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EXHIBIT 10.8
XXXXXXX BROADCAST GROUP, INC.
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT, dated as of November 23, 1999 (this
"Agreement"), is made and entered into by and among XXXXXXX BROADCAST GROUP,
INC., a Delaware corporation ("BBGI"), the parties set forth on Exhibit A
hereto, who, upon completion of the contribution transaction contemplated in
this Agreement, will become stockholders of BBGI (each a "Stockholder" and,
collectively, the "Stockholders") and Xxxxxxx XX Acquisition Corp., a Delaware
corporation ("BFMA"), and the other general partnership and corporate entities
(BFMA and such other entities together, the "Operating Companies") and limited
partnership entities (the "License Partnerships") set forth on Exhibit B hereto
(collectively, the "Broadcast Companies").
R E C I T A L S
A. BBGI has been formed and organized under the laws of the State of
Delaware for the purposes of effecting a reorganization of the Broadcast
Companies, which own and operate the radio broadcasting business (the
"Business") described in the Registration Statement on Form S-1 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") by BBGI pursuant to the Securities Act of 1933, as
amended (the "Act"), in order to effect an initial public offering of BBGI's
Class A Common Stock (the "Offering").
B. Subject to the terms and conditions set forth herein, BBGI desires
to acquire from the Stockholders all of the issued and outstanding equity
interests in the Broadcast Companies, as set forth on Exhibit C hereto, and the
Stockholders desire to contribute and convey all of their equity interests in
the Broadcast Companies to BBGI and obtain, in exchange therefor, shares of BBGI
common stock in the number and of the class set forth opposite each
Stockholder's name on Exhibit D hereto.
C. Immediately following such contribution transactions, BBGI intends
to contribute all of its equity interests in the Broadcast Companies to Xxxxxxx
Mezzanine Holdings, LLC, a Delaware limited liability company ("Xxxxxxx
Mezzanine"), in exchange for all of the membership units thereof and,
immediately thereafter, to offer pursuant to the Registration Statement a
certain number of shares of the Class A Common Stock of BBGI for sale in the
Offering.
D. For federal income tax purposes, the parties hereto intend that
the transactions contemplated in this Agreement qualify as an exchange under
Section 351(a) of the Internal Revenue Code of 1986, as amended (the "Code").
E. The transactions contemplated hereby are conditioned upon
effectiveness of the Registration Statement and shall be deemed to occur
simultaneously therewith, and, as a result of the foregoing transactions, the
issued and outstanding capital stock of BBGI immediately after the completion of
such transactions will be held by the Stockholders.
F. It is expected that, promptly after effectiveness of the
Registration Statement, BBGI will sign an underwriting agreement providing for
the sale to the public of shares of its
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Class A Common Stock in the Offering and that the Offering will close no later
than five business days thereafter, at which time members of the public will
also become stockholders of BBGI.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, BBGI and the Stockholders, intending
to be legally bound, hereby agree as follows:
ARTICLE I.
EXCHANGE OF CONSIDERATION
1.1 Contribution of Equity Interests. On the terms and subject to the
conditions set forth in this Agreement, on the Effective Date (as hereinafter
defined), each Stockholder shall, in exchange for and in consideration of BBGI's
issuance of the Shares (as hereinafter defined) to the Stockholders, contribute,
convey, assign, transfer and deliver to BBGI all of the respective Stockholder's
equity interests in the Broadcast Companies owned of record and beneficially by
the Stockholder as set forth on Exhibit C hereto (the "Equity Interests"), free
and clear of all liens, claims, encumbrances, pledges, options, security
interests and any other adverse interests of any kind or nature whatsoever.
1.2 Exchange of Shares. On the terms and subject to the conditions set
forth in this Agreement, on the Effective Date (as hereinafter defined) BBGI
shall, in exchange for and in consideration of the Stockholders' contribution of
their Equity Interests to BBGI, issue an aggregate number of validly issued,
fully paid and nonassessable shares of BBGI, comprising shares of the Class A
Common Stock of BBGI, par value $.001 per share, and of the Class B Common Stock
of BBGI, par value $.001 per share (the "Shares"), which aggregate shall (i)
equal the number of shares deemed outstanding immediately prior to the
consummation of the Offering as stated in the preliminary prospectus to be
circulated to investors prior to the Offering and (ii) be allocated to the
Stockholders such that each Stockholder will receive the Shares in the number
representing the percentage of such aggregate, and of the class, set forth
opposite each respective Stockholder's name on Exhibit D hereto.
1.3 Closing. Subject to the satisfaction or waiver of the conditions
set forth in Article VI hereof, the consummation of the transactions
contemplated hereby (the "Closing") shall take place effective as of the earlier
of the time of effectiveness or 4:00 p.m. on the date on which the Registration
Statement is declared effective (the "Effective Date"). At the Closing, each
Stockholder shall surrender to BBGI all of the certificates or other instruments
evidencing the Stockholder's Equity Interests, together with one or more stock
assignments separate from certificate, each duly endorsed in blank and with
signature guaranteed, and any other instruments required to effect the transfer
to BBGI of the Equity Interests. In exchange therefor, BBGI shall deliver to
each such Stockholder, in the number and of the class described in Section 1.2
hereof, one or more certificates evidencing the Shares.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders, severally and not jointly, hereby represents
and warrants to
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BBGI as follows:
2.1 Authority and Capacity. The Stockholder has the full legal right
and capacity to execute and deliver, and to perform the Stockholder's
obligations under, and has duly executed and delivered, this Agreement with the
intent to be legally bound hereby.
2.2 No Conflict. The Stockholder is not obligated to obtain any
consent or approval of any other person in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation by the
Stockholder of the transactions contemplated hereby will not violate, or
constitute a breach or default under or cause the acceleration of, any
obligation or liability under any contract, promissory note, mortgage, lease,
license, permit, writ, decree or other instrument or agreement (including any
partnership agreement of any of the Broadcast Companies) to which the
Stockholder is a party or is subject.
2.3 Title to the Equity Interests. The Stockholder is the record and
beneficial owner of and has, and on the Effective Date will transfer and convey
to BBGI, good and marketable title to the Equity Interests set forth opposite
the Stockholder's name on Exhibit D hereto, free and clear of any and all liens,
claims, encumbrances, pledges, security interests, options, rights of first
refusal, community property interests, restrictions and any other adverse
interests of any kind or nature whatsoever. The Stockholder has not sold,
transferred, conveyed, assigned, hypothecated, granted or pledged any security
interest in, or granted any option or right entitling anyone to acquire, any of
the Equity Interests. The Stockholder has not entered into or become a party to
or bound by any agreement, commitment or understanding (written or oral) to do
any of the foregoing, and the Equity Interests owned by the Stockholder are not
subject to any outstanding liabilities known to the Stockholder.
2.4 Securities Law Matters.
(a) The Stockholder has such knowledge and experience in
financial and business matters that the Stockholder is capable of evaluating the
merits and risks of an investment in the Shares. Such investment is suitable and
consistent with the Stockholder's investment program, and the Stockholder's
financial situation enables the Stockholder to bear the risks of investment in
the Shares. The Stockholder is an "accredited investor" as such term is defined
in Rule 502(a) of Regulation D promulgated under the Act.
(b) The Stockholder has or has been furnished with such
information regarding BBGI and the Shares as the Stockholder has requested of
BBGI and has had an opportunity to discuss with the management of BBGI, and to
become informed about, the objectives of BBGI and its business plan,
consolidated financial condition and results of operations.
(c) The Stockholder is acquiring the Shares for the
Stockholder's own account, and not as a nominee or agent for any other persons
or entities, and for investment and not with a view to distribution or resale
thereof. The Stockholder has been advised and understands and agrees that the
Shares will not be registered under the Act, nor qualified under
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any state securities laws, on the basis, among others, that no distribution or
public offering of the Shares is to be effected in connection with the
transactions contemplated herein.
(d) The Stockholder acknowledges that the Stockholder has been
informed and understands that no public market for the Shares currently exists
and that there can be no assurance that any such market will develop or exist in
the future. Even if a public market does develop, the Shares may not be sold or
transferred except in compliance with the Act or an exemption thereunder. There
is no assurance that any exemption from registration, including Rule 144
promulgated under the Act, will become available to permit resale of the Shares.
(e) The Stockholder acknowledges and agrees that the
certificate or certificates representing the Shares shall contain restrictive
legends in the form set forth in the Rule 502 of Regulation D promulgated under
the Act or restrictive legends that are substantially similar thereto. The
Stockholder acknowledges and agrees that unless and until the Stockholder's
Shares become eligible for resale under Rule 144(k) under the Act, any proposed
sale or other transfer or disposition of any of the Shares, other than pursuant
to an effective registration statement under the Act, may not be made unless and
until the Stockholder has furnished to BBGI an opinion of counsel, reasonably
acceptable to BBGI and its counsel, to the effect that the proposed sale or
other transfer or disposition is exempt from registration under the Act.
2.5 Other Matters. The Stockholder acknowledges and agrees that (i)
the number and type of Equity Interests set forth opposite the name of the
Stockholder on Exhibit D hereto is the total number and type of Equity Interests
and represents all of the Stockholder's ownership, of record or beneficially, in
the Broadcast Companies; (ii) the Stockholder does not have any options or other
rights to purchase or otherwise acquire any additional Equity Interests either
from any of the Broadcast Companies or from any other Stockholder; and (iii) the
Stockholder does not have any claims or causes of action, whether asserted or
unasserted, against any of the Broadcast Companies, or any of its officers or
directors, arising out of any transactions that may have occurred between the
Stockholder and any of the Broadcast Companies or between the Stockholder and
any officer or director thereof, either in the officer's or director's official
or individual capacity, relating in any way to the Business, other than (A)
compensation (including employee benefits), if any, that is payable to the
Stockholder for services rendered as an officer, director or employee of any of
the Broadcast Companies, and (B) indebtedness of certain of the Broadcast
Companies, if any, payable to the Stockholder pursuant to one or more notes
issued by such of the Broadcast Companies to the Stockholder.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF BBGI
BBGI hereby represents and warrants to each of the Stockholders as
follows:
3.1 Organization and Qualification. BBGI is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
has the requisite corporate power and authority, in all material respects, to
enter into this Agreement and to operate and conduct the Business following the
transactions contemplated in this Agreement. BBGI is duly qualified or licensed
as a foreign corporation to do business, and is in good standing, in each
jurisdiction
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where, in all material respects, the character of the properties owned, leased
or operated by the Business or the nature of thereof activities makes such
qualification or licensing necessary.
3.2 Certificate of Incorporation and Bylaws. BBGI has heretofore
furnished to the Stockholders a complete and correct copy of its Certificate of
Incorporation and Bylaws, as amended to date. Such Certificate of Incorporation
and Bylaws are in full force and effect, and BBGI is not in violation of any of
the provisions thereof.
3.3 Power and Authority. BBGI has all necessary corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by BBGI and the consummation by BBGI of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of BBGI, and no other corporate
proceedings on the part of BBGI are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE BROADCAST COMPANIES
Each of the Broadcast Companies and Xxxx Miami Holdings, Inc. ("Xxxx
Holdings"), severally and not jointly, hereby represents and warrants to BBGI as
follows:
4.1 Entirety of Equity Interests. Its Equity Interests set forth on
Exhibit C hereto represent all of the issued and outstanding ownership interests
in the Broadcast Company, other than any Equity Interests held by one or more of
the other Broadcast Companies.
4.2 No Other Ownership Rights. There are no authorized or outstanding
subscriptions, warrants, options, convertible securities or other rights,
contingent or otherwise, to purchase or acquire any ownership interest of such
Broadcast Company.
4.3 Sufficiency of Assets. It possesses all of the assets necessary to
own and operate the business of the radio station or stations set forth opposite
such Broadcast Company's name on Exhibit E hereto, free and clear of all liens,
claims, encumbrances, pledges, options, security interests and any other adverse
interests of any kind or nature whatsoever (other than the constituent
liabilities of the Broadcast Company as reflected in the Combined Financial
Statements presented in the Registration Statement), except as described on
Schedule 4.3 hereto.
4.4 Complete Ownership by BBGI. Upon consummation of the transactions
contemplated hereby, BBGI will acquire, directly or indirectly, 100 percent of
the issued and outstanding ownership interests in such Broadcast Company.
ARTICLE V.
ACTIONS TO BE TAKEN PENDING AND AFTER THE CLOSING
5.1 Prohibited Actions. Between the date hereof and the earlier of the
consummation of the Closing or termination of this Agreement, the Company and
each of the Stockholders agree not to take any action which they know or
reasonably should know would (i) make any of their respective representations or
warranties contained in this Agreement untrue or incorrect or
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(ii) prevent or interfere with the performance by the Stockholder of any of
their respective covenants contained in this Agreement. Each Stockholder
covenants and agrees that such Stockholder will not grant any options or rights
to acquire, or pledge or permit the imposition of any liens or encumbrances on
or hypothecate, any of the respective Equity Interests owned by such
Stockholder.
5.2 Consents and Approvals. The Stockholders and BBGI shall (i) each
use all commercially reasonable efforts to obtain any and all consents, waivers,
approvals, authorizations or orders, including without limitation all
governmental and regulatory rulings and approvals; (ii) make all governmental,
regulatory or other filings, including without limitation all filings under the
Communications Act of 1934, as amended, and the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), required in connection
with the authorization, execution and delivery of this Agreement by the
Stockholders and BBGI and the consummation by them of the transactions
contemplated hereby; and (iii) furnish all information required to be included
in any applications or other filings required to be made pursuant to the
applicable rules and regulations of any governmental body (including taking all
actions necessary to cause early termination of any applicable waiting period
under the HSR Act) in connection with the transactions contemplated by this
Agreement.
5.3 Further Action. On the terms and subject to the conditions hereof,
each of the parties hereto shall use all commercially reasonable efforts to
take, or cause to be taken, any and all actions, and to do, or cause to be done,
all other things necessary, proper or advisable to consummate and make effective
as promptly as practicable the transactions contemplated by this Agreement, to
obtain in a timely manner all necessary waivers, consents and approvals and to
effect all necessary registrations and filings, and otherwise to satisfy or
cause to be satisfied all conditions precedent to such party's obligations under
this Agreement. From and after the Closing, each party shall take such actions
and execute such documents and instruments as reasonably requested by any other
party to evidence or effectuate the transactions contemplated by this Agreement.
5.4 Consent of Stockholders. By executing this Agreement, each
Stockholder consents to the termination as of the Effective Date, by such of the
Broadcast Companies as applicable, of the status of such entities for federal
income tax purposes as subchapter "S" corporations, to the closing of the books
thereof and to any related amendments to such of the certificates of
incorporation, other governing documents and bylaws of any of the Broadcast
Companies as necessary.
5.5 Consent of License Partners. By executing this Agreement, each of
the Operating Companies set forth on Exhibit F hereto, opposite the name of the
License Partnership of which such Operating Company is the sole general partner,
and Xxxxxx X. Xxxxxxx hereby unanimously consent, and waive any applicable
limitation or restriction, pursuant to Article Six of the applicable partnership
agreement of each respective License Partnership, to (i) the transfer by Xxxxxx
X. Xxxxxxx to BBGI of his limited partnership interest in each of the License
Partnerships; (ii) simultaneously therewith, the withdrawal of Xxxxxx X. Xxxxxxx
as limited partner of each of the respective License Partnerships; and (iii) the
addition of BBGI, or its wholly-owned direct or indirect subsidiary, as a
limited partner of each of the respective License
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Partnerships, subject to any necessary prior consents of the Federal
Communications Commission (the "FCC") as provided in Section 6.1(c) hereof.
5.6 Consent of BRAP Partners. Each of Xxxxxxx-Xxxx Acquisition
Partnership ("BRAP") and Xxxx Holdings hereby consents, and waives any
applicable limitation or restriction, pursuant to Article 7 of the First Amended
and Restated Partnership Agreement of BRAP, dated as of October 8, 1996, to (i)
the transfer by Xxxx Holdings to BBGI of Xxxx Holdings' general partnership
interest in BRAP; (ii) simultaneously therewith, the withdrawal of Xxxx Holdings
as a general partner of BRAP; and (iii) the addition of BBGI, or its
wholly-owned direct or indirect subsidiary, as a general partner of BRAP.
5.7 Formation of and Contribution to Xxxxxxx Mezzanine. BBGI hereby
agrees to effect the formation of Xxxxxxx Mezzanine, pursuant to an operating
agreement substantially in the form of Exhibit G hereto, and to contribute all
of BBGI's equity interests in the Broadcast Companies to Xxxxxxx Mezzanine in
exchange for all of the membership units thereof.
5.8 Name Changes by Certain Broadcast Companies. Pursuant to the
reorganization of the Broadcast Companies, certain of the Broadcast Companies
will undertake to cause such changes to their legal names as appropriate within
the reasonable discretion of the management of such Broadcast Companies.
5.9 Capital Contributions by BBGI. Following the contribution of the
Equity Interests and the exchange of the Shares, BBGI will make available for
the benefit of certain of the Broadcast Companies, as a capital contribution
thereto, funds sufficient to repay the indebtedness thereof (including any
accrued interest thereon as of the date of such repayment), the balance of which
indebtedness as of September 30, 1999 is shown on Exhibit H hereof and, upon the
closing of the Offering, will cause the Broadcast Companies to repay such
amounts of indebtedness (including any accrued interest thereon as of the date
of such repayment).
ARTICLE VI.
CONDITIONS PRECEDENT
6.1 Conditions to Obligations of Each Party to Consummate
Transactions. The performance by each party of its respective obligations under
this Agreement shall be subject to the satisfaction or waiver, on or prior to
the Effective Date, of each of the following conditions:
(a) Absence of Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the transactions contemplated hereby shall be in
effect, nor shall any proceeding brought by any administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, seeking any of the foregoing be pending; and there shall not be any
action taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to the transactions contemplated hereby which
makes their consummation illegal.
(b) Absence of Governmental Actions. There shall not have been
instituted, pending or threatened, in writing, any action or proceeding (or any
investigation or other inquiry that might result in such an action or
proceeding) by any governmental authority or
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administrative agency before any governmental authority, administrative agency
or court of competent jurisdiction, nor shall there be in effect any judgment,
decree or order of any governmental authority, administrative agency or court of
competent jurisdiction, in either case, seeking to prohibit or limit BBGI,
following the Closing, from exercising any of the material rights and privileges
pertaining to its ownership of the Broadcast Companies or the ownership or
conduct of the Business.
(c) Consents Obtained. All material consents, waivers,
approvals, authorizations or orders required to be obtained by BBGI, any of the
Stockholders or the Broadcast Companies for the authorization, execution and
delivery of this Agreement and the consummation by each such party of the
transactions contemplated hereby (including, without limitation, the early
termination of any applicable waiting period under the HSR Act and the grant of
all applications for approval by the FCC for assignments of FCC licenses and
transfers of control of such of the Broadcast Companies that hold FCC licenses
as are necessary to the consummation of the transactions contemplated hereby)
shall have been obtained, as applicable, by BBGI, the Stockholders or the
Broadcast Companies, except where the failure to receive such consents, waivers,
approvals, authorizations or orders could not reasonably be expected to have a
material adverse effect on BBGI or the Business, taken as a whole.
6.2 Additional Conditions to Obligations of BBGI. The obligations of
BBGI to consummate its acquisition of the Equity Interests and issuance of the
Shares and to perform its other obligations under this Agreement are subject to
the satisfaction or waiver, on or prior to the Effective Date, of each of the
following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of each Stockholder contained in this Agreement
shall be true in all material respects on and as of the Effective Date, with the
same force and effect as if made on and as of the Effective Date.
(b) Performance of Covenants. Each of the Stockholders shall in
all material respects have performed or complied with all agreements and
covenants required by this Agreement to be performed or complied with by the
Stockholders on or prior to the Effective Date.
(c) Additional Instruments. BBGI shall have received such other
instruments and documents as BBGI or its counsel reasonably deems to be
necessary to effect the transactions contemplated hereby.
6.3 Additional Conditions to Obligations of the Stockholders. The
obligations of the Stockholders to consummate their contribution of the Equity
Interests and acquisition of the Shares and to perform their other obligations
under this Agreement are subject to the satisfaction or waiver, on or prior to
the Effective Date, of each of the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of BBGI contained in this Agreement shall be true
in all material respects on and as of the Effective Date, with the same force
and effect as if made on and as of the Effective Date.
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(b) Performance of Covenants. BBGI shall in all material
respects have performed or complied with all agreements and covenants required
by this Agreement to be performed or complied with by BBGI on or prior to the
Effective Date.
(c) Additional Instruments. Each Stockholder shall have
received such other instruments and documents as the Stockholder or such
Stockholder's counsel reasonably deems to be necessary to effect the
transactions contemplated hereby.
ARTICLE VII.
CONDITION SUBSEQUENT
7.1 This Agreement and the performance by each party of its respective
obligations hereunder are subject to the condition subsequent that the Offering
shall have closed within five business days of the Effective Date. In the event
that the Offering has not closed within such time, the parties hereto shall be
restored to their original positions, the transactions contemplated hereby shall
become null and void and the parties hereto shall in all respects be discharged
of their respective obligations under this Agreement.
ARTICLE VIII.
TERMINATION
8.1 Events of Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing (i) upon mutual written consent of BBGI and the Stockholders; (ii) if
BBGI has not, within seventy-two (72) hours of the time the Registration
Statement is declared effective by the Commission, entered into a binding
underwriting agreement concerning the Offering; or (iii) if the Closing has not
taken place by June 30, 2000.
8.2 Effectiveness of Termination. Any termination and abandonment of
this Agreement pursuant to Section 6.1 hereof shall become effective immediately
upon written notice thereof from the terminating party to the other party or
parties.
ARTICLE IX.
MISCELLANEOUS
9.1 Tax Treatment. The parties hereto intend that the contribution of
the Equity Interests in exchange for the Shares will be governed by Section
351(a) of the Code.
9.2 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier to the parties
at the addresses on record with BBGI.
9.3 Waiver. At any time prior to the Closing, either of BBGI or the
Stockholders may (i) extend the time for the performance of any of the
obligations or other acts of the other; (ii) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto by the other; or (iii) waive compliance with any of the
agreements or conditions contained herein. Any such extension or waiver shall be
valid if set forth in an instrument in writing signed by the party or parties to
be bound thereby.
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9.4 Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all prior agreements and undertakings, whether written or oral,
among any or all of the parties hereto with respect to the subject matter
hereof.
9.5 Amendment. This Agreement may not be amended except by a written
instrument signed by the parties hereto.
9.6 Prohibition on Assignment. This Agreement shall not be assigned
voluntarily by any of the parties nor by operation of law or otherwise.
9.7 Severability. If any term or other provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced by reason of any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect, unless such invalidity, illegality or unenforceability
would prevent consummation of the material transactions contemplated hereby.
9.8 Headings. The headings contained herein are for the purpose of
convenience only and will not be considered in the interpretation or
construction of this Agreement.
9.9 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, including, without limitation, by way of subrogation.
9.10 Nonwaiver of Remedies. No failure or delay on the part of any
party hereto in the exercise of any right hereunder shall impair such right or
be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
9.11 Execution by the Broadcast Companies. Each of the Broadcast
Companies hereby executes this Agreement solely for the purpose of (i) making
the representations and warranties contained in Article IV hereof; and (ii) for
such of the Broadcast Companies set forth on Exhibit F hereof, providing the
consents described in Section 5.5 hereof.
9.12 Execution by Xxxxxxx X. Xxxx. Xxxxxxx X. Xxxx hereby executes this
Agreement for the purpose of personally guaranteeing all of the representations,
warranties, agreements and obligations made by Xxxx Holdings herein (other than
the representations and warranties made by Xxxx Holdings in Article IV hereof,
which representations and warranties are made solely by Xxxx Holdings).
9.13 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws, and not the law of conflicts, of the State
of New York.
9.14 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed as of the date first above written.
XXXXXXX BROADCAST GROUP, INC.
By: /s/ B. XXXXXXXX XXXXXXX
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Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
/s/ B. XXXXXXXX XXXXXXX
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B. Xxxxxxxx Xxxxxxx
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
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/s/ J. XXXXXX XXXXXXXXX
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J. Xxxxxx Xxxxxxxxx
/s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
XXXXXXX BROADCASTING OF ARKANSAS, INC.
By: /s/ B. XXXXXXXX XXXXXXX
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Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING OF AUGUSTA, INC.
By: /s/ B. XXXXXXXX XXXXXXX
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Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING OF COASTAL
CAROLINA, INC.
By: /s/ B. XXXXXXXX XXXXXXX
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Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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XXXXXXX XXXXXXXXXXXX XX XXXXXXX XXXXX
XXXXXXXX, INCORPORATED
By: /s/ B. XXXXXXXX XXXXXXX
-----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Assistant Secretary
XXXXXXX BROADCASTING OF EASTERN
PENNSYLVANIA, INC.
By: /s/ B. XXXXXXXX XXXXXXX
-----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING OF SOUTHWEST
FLORIDA, INC.
By: /s/ B. XXXXXXXX XXXXXXX
-----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX COMMUNICATIONS, INC.
By: /s/ B. XXXXXXXX XXXXXXX
-----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX XX ACQUISITION CORP.
By: /s/ B. XXXXXXXX XXXXXXX
-----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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XXXXXXX RADIO, INC.
By: /s/ B. XXXXXXXX XXXXXXX
-----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX-XXXX ACQUISITION PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
C S R A BROADCASTERS, INC.
By: /s/ B. XXXXXXXX XXXXXXX
-----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXX MIAMI HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXX
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
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15
W & B MEDIA, INC.
By: /s/ B. XXXXXXXX XXXXXXX
-----------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXX LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
EASTERN NORTH CAROLINA LICENSE LIMITED
PARTNERSHIP
By: Xxxxxxx Broadcasting of Eastern
North Carolina, General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Assistant Secretary
15
16
KAAY LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx Broadcasting of Arkansas,
Inc., General Partner
By: /s/ B. XXXXXXXX XXXXXXX
------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WAZZ LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WDAS LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
16
17
WFLB LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WIKS LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WJHM LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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WJST LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx Radio, Inc.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WMGV LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WNCT LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx Broadcasting of Coastal
Carolina, Inc., General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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WPOW LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WQAM LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx-Xxxx Acquisition
Partnership, General Partner
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WRXK LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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WSFL LICENSE LIMITED PARTNERSHIP
By: W & B Media, Inc.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WTEL LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx Broadcasting of Eastern
Pennsylvania, General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WXKB LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx Broadcasting of Southwest
Florida, General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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WXNR LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WXTU LICENSE LIMITED PARTNERSHIP
By: Xxxxxxx XX Acquisition Corp.,
General Partner
By: /s/ B. XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
21
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EXHIBIT A
STOCKHOLDERS
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx Estate Reduction Trust,
dated June 7, 1999
Xxxxxx Xxxxxxx Grantor Retained Annuity Trust,
dated November 16, 1999
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
B. Xxxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
J. Xxxxxx Xxxxxxxxx
Xxxx Miami Holdings, Inc.
22
23
EXHIBIT B
BROADCAST COMPANIES
Operating Companies
Xxxxxxx Broadcasting of Arkansas, Inc.
Xxxxxxx Broadcasting of Augusta, Inc.
Xxxxxxx Broadcasting of Coastal Carolina, Inc.
Xxxxxxx Broadcasting of Eastern North Carolina, Incorporated
Xxxxxxx Broadcasting of Eastern Pennsylvania, Inc.
Xxxxxxx Broadcasting of Southwest Florida, Inc.
Xxxxxxx Communications, Inc.
Xxxxxxx XX Acquisition Corp.
Xxxxxxx Radio, Inc.
Xxxxxxx-Xxxx Acquisition Partnership
C S R A Broadcasters, Inc.
W & B Media, Inc.
License Partnerships
Xxxxxx License Limited Partnership Eastern
North Carolina License Limited Partnership
KAAY License Limited Partnership
WAZZ License Limited Partnership
WDAS License Limited Partnership
WFLB License Limited Partnership
WIKS License Limited Partnership
WJHM License Limited Partnership
WJST License Limited Partnership
WMGV License Limited Partnership
WNCT License Limited Partnership
WPOW License Limited Partnership
WQAM License Limited Partnership
WRXK License Limited Partnership
WSFL License Limited Partnership
WTEL License Limited Partnership
WXKB License Limited Partnership
WXNR License Limited Partnership
WXTU License Limited Partnership
23
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EXHIBIT C
EQUITY INTERESTS
CONTRIBUTED BY THE STOCKHOLDERS
Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Grantor
Estate Retained Xxxxx Xxxxxxx Xxxx Miami
Xxxxxx X. Reduction Annuity G. Xxxxx X. X. Xxxxxxxx Xxxxxxx C. Xxxxxx E. W. J. Xxxxxx Holdings,
Beasley Trust Trust Beasley Beasley Beasley Beasley Beasley Beasley Xxxxxxxxx Inc.
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx
Broadcasting of 25 25 25 25 25 25
Arkansas, Inc. 850 shares ___ ___ shares shares shares shares shares shares ___ ___
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx
Broadcasting of 1,000
Augusta, Inc. shares ___ ___ ___ ___ ___ ___ ___ ___ ___ ___
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx
Broadcasting of
Coastal Carolina, 90 90 90 90 90
Inc. 550 shares ___ ___ shares shares shares shares shares ___ ___ ___
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx
Broadcasting of
Eastern North
Carolina, 40,000 1,000 1,000 1,000 1,000 1,000 2,500
Incorporated shares ___ ___ shares shares shares shares shares ___ shares ___
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx
Broadcasting of
Eastern
Pennsylvania, 25 25 25 25 25 25
Inc. 850 shares ___ ___ shares shares shares shares shares shares ___ ___
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx
Broadcasting of
Southwest Florida, 25 25 25 25 25 25
Inc. 850 shares ___ ___ shares shares shares shares shares shares ___ ___
------------------------------------------------------------------------------------------------------------------------------------
Beasley 1,000
Communications, Inc shares ___ ___ ___ ___ ___ ___ ___ ___ ___ ___
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx XX 581.71914 74.31717 243.21980 20 20 20 20 20 0.74389
Acquisition Corp. shares shares shares shares shares shares shares shares share ___ ___
------------------------------------------------------------------------------------------------------------------------------------
25 25 25 25 25 25
Xxxxxxx Radio, Inc. 850 shares ___ ___ shares shares shares shares shares shares ___ ___
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx-Xxxx 20% general
Acquisition partnership
Partnership ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ interest (1)
------------------------------------------------------------------------------------------------------------------------------------
C S R A
Broadcasters, Inc. 51 shares ___ ___ ___ ___ ___ 49 shares ___ ___ ___ ___
------------------------------------------------------------------------------------------------------------------------------------
4,277.6 770.6 4,951.8
W & B Media, Inc. shares ___ ___ ___ shares ___ shares ___ ___ ___ ___
------------------------------------------------------------------------------------------------------------------------------------
Each of the License 0.25%
Partnerships set limited
forth on partnership
Exhibit B hereto interest ___ ___ ___ ___ ___ ___ ___ ___ ___ ___
------------------------------------------------------------------------------------------------------------------------------------
(1) Xxxxxxx XX Acquisition Corp. holds the remaining 80% general partnership
interest of Xxxxxxx-Xxxx Acquisition Partnership.
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EXHIBIT D
PERCENTAGE AND CLASS OF SHARES
ALLOCATED TO THE STOCKHOLDERS
Percentage of Shares
(Class A Common Stock and Class B Common
Stockholder Stock, Taken Together) Type of Shares
----------- ---------------------- --------------
Xxxxxx X. Xxxxxxx 60.633338% Class B Common Stock
Xxxxxx Xxxxxxx
Estate Reduction Trust 5.621809% Class B Common Stock
Xxxxxx Xxxxxxx
Grantor Retained Annuity Trust 18.398645% Class B Common Stock
Xxxxx X. Xxxxxxx 2.047448% Class B Common Stock
Xxxxx X. Xxxxxxx 2.412069% Class B Common Stock
B. Xxxxxxxx Xxxxxxx 2.047448% Class B Common Stock
Xxxxxxx X. Xxxxxxx 4.255545% Class B Common Stock
Xxxxxx X. Xxxxxxx 2.047448% Class B Common Stock
Xxxxxxx X. Xxxxxxx 0.228627% Class B Common Stock
J. Xxxxxx Xxxxxxxxx 0.431865% Class A Common Stock
Xxxx Miami Holdings, Inc. 1.875758% Class A Common Stock
25
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EXHIBIT E
RADIO STATIONS OWNED
BY THE BROADCAST COMPANIES
Broadcast Company Radio Station(s)
----------------- ----------------
Xxxxxxx Broadcasting of Arkansas, Inc. WTMR (AM)
Xxxxxxx Broadcasting of Augusta, Inc. WAJY (FM)
WGAC (AM)
Xxxxxxx Broadcasting of Coastal Carolina, Inc. WNCT (AM)
WNCT (FM)
Xxxxxxx Broadcasting of Eastern North Carolina, Inc. WKML (FM)
Xxxxxxx Broadcasting of Eastern Pennsylvania, Inc. WWDB (AM)
Xxxxxxx Broadcasting of Southwest Florida, Inc. WXKB (FM)
Xxxxxxx Communications, Inc. WCHZ (FM)
Xxxxxxx XX Acquisition Corp. WAZZ (AM)
WFLB (FM)
WIKS (FM)
WJBX (FM)
WKIS (FM)
WMGV (FM)
WPOW (FM)
WQAM (AM) (together with
Xxxx Miami Holdings, Inc.)
WRXK (FM)
WTEL (AM)
WUKS (FM)
WWDB (FM)
WXNR (FM)
WXTU (FM)
WZFX (FM)
Xxxxxxx Radio, Inc. WWCN (AM)
WJST (FM)
Xxxxxxx-Xxxx Acquisition Partnership WQAM (AM)
(together with Xxxxxxx XX
Acquisition Corp.)
C S R A Broadcasters, Inc. WGOR (FM)
W & B Media, Inc. WSFL (FM)
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EXHIBIT F
GENERAL PARTNERS
OF THE LICENSE PARTNERSHIPS
License Partnership General Partner
------------------- ---------------
Xxxxxx License Limited Partnership Xxxxxxx XX Acquisition Corp.
Eastern North Carolina Beasley Broadcasting of Eastern
License Limited Partnership North Carolina, Incorporated
KAAY License Limited Partnership Xxxxxxx Broadcasting of Arkansas, Inc.
WAZZ License Limited Partnership Xxxxxxx XX Acquisition Corp.
WDAS License Limited Partnership Xxxxxxx XX Acquisition Corp.
WFLB License Limited Partnership Xxxxxxx XX Acquisition Corp.
WIKS License Limited Partnership Xxxxxxx XX Acquisition Corp.
WJHM License Limited Partnership Xxxxxxx XX Acquisition Corp.
WJST License Limited Partnership Xxxxxxx Radio, Inc.
WMGV License Limited Partnership Xxxxxxx XX Acquisition Corp.
WNCT License Limited Partnership Xxxxxxx Broadcasting of
Coastal Carolina, Inc.
WPOW License Limited Partnership Xxxxxxx XX Acquisition Corp.
WQAM License Limited Partnership Xxxxxxx-Xxxx Acquisition Partnership
WRXK License Limited Partnership Xxxxxxx XX Acquisition Corp.
WSFL License Limited Partnership W & B Media, Inc.
WTEL License Limited Partnership Xxxxxxx Broadcasting of Eastern
Pennsylvania, Inc.
WXKB License Limited Partnership Xxxxxxx Broadcasting of
Southwest Florida, Inc.
WXNR License Limited Partnership Xxxxxxx XX Acquisition Corp.
WXTU License Limited Partnership Xxxxxxx XX Acquisition Corp.
27
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EXHIBIT G
FORM OF LIMITED LIABILITY COMPANY AGREEMENT
OF BEASLEY MEZZANINE
This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of BEASLEY MEZZANINE
HOLDINGS, LLC (the "Company"), dated as of _______________, is hereby adopted
and executed by the Member (as hereinafter defined).
1. Formation of Limited Liability Company. The Company has
been formed as a limited liability company pursuant to the provisions of the
Delaware Limited Liability Company Act, 6 Del. Code Section 18-101, et seq., as
it may be amended from time to time, and any successor to such statute (the
"Act"). The rights and obligations of the Member and the management,
administration and termination of the Company shall be governed by this
Agreement and the Act. This Agreement shall be considered the "Limited Liability
Company Agreement" of the Company within the meaning of Section 18-101(7) of the
Act. To the extent this Agreement is inconsistent in any respect with any
non-mandatory provisions of the Act, this Agreement shall control.
2. Name. The name of the Company shall be "BEASLEY MEZZANINE
HOLDINGS, LLC."
3. Sole Member. Xxxxxxx Broadcast Group, Inc. (the "Member")
is the sole member of the Company.
4. Purpose. The purpose of the Company is to engage in any and
all other lawful businesses or activities in which a limited liability company
may be engaged under applicable law (including, without limitation, the Act).
5. Registered Agent and Principal Office. The registered
office and registered agent of the Company in the State of Delaware shall be as
the Member may designate from time to time. The Company may have such other
offices as the Member may designate from time to time. The mailing address of
the Company shall be c/o 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000.
6. Certificate of Formation; Filing. The Member shall have
caused an authorized representative to execute and file a Certificate of
Formation (the "Certificate") in the Office of the Delaware Secretary of State
as required by the Act. The Member shall cause any duly authorized amendments to
the Certificate to be filed in the Office of the Delaware Secretary of State in
a form prescribed by the Act. The Member shall cause to be made such additional
filings and recordings as the Member deems necessary or advisable.
7. Term of Company. The Company shall commence on the date the
Certificate is first properly filed with the Secretary of State of the State of
Delaware and shall continue in existence in perpetuity unless its business and
affairs are earlier wound up following dissolution at such time as this
Agreement may specify.
8. Management of Company/Power to Act on Behalf of the
Company. All decisions relating to the business, affairs and properties of the
Company, including the
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determination of any rights and powers of additional members admitted pursuant
to paragraph 13 of this Agreement, are fully reserved to the Member. The Member
may delegate the rights and powers to manage and control the business affairs of
the Company to its employees or agents, or otherwise to other persons. The
Member may appoint a Chairman, a President and one or more Executive Vice
Presidents and such other officers of the Company as the Member may deem
necessary or advisable to manage the day-to-day business affairs of the Company
(the "Officers"). To the extent delegated by the Member, the Officers shall have
the authority to act on behalf of, bind and execute and deliver documents in the
name and on behalf of the Company. No such delegation shall cause the Member to
cease to be a Member. The initial Officers of the Company are set forth on
Schedule A hereto. Except as otherwise expressly provided in this Agreement or
required by any non-waivable provision of the Act or other applicable law, no
person other than such persons designated by the Member shall be an agent for
the Company or have any right, power, or authority to transact any business in
the name of the Company or to act for or on behalf of or to bind the Company.
9. Contributions. The Member has made an initial contribution
to the capital of the Company in the amount of $1000 (the "Capital
Contribution"), in exchange for an ownership interest of one hundred percent
(100%). Without creating any rights in favor of any third party, the Member may,
from time to time, make additional contributions of cash or property to the
capital of the Company, but shall have no obligation to do so.
10. Distributions. Each distribution of cash or other property
by the Company shall be made 100% to the Member. Each item of income, gain,
loss, deduction and credit of the Company shall be allocated 100% to the Member.
11. Capital Accounts. A capital account shall be maintained for
the Member, and for any additional members admitted to the Company pursuant to
paragraph 13 of this Agreement, in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv).
12. Assignment of Interest. The Member may assign or transfer
its interest in the Company in whole or part. The pledge of, or granting of a
security interest, lien or other encumbrance in or against, any or all of the
interest of the Member shall not be considered an assignment of interest. Upon
the Member's assignment of all or part of its interest: (a) the Member does not
cease to be a member of the Company, but may resign as a member pursuant to
paragraph 14 of this Agreement; (b) the assignee is not entitled to become or to
exercise any of the rights and powers of a member under this Agreement or the
Act, unless the Member gives its written consent pursuant to paragraph 13 of
this Agreement; and (c) an assignee who becomes a member assumes all obligations
and liabilities of the Member under this Agreement and the Act on a pro rata
basis relative to the percentage of interest assigned; provided, however, that
an assignee is not liable for any obligations unknown to it at the time it
became a member and which could not be ascertained from this Agreement. An
obligation is deemed "known" if it is found in the Act or if the assignee should
have known of the obligation after due diligence in requesting and reviewing all
records, documents, and other materials regarding the Company provided to the
assignee by the Company or the Member.
13. Admission of Additional Members. Additional members may be
admitted to the Company with the written consent of the Member. Additional
members shall be
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entitled only to those rights and powers, including any right to participate in
or vote on decisions relating to the business, affairs and properties of the
Company, as determined and granted by the Member in a written amendment or
amendment and restatement, as the case may be, to this Agreement.
14. Resignation of Member; Cessation of Membership. The Member
may resign at any time for any reason from the Company. The Member may resign
prior to the dissolution and winding up of the Company. The Member does not
cease to be a member of the Company upon the happening of events listed in
Section 18-304 of the Act.
15. Limited Liability. Except as otherwise required by
non-waivable provisions of the Act or other applicable law, (a) the Member shall
not be bound by, or personally liable in any manner whatsoever for, any debt,
expense, liability, or other obligation of the Company, whether such debt,
liability or other obligation arises in contract, tort, or otherwise; and (b)
the Member shall not in any event have any liability whatsoever in excess of the
amount of its Capital Contribution or its share of any assets and undistributed
profits of the Company.
16. Indemnification. The Company shall indemnify and hold
harmless the Member, and any officer, employee and agent of the Member or the
Company, including the Chairman, (the "Indemnitees") to the full extent
permitted by law from and against any and all losses, claims, demands, costs,
damages, liabilities, joint and several, expenses of any nature (including
attorneys' fees and disbursements), judgments, fines, settlements, and other
amounts arising from any and all claims, demands, actions, suits, or
proceedings, civil, criminal, administrative, or investigative, in which the
Indemnitee may be involved, or threatened to be involved as a party or
otherwise, relating to the performance or nonperformance of any act on behalf of
the Company concerning the activities of the Company, if (i) the Member or
Indemnitee acted in good faith, and (ii) the Member or Indemnitee's conduct did
not constitute willful misconduct. The termination of an action, suit, or
proceeding by judgment, order, settlement, or upon a plea of nolo contendere or
its equivalent, shall not, in and of itself, create a presumption or otherwise
constitute evidence that the Indemnitee acted in a manner contrary to that
specified in clauses (i) or (ii) above. Expenses incurred by the Member or an
Indemnitee in defending any claim, demand, action, suit, or proceeding under
this paragraph may, by action of the Member, be advanced by the Company prior to
the final disposition of such claim, demand, action, suit, or proceeding upon
receipt by the Company of a written commitment by or on behalf of the Member or
Indemnitee to repay such amount if it shall be determined that such Indemnitee
is not entitled to be indemnified as authorized in this paragraph. Any
indemnification provided in this paragraph shall be satisfied solely out of the
assets of the Company, as an expense of the Company, and the Member shall not be
subject to personal liability by reason of such indemnification provision. The
provisions of this paragraph are for the benefit of the Member and the
Indemnitees and shall not be deemed to create any rights for the benefit of any
other person or entity.
17. Restricted Fiduciary Duties of Member. To the extent that
the Member has, at law or in equity, duties (including, without limitation,
fiduciary duties) to the Company or any other person bound by the terms of this
Agreement, the Member, acting in accordance with this Agreement, shall not be
liable to the Company, any other additional members, if any, or any
30
31
such other person for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict
the duties of the Member otherwise existing at law or in equity, replace such
other duties at law or in equity to the greatest extent permitted under
applicable law. Whenever the Member is required or permitted to make a decision,
take or approve an action, or omit to do any of the foregoing: (a) in its
discretion or without an express standard of behavior (including, without
limitation, standards such as "reasonable" or "good faith"), then the Member
shall be entitled to consider only such interests and factors, including its
own, as it desires, and shall have no duty or obligation to consider the
interests or factors of the Company, or (b) with an express standard of behavior
(including, without limitation, standards such as "reasonable" or "good faith"),
then the Member shall comply with such express standard but shall not be subject
to any other, different, or additional standard imposed by this Agreement or
otherwise applicable law. The Member may engage or invest in, and devote its
time to, any other business venture or activity of any nature so long as such
activity does not violate this Agreement. The Company shall not have any right
or interest, by virtue of this Agreement or the relationship created hereby, in
any other venture or activity of the Member (or to the income or proceeds
derived therefrom).
18. Interested Party Transactions. The Member acknowledges that
the Company may and shall enter into Interested Party Transactions, as
hereinafter defined. An Interested Party Transaction shall mean the action of
the Company from time to time, in negotiating and entering into agreements with,
and otherwise dealing with (a) the Member or any person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the Member (each, a "Member Affiliate" and
together, the "Member Affiliates") or (b) any person that is a director,
officer, partner or trustee of, or serves in a similar capacity with respect to,
the Member or a Member Affiliate (each, an "Interested Individual"). The
involvement of the Member or its Member Affiliates or any Interested Individual
in any Interested Party Transaction shall not be, and shall not be deemed to be,
a conflict of interest vis-a-vis such party's participation in the business and
management of the Company, and (b) the participation of the interested party,
with respect to the Company's negotiation, approval, execution, and performance
of such Interested Party Transaction, shall not be prohibited or otherwise
hindered solely by virtue of its or his or her interest in such transaction.
19. Dissolution and Winding Up. The Company shall dissolve and
its business and affairs shall be wound up only upon the written consent of the
Member.
20. Amendments. This Agreement may be amended or modified from
time to time only by a written instrument executed by the Member.
21. Captions/Pronouns. Any titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the text of
this Agreement. All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, neuter, singular or plural as appropriate.
22. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (EXCLUDING ITS
CONFLICT OF LAWS RULES).
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IN WITNESS WHEREOF, the Member has duly executed this Agreement as
of the day and year first above written.
XXXXXXX BROADCAST GROUP, INC.
By:
--------------------------------
Name:
Title:
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33
EXHIBIT H
CAPITAL CONTRIBUTIONS
Indebtedness (as of Sept. 30, 1999)
to be Repaid Following
Capital Contributions by BBGI in the
Broadcast Company Following Amounts, Plus Accrued Interest
----------------- ----------------------------------------
Xxxxxxx Broadcasting of
Augusta, Inc. $1,376,316.00
Xxxxxxx Broadcasting of
Southwest Florida, Inc. $964,229.00
Xxxxxxx Communications, Inc. $1,572,380.00
Xxxxxxx XX Acquisition Corp. $44,914,506.00
Xxxxxxx Radio, Inc. $403,865.00
C S R A Broadcasters, Inc. $3,145,419.00
W & B Media, Inc. $587,685.00
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SCHEDULE 4.3
LIENS, ENCUMBRANCES
AND OTHER ADVERSE INTERESTS
ON THE ASSETS OF EACH BROADCAST COMPANY
Such liens and encumbrances as set forth in the Credit Agreement dated as
of March 30, 1998 by and among Xxxxxxx XX Acquisition Corp., Xxxxxxx
Broadcasting of Eastern North Carolina, Inc., Xxxxxxx Broadcasting of Eastern
Pennsylvania, Inc., Xxxxxxx Broadcasting of Arkansas, Inc., W & B Media, Inc.,
Xxxxxxx Broadcasting of Southwest Florida, Inc., Xxxxxxx Broadcasting of Coastal
Carolina, Inc., Xxxxxxx-Xxxx Acquisition Partnership, and Xxxxxxx Radio, Inc.,
as Borrowers, the Financial Institutions Listed Therein, as Lenders, and Bank of
Montreal, Chicago Branch, as Agent.
34
