation, the Xxxxx Agreement, the
Registration Rights Agreement, the
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Preemptive Rights Agreement, the Certificate of Amendment, the Other Stock
Purchase Agreement, the Xxxxx Agreement Amendment, the Preemptive Rights
Agreement Amendment, the Registration Rights Amendment, the Stockholders
Agreement Amendment, the Series A Amendment and the Series B Amendment.
1.2 Terms Generally; Certain Rules of Construction. The definitions
in Section 1.1 and elsewhere in this Agreement shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The words "herein", "hereof" and
"hereunder" and words of similar import refer to this Agreement in its entirety
and not to any part hereof unless the context shall otherwise require. All
references herein to Sections, Exhibits and Schedules shall be deemed references
to and Sections of, and Exhibits and Schedules to, this Agreement unless the
context shall otherwise require. Unless otherwise expressly provided herein or
unless the context shall otherwise require, any references as of any time to the
"Certificate of Incorporation", "Articles of Incorporation", "charter",
"organizational or constituent documents" or "By-laws" of any entity, to any
agreement (including this Agreement) or other Contract, instrument or document
or to any statute or regulation or any specific section or other provision
thereof are to it as amended and supplemented through such time (and, in the
case of a statute or regulation or specific section or other provision thereof,
to any successor of such statute, regulation, section or other provision). Any
reference in this Agreement to a "day" or number of "days" (without the explicit
qualification of "Business") shall be interpreted as a reference to a calendar
day or number of calendar days. If any action or notice is to be taken or given
on or by a particular calendar day, and such calendar day is not a Business Day,
then such action or notice shall be deferred until, or may be taken or given on,
the next Business Day. The word "property" includes property and assets of any
kind, whether real or personal, tangible or intangible.
Section 2. Purchase and Sale; Closing.
2.1. Sale and Purchase of Investor's Shares; Purchase Price.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company is selling, assigning, transferring, conveying and
delivering to each of the Initial Investors the number of Investors'
Shares set forth opposite such Initial Investor's name on Schedule 2.1
hereto, and such Initial Investor is purchasing such Investors' Shares
from Company on the date hereof for a purchase price as set forth below.
(b) Purchase Price. Upon the terms and subject to the conditions set
forth in this Agreement, and simultaneously with receipt of the Investors'
Shares on the date hereof, each of the Initial Investors is paying to the
Company the amount set forth opposite such Initial Investor's name on
Schedule 2.1 hereto (which is a purchase price of $77.00 per share of
Series C Preferred Stock) in cash by wire transfer to an account as
designated by the Company prior to the Closing.
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2.2. Closing. The closing ("Closing") of the Transactions shall be
held at the office of Xxxxx & Xxxxx, L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000 or at such other place and time as may be agreed upon by the Company and
the Investors. The date of the Closing is referred to herein as the "Closing
Date."
2.3. Deliveries.
2.3.1. Within five business days of the Closing, the Company will
deliver to each of the Initial Investors free and clear of all liens,
claims or other encumbrances, certificates representing the Investors'
Shares registered in the name of such Investor and for the number of
shares of Series C Preferred Stock set forth opposite such Investor's name
on Schedule 2.1 hereto; and
2.3.2. At the Closing, each Initial Investor will pay to the Company
the purchase price for the shares of Series C Preferred Stock being
purchased by such Initial Investor, as described above in Section 2.1(b).
2.4. Concurrent and Subsequent Transactions.
(a) Contemporaneously with Closing, the following further
transactions the ("Concurrent Transactions") will have occurred or will occur:
(i) Contemporaneously with the Closing, the Stockholders' Agreement
Amendment, the Registration Rights Agreement Amendment, the Preemptive
Rights Agreement Amendment, the Xxxxx Agreement Amendment, the Xxxxx Note
Amendment, and the Xxxxxxxx Employment Agreement Amendment (collectively,
with the documents identified in subsection (iv) below, the "Concurrent
Transaction Documents") will have been executed and delivered by each of
the parties thereto;
(ii) Contemporaneously with the Closing, the Company will issue to
Xxxxxx X. Xxxxx 6,494 shares of the Series C Preferred Stock as prepayment
in full of Five Hundred Thousand and Thirty-Eight Dollars ($500,038.00) of
the principal amount of the Xxxxx Note.
(iii) Contemporaneously with the Closing, the closing of the
purchase by certain other investors of approximately 7,072 shares of
Series C Preferred Stock for a purchase price of $77.00 per share in
accordance with the terms and conditions of the Other Stock Purchase
Agreements will occur; and
(iv) Prior to or contemporaneously with the Closing, each of the
Series C Certificate of Designation, the Series A Amendment, the Series B
Amendment, and the Certificate of Amendment will have been filed with the
Secretary of State of the State of Delaware and will be effective.
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(b) The parties anticipate that, after the Closing Date, the Company
will enter into a Co-Investor Agreement pursuant to which Lazard, Freres & Co.
or one or more of its Affiliates, or one or more Persons identified by Lazard,
Freres & Co. and acceptable to the Series B Director and the Company will
acquire shares of the Series C Preferred Stock after the Closing Date.
2.5. Failure to Consummate Any Transaction. If any of the
transactions contemplated by the Concurrent Transaction Documents to which any
Initial Investor is intended to be a party is consummated, but any of the
Concurrent Transactions contemplated by Section 2.4(a) to be consummated
concurrently with or after such transaction or any of the transactions
contemplated by the other Concurrent Transaction Documents is not so consummated
for any reason on the same date in a manner reasonably satisfactory to the
Initial Investors and their counsel, then, notwithstanding any provision of any
Concurrent Transaction Document apparently to the contrary (i) the Initial
Investors shall have no further obligations under this Agreement or any other
Current Transaction Document and (ii) in addition to any other rights or
remedies which the Initial Investors may have pursuant hereto or at law or in
equity, the Initial Investors shall have the absolute and unconditional right
within 14 days to rescind each consummated Concurrent Transaction or any
transaction contemplated by the Concurrent Transaction Documents to which any
Investor was a party, in which event the Company shall take all such actions as
may be necessary to make such rescission fully effective, including but not
limited to repaying to the Initial Investors the amount of all cash payments
made by them pursuant to Section 2.1. hereof.
Section 3. Representations, Warranties and Covenants of the Company.
The Company hereby represents, warrants and covenants with and to the Investors
that, except as set forth on the Disclosure Schedule, as of the Closing Date:
3.1. Organization. The Company is a corporation duly and validly
organized, existing and in good standing under the laws of the State of
Delaware. The Company is duly qualified to do business in and is in good
standing under the laws of each jurisdiction in which the character of its
business or the ownership of its assets so requires. The Company has all
requisite power and authority to own or hold under lease its assets and operate
its business at the places where such assets are presently located and at the
places and in the manner in which such business is presently conducted. The
Company does not have any subsidiaries, nor is the Company a party to any joint
venture.
3.2. Authority. The execution, delivery and performance of this
Agreement and the other Concurrent Transaction Documents and the compliance with
the respective provisions hereof and thereof by the Company have been duly and
validly authorized by all necessary corporate action of the Company and each of
this Agreement and the other Concurrent Transaction Documents is the legal,
valid and binding agreement of the Company enforceable in accordance with its
terms, except insofar as enforcement may be affected by bankruptcy,
reorganization or similar laws relating to creditors' rights in general, and
general principles of equity.
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3.3. Corporate Records. The copies of (i) the Certificate of
Incorporation, as amended and as provided pursuant to Section 3.31(ii), and (ii)
the By-laws of the Company attached to the Prior Purchase Agreement as Schedule
3.3. are true and complete copies of such instruments and include all amendments
and modifications up to but not including the Closing Date. The minute books of
the Company, as made available to the Initial Investors and their
representatives, contain the complete records of all meetings of and corporate
actions or written consents by the respective stockholders and the Board of
Directors of the Company and the same are accurate in all material respects.
3.4. Capitalization.
3.4.1. Immediately prior to the sale of the Investors' Share to the
Investors, (i) the total authorized capital stock of the Company shall
consist of shares of common stock, par value $.01 per share (the "Common
Stock"), 20,000 shares of Series A Preferred Stock, 91,100 shares of
Series B Preferred Stock, 90,000 shares of Series C Preferred Stock and
298,900 shares of so-called "blank-check" Preferred Stock which had not
been designated pursuant to Section 151 of the Delaware General
Corporation Law or the Company's Certificate of Incorporation, (ii) the
total issued and outstanding capital stock of the Company shall consist of
266,268 shares of Common Stock, 6,000 shares of Series A Preferred Stock,
91,059 shares of Series B Preferred Stock and no shares of Series C
Preferred Stock, which shares of Common Stock and Series A Preferred Stock
were owned by the Persons and in the amounts set forth on Schedule 3.4.1
to the Prior Purchase Agreement and which shares of Series B Preferred
Stock were owned by the Persons and in the amounts set forth on Schedule
3.4.1 hereto and (iii) there are no treasury shares of capital stock.
3.4.2. Upon the sale of the Investors' Shares to the Initial
Investors and the other issuances of shares of Series C Preferred Stock
contemplated by subsections (a)(ii) and (a)(iii) of Section 2.4, the total
issued and outstanding Common Stock, Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock of the Company shall be as
set forth on Schedule 3.4.2 hereto.
3.4.3. When issued to the Initial Investors in accordance with the
terms and conditions hereof, the Investors' Shares will be duly and
validly issued, will be fully paid and non-assessable and will be free and
clear of all liens, claims, pledges, encumbrances and restrictions of any
kind, nature and description (other than restrictions on the subsequent
transfer of securities imposed generally on sales of securities in
non-registered transactions under federal securities laws and the
restrictions imposed by the Transaction Documents) and the Initial
Investors will have good, valid and marketable title to the Investors'
Shares. Except as set forth on Schedule 3.4.3 hereto and except as set
forth in the Company's Certificate of Incorporation or Transaction
Documents, immediately prior to the sale of the Investors' Shares to the
Initial Investors, there shall be (i) no outstanding subscriptions,
script, warrants, commitments, conversion rights, calls, options or
agreements to issue or sell
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additional securities of the Company (ii) no obligations whatsoever
requiring, or which might require, the Company to issue any securities,
(iii) no agreements, commitments, or understandings with respect to the
internal management, control or affairs of the Company including voting
trusts and proxies, (iv) no shares of capital stock of the Company of any
class or series were reserved for issuance, and (v) except for the
Transaction Documents there were no trusts, agreements, arrangements or
understandings to which the Company was a party or by which it was bound
or of which the Company had knowledge that, directly, indirectly,
absolutely or contingently, relate to the issuance, ownership, pledge,
transfer, purchase, redemption or repurchase, voting or registration under
the Securities Act of, or any restriction with respect to, any shares of
authorized, issued or outstanding capital stock of the Company of any
class or series.
3.5. Financial Condition. The Company has furnished to the Initial
Investors true and complete copies of (i) the audited balance sheet of the
Company as of December 31, 1996 (the "1996 Audited Balance Sheet") and the
related statement of income, changes in stockholders' equity and cash flows for
the fiscal year then ended and of the audit report thereon of the Company's
independent certified public accountants and (ii) the unaudited interim balance
sheet of the Company as of June 30, 1997 (the "Unaudited Balance Sheet") and the
related income statement for the six month period then ended. Such 1996 Audited
Balance Sheet and related financial statements, all as previously delivered to
the Initial Investors have been prepared in accordance with generally accepted
accounting principles ("GAAP"), consistently applied, and fairly present the
financial position, results of operations, assets and liabilities of the Company
as of the respective dates and for the respective fiscal periods covered
thereby. The Unaudited Balance Sheet and related income statement were prepared
consistent with GAAP, subject to audit adjustments, notes and footnote
disclosures that would customarily be required to comply with financial
statements presented according to GAAP, and fairly present the financial
position, results of operations, assets and liabilities of the Company as of the
dates and for the fiscal period covered thereby. Except as set forth on Schedule
3.5, there are no material liabilities or obligations of any nature, whether
known or unknown, accrued or not accrued, absolute, contingent or otherwise,
which are not disclosed as such on the aforementioned financial statements or in
the notes thereto. Except as set forth in Schedule 3.5, since December 31, 1996,
the Company has not incurred any material liability or obligation, accrued,
absolute, contingent or otherwise, except in the normal course of the Company's
business. Since June 30, 1997, there has been no material adverse change in the
assets or liabilities, or in the business or condition, financial or otherwise,
or in the results of operations or prospects, of the Company, whether as a
result of any legislative or regulatory change, revocation of any license or
rights to do business, fire, explosion, accident, casualty, labor trouble,
flood, drought, riot, storm, condemnation or act of God, or other public force
or otherwise; and to the best knowledge, information and belief of the Company,
no fact or condition exists or is contemplated or threatened which might cause
such a change in the future.
3.6. No Consents Required. Except for consents of the TFC
Partnerships, which have been given, no consent, authorization, approval,
permit or order of, waiver by, or notice or declaration to or registration,
qualification or filing with, any Governmental Authority or other
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Person pursuant to any applicable Requirement of Law or any Contract is required
in connection with the Company's execution, delivery or performance of any
Concurrent Transaction Documents or the consummation of any of the Concurrent
Transactions which has not been obtained.
3.7. Title to and Useability of Assets. All of the material assets
and properties of the Company are reflected in the 1996 Audited Balance Sheet
and all such assets so reflected or existing (i) are owned beneficially and of
record by the Company, free and clear of any liens, claims, encumbrances and
restrictions, except as set forth in Schedule 3.12.1, (ii) are all of the assets
and properties which are necessary to conduct the business of the Company as it
is currently conducted and (iii) are used or held in compliance with all
applicable laws, rules and regulations and are suitable for the purposes
intended. Except as set forth on Schedule 3.7 hereto, since the date of the 1996
Audited Balance Sheet the Company has not disposed of or acquired any assets or
properties otherwise than in the ordinary course of its business and for
individual amounts not in excess of $5,000.
3.8. Litigation. Except as set forth on Schedule 3.8 hereto, there
is no action, suit, claim, complaint, notice of violation, proceeding at law or
in equity, arbitration, administrative or other proceeding or investigation by
or before any Governmental Authority or other instrumentality or agency, or, to
the Company's knowledge, threatened, against the Company or any of its
properties or rights, and the Company does not know of any valid basis for any
of the same. The Company is not subject to any judgment, order or decree entered
in any lawsuit or proceeding which affects (i) the Company or any part of the
business, properties or assets of the Company or (ii) any part of the
transaction contemplated hereby, or which seeks to impose conditions upon the
degree of the Investors' control over, or the manner in which Investors shall be
permitted to manage their respective investments in the Company subsequent to
the consummation of the Transactions.
3.9. Compliance with Laws. To the best knowledge of the Company, the
Company is in compliance with all federal, state and local laws, ordinances,
regulations and orders applicable to it and its business which could have a
material adverse effect on the Company, its assets or its business. To the best
knowledge of the Company, the Company has all required federal, state and local
governmental licenses and permits necessary in the conduct of its business; such
licenses and permits are in full force and effect; the Company has not violated
any thereof; and no proceeding is pending or, to the Company's knowledge,
threatened, to revoke or limit any thereof.
3.10. Disclosure of Information. No representation, warranty or
covenant made by the Company to the Initial Investors in this Agreement, any
schedule or exhibit to this Agreement or any document, certificate, schedule or
exhibit given to the Initial Investors in connection with this Agreement and the
transaction contemplated hereby, contains any untrue statement of material fact
or omits to state a material fact necessary in order to make the statements set
forth in this Agreement or the matters disclosed in such exhibit, document,
schedule or certificate, in light of the circumstances under which such
statements or disclosures were made, not misleading. There is no fact known to
Company which may materially and adversely affect the business, prospects or
financial condition of the Company or its properties or assets, which has not
been set forth in the
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Agreement or in the exhibits, certificates, schedules or statements in writing
furnished in connection with the Concurrent Transactions or the Prior Purchase
Agreement.
3.11. Real Property.
3.11.1. Except as set forth on Schedule 3.11.1 to the Prior Purchase
Agreement, the Company owns no real property.
3.11.2. Schedule 3.11.2 hereto is a complete copy of each lease of
real property (including amendments thereto) to which the Company is a
party. Except as set forth on Schedule 3.11.2 hereto, there are no
contractual obligations or commitments for the Company to enter into new
leases of real property or to renew or amend existing leases of real
property prior to the Closing Date.
3.12. Personal Property.
3.12.1. Except as set forth in Schedule 3.12.1. hereto, the
Company has the right to use all tangible personal properties and assets that
are material to the conduct of its business, subject to (i) limitations imposed
by the terms of the applicable lease, in the case of leased property, (ii)
defects in title, mortgages, liens, security interests, charges and encumbrances
disclosed in Schedule 3.12.1 hereto and (iii) such restrictions on use as do not
materially impair the use of such properties and assets or the business of the
Company (clauses (i), (ii) and (iii) collectively referred to herein as the
"Permitted Liens"). The Company has good and marketable title to all of the
tangible personal properties, assets and rights owned by it, free and clear of
all mortgages, liens, security interests, charges and encumbrances, except for
Permitted Liens.
3.12.2. All leases, subleases and other agreements under which
the Company is lessee or lessor of any property, real or personal, are in full
force and effect and constitute legal, valid and binding obligations of the
respective parties thereto enforceable in accordance with their respective terms
(except as such enforcement may be limited by bankruptcy, reorganization,
insolvency or other laws and court decisions relating to or affecting the
enforcement of creditors' rights generally, including but not limited to
statutory or other law regarding fraudulent transfers, and except as to the
availability of specific performance or other equitable remedies). To the best
knowledge of the Company, there is not under any of such instruments, any
claimed default or any event which with notice or lapse of time or both would
constitute such an event of default on the part of the Company which would have
a Material Adverse Effect on the Company.
3.12.3. Except as disclosed on Schedule 3.12.3 to the Prior
Purchase Agreement, all machinery, equipment and other tangible personal
property that is material to the conduct of the business of the Company, as the
case may be, and that is owned or used by the Company is free from any material
defect and is capable of being used in the ordinary and usual course of business
as presently conducted by the Company.
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3.13. Intangible Property. Except as set forth on Schedule 3.13
hereto, the Company owns, or has valid, binding and enforceable rights to use,
any and all material patents, trademarks, trade names, service marks, service
names, copyrights, applications therefor and other intellectual property rights
("Intangible Property") used or held for use in connection with its business, in
each case free and clear of any lien, security interest, charge or encumbrance.
Schedule 3.13 hereto sets forth a complete list of all material Intangible
Property used or held for use in connection with the Company's business owned or
licensed to the Company and any licenses or other agreements relating thereto,
and such Schedule 3.13 indicates whether and where any such Intangible Property
has been registered or filed with the United States Patent and Trademark Office,
the Library of Congress Copyright Office or the corresponding office of any
other jurisdiction. Except as set forth on Schedule 3.13 hereto, to the best of
the knowledge of the Company, the Company has not infringed, misappropriated,
misused or been charged with (or, to the best of the Company's knowledge, been
threatened to be charged with), respect to infringement, misappropriation or
misuse of any Intangible Property owned or claimed by another. The Company has
not received any notice with respect to infringement, misappropriation or misuse
of any Intangible Property owned or claimed by another. Except as disclosed on
Schedule 3.13 to the Prior Purchase Agreement, the Company has not granted any
outstanding licenses or other rights, or obligated itself to grant licenses or
other rights in or to any of the Intangible Property owned, used by or licensed
to them.
3.14. Offerees; Regulation D. None of the Company, its directors and
officers, its Affiliates nor any Person acting as agent for or on behalf of any
of the Company has, directly or indirectly, sold, offered for sale, or solicited
offers to buy any of the Investors' Shares, any other shares of Series C
Preferred Stock, any other capital stock or any other securities of the Company
so as to bring the offer, issuance or sale of the Investors' Shares as
contemplated by this Agreement within the registration requirements of Section 5
of the Securities Act, or within the registration or qualification requirements
of any "blue sky" or securities laws of any state or other jurisdiction.
Assuming the Investors are "accredited investors" within the meaning of
Regulation D of the Securities Act, the offering, issuance and sale of the
Investors' Shares pursuant to this Agreement and of the shares of Series C
Preferred Stock referred to in subsection (c) and (d) of Section 2.4 are exempt
from the registration provisions of the Securities Act.
3.15. Capital Commitments. Other than in the ordinary course of
business, there are no unfulfilled promises or commitments for capital
expenditures of the Company which are not reflected in the December 31, 1996
financial statements.
3.16. Licenses; Requirements of Law. To the best of the knowledge of
the Company, Company possesses all authorizations, approvals, consents,
licenses, permits, easements, certificates and other rights and permissions
necessary to conduct its respective business and to own, lease and operate
properties as currently or anticipated to be conducted, owned, leased or
operated, including all of the foregoing necessary for the use by the Company of
all Intangible Property used or anticipated to be used in the conduct of its
business as currently or anticipated to be conducted without a conflict with the
rights of others (collectively, the "Licenses") for which the failure to
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possess would have a Material Adverse Effect. To the knowledge of the Company,
all of the Licenses are in full force and effect. The Company has no reason to
believe that any of the Licenses will be revoked, canceled, rescinded, or not
renewed in the ordinary course and on the same or more favorable material terms,
other than any such revocation, cancellation, rescission, or non-renewal of any
License which is not individually or in the aggregate with one or more other
License(s), material to the business or operations of the Company. To the
knowledge of the Company, there is not now pending any material complaint nor
any basis for any such complaint, which might have any of the results referred
to in the immediately preceding sentence. The Company is operating in all
material respects in accordance with the terms of the Licenses. To the best of
the knowledge of the Company, the Company is, and has conducted its business and
affairs, in compliance with all applicable Requirements of Law, except where the
failure to comply has not had and, insofar as reasonably can be foreseen, will
not have a Material Adverse Effect.
3.17. Certain Fees. Neither the Company nor any of its Affiliates,
officers, directors or employees has employed any financial advisor, broker or
finder or incurred any liability for any financial advisory, brokerage or
finder's fee or commission in connection with any of the Concurrent
Transactions.
3.18. Tax Matters. There has been duly filed by or on behalf of the
Company, or a filing extension from the appropriate federal, state, foreign and
local governments or Governmental Authorities has been obtained with respect to,
all Tax returns and reports required to be filed on or prior to the date hereof,
and all of such Tax returns and reports are correct and complete in all material
respects. Except as provided in Schedule 3.18 to the Prior Purchase Agreement,
payment in full or adequate provision for the payment of all Taxes required to
be paid in respect of the periods covered by such Tax returns and reports has
been made and a reserve which the Company reasonably believes to be adequate has
been set up for the payment of all such Taxes anticipated to be payable in
respect of periods through the date hereof. The federal income tax returns
required to be filed by or on behalf of the Company under the Code or any
predecessor statute have either been examined by the Internal Revenue Service
("IRS") or the period during which any assessments may be made by the IRS has
expired for all years up to and including the taxable year ended December 31,
1993 and any deficiencies or assessments asserted in writing by the IRS have
either been paid or are being contested in good faith by appropriate proceedings
and are adequately reserved against, it being understood that net operating loss
carryforwards attributable to such years remain subject to disallowance by the
IRS. All other Taxes due and payable by or on behalf of the Company have either
been paid or adequately reserved for or are being contested in good faith by
appropriate proceedings as set forth on Schedule 3.18 to the Prior Purchase
Agreement (except for such Taxes which are in the aggregate immaterial in
amount). Except as provided in Schedule 3.18 to the Prior Purchase Agreement,
the Company has not given any waiver which has not yet expired of any statute of
limitations relating to the assessment or payment of Taxes. The Company has not,
with regard to any property held, acquired or to be acquired by it, filed a
consent pursuant to Section 341(f) of the Code or any predecessor statute. The
Company is not a party to any tax-sharing or similar agreement with any Person.
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3.19. Absence of Certain Interests of Affiliated Parties. Except as
set forth on Schedule 3.19 hereto, no present or former stockholder, partner,
director, officer or employee of the Company individually owns or has any
proprietary, financial or other interest, direct or indirect, in whole or in
part, in any Intangible Property, or in any application for a grant or
registration of any patent, trademark, trade name, service xxxx, copyright or
other Intangible Property, which the Company owns, possesses or uses in its
operations as heretofore, now or proposed to be conducted. None of the present
or former stockholders, partners, joint venturers, directors or officers of the
Company, nor any related party of any of the foregoing, is indebted to the
Company, and the Company is not indebted or has any other liability to any such
Person, except (i) pursuant to the express terms of the Contracts listed on
Schedule 3.22.1 hereto and (ii) except as set forth on Schedule 3.19 hereto,
liabilities to directors or officers for compensation for services in such
capacity rendered since the end of the last calendar month.
3.20. Employee Matters.
3.20.1. The names of and the IRS identification numbers of (i) all
"employee pension benefit plans", as defined in Section 3(2) and subject
to Title IV of the Employee Retirement Income Security Act of 1984, as
amended ("ERISA"), which have been maintained or contributed to by the
Company during any of the last five years (the "Pension Plans"), (ii) all
other "employee pension benefit plans" as defined in Section 3(2) of ERISA
which have been maintained or contributed to by the Company during any of
the last five years, and (iii) all other employee benefit plans (including
all "employee welfare benefit plans" as defined in Section 3(1) of ERISA
and all other "employee benefit plans" as defined in Section 3(3) of
ERISA) which have been maintained or contributed to by the Company and (a)
which currently exist or (b) for which any continuing liabilities exist
(all of which plans described in clauses (i), (ii) and (iii) are referred
to collectively as the "Company Plans"), are listed on Schedule 3.20 to
the Prior Purchase Agreement. Except as otherwise indicated on Schedule
3.20 to the Prior Purchase Agreement, none of the Pension Plans is a
"multi-employer plan" as defined in Section 4001(a)(3) of ERISA or
single-employer plan subject to Section 4063 of ERISA, and the Company has
not incurred or is expected to incur any withdrawal liability under ERISA
with respect to any "multi-employer plan" or any single-employer plan
subject to Section 4063 of ERISA.
3.20.2. Favorable determination letters from the IRS with respect to
the status of each Pension Plan which is intended to qualify under Section
401 of the Code have been received. The Company is not aware of any facts
which would adversely affect the qualified status of any Pension Plan that
is intended to so qualify.
3.20.3. The Company has not incurred in connection with the
termination of a Pension Plan, and the Company has no knowledge of any
event or condition which would be reasonably likely to cause, any
liability to the Pension Benefit Guaranty Corporation (the "PBGC") or
otherwise under ERISA. Except as set forth in Schedule 3.20 to the Prior
Purchase Agreement, were any Pension Plan to terminate on the date hereof,
the Company
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would not incur any material liability to the PBGC or otherwise under
ERISA, nor be required to contribute any material additional amounts to
any Pension Plan in order to terminate such Pension Plan.
3.20.4. There are no pending claims, lawsuits or investigations that
have been asserted or instituted against the assets of any of the trusts
under the Company Plans or against the Company or any fiduciary of any of
the Company Plans with respect to the operation of the Company Plans.
3.20.5. The Company Plans have been maintained and administered in
all material respects in accordance with their terms and with all
provisions of ERISA and the Code or any predecessor statute (including
rules and regulations under ERISA, the Code and any predecessor statute)
applicable thereto and, to the knowledge of the Company, neither the
Company nor any "party in interest" or "disqualified person" (within the
meaning of Section 4975 of the Code or Title I, Part 4 of ERISA) within
the control of the Company with respect to the Company Plans has engaged
in a "prohibited transaction" within the meaning of Section 4975 of the
Code or Title I, Part 4 of ERISA. Without limiting the generality of the
foregoing, none of the Pension Plans has incurred a material "accumulated
funding deficiency" within the meaning of Section 302 of ERISA or Section
412 of the Code whether or not waived; no Pension Plan has been the
subject of a "reportable event" as defined in Section 4043 of ERISA, as to
which notices would be required to be filed with the PBGC and all required
contributions under each Pension Plan for all periods through and
including the Issue Date have been made.
3.21. Insurance. The properties and operations of the Company are
insured under various policies of general liability and other forms of insurance
covering such risks as are usually insured against by prudent companies engaged
in the businesses and activities in which the Company is engaged, and, as of the
Closing Date, no premiums are past due. The Company has not been refused any
insurance, no request for coverage has been limited, by an insurance carrier to
which it has applied for insurance or with which it has carried insurance during
the past five years. The Company has not obtained director and officer liability
insurance.
3.22. Contracts and Commitments.
3.22.1. Except as set forth on Schedule 3.22.1 hereto and as
contemplated by the Transaction Documents, the Company is not a party to,
otherwise subject to, bound by, obligated or liable under or entitled to
any rights or benefits under, and none of the properties or businesses of
the Company are subject to, any of the following:
(i) written Contract with any present or former officer,
employee or consultant or for the employment of any Person,
including any consultant or any oral contract with any such Person
which is not terminable at will by the Company without any payment
of any kind;
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(ii) Contract for the future purchase of, or payment for,
supplies, products or services having a total value or involving
total payments or costs of $100,000 or more in any one case or in
the aggregate for all Contracts which are related or which are with
the same Person or group of affiliated Persons;
(iii) Contract continuing over a period of more than six
months from the date hereof having a total value or involving total
payments or costs of $100,000 or more in any one case or in the
aggregate for all Contracts which are related or which are with the
same Person or a group of affiliated Persons;
(iv) distribution, dealer, representative or agency Contract
which, individually or together with one or more such Contracts
which are related or are with the same Person or group of affiliated
Persons, is material (except for the Licenses);
(v) lease under which the Company is either lessor or lessee
of any real property or any material personal property having annual
lease payments in excess of $100,000;
(vi) note, debenture, bond or other security or evidence of
indebtedness, equipment trust agreement, letter of credit agreement,
loan agreement, pledge or security agreement, mortgage or other
Contract pursuant to which any material contingent obligation or any
other Debt of the Company to any other Person or of any other Person
to the Company was incurred or may be incurred in the future or
otherwise relating to any such contingent obligation or other Debt;
(vii) Contract for any capital expenditure or leasehold
improvement in excess of $100,000 per year in any single case or
$100,000 per year in the aggregate for all cases;
(viii) Contract limiting or restraining the Company from
engaging in any business or competing in any manner generally or in
any specific geographic area or obligating the Company to present
any business or other opportunity to any other Person or grant or
offer to grant any other Person any participation or other interest
in any business or other opportunity;
(ix) Contract pursuant to which any Person has a right of
first refusal, a "tag-along" right or any similar right with respect
to any proposed disposition by the Company of any equity interest in
the Company or of any other property of the Company;
(x) Contract which relates in whole or in part to any License
or Intangible Property;
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(xi) Contract with any labor union;
(xii) bonus, pension, profit-sharing, retirement, stock
purchase, stock option, deferred compensation, stock bonus, stock or
equity appreciation plan, phantom stock or equity interest plan,
death benefit, disability, insurance, medical reimbursement, fringe
benefit plan, or similar plan, program or Contract in effect with
respect to its employees or the employees of others, except for the
Company Plans;
(xiii) Contract which provides for "golden parachute" or
similar benefits;
(xiv) Contract relating to the mortgaging, pledging or other
placing of a lien on any properties of the Company;
(xv) Contract with or for the benefit of any present or former
stockholder (other than the Investors or their respective
Affiliates), partner, director or officer of the Company or any
Affiliate of any such Person, except for the Company Plans, and
except for Contracts exclusively between and for the benefit Company
and disclosed on any Schedule;
(xvi) Material Contract not made in the ordinary course of
business.
3.22.2. Schedule 3.22.2. to the Prior Purchase Agreement lists all
material Licenses material to the operation to the Company's business and
identifies the grantor of each thereof.
3.22.3. Except as set forth on Schedule 3.22.3 to the Prior Purchase
Agreement, each of the Licenses, Contracts, plans and other items
identified on Schedule 3.22.1 hereto or Schedule 3.22.2 to the Prior
Purchase Agreement is in full force and effect, valid and enforceable in
accordance with its terms; the Company is, and to the Company's knowledge
all other parties thereto are, in compliance with the material provisions
thereof; the Company is not, and to the Company's knowledge no other party
thereto is, in default in the performance, observance or fulfillment of
any agreement, covenant, obligation, commitment or condition contained
therein; and to the knowledge of the Company no event has occurred which,
with or without the giving of notice or lapse of time or both, would
constitute a default or event of default thereunder, except for defaults
or events of default which are not, individually or in the aggregate,
material. Furthermore, no such License, Contract, plan or other item
contains, in the reasonable opinion of the Company, any material
requirement, commitment, condition or other provision with which there is
a reasonable likelihood the Company or, to the knowledge of the Company,
any other party thereto will be unable to comply or with which there is a
reasonable likelihood the Company or to the knowledge of the Company, any
other party thereto will be able to comply only at an economic loss.
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3.23. Labor Matters. The Company has not suffered any strike,
slowdown, picketing or work stoppage by any union or other group of employees
affecting the business of the Company, and to the Company's knowledge no such
event or action is threatened. There are no unfair labor practice charges or
grievances pending or in process or threatened by or on behalf of any employee
or group of employees of the Company, and no written complaints received by the
Company, or threatened, or, with respect to unresolved complaints, on file with
any federal, state or local Governmental Authority, alleging employment
discrimination or sexual harassment by the Company. The Company is not a party
to any collective bargaining agreement.
3.24. Restricted Payments and Agreements.
3.24.1. Except (i) as set forth on Schedule 3.11.2 or Schedule
3.22.1 hereto (ii) for transactions contemplated by the Transaction
Documents and (iii) for the Concurrent Transactions, since December 31,
1996 there has not been (i) any declarations or dividend payment or other
distribution of assets, properties, cash, rights, obligations or
securities on account of any capital stock of the Company, (ii) except as
set forth on the balance sheet of the Company dated as of December 31,
1996, or, since that time, in the ordinary course of business, any payment
or distribution on account of any Debt, (iii) any purchase, redemption or
acquisition for value or any payment in respect of any shares of any class
of its capital stock or any warrants, rights or options to acquire any
such shares, (iv) except as set forth on Schedule 3.24 hereto, any
purchase, redemption, prepayment, defeasance or acquisition for value of
any Debt, (v) any material adverse change in the business of the Company,
(vi) any amendment, termination or waiver of any rights of material value
to the Company, (vii) any termination of employment of any key employee,
(viii) any capital expenditures or commitments by the Company other than
in the ordinary course of business (including in connection with
installation of monitors) and (ix) any agreement or understanding, whether
in writing or otherwise, for the Company to take any of the actions
specified in items (i) through (viii).
3.24.2. Except for the Transactions the Company has not (i) entered
into any agreement with any Person which, in the absence of a default
thereunder, would legally restrict the Company from paying dividends or
making redemption payments on the Series C Preferred Stock on each date
contemplated by the Series C Certificate of Designation or from fully
performing on a timely basis any of its obligations with respect to the
Series C Preferred Stock, the Series B Preferred Stock, the Series A
Preferred Stock or the Common Stock of the Company or would condition or
otherwise limit or restrict the ability of the Company to (a) pay
dividends or make any other distributions permitted by applicable law to
the Company; (b) pay any Debt owed to the Company; (c) make loans or
advances to the Company; or (d) transfer any of its property or assets to
the Company; or (ii) otherwise create or suffer to become effective any
consensual arrangement which would have any effect referred to in
subclause (i) of this Section 3.24.2.
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3.25. Conduct of Business. The Company Parties are principally
engaged in only the business of electronic out-of-home media comprised of video
displays on remote public locations linked by a communications network. The
Company also has ownership interests in the businesses listed on Schedule 3.25
of the Prior Purchase Agreement.
3.26. Environmental Matters. The Company (i) has not received
written notice or otherwise learned of any claim, demand, action, event,
condition, report or investigation indicating or concerning any potential or
actual liability of any Company Party which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect arising in
connection with (a) any non-compliance with or violation of the requirements of
any applicable federal, state and local environmental health and safety laws and
regulations or (b) the release or threatened release of any toxic or hazardous
waste, substance or constituent into the environment, (ii) to the knowledge of
the Company, does not have any threatened or actual liability in connection with
the release or threatened release of any toxic or hazardous waste, substance or
constituent into the environment which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect, (iii) has not received
notice of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release or threatened release of any toxic or
hazardous waste, substance or constituent or other substance into the
environment for which the Company is or may be liable, or (iv) has received
notice that the Company is or may be liable to any Person under the
Comprehensive Environmental Response Compensation and Liability Act, as amended,
42 U.S.C. Section 9601 et seq. or any analogous state law.
3.27. Key Employees; Deferred Compensation. None of the officers or
key employees of the Company set forth on Schedule 3.27 hereto, to the Company's
knowledge, presently intends to terminate his or her employment by the Company.
The Company does not have any cash deferred compensation obligations to any
director, officer or employee of the Company.
3.28. Other Agreements. All representations and warranties of the
Company contained in any of the Concurrent Transaction Documents (other than
this Agreement) are true and accurate in all material respects. Each of the
Concurrent Transaction Documents (other than this Agreement) is in full force
and effect. The Company has complied in all material respects with all of its
covenants and agreements contained in each of the Concurrent Transaction
Documents (other than this Agreement). As of or immediately prior to the
Closing, (i) all documents relating to the Concurrent Transactions are in full
force and effect and have been executed and delivered in the respective forms
furnished to the Investors, (ii) no term, condition or provision of any of the
documents relating to the Concurrent Transactions has been amended, modified or
waived, expressly or by implication, (iii) all conditions to the consummation of
the Concurrent Transactions have been satisfied (or waived with the concurrence
of the Initial Investors), (iv) the Initial Investors, or their duly appointed
agents, have received a copy of each document required to be delivered to the
Initial Investors pursuant to the Concurrent Transactions and (v) there exists
no default, event of default, breach or violation (or any event which, with
notice, lapse of time or otherwise, could result in a default, event of default,
breach or violation) under any of the documents relating to the Concurrent
Transactions.
-21-
3.29. Use of Proceeds. The Company shall use the proceeds of the
sale of the Investors' Shares to the Investors and the proceeds of any
contemporaneous or subsequent sale of shares of Series C Preferred Stock
contemplated by Section 2.4 hereof for working capital purposes and for capital
expenditures in the ordinary course of business, in either such case
substantially in accordance with budgets approved from time to time at meetings
of the Board of Directors of the Company by a majority of the Board. None of
such proceeds shall be used to build out additional markets without the prior
written approval of Majority Senior Holders (as defined in the Series C
Certificate of Designation).
3.30. Filing of Series C Certificate of Designation, Certificate of
Amendment, Etc. All actions necessary in order to duly and validly authorize and
designate the Preferred Stock, including all necessary corporate action on the
part of the Company and its stockholders and the filing with the Delaware
Secretary of State of the Series C Certificate of Designation and the
Certificate of Amendment, have been taken and each of the Series C Certificate
of Designation and the Certificate of Amendment is in full force and effect in
the forms attached hereto as Exhibit I and Exhibit A, respectively, and has not
been amended, modified or supplemented. All actions necessary in order to duly
and validly authorize and effect the amendments to the Certificate of
Incorporation of the Company set forth in the Series A Amendment and the Series
B Amendment, including all necessary corporate action on the part of the Company
and its stockholders and the filing with the Delaware Secretary of State of the
Series A Amendment and the Series B Amendment, have been taken and each of the
Series A Amendment and the Series B Amendment is in full force and effect in the
forms attached hereto as Exhibit G and Exhibit H, respectively, and has not been
amended, modified or supplemented
3.31. Availability of Documents. The Company has made available to
the Investors copies of all documents, including all Contracts, insurance
policies, leases, plans, instruments, and Licenses listed in any Schedule or
otherwise referred to herein. Such copies are true and complete and include all
amendments, supplements and modifications thereto or waivers currently in effect
thereunder. The Company has delivered to the Initial Investors concurrently with
the Closing, (i) a certificate, dated the Issue Date, of the Chief Executive
Officer/President and the Secretary of the Company (a) attaching copies,
certified by such officers as true and complete, of the resolutions of the Board
of Directors and stockholders of the Company in connection with the
authorization and approval of the execution, delivery and performance of the
Concurrent Transaction Documents and consummation of the Concurrent Transactions
and of all other documents evidencing all necessary corporate action taken in
connection therewith, (b) attaching copies, certified by such officers as true
and complete, of the Certificate of Incorporation, as amended and By-Laws of the
Company, (c) which includes a representation by such officers that the copies of
the Certificate of Incorporation and By-Laws of the Company, as previously
provided to the Initial Investors, are true and complete in all respects and,
that the copies of the Certificate of Incorporation, as amended conform to the
original documents filed with the Secretary of State (which representation shall
reference each document by name and date of execution and (d) setting forth the
incumbency of the officer or officers of the Company who have executed and
delivered this Agreement and each other Transaction Document, including therein
a signature specimen of each such officer or officers, (ii)
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copies, certified by the Secretary of State of the State of Delaware, or other
appropriate official of the jurisdiction of incorporation of the Company of the
Certificate of Incorporation as of August 18, 1997, (iii) a long form
certificate of existence and good standing (including tax good standing), dated
the Closing Date of the Secretary of State or other appropriate official of the
jurisdiction of incorporation of such Company Party and (iv) an opinion of
counsel to the Company on the form substantially as set forth in Exhibit K
hereto.
Section 4. Representations and Warranties of the Investors. Each Investor,
severally and not jointly, represents and warrants to the Company as follows:
4.1. Authority. This Agreement is the valid and binding agreement of
such Investor, enforceable in accordance with its terms, except insofar as
enforcement may be affected by bankruptcy, reorganization or similar laws
relating to creditors' rights in general, and general principles of equity, and
no consent, authorization or approval of any other person to such consummation
of the transactions contemplated hereby is required. Such Investor has taken all
actions necessary to authorize the execution, delivery and performance of this
Agreement by such Investor and no other proceedings on the part of such Investor
are necessary to authorize the execution and delivery of this Agreement and the
transactions contemplated hereby.
4.2. Investment Intent. (i) Such Investor is an "accredited"
investor as defined in Regulation D promulgated under the Securities Act of
1933, as amended; (ii) such Investor has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
uses of its investment in the Company; (iii) such Investor understands and is
able to bear the economic risks associated with such investment; (iv) such
Investor has, on the date hereof, sufficient financial resources to carry out
the purchase of the shares purchased by it as contemplated in this Agreement;
(v) such Investor is purchasing the Investors' Shares it is purchasing for
investment, for its own account, and not with a view to the public distribution
or resale thereof in violation of the Securities Act or any applicable state
securities law.
4.3. Access to Information. Such Investor has been furnished with or
given access to all information that it has requested regarding the Company's
current operations, business plans and prospects, in addition to the information
contained herein.
Section 5. No Joint Obligations.
5.1. Obligations Several, Not Joint. Each Investor shall be (i)
obligated hereunder only with respect to the purchase of the number and kind of
Investors' Shares set forth on Schedule 2.1 hereto and no Investor shall have
any liability with respect to any other Investors' obligations hereunder and
(ii) separately and independently entitled to rely on the representations and
warranties of each other party made to such Investor in this Agreement and to
the benefit of all covenants and agreements of each other party made with such
Investor herein.
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Section 6. Indemnification.
6.1. Agreement of Company to Indemnify.
6.1.1. The Company agrees to defend, protect, indemnify and hold
harmless each Indemnified Party (as defined below) from and against any
and all liabilities, obligations, losses, deficiencies, claims,
investigations, suits, actions, proceedings, damages, assessments,
penalties, judgments, costs, disbursements and expenses of any kind or
nature (including reasonable fees and disbursements of counsel in
connection with preparing for, defending against or prosecuting), and
amounts paid or agreed to be paid in settlement of, any claim, action,
suit, hearing, proceeding or investigation against such Indemnified Party
or any action, suit or proceeding initiated by such Indemnified Party in
connection with securing, exercising, enjoying and enforcing such
Indemnified Party's rights, benefits and privileges or enforcing any
Company Party's obligations and liabilities under any Concurrent
Transaction Document, in each case including appeals, whether direct,
indirect or consequential, in any manner resulting from, arising out of,
based upon or related or attributable to: (i) any breach or inaccuracy of
any representation or warranty of, or any breach or failure to perform any
covenant, agreement or obligation, of the Company contained in this
Agreement or any other Concurrent Transaction Document; (ii) the
invalidity or unenforceability, or alleged invalidity or unenforceability,
of any provision of any Concurrent Transaction Document; (iii) any
liability or obligation, or alleged liability or obligation, of any
Company Party to, or claim by, any holder or former holder of capital
stock, equity interests or other securities of any Company Party or any
Affiliate of any Company Party, relating to any event, fact or
circumstances occurring or existing at any time at or prior to the time of
the Closing under this Agreement or by reason of consummation of any of
the transactions contemplated by the Concurrent Transaction Documents; or
(iv) any liability or obligation, or alleged liability or obligation, of
any Initial Investor to, or claim by, any holder or former holder of
capital stock, equity interests or other securities, or any creditor of or
claimant against the Company or any predecessor corporation of any
thereof, relating to any event, fact or circumstances occurring or
existing at any time at or prior to the time of the Closing under this
Agreement or by reason of consummation of any of the transactions
contemplated by the Concurrent Transaction Documents.
6.1.2. As used in this Agreement, the term "Indemnified Parties"
includes (i) each Initial Investor, (ii) each partner of any Initial
Investor who at any time may acquire any of the Investors' Shares by
reason of the dissolution of or any distribution by such Initial Investor,
(iii) the respective Affiliates, partners (general and limited), directors
and officers of the foregoing Persons and their respective shareholders,
directors and officers and (iv) the respective successors, heirs,
executors and legal representatives of the foregoing. For purposes of this
Section 6.1., each reference to any "Company Party" includes the Company
and each and every Person which, at any time prior to the date hereof, (i)
was consolidated with or merged with or into the Company, (ii) was
consolidated with one or more other entities in a transaction resulting in
the formation of the Company, (iii) was a party to a
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binding share exchange with the Company, (iv) sold or otherwise
transferred all or substantially all of its properties to the Company or
(v) was a party to any transaction by virtue of which the Company
succeeded to, assumed or otherwise incurred whether by contract or
agreement, operation of law or otherwise, liability for any Debt,
liabilities and obligations of such Person, including liability for any
taxes payable by such Person, obligations or liabilities of such Person
with respect to any employee benefit plan or obligations or liabilities of
such Person under any Requirements of Law.
6.2. Defense of Third-Party Claims. Each Indemnified Party will give
the Company prompt notice of any third-party claim, investigation, action, suit,
hearing or proceeding with respect to which such Indemnified Party seeks
indemnification pursuant to Section 6.1., but the failure to give such notice
shall not impair any of the rights or benefits of such Indemnified Party under
Section 6.1. except to the extent such failure adversely affects the Company's
ability to defend such claim or increases the amount of such liability. In the
case of any third-party claims as to which indemnification is sought by any
Indemnified Party, such Indemnified Party shall be entitled, at the sole expense
and liability of the Company, to exercise full control of the defense,
compromise or settlement of any third-party claim, investigation, action, suit,
hearing or proceeding unless the Company within a reasonable time after the
giving of such notice by the Indemnified Party shall: (i) deliver a written
confirmation to such Indemnified Party that the indemnification provisions of
Section 6.1. are applicable to such claim, investigation, action, suit, hearing
or proceeding and that the Company will indemnify such Indemnified Party in
respect of such claim, investigation, action or proceeding pursuant to the terms
of such Section without asserting any challenge, defense, counterclaim or offset
against the Indemnified Party, (ii) notify such Indemnified Party in writing of
the intention of the Company to assume the defense thereof and (iii) retain
legal counsel reasonably satisfactory to such Indemnified Party to conduct the
defense of such claim, investigation, action, suit, hearing or proceeding. If
the Company so assumes the defense of any such claim, investigation, action,
suit, hearing or proceeding in accordance herewith, then such Indemnified Party
shall cooperate with the Company in any manner reasonably requested in
connection with the defense, compromise or settlement thereof. If the Company so
assumes the defense of any such claim, investigation, action, suit, hearing or
proceeding, the Indemnified Party shall have the right to employ separate
counsel and to participate in (but not control) the defense, compromise, or
settlement thereof, but the fees and expenses of such counsel shall be the
expense of such Indemnified Party unless (i) the Company has agreed to pay such
fees and expenses, (ii) any relief other than the payment of money damages is
sought against such Indemnified Party or (iii) the named parties to any such
claim, investigation, action, suit, hearing or proceeding (including any
impleaded parties) include an Indemnified Party and the Company or one or more
other Indemnified Parties, and such Indemnified Party shall have been advised by
its counsel that there is a conflict of interest between such Indemnified Party
and the Company or any such other Indemnified Party in the conduct of the
defense thereof, and in any such case the reasonable fees and expenses of such
separate counsel shall be borne by the Company. Subject to the penultimate
sentence of this Section 6.2., if the Company elects to direct the defense of
any such claim, investigation, action, suit, hearing or proceeding, the
Indemnified Party shall not pay, or permit to be paid, any part of any claim or
demand arising from such asserted liability unless the Company withdraws from
the defense of such
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asserted liability, or unless a final judgment from which no appeal may be taken
by or on behalf of the Indemnified Party is entered against the Indemnified
Party for such liability. If the Company does not elect to defend, or if, after
commencing or undertaking any such defense, the Company fails to prosecute or
withdraws from such defense, the Indemnified Party shall have the right to
undertake the defense or settlement thereof, at the Company's expense. If the
Indemnified Party assumes the defense of any such claim, investigation, action,
suit, hearing or proceeding pursuant to this Section 6.2. and proposes to settle
the same prior to a final judgment thereon or to forgo appeal with respect
thereto, then the Indemnified Party shall give the Company prompt written notice
thereof and the Company shall have the right to participate in the settlement,
assume or reassume the defense thereof or prosecute such appeal, in each case at
the Company's expense. The Company shall not, without written consent of such
Indemnified Party, settle or compromise or consent to entry of any judgment with
respect to any such claim, investigation, action, suit, hearing or proceeding
(i) in which any relief other than the payment of money damages is or may be
sought against such Indemnified Party or (ii) which does not include as an
unconditional term thereof the giving by the claimant, Person conducting such
investigation or initiating such hearing, plaintiff or petitioner to such
Indemnified Party of a release from all liability with respect to such claim,
investigation, action, suit or proceeding and all other claims or causes of
action (known or unknown) arising or which might arise out of the same facts.
6.3. Periodic Payments. Any indemnification required by Section 6.1.
for costs, disbursements or expenses of any Indemnified Party in connection with
investigating, preparing to defend or defending any claim, action, suit,
hearing, proceeding or investigation shall be made by periodic payments during
the course of the investigation or defense as and when bills are received or
costs, disbursements or expenses are incurred; provided, however, that such
Indemnified Party shall repay any such periodic payments made to it pursuant to
this Section 6.3. to the extent that it ultimately is determined that the amount
thereof exceeds that to which such Indemnified Party is entitled pursuant to
Section 6.1.
6.4. Termination of Indemnification. The representations and
warranties of the Company made in or pursuant to this Agreement or any other
Concurrent Transaction Document shall survive the Closing, for the following
respective periods (subject to the last sentence of this Section 6.4), in each
case regardless of any investigation that may have been or may be made by or on
behalf of any Investor: (i) in the case of the representations and warranties
made in Section 3.1, Section 3.2, Section 3.3, Section 3.4 or Section 3.10,
indefinitely; (ii) in the case of the representations and warranties made in
Section 3.18, Section 3.20 or Section 3.26, until the expiration of the
last-to-expire of all statute of limitations periods applicable to claims that
may be asserted against the Company or any Investor in respect of any matter
covered thereby and (iii) in all other cases, until the first anniversary of the
date of the Closing. The representations and warranties of the Investors made in
or pursuant to this Agreement shall survive until the first anniversary of the
date of the Closing. All covenants, agreements, obligations and commitments of
the Company made in or pursuant to this Agreement, in any other Concurrent
Transaction Document shall survive indefinitely and without limitation (except
as may otherwise be expressly provided for by their terms). Any representation,
warranty, covenant, agreement, obligation or commitment
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which is the subject of a claim or dispute asserted in writing prior to the
expiration of the applicable of the above-stated periods shall survive with
respect to such claim or dispute until the final resolution thereof.
Section 7. Legends.
7.1. Securities Act Legend. Except as otherwise provided in this
Section 7.1. or in the Stockholders' Agreement, each certificate or other
instrument evidencing the Investors' Shares shall bear a legend in substantially
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS STATED IN (AND ARE TRANSFERABLE ONLY UPON COMPLIANCE WITH)
THE STOCK PURCHASE AGREEMENT, DATED AUGUST ____, 1997. THE SHARES HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR OTHER SECURITIES LAWS. THEY ARE 'RESTRICTED SECURITIES' WITHIN THE
MEANING OF SEC RULE 144. THE SHARES MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND SUCH LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE ACT AND SUCH LAWS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY."
Any holder of any such certificate or instrument bearing the foregoing legend
shall be entitled to promptly receive from the Company, without expense, a new
certificate or instrument of identical tenor representing the same kind of
securities and the same number or other amount thereof not bearing such legend
if such securities shall have been effectively registered under the Securities
Act and are sold or otherwise disposed of in accordance with the intended method
of disposition by the seller thereof set forth in the registration statement, or
such securities may be freely transferred by such holder by reason of an
exemption from registration under the Securities Act, or such legend otherwise
is not required in order to ensure compliance with the Securities Act. The
opinion of Xxxxx & Xxxxx, L.L.P., or other legal counsel selected by such holder
and reasonably satisfactory to the Company with respect to any of the foregoing
or with respect to any question concerning whether any proposed transfer of any
such securities would violate the Securities Act shall be sufficient to
determine the issue.
Section 8. Miscellaneous.
8.1. Survival of Provisions. The respective representations,
warranties, covenants and agreements of the parties made herein or pursuant
hereto shall remain operative and in full force and effect regardless of (i) any
investigation made at any time by or on behalf of any Investor or any
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other Person and (ii) the Closing under this Agreement and acceptance of any of
the Investors' Shares and payment therefor.
8.2. Determinations Generally. Unless otherwise expressly provided
herein, all decisions and determinations required or permitted to be made by any
Investor hereunder (including any decision as to whether to give any consent or
approval) shall be made by such Investor in its sole discretion.
8.3. Communications. All notices and other communications required
or permitted by this Agreement shall be in writing, and (i) if to the Company,
to Xxxxxx Media Corp., 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxx, XX 00000, Attention:
Chairman, or to such other address as the Company may designate in a written
notice to each Stockholder, or (ii) if to any Investor, to such Investor at such
Investor's address appearing on Schedule 2.1 hereto or supplied by such Investor
in writing to the Company for the purpose of such notice. All notices and other
communications required or permitted by this Agreement shall be deemed to have
been duly given if personally delivered to the intended recipient at the proper
address determined pursuant to this Section 8.3. or sent to such recipient at
such address by registered or certified mail, return receipt requested, Express
Mail, Federal Express or similar overnight delivery service for next Business
Day delivery or by telegram, telex or facsimile transmission and will be deemed
given, unless earlier received: (1) if sent by certified or registered mail,
return receipt requested, five calendar days after being deposited in the United
States mail, postage prepaid; (2) if sent by Express Mail, Federal Express or
similar overnight delivery service for next Business Day delivery, the next
Business Day after being entrusted to such service, with delivery charges
prepaid or charged to the sender's account; (3) if sent by telegram or telex or
facsimile transmission, on the date sent and (4) if delivered by hand, on the
date of delivery.
8.4. Fees, Costs, Expenses and Taxes.
8.4.1. At the Closing Date, the Company covenants and agrees to pay
all of the costs and expenses and the reasonable out-of-pocket expenses
incurred by the Initial Investors in connection with the negotiation,
preparation, review, printing, typing, reproduction, execution, delivery,
collection and enforcement of this Agreement and the other Concurrent
Transaction Documents and any amendment or supplement to or modification
of any of the foregoing and any and all other agreements, instruments,
certificates and other documents furnished pursuant hereto or thereto or
in connection herewith or therewith and provided, however, that the
Company's maximum aggregate obligation under this Section 8.4.1. shall be
limited to $50,000.
8.4.2. The Company agrees to pay any and all stamp, transfer and
other similar taxes payable or determined to be payable in connection with
the execution and delivery of this Agreement, or the issuance and sale of
the Securities, and shall save and hold each Investor harmless from and
against any and all liabilities with respect to or resulting from any
delay in paying, or omission to pay, such taxes.
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8.5. Brokerage. The Company represents and warrants that no broker,
finder or investment banker is or will be entitled to any brokerage, finder's or
similar fee or commission in connection with any of the transactions
contemplated by the Transaction Documents based upon arrangements made by and on
behalf of such party.
8.6. Incorporation by Reference. All schedules and exhibits to this
Agreement and all documents delivered pursuant to or referred to in this
Agreement are incorporated herein by reference and made a part hereof.
8.7. Binding Effect; Successors and Assigns; Entire Agreement.
Except as expressly provided in this Agreement, nothing in this Agreement,
express or implied, is intended or shall be construed to confer upon or give any
person (including creditors, stockholders and Affiliates of the Company), other
than the parties to this Agreement, any remedy or claim under or by reason of
this Agreement or any term, covenant or condition hereof, all of which shall be
for the sole and exclusive benefit of the parties to this Agreement. This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns and executors, administrators and heirs; provided that, except as
otherwise specifically permitted or contemplated pursuant to this Agreement, (i)
neither this Agreement nor any of the rights, interests or obligations of the
Company hereunder shall be assigned by the Company without the prior written
consent of each Investor and (ii) neither this Agreement (other than Section
2.2) nor any of the rights, interests or obligations of the Investors (other
than such rights, interests and obligations in connection with Section 2.2), of
the Investors hereunder may be assigned by the Investors without the prior
written consent of the Company other than to an Affiliate of any Investor. This
Agreement and the other Transaction Documents collectively set forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merge and supersede all prior discussions, agreements and understandings of
any and every nature among them with respect to such subject matter.
8.8. Amendments and Waivers. The provisions of this Agreement
(including the provisions of this sentence), may not be amended, modified or
supplemented, and waivers of or consents to departures from the provisions
hereof or thereof may not be given unless approved in writing by the Investors.
8.9. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York,
regardless of the laws that might be applicable under principles of conflicts of
law except to the extent that Delaware General Corporation Law mandatorily
applies.
8.10. Interpretation. The headings of the sections contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement.
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8.11. No Implied Waivers. No action taken pursuant to this
Agreement, including, without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants or
agreements contained herein or made pursuant hereto. The waiver by any party
thereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach and no failure by
any party to exercise any right or privilege hereunder shall be deemed a waiver
of such party's rights or privileges hereunder or shall be deemed a waiver of
such party's rights to exercise the same at any subsequent time or times
hereunder.
8.12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to constitute one and the same agreement.
8.13. Attorney's Fees. In any action or proceeding brought to
enforce any provision of this Agreement, and in any action or proceeding arising
under or with respect to this Agreement where any provision hereof or thereof is
validly asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
8.14. Further Assurances. Each party shall cooperate and take such
actions as may be reasonably requested by another party in order to carry out
the provisions and purposes of this Agreement and the transactions contemplated
hereby.
8.15. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance is held by a court of
competent jurisdiction to be invalid, void or enforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, provided that, if any provision
hereof or the application thereof shall be so held to be invalid, void or
unenforceable by a court of competent jurisdiction, then such court may
substitute therefor a suitable and equitable provision in order to carry out, so
far as may be valid and enforceable, the intent and purpose of the invalid, void
or unenforceable provision. To the extent that any provision shall be judicially
unenforceable in any one or more states, such provision shall not be affected
with respect to any other state, each provision with respect to each state being
construed as several and independent.
8.16. Specific Performance. The parties agree that the provisions of
this Agreement shall be specifically enforceable, it being agreed by the parties
that the remedy at law, including monetary damages, for breach of such
provisions will be inadequate compensation for any loss and that any defense in
any action for specific performance that a remedy at law would be adequate is
waived.
8.17. Facsimile Signatures. This Agreement may be executed by
facsimile signatures.
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[Signatures appear on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement on the day and year first written above.
THE XXXXXX GROUP, INC.
By: _______________________________
Name:
Title:
21ST CENTURY COMMUNICATIONS T-E
PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL
MANAGEMENT, General Partner
By: ARH CORP.,
General Partner
By: _______________________________
Xxxxxx Xxxxxxxxx
Treasurer
21ST CENTURY COMMUNICATIONS
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PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL
MANAGEMENT, General Partner
By: ARH CORP.,
General Partner
By: _______________________________
Xxxxxx Xxxxxxxxx
Treasurer
21ST CENTURY COMMUNICATIONS
FOREIGN PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL
MANAGEMENT, General Partner
By: ARH CORP., General Partner
By: _______________________________
Xxxxxx Xxxxxxxxx
Treasurer
PULITZER PUBLISHING COMPANY
By: _______________________________
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