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Exhibit 10.62
ASSET PURCHASE AGREEMENT
dated as of November 25, 1997
by and between
OUTDOOR SYSTEMS, INC.
AND
OUTDOOR MEDIA GROUP, INC.
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TABLE OF CONTENTS
1. DEFINITIONS.................................................. 1
2. PURCHASE AND SALE OF THE ASSETS; CLOSING..................... 1
2.1 AGREEMENT TO PURCHASE AND SELL.......................... 1
2.2 PURCHASED ASSETS........................................ 1
2.3 AGREEMENT TO ASSUME CERTAIN LIABILITIES................. 2
2.4 EXCLUDED LIABILITIES.................................... 3
2.5 CLOSING................................................. 3
2.6 PURCHASE PRICE.......................................... 3
2.7 TRANSACTIONS AT THE CLOSING............................. 4
2.8 THIRD PARTY CONSENTS.................................... 4
3. REPRESENTATIONS AND WARRANTIES OF SELLER..................... 5
3.1 ORGANIZATION AND GOOD STANDING.......................... 5
3.2 AUTHORITY; NO CONFLICT.................................. 5
3.3 SOLVENCY................................................ 6
3.4 BOOKS AND RECORDS....................................... 6
3.5 STRUCTURES.............................................. 6
3.6 PERMITS................................................. 6
3.7 SITE LEASES AND ADVERTISING CONTRACTS................... 6
3.8 RESERVED................................................ 7
3.9 TITLE, ENCUMBRANCES..................................... 7
3.10 NO UNDISCLOSED LIABILITIES.............................. 7
3.11 TAXES................................................... 7
3.12 COMPLIANCE WITH LEGAL REQUIREMENTS...................... 7
3.13 LEGAL PROCEEDINGS; ORDERS............................... 7
3.14 OTHER CONTRACTS......................................... 8
3.15 INSURANCE............................................... 8
3.16 ENVIRONMENTAL MATTERS................................... 8
3.18 RELATIONSHIPS WITH AFFILIATES........................... 8
3.19 BROKERS OR FINDERS...................................... 8
3.20 RESERVED................................................ 8
3.21 HSR COMPLIANCE.......................................... 8
3.22 DISCLOSURE.............................................. 8
4. REPRESENTATIONS AND WARRANTIES OF BUYER...................... 9
4.1 ORGANIZATION AND GOOD STANDING.......................... 9
4.2 AUTHORITY; NO CONFLICT.................................. 9
4.3 CERTAIN PROCEEDINGS..................................... 9
4.4 BROKERS OR FINDERS...................................... 9
4.5 HSR COMPLIANCE.......................................... 9
4.6 DUE DILIGENCE; RELIANCE ON BUYER'S EXPERTS.............. 10
4.7 DISCLOSURE.............................................. 10
5. COVENANTS OF SELLER.......................................... 10
5.1 ACCESS AND INVESTIGATION................................ 10
5.2 DUE DILIGENCE........................................... 10
5.3 OPERATION OF THE PURCHASED ASSETS....................... 10
5.4 NEGATIVE COVENANT....................................... 10
5.5 REQUIRED APPROVALS...................................... 10
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5.6 NOTIFICATION............................................ 11
5.7 NO NEGOTIATION.......................................... 11
5.8 TAX CLEARANCE........................................... 11
5.8 RESTRICTION COVENANTS................................... 11
6. COVENANTS OF BUYER........................................... 12
6.1 REQUIRED APPROVALS...................................... 12
6.2 BEST EFFORTS............................................ 12
6.3 IMPRINTS................................................ 12
6.4 NOTIFICATION............................................ 12
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE.......... 13
7.1 ACCURACY OF REPRESENTATIONS............................. 13
7.2 SELLER'S PERFORMANCE.................................... 13
7.3 CONSENTS................................................ 13
7.4 ADDITIONAL DOCUMENTS.................................... 13
7.5 NO PROCEEDINGS.......................................... 13
7.6 NO PROHIBITION.......................................... 14
7.7 NO MATERIAL ADVERSE CHANGE.............................. 14
7.8 DUE DILIGENCE........................................... 14
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE......... 14
8.1 ACCURACY OF REPRESENTATIONS............................. 14
8.2 BUYER'S PERFORMANCE..................................... 14
8.3 ADDITIONAL DOCUMENTS.................................... 14
8.4 NO PROCEEDINGS.......................................... 15
8.5 NO PROHIBITION.......................................... 15
9. TERMINATION.................................................. 15
9.1 TERMINATION EVENTS...................................... 15
9.2 EFFECT OF TERMINATION................................... 15
10. INDEMNIFICATION; REMEDIES.................................... 16
10.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER....... 16
10.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER........ 16
10.3 PROCEDURE FOR INDEMNIFICATION - THIRD PARTY CLAIMS..... 16
10.4 PROCEDURE FOR INDEMNIFICATION -- OTHER CLAIMS.......... 17
10.5 SURVIVAL/LIMITATIONS................................... 17
11. GENERAL PROVISIONS........................................... 18
11.1 EXPENSES............................................... 18
11.2 HEADINGS; CONSTRUCTION................................. 18
11.3 PUBLIC ANNOUNCEMENTS................................... 18
11.4 AVAILABILITY OF EQUITABLE REMEDIES..................... 18
11.5 NOTICES................................................ 18
11.6 FURTHER ASSURANCES..................................... 20
11.7 WAIVER................................................. 20
11.8 ENTIRE AGREEMENT AND MODIFICATION...................... 20
11.9 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS..... 20
11.10 ACCOUNTS RECEIVABLE.................................... 20
11.11 SEVERABILITY........................................... 20
11.12 RISK OF LOSS........................................... 20
11.13 POST-CLOSING ACCESS.................................... 20
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11.14 APPLICABLE LAW......................................... 21
11.15 COUNTERPARTS........................................... 21
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EXHIBITS
Exhibit A - Definitions
Exhibit B - Xxxx of Sale, Assignment and Assumption Agreement
Exhibit C - Non-Competition Agreement
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SCHEDULES
Schedule 2.2(a)(1) and (2) - Billboard Displays/Structures
Schedule 2.2(b) - Site Leases
Schedule 2.2(c) - Advertising Contracts
Schedule 2.2(d) - Permits
Schedule 2.2(x) - Excluded Assets
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DISCLOSURE SCHEDULE
Part 3.2(b) Part 3.10
Part 3.2(c) Part 3.11(a)
Part 3.5 Part 3.13
Part 3.6 Part 3.14
Part 3.7 Part 3.16
Part 3.9(b) Part 3.18
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is entered into as of
November 25, 1997, by and between OUTDOOR SYSTEMS, INC., a Delaware corporation
("Buyer"), and OUTDOOR MEDIA GROUP, INC., a California corporation ("Seller").
(Buyer and Seller are sometimes herein referred to individually as a "Party" and
collectively as the "Parties".)
RECITALS
Seller is engaged in the business of owning and operating outdoor signs
and billboards and otherwise providing outdoor advertising services and related
and unrelated services, including, without limitation: (i) owning and operating
outdoor signs and billboards and otherwise providing outdoor advertising
services in the state of Nevada; and (ii) owning and operating two certain
billboard structures and otherwise providing outdoor advertising services with
respect to these two certain billboard structures listed on Schedule 2.2(a)(2)
hereto in the metropolitan Los Angeles area. The business described in
subclauses (i) and (ii) hereof shall be referred to herein as the "Purchased
Business." Seller desires to sell and assign certain outdoor advertising assets
to Buyer, and Buyer desires to purchase such assets and to assume certain
liabilities associated with such assets, pursuant to the terms, conditions,
limitations and exclusions contained in this Agreement.
AGREEMENT
The Parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the terms listed on Exhibit A attached
hereto have the meanings specified or referred to in Exhibit A.
2. PURCHASE AND SALE OF THE ASSETS; CLOSING
2.1 AGREEMENT TO PURCHASE AND SELL. Subject to the terms and conditions
of this Agreement, Seller hereby agrees to grant, sell, assign, transfer, convey
and deliver all right, title and interest of Seller in and to the Purchased
Assets, free and clear of any liens, title claims, Encumbrances or Security
Interests (except as otherwise specifically permitted pursuant to the provisions
of this Agreement), and Buyer hereby agrees to buy and acquire the Purchased
Assets from Seller, and to assume the Assumed Liabilities upon the terms and
conditions set forth in this Agreement.
2.2 PURCHASED ASSETS. The Purchased Assets are the following assets
of Seller:
(a) All of the billboard displays and other out-of-home
advertising structures located in the State of Nevada, including, but not
limited to, those set forth and described in Schedule 2.2(a)(1) attached hereto,
and the two in Los Angeles, California, set forth and described in Schedule
2.2(a)(2) attached hereto, together with all components, fixtures, parts,
appurtenances,
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and equipment attached to or made a part thereof that are existing, under
construction or for which Seller has any rights (collectively, the
"Structures");
(b) All leases, licenses, easements, other rights of ingress
or egress, and all other grants of the right to place, construct, own, operate
or maintain the Structures on land, buildings and other real property owned by
third parties, and all rights therein (collectively, the "Site Leases"),
including those Site Leases listed on Schedule 2.2(b);
(c) All rights under existing and pending sales and
advertising contracts associated with the Structures, and all rights to the
advertising copy displayed on the Structures as of the Closing Date
(collectively, the "Advertising Contracts"), including those Advertising
Contracts listed on Schedule 2.2(c) attached hereto;
(d) All state and local licenses or permits/tags which Seller
has with respect to the Structures and, to the extent assignable, all other
Governmental Authorizations that are required for the operation of the
Structures, (collectively, the "Permits"), including those Permits listed on
Schedule 2.2(d);
(e) All prepaid expenses relating to the Purchased Assets in
existence as of the Closing;
(f) All pertinent Books and Records;
(g) All tangible personal property, including furniture,
vehicles, equipment, computer hardware and software, owned by Seller relating to
the Purchased Assets and listed in Schedule 2.2(g);
(h) All Intangible Property used in connection with the
Purchased Assets; and
(i) All options, rights of first refusal and other rights to
purchase or acquire outdoor advertising assets, including new builds, site
leases and outdoor advertising structures, in the State of Nevada, including
Seller's right of first refusal under that certain Xxxxxx Agreement;
(j) All rights (including any benefits arising therefrom),
causes of action, claims and demands of whatever nature (whether or not
liquidated) of Seller relating to the Purchased Assets, including, without
limitation, condemnation rights and proceeds, and all rights against suppliers
under warranties covering any of the Purchased Assets.
Notwithstanding the foregoing, the Purchased Assets shall not include the assets
listed on Schedule 2.2(x) (collectively, "Excluded Assets").
2.3 AGREEMENT TO ASSUME CERTAIN LIABILITIES. At the Closing, Buyer
shall assume and agree to discharge and perform all liabilities and obligations
that are attributable to events occurring on or after the Closing Date pursuant
to the Site Leases and the Advertising Contracts (the "Assumed Liabilities") but
to the extent and only to the extent that:
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(a) Such obligations are performable on or after the Closing
Date; and
(b) Such obligations are attributable to periods arising on or
after the Closing Date.
2.4 EXCLUDED LIABILITIES. All claims against and liabilities and
obligations of Seller not specifically assumed by Buyer pursuant to Section 2.3,
including, without limitation, the following claims against and liabilities of
Seller (the "Excluded Liabilities"), are excluded, and shall not be assumed or
discharged by Buyer, and shall be discharged in full when due by Seller:
(a) Any liabilities to the extent not attributable to the
Purchased Assets;
(b) Any liability of Seller for Taxes arising prior to or from
the sale of the Purchased Assets under this Agreement;
(c) Any liabilities for or related to indebtedness of Seller
to banks, financial institutions, or other Persons;
(d) Any liabilities of Seller for or with respect to any
employees of Seller, including, without limitation, any liabilities pursuant to
any compensation, collective bargaining, pension, retirement, severance,
termination, or other benefit plan, agreement or arrangement; and
(e) Any other liabilities of Seller that are attributable to
or arise from facts, events, or conditions that occurred or came into existence
prior to the Closing.
2.5 CLOSING. The purchase and sale of the Purchased Assets (the
"Closing") provided for in this Agreement will take place at the offices of
Buyer in Phoenix, Arizona at 10:00 a.m. on December 1, 1997 or such later time
and place as the Parties may agree. The effective time of the Closing shall be
12:01 a.m., Eastern Standard Time, on the Closing Date.
2.6 PURCHASE PRICE. In consideration for the Purchased Assets, Buyer
shall assume the Assumed Liabilities, and pay an amount (the "Purchase Price")
equal to Twenty Eight Million, Four Hundred Thousand Dollars ($28,400,000). The
Purchase Price shall be subject to adjustment as follows:
(a) The following items shall be prorated between Seller and
Buyer as of the Closing Date with respect to the Purchased Assets: power and
utility charges, real and personal property taxes, rents (including percentage
rents) and security deposits under Site Leases and accounts receivable
(including credits) and security deposits under Advertising Contracts. The
prorations of revenue and other items shall be based on a thirty (30) day month,
prorated as of the Closing Date. Percentage rents shall be prorated as of the
Closing Date. Any prorations not determined at the Closing shall be prorated on
the basis of the most current information available at Closing. On the Closing
Date, Seller shall provide to Buyer a list of items and the prorations required
by this Section 2.6(a) ("Preliminary Adjustment") and the Purchase Price shall
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be adjusted accordingly. Seller agree to furnish Buyer with any documents or
records in Seller's possession that may be needed for Buyer to confirm the
adjustment and prorations in this Section 2.6(a).
(b) Within ninety (90) days after the Closing Date, Buyer will
prepare and provide to Seller the final calculations of adjustments to the
Purchase Price (the "Closing Date Adjustment"). On the 120th day after the
Closing Date, all required refunds or payments under this Section 2.6, shall be
made on the basis of the Closing Date Adjustment.
(c) The parties agree to cooperate with each other in
determining and reaching an agreement in writing on the allocation of the
Purchase Price among the Purchased Assets on or prior to Closing.
2.7 TRANSACTIONS AT THE CLOSING. The following transactions
shall take place at the Closing:
(a) Seller shall enter into (as applicable) and deliver to
Buyer: (i) the Xxxx of Sale, Assignment and Assumption Agreement, (ii)
Non-Competition Agreements with each of Xxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx
(iii) all applicable Tax Clearances, (iv) evidence of the release of the lien of
the Union Bank of California and appropriate termination statements and (v)
other instruments of transfer, evidence of required consents and all other
related documents as may be necessary to evidence or perfect the sale,
assignment, transfer, and conveyance of good title to all of the Purchased
Assets, in each case free and clear of all Security Interests and Encumbrances,
except the Permitted Liens. Seller shall also deliver to Buyer all Books and
Records, including the originals of the Advertising Contracts and Site Leases.
(b) Buyer shall deliver to Seller the Purchase Price, as
adjusted pursuant to Section 2.6, by wire transfer of immediately available
funds.
(c) Buyer shall enter into (as applicable) and deliver to
Seller: (i) the Xxxx of Sale, Assignment and Assumption Agreement, and (ii)
other assumption agreements, instruments and other documents as may be necessary
to evidence the assumption by Buyer of the Assumed Liabilities.
(d) The Parties shall also deliver to each other the
agreements, instruments, opinions, certificates, and other documents referred to
in this Agreement.
2.8 THIRD PARTY CONSENTS. To the extent that Seller's rights under any
Advertising Contract, Site Lease or other interest in the Purchased Assets may
not be assigned without the consent of a third party and such consent has not
been obtained, this Agreement shall not constitute an agreement to assign the
same if an attempted assignment would constitute a breach thereof or be
unlawful, and Seller and Buyer, to the maximum extent permitted by law and any
terms of or limitations relating to such asset, shall (at Buyer's cost) use
their Best Efforts to obtain for Buyer the benefits thereunder and shall
cooperate to the maximum extent permitted by law and any terms of or limitations
relating to such asset in any reasonable arrangement designed to provide such
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benefits to Buyer, including any sublease, subcontract or similar arrangement,
and if Buyer has obtained such benefits, Buyer shall discharge Seller's
obligations thereunder arising from and after the Closing Date, except for those
obligations arising because of Seller's breach.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of its
incorporation, with full power and authority to conduct its business as it is
now being conducted, to own or use the Purchased Assets, and to perform all its
obligations in connection with the Purchased Assets. Seller has delivered to
Buyer true and complete copies of its Organizational Documents, as currently in
effect. Seller is duly qualified to do business and in good standing in each
jurisdiction in which the Purchased Assets are owned, leased or operated by it,
except where such failure to be qualified would not have a Material Adverse
Effect on the Purchased Assets or the Purchased Business.
3.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against it in accordance with its terms. Upon
the execution and delivery by Seller of any documents to be executed at Closing
pursuant to this Agreement (collectively, the "Closing Documents"), such Closing
Documents will constitute the legal, valid, and binding obligations of Seller,
as applicable, enforceable against it in accordance with its terms. Seller has
the absolute and unrestricted right, power and authority to execute and deliver
this Agreement and the Closing Documents to which it is a party and to perform
its obligations thereunder. The execution, delivery and performance of this
Agreement has been specifically authorized by the Directors and shareholders of
Seller. Part 3.2(a) of the Disclosure Schedule contains a complete list of all
of the holders of the outstanding capital stock of Seller.
(b) Except as set forth in Part 3.2(b) of the Disclosure
Schedule, neither the execution and delivery by Seller of this Agreement nor the
consummation or performance by Seller of any of the Contemplated Transactions
will:
(i) conflict with, violate or result in a breach of
(A) any provision of the Organizational Documents of Seller; (B) to
Seller's Knowledge, any Legal Requirement or any Order to which Seller,
the Purchased Business, or any of the Purchased Assets may be subject;
or (C) to Seller's Knowledge, any Governmental Authorization held by
Seller or that otherwise relates to the Purchased Business or the
Purchased Assets; or
(ii) (A) contravene, conflict with, or result in a
violation or breach of any provision of, or give any Person the right
to declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any
material Contract to which Seller is a party or any material interest
or rights of Seller
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in or to the Purchased Assets; or (B) result in the imposition or
creation of any Encumbrance upon or with respect to any of the
Purchased Assets.
(c) Except as set forth in Part 3.2(c) of the Disclosure
Schedule, Seller is not and will not be required to give any notice to or obtain
any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the Contemplated
Transactions.
3.3 SOLVENCY. By consummating the transactions contemplated hereby,
Seller does not intend to hinder, delay or defraud any of Seller's present or
future creditors. Before giving effect to the transactions contemplated hereby,
Seller has been paying its debts as they become due in the Ordinary Course of
Business and, after giving effect to the transactions contemplated hereby,
Seller will have paid or discharged all of its debts (or made adequate provision
for the payment thereof).
3.4 BOOKS AND RECORDS. The books of account, and other Books and
Records of Seller maintained in connection with the Purchased Assets, are
complete and correct in all material respects and have been maintained in
accordance with sound business practices.
3.5 STRUCTURES. Seller owns all of the Structures. Except as set forth
in Part 3.5 of the Disclosure Schedule, to Seller's Knowledge, each Structure
(i) is located entirely on property covered by a Site Lease, (ii) complies in
all material respects with the terms of the Permits pertaining to it and (iii)
is in condition to accept faces and in adequate condition and repair for its
current use.
3.6 PERMITS. Except as set forth in Part 3.6, the Permits constitute
all material licenses, permits, registrations and approvals necessary to operate
the Purchased Assets. Seller is in material compliance with the terms of the
Permits. Seller is not aware of any fact or event which constitutes a material
violation of any Permit, and Seller has not received written notice that any
Governmental Body issuing any Permit intends to cancel, terminate, modify or
amend any Permit.
3.7 SITE LEASES AND ADVERTISING CONTRACTS. Seller has delivered to
Buyer true and complete copies of the Advertising Contracts and the Site Leases.
Except as set forth on Part 3.7 of the Disclosure Schedule, all sales made to
advertisers in connection with the Structures have been made pursuant to
Advertising Contracts. The Site Leases and the Advertising Contracts are in full
force and effect, and are binding upon the parties thereto. Except as set forth
in Part 3.7 of the Disclosure Schedule, to the Knowledge of Seller, (x) no
default by Seller or any other party has occurred under the Site Leases or
Advertising Contracts, and (y) no event, occurrence or condition exists which
(with or without notice or lapse of time or the happening of any further event
or condition) would become a material default by Seller thereunder or would
entitle any other party to terminate a Site Lease or Advertising Contract, to
make a claim or set-off against Seller or otherwise to amend such Site Lease or
Advertising Contract or prevent such Site Lease or Advertising Contract from
being renewed in accordance with its terms. Seller has not received any written
notice of default, termination or non-renewal under any Site Lease or
Advertising Contract.
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3.8 RESERVED.
3.9 TITLE, ENCUMBRANCES.
(a) Seller has good title to all of the Purchased Assets.
There are no existing agreements, options, commitments or rights with, of or to
any Person to acquire any of the Purchased Assets or any interest therein except
for this Agreement. All of the Purchased Assets are owned by Seller free and
clear of all Encumbrances and Security Interests except for Permitted Liens.
(b) Except as set forth in Part 3.9(b) of the Disclosure
Schedule, none of the Structures or Site Leases are or will be, to the Knowledge
of Seller, subject to zoning, use, or building code restrictions that will
prohibit the continued effective ownership, leasing or other use of such assets
as currently owned and used by Seller. Seller has not received any notice of
pending or Threatened claims, Proceedings, planned public improvements,
annexations, special assessments, rezonings or other adverse claims affecting
the Site Leases.
3.10 NO UNDISCLOSED LIABILITIES. Except as set forth in Part 3.10 of
the Disclosure Schedule, Seller has no material liabilities or obligations of
any nature relating to the Purchased Assets or the Purchased Business.
3.11 TAXES. With respect to the Purchased Assets and the Purchased
Business:
(a) Seller has filed or caused to be filed all Tax Returns
that are or were required to be filed by Seller, pursuant to applicable Legal
Requirements. Seller has paid, or made provision for the payment of, all Taxes
that have become due pursuant to those Tax Returns or otherwise, or pursuant to
any assessment received by Seller, except such Taxes, if any, as are listed in
Part 3.11(a) of the Disclosure Schedule and are being contested in good faith.
(b) No unpaid Taxes create an Encumbrance (other than
Permitted Liens) on the Purchased Assets.
(c) Buyer shall not be liable for any Taxes of Seller as a
result of the Contemplated Transactions.
3.12 COMPLIANCE WITH LEGAL REQUIREMENTS. Seller has complied with all
Legal Requirements applicable to Seller's ownership or use of the Purchased
Assets, except for noncompliances or failures that, individually or in the
aggregate, would not be reasonably expected to have a Material Adverse Effect.
3.13 LEGAL PROCEEDINGS; ORDERS. Except as set forth in Part 3.13 of the
Disclosure Schedule, there is no Proceeding pending or, to the Knowledge of
Seller, Threatened against Seller and affecting any of the Purchased Assets and
there is no Order to which Seller or the Purchased Assets are subject.
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3.14 OTHER CONTRACTS There are no Other Contracts relating to or
binding upon the Purchased Assets or the Purchased Business, except as disclosed
in Part 3.14 of the Disclosure Schedule.
3.15 INSURANCE. Seller maintains in full force and effect policies of
fire and other casualty, liability, title and other forms of insurance covering
the Purchased Assets and the operation thereof, of the types and with the
amounts of coverage as are consistent with industry standards for outdoor
advertising businesses comparable to the Purchased Business.
3.16 ENVIRONMENTAL MATTERS. Except as set forth in Part 3.16 of the
Disclosure Schedule, with respect to the Purchased Assets and the use or
operation thereof to Seller's Knowledge: (i) Seller is, and has been, in
material compliance with all Environmental Laws; (ii) Seller has timely filed
all material reports, obtained all material required approvals and permits
relating to ownership and use of the Purchased Assets, and generated and
maintained all material data, documentation and records under any applicable
Environmental Laws relating to the Purchased Assets; (iii) to the Knowledge of
Seller, there has not been any release of the Hazardous Materials at or in the
vicinity of the Purchased Assets; (iv) Seller has not received any written
notice from any Governmental Body or private or public entity advising it that
it is or may be responsible for response costs with respect to a Release, a
threatened Release or clean up of Hazardous Materials relating to the Purchased
Assets; and (v) Seller has delivered to Buyer true and complete copies and
results of any reports, studies, analyses, tests, or monitoring possessed by
Seller pertaining to Hazardous Materials in, on, or under the Purchased Assets.
3.17 RESERVED.
3.18 RELATIONSHIPS WITH AFFILIATES. Except as set forth on Part 3.18 of
the Disclosure Schedule, Seller is not a party to any contract with any
shareholder of Seller or any Affiliate of Seller or any of its shareholders
relating to the Purchased Assets or the Purchased Business. Neither Seller nor
any of its shareholders nor any Affiliate of Seller or any such shareholder is
the owner (of record or as a beneficial owner) of an equity interest or any
other financial or profit interest in, a Person (other than Seller) that has
business dealings or a material financial interest in any transaction with
Seller involving the Purchased Assets or the Purchased Business.
3.19 BROKERS OR FINDERS. Seller and its shareholders have not incurred
any obligation or liability, contingent or otherwise, for brokerage or finders'
fees or agents' commissions or other similar payment in connection with this
Agreement.
3.20 RESERVED.
3.21 HSR COMPLIANCE. Effective as of the Closing, Seller shall be in
compliance with Sellers' obligations pursuant to the HSR Act in connection with
the Contemplated Transactions.
3.22 DISCLOSURE. To Seller's Knowledge, no representation or warranty
of Seller in this Agreement and no statement in the Disclosure Schedule omits to
state a material fact necessary to
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make the statements herein or therein, in light of the circumstances in which
they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware.
4.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Upon the execution and delivery by Buyer of the Closing Documents to which Buyer
is a party, such Closing Documents will constitute the legal, valid, and binding
obligations of Buyer, enforceable against Buyer in accordance with their
respective terms. Buyer has the absolute and unrestricted right, power, and
authority to execute and deliver this Agreement and the Closing Documents and to
perform its obligations under this Agreement and the Closing Documents to which
Buyer is a party.
(b) Neither the execution and delivery of this Agreement by
Buyer nor the consummation or performance of any of the Contemplated
Transactions by Buyer will give any Person the right to prevent, delay, or
otherwise interfere with any of the Contemplated Transactions pursuant to (i)
any provision of Buyer's Organizational Documents; (ii) any resolution adopted
by the board of directors or the stockholders of Buyer; (iii) any Legal
Requirement or Order to which Buyer may be subject; or (iv) any material
Contract to which Buyer is a party or by which Buyer may be bound. Buyer is not
and will not be required to obtain any Consent from any Person in connection
with the execution and delivery of this Agreement or the consummation or
performance of any of the Contemplated Transactions. The execution, delivery and
performance of this Agreement and the Contemplated Transactions have been
specifically authorized by the Directors of Buyer.
4.3 CERTAIN PROCEEDINGS. There is no pending Proceeding that has been
commenced against Buyer and that challenges, or may have the effect of
preventing, making illegal, or otherwise interfering with, any of the
Contemplated Transactions. To Buyer's Knowledge, no such Proceeding has been
Threatened in writing and no event has occurred or circumstance exist that may
give rise to or serve as a basis for the commencement of any Proceeding.
4.4 BROKERS OR FINDERS. Buyer has not incurred any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement.
4.5 HSR COMPLIANCE. Effective as of the Closing, Buyer shall be in
compliance with Buyer's obligations pursuant to the HSR Act in connection with
the Contemplated Transactions.
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4.6 DUE DILIGENCE; RELIANCE ON BUYER'S EXPERTS. Prior to Buyer's
execution and delivery of this Agreement, Buyer has conducted such due diligence
activities and investigations in connection with the Purchased Assets as Buyer
deems reasonable or necessary and, in connection with such activities and
investigations, Buyer has relied on its own financial, legal and other experts
and advisors in arriving at Buyer's decision to execute, deliver and consummate
this Agreement and the Contemplated Transactions. Buyer is not relying on any
representations, warranties or covenants of Seller except as expressly set forth
in this Agreement.
4.7 DISCLOSURE. To the Knowledge of Buyer, no representation or
warranty of Buyer in this Agreement omits to state a material fact necessary to
make the statements in this Agreement, in light of the circumstances in which
they were made, not misleading.
5. COVENANTS OF SELLER
5.1 ACCESS AND INVESTIGATION. Prior to the date of this Agreement and
until the Closing Date, Seller has, and will continue to, cause its
Representatives to, afford Buyer and its Representatives reasonable access
during normal business hours to Seller's personnel, properties, Books and
Records, and other documents and data relating to the Purchased Assets and the
Purchased Business, and furnish Buyer and its Representatives with copies of the
same.
5.2 DUE DILIGENCE. Buyer shall have the right, and Seller shall
continue to afford access to Buyer and its Representatives, at all reasonable
times upon advance notice to perform due diligence on the Purchased Assets and
the Purchased Business through and including Closing (the "Due Diligence
Period").
5.3 OPERATION OF THE PURCHASED ASSETS. Between the date of this
Agreement and the Closing Date, Seller will:
(a) operate the Purchased Assets only in the Ordinary Course
of Business;
(b) use its Best Efforts to maintain the Purchased Assets, and
maintain the relations and good will with advertisers, landlords and others
associated with the operation of the Purchased Assets; and
(c) confer with Buyer concerning any new Advertising Contract,
Site Lease or Other Contract which involves a term of more than three (3) months
or payment of amounts in excess of $50,000.
5.4 NEGATIVE COVENANT. Except as otherwise expressly permitted by this
Agreement, between the date of this Agreement and the Closing Date, Seller will
operate the Purchased Assets consistent in all material respects with past
practice, except as otherwise provided in this Agreement.
5.5 REQUIRED APPROVALS AND CONSENTS. As promptly as practicable after
the date of this Agreement, Seller will make all filings required by Legal
Requirements to be made by it in
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order to consummate the Contemplated Transactions and use its Best Efforts to
obtain such of the Consents identified in Section 3.2(c) for the transfer of the
Purchased Assets.
5.6 NOTIFICATION. Between the date of this Agreement and the Closing
Date, Seller will promptly notify Buyer in writing if Seller become aware of any
fact or condition that causes or constitutes a material breach of any of
Seller's representations and warranties as of the date of this Agreement, or if
Seller become aware of the occurrence after the date of this Agreement and
before the Closing Date of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a material breach of any
such representation or warranty had such representation or warranty been made as
of the time of occurrence or discovery of such fact or condition. During the
same period, Seller will promptly notify Buyer of the occurrence of any material
breach of any covenant of Seller in this Section 5 or of the occurrence of any
event that may make the satisfaction of the conditions in Section 7 impossible
or unlikely.
5.7 NO NEGOTIATION. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, neither Seller nor any Affiliate will, nor
will it permit its Representatives to, directly or indirectly solicit, initiate,
or encourage any inquiries or proposals from, discuss or negotiate with, provide
any non-public information to, or consider the merits of any unsolicited
inquiries or proposals from, any Person (other than Buyer or its
Representatives) relating to or affecting any transaction involving the sale of
the Purchased Assets.
5.8 TAX CLEARANCE. Seller shall use its Best Efforts to obtain all
certificates of clearances for Taxes ("Tax Clearances"), if any, required by the
State of Nevada certifying as to the payment by or on behalf of Seller of all
sales and business occupational Taxes due on or prior to a date not more than
thirty (30) days after the Closing Date (it being agreed and understood that,
notwithstanding the foregoing, if any Tax Clearances are not obtained by such
date, Seller shall obtain such Tax Clearances as soon thereafter as reasonably
possible and shall be responsible for, and shall discharge in full, all
liabilities and obligations therefor).
5.9 RESTRICTIVE COVENANTS.
(a) For a period of three (3) years after the date hereof,
Seller agrees that, except with the prior written consent of Buyer, Seller will
not, either directly or indirectly, on Seller's behalf or in the service or on
behalf of others, engage in the business of owning and operating outdoor signs
and billboards in the State of Nevada ("Competing Business") and Seller will not
become financially interested in a Competing Business (other than as a holder of
less than five percent (5%) of the outstanding voting securities of any entity
whose voting securities are listed on a national securities exchange or quoted
by the National Association of Securities Dealers, Inc. automated quotation
system).
(b) For a period of three (3) years after the date hereof,
Seller agrees not to solicit, or attempt to solicit, directly or indirectly, on
Seller's own behalf or in the service or on behalf of others, any business from
any customer or actively pursued prospective customer of the Purchased Business
with respect to out-of-home advertising in the State of Nevada.
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(c) For a period of three (3) years after the date hereof,
Seller agrees not to solicit, or attempt to solicit, directly or indirectly, on
Seller's own behalf or in the service or on behalf of others, any Site Lease
(including the two Site Leases located in Los Angeles, California) or any other
real estate location in the State of Nevada used by the Seller from any land
owner (or its or his successors or assigns) who leases to or who was actively
pursued by the Seller.
(d) Seller agrees that Seller will not for a period of three
(3) years after the date hereof, without the prior written consent of Buyer,
disclose or divulge to anyone any confidential knowledge or information of any
type whatsoever relating to the Purchased Business (including without
limitation, the identities of customers of and lessors who lease real property
to the Purchased Business), pricing information, financial data or sales or
marketing techniques. Seller agrees that trade secrets are protected by law and
cannot be disclosed or used at anytime without the prior written consent of
Buyer. The provisions of this paragraph shall not apply to information (i) that
is publicly available through lawful means or lawfully disclosed from a third
party who is not bound by a confidentiality obligation with respect thereto or
(ii) that is required to be disclosed by law. The provisions of this paragraph
as to trade secrets shall survive the term of this Agreement and remain in
effect for so long as the trade secrets remain confidential.
5.10 BEST EFFORTS. Between the date of this Agreement and the Closing
Date, Seller will, at Seller's cost, use its Best Efforts to cause the
conditions in Section 7 to be satisfied.
6. COVENANTS OF BUYER
6.1 REQUIRED APPROVALS. As promptly as practicable after the date of
this Agreement, Buyer will make all filings required by Legal Requirements to be
made by it to consummate the Contemplated Transactions.
6.2 BEST EFFORTS. Between the date of this Agreement and the Closing
Date, Buyer will, at Buyer's cost, use its Best Efforts to cause the conditions
in Section 8 to be satisfied; provided that this Agreement will not require
Buyer to dispose of or make any change in any portion of its business or to
incur any other burden to obtain a Governmental Authorization.
6.3 IMPRINTS. No later than 150 days after the Closing, Buyer shall
remove from all Structures included in the Purchased Assets all imprints used by
Seller containing Seller's trade name; provided, however, until the earlier of
(i) such removal or (ii) the expiration of such 150-day period, Buyer may
display Seller's trade names on such Structures.
6.4 NOTIFICATION. Between the date of this Agreement and the Closing
Date, Buyer will promptly notify Seller in writing if Buyer becomes aware of any
fact or condition that causes or constitutes a breach of any of Buyer's
representations and warranties as of the date of this Agreement, or if Buyer
becomes aware of the occurrence after the date of this Agreement and before the
Closing Date of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a breach of any such
representation or warranty had such representation or warranty been made as of
the time of occurrence or discovery of such fact or condition. During the same
period, Buyer will promptly notify Seller of the occurrence of any
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breach of any covenant of Buyer in this Section 6 or of the occurrence of any
event that may make the satisfaction of the conditions in Section 8 impossible
or unlikely.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Purchased Assets and to take the
other actions required to be taken by Buyer at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Buyer, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS. Seller's representations and
warranties in this Agreement must have been accurate as of the date of this
Agreement, and must be accurate in all material respects as of the Closing Date
as if made on the Closing Date and, unless the Contemplated Transactions are
consummated simultaneously with the signing of this Agreement, Buyer shall have
received a certificate of an executive officer of Seller, dated as of the
Closing Date, as to such accuracy.
7.2 SELLER'S PERFORMANCE. The covenants and obligations that Seller is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all material respects,
and, unless the Contemplated Transactions are consummated simultaneously with
the signing of this Agreement, Buyer shall have received a certificate of an
executive officer of Seller, dated as of the Closing Date, as to such
compliance.
7.3 CONSENTS. Each of the Consents required pursuant to Section 3.2 (c)
must have been obtained and must be in full force and effect.
7.4 NON-COMPETITION AGREEMENTS. Seller shall deliver a Non-Competition
Agreement executed by each of Xxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx.
7.5 ADDITIONAL DOCUMENTS. Each of the following documents must have
been delivered to Buyer:
(a) an opinion of Xxxxxx & Associates dated the Closing Date,
in form and substance reasonably satisfactory to Buyer;
(b) the deliveries required from Seller in Section 2.7; and
(c) such other documents as Seller is required to deliver
pursuant to this Agreement.
7.5 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced and pending or Threatened by any Person or any Proceeding
(i) involving any challenge to, or seeking damages or other relief in connection
with, any of the Contemplated Transactions, (ii) that prevents, makes illegal,
or otherwise materially interferes with any of the Contemplated Transactions or
seeks to do any of the foregoing, or (iii) that involves any material claim
against Seller.
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7.6 NO PROHIBITION. There must not be in effect any Legal Requirement
or any injunction or other Order that prohibits or restricts the consummation of
the Contemplated Transactions, including, without limitation, HSR Act
compliance.
7.7 NO MATERIAL ADVERSE CHANGE. There shall not have been a Material
Adverse Change since the date hereof.
7.8 DUE DILIGENCE. Buyer's due diligence investigation and review with
respect to the Purchased Assets, the Purchased Business and the Assumed
Liabilities shall not reveal any fact or circumstance not disclosed to Seller in
the Disclosure Schedule prior to the execution hereof which in Buyer's judgment,
exercised in good faith, would cause or be likely to cause a Material Adverse
Change to the value of the Purchased Assets.
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's obligation to sell the Purchased Assets and Seller's
obligations to take the other actions required to be taken by Seller at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Seller, in whole or in
part):
8.1 ACCURACY OF REPRESENTATIONS. Buyer's representations and warranties
in this Agreement must have been accurate as of the date of this Agreement and
must be accurate in all material respects as of the Closing Date as if made on
the Closing Date, and, unless the Contemplated Transactions are consummated
simultaneously with the signing of this Agreement, Seller shall have received a
certificate of an executive officer of Buyer, dated as of the Closing Date, as
to such accuracy.
8.2 BUYER'S PERFORMANCE. The covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all material respects,
and, unless the Contemplated Transactions are consummated simultaneously with
the signing of this Agreement, Seller shall have received a certificate of an
executive officer of Buyer, dated as of the Closing Date, as to such compliance.
8.3 ADDITIONAL DOCUMENTS. Buyer must have caused the following
documents to be delivered to Seller:
(a) an opinion of Powell, Goldstein, Xxxxxx & Xxxxxx LLP,
dated the Closing Date, in form and substance reasonably acceptable to Seller;
(b) the deliveries required from Buyer in Section 2.7; and
(c) such other documents as Buyer is required to deliver
pursuant to this Agreement.
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8.4 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced and pending or Threatened any Proceeding (i) involving any
challenge to, or seeking damages or other relief in connection with, any of the
Contemplated Transactions, or (ii) that prevents, makes illegal, or otherwise
materially interferes with any of the Contemplated Transactions or seeks to do
any of the foregoing.
8.5 NO PROHIBITION. There must not be in effect any Legal Requirement
or any injunction or other Order that prohibits or restricts the consummation of
the Contemplated Transactions.
9. TERMINATION
9.1 TERMINATION EVENTS. This Agreement may, by notice given prior to or
at the Closing, be terminated:
(a) by mutual consent of Buyer and Seller;
(b) (i) by Buyer if any of the conditions in Section 7 has not
been satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Buyer to comply with
its obligations under this Agreement) and Buyer has not waived such condition on
or before the Closing Date; or (ii) by Seller, if any of the conditions in
Section 8 has not been satisfied of the Closing Date or if satisfaction of such
a condition is or becomes impossible (other than through the failure of Seller
to comply with its obligations under this Agreement) and Seller has not waived
such condition on or before the Closing Date; or
(c) by Buyer, on the one hand, or Seller, on the other hand,
if the Closing has not occurred (other than through the failure of the other
Party seeking to terminate this Agreement to comply fully with its obligations
under this Agreement) on or before December 31, 1997.
9.2 EFFECT OF TERMINATION. Each Party's right of termination under
Section 9.1 is in addition to any other rights it may have under this Agreement.
If this Agreement is terminated pursuant to Section 9.1, all further obligations
of the Parties under this Agreement will terminate, except that the obligations
in Sections 11.1 and 11.2 will survive; provided, however, that if this
Agreement is terminated by a Party because of the breach of the Agreement by the
other Party or because one or more of the conditions to the terminating Party's
obligations under this Agreement is not satisfied as a result of the other
Party's failure to comply with its obligations under this Agreement, the
terminating Party's right to pursue all legal and equitable remedies, separately
or simultaneously, (including specific performance) will survive such
termination unimpaired.
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10. INDEMNIFICATION; REMEDIES
10.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER. Seller will
indemnify, defend, protect and hold harmless Buyer, stockholders, controlling
Persons, and Affiliates (collectively, the "Seller Indemnified Persons") for,
and will pay to the Seller Indemnified Persons the amount of, any loss,
liability, claim, damage, expense (including reasonable costs of investigation
and defense and reasonable attorneys' fees), whether or not involving a
third-party claim (collectively, "Damages"), arising, directly or indirectly,
from or in connection with:
(a) any material breach of any representation or warranty made
by Seller in this Agreement, the Disclosure Schedule, or any other certificate
or document delivered by Seller pursuant to this Agreement;
(b) any material breach by Seller of any covenant or
obligation of Seller in this Agreement or any certificate or document delivered
by Seller pursuant to this Agreement;
(c) the failure of Seller to satisfy and discharge any
Excluded Liabilities, except only the Assumed Liabilities; and
(d) the failure of Seller to comply with bulk sales or other
similar laws in any applicable jurisdiction.
10.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER. Buyer will
indemnify, defend, protect and hold harmless Seller and its stockholders,
controlling Persons, and Affiliates (collectively, the "Buyer Indemnified
Persons") for, and will pay to the Buyer Indemnified Persons the amount of any
Damages arising, directly or indirectly, from or in connection with:
(a) any material breach of any representation or warranty made
by Buyer in this Agreement or in any certificate or document delivered by Buyer
pursuant to this Agreement; and
(b) any material breach by Buyer of any covenant or obligation
of Buyer in this Agreement;
(c) the failure of Buyer to satisfy and discharge the Assumed
Liabilities; and
(d) the Purchased Assets which relate to acts or omissions
occurring from and after the Closing.
10.3 PROCEDURE FOR INDEMNIFICATION - THIRD PARTY CLAIMS.
(e) Promptly after receipt by an Indemnified Person under
Section 10.1 or 10.2, of notice of any claim against it, such Indemnified Person
will, if a claim is to be made against an Indemnifying Party under such Section,
give notice to the Indemnifying Party of the commencement of such claim, but the
failure to notify the Indemnifying Party will not relieve the
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Indemnifying Party of any liability that it may have to any Indemnified Person,
except to the extent that the Indemnifying Party demonstrates that the defense
of such action is prejudiced by the Indemnifying Party's failure to give such
notice.
(f) If any claim referred to in Section 10.3(a) is brought
against an Indemnified Person and it gives written notice to the Indemnifying
Party of such claim, the Indemnifying Party may, at its option, assume the
defense of such claim with counsel satisfactory to the Indemnified Person and,
after written notice from the Indemnifying Party to the Indemnified Person of
its election to assume the defense of such claim, the Indemnifying Party will
not, as long as it diligently conducts such defense, be liable to the
Indemnified Person under this Article 10 for any fees of other counsel or any
other expenses with respect to the defense of such claim, subsequently incurred
by the Indemnified Person in connection with the defense of such claim, other
than reasonable costs of investigation. If the Indemnifying Party assumes the
defense of a claim, (i) no compromise or settlement of such claims may be
effected by the Indemnifying Party without the Indemnified Person's consent
unless (A) there is no finding or admission of any violation of Legal
Requirements or any violation of the rights of any Person, and (B) the sole
relief provided is monetary damages that are paid in full by the Indemnifying
Party; and (ii) the Indemnified Person will have no liability with respect to
any compromise or settlement of such claims effected without its consent.
Subject to Section 10.3(c), if notice is given to an Indemnifying Party of any
claim and the Indemnifying Party does not, within twenty days after the
Indemnified Person's notice is given, give notice to the Indemnified Person of
its election to assume the defense of such claim, the Indemnifying Party will be
bound by any determination made in such Proceeding or any compromise or
settlement effected by the Indemnified Person.
(g) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable probability that a claim may
adversely affect it or its affiliates other than as a result of monetary damages
for which it would be entitled to indemnification under this Agreement, the
Indemnified Person may, by notice to the Indemnifying Party, assume the
exclusive right to defend, compromise, or settle such claim, but the
Indemnifying Party will not be bound by any determination of a claim so defended
or any compromise or settlement effected without its consent (which may not be
unreasonably withheld).
10.4 PROCEDURE FOR INDEMNIFICATION -- OTHER CLAIMS. A claim for
indemnification for any matter not involving a third-party claim shall be
asserted by written notice to the Indemnifying Party from whom indemnification
is sought.
10.5 SURVIVAL/LIMITATIONS.
(a) The parties hereto agree that (i) the covenants and
agreements contained in the Agreement and any document delivered pursuant hereto
and the representations and warranties contained in Sections 3.1, 3.2(a), 3.3,
3.9(a), 3.11, 3.16, 3.19, 3.21, 4.1, 4.2(a), 4.4 and 4.5 shall survive until 90
days after the expiration of all applicable statutes of limitation with respect
to the subject matter thereof, and (ii) all other representations and warranties
shall survive until the first anniversary following the Closing Date.
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(b) Seller's obligation to indemnify the Seller Indemnified
Persons for Damages pursuant to Section 10.1 is subject to the following
limitations:
(i) in no event shall such obligations exceed the
Purchase Price; and
(ii) Seller shall have no such obligation until Buyer
has suffered Damages in excess of $250,000 and then only to the extent
of the Damages in excess of such amount.
11. GENERAL PROVISIONS
11.1 EXPENSES. Each Party to this Agreement will bear its respective
expenses incurred in connection with the preparation, execution, and performance
of this Agreement and the Contemplated Transactions, including all fees and
expenses of agents, representatives, brokers or finders, counsel, and
accountants. In any action involving Buyer and Seller arising out of or
otherwise relating to this Agreement, the prevailing party shall be entitled to
recover from the other party, in addition to damages, injunctive or other
relief, if any, all costs and expenses (whether or not allowable as "cost" items
by law) reasonably incurred at, before and after trial or on appeal, or in any
bankruptcy or arbitration proceeding, including, without limitation, attorneys'
and witness (expert and otherwise) fees, deposition costs, copying charges and
other expenses.
11.2 HEADINGS; CONSTRUCTION. The headings of Sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
11.3 PUBLIC ANNOUNCEMENTS; CONFIDENTIALITY. Any public announcement or
similar publicity with respect to this Agreement or the Contemplated
Transactions will be issued, if at all, at such time and in such manner as Buyer
and Seller agree in writing, provided that the parties shall reasonably
cooperate in such announcements, and provided further that nothing contained
herein shall prevent any party from at any time furnishing information required
by a Governmental Body. Unless consented to by Buyer and Seller in advance or
required by Legal Requirements, prior to the Closing, each Party shall, and
shall cause their respective Representatives to, keep this Agreement strictly
confidential and may not make any disclosure of this Agreement to any Person.
11.4 AVAILABILITY OF EQUITABLE REMEDIES. The Parties acknowledge and
agree that (i) a breach of the provisions of this Agreement could not adequately
be compensated by money damages, and (ii) any Party shall be entitled, either
before or after the Closing, in addition to any other right or remedy available
to it, to an injunction restraining such breach and to specific performance of
this Agreement, and no bond or other security shall be required in connection
therewith.
11.5 NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of
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receipt), provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each case to the
appropriate addresses and telecopier numbers set forth below (or to such other
addresses and telecopier numbers as a Party may designate by notice to the other
Parties):
If to Seller, to:
Outdoor Media Group, Inc.
00000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxx X. Xxxxxxxxx, President
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx & Associates
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Buyer, to:
Outdoor Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxx
and
Xx. Xxxxxxx X. Xxxxxx
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, XX, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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11.6 FURTHER ASSURANCES. The Parties agree (i) to furnish upon request
to each other such further information, (ii) to execute and deliver to each
other such other documents, and (iii) to do such other acts and things, all as
the other Party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement.
11.7 WAIVER. Neither the failure nor any delay by any Party in
exercising any right, power, or privilege under this Agreement or the documents
referred to in this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege.
11.8 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the Parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the Parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the Party to be charged with the amendment.
11.9 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. No Party may
assign any of its rights under this Agreement without the prior consent of the
other Parties except that Buyer may assign any of its rights under this
Agreement to any affiliate of Buyer. This Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the Parties, and their
successors, by liquidation or otherwise, and their permitted assigns. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the Parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement.
11.10 ACCOUNTS RECEIVABLE. Buyer agrees to forward to Seller any
payments that Buyer may receive with respect to any accounts receivable of
Seller relating to the Purchased Assets.
11.11 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
11.12 RISK OF LOSS. Material risk of loss or damage to the Purchased
Assets from any cause whatsoever (except loss or damage caused, in whole or in
part, by Buyer) prior to the Closing shall be borne by Seller, and after the
Closing shall be borne by Buyer.
11.13 POST-CLOSING ACCESS. Buyer agrees that all Books and Records
delivered to Buyer by Seller pursuant to this Agreement shall be maintained open
for inspection by Seller at any time during regular business hours upon
reasonable notice for a period of two (2) years (or for such longer period as
may be required by applicable Legal Requirements) following the Closing and
that, during such period, Seller, at its expense, may make such copies thereof
as it may reasonably desire. Seller agrees that all books and records relating
to the Purchased Assets and retained by Seller shall be maintained open for
inspection by Buyer at any time during regular business hours
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for a period of two (2) years (or for such longer period as may be required by
applicable Legal Requirements) following the Closing and that, during such
period, Buyer, at its expense, may make such copies thereof as it may reasonably
desire. Nothing contained in this Section 11.13 shall obligate any Party hereto
to make available any books and records if to do so would violate the terms of
any Contract or Legal Requirement to which it is a party or to which it or its
assets are subject.
11.14 APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California.
11.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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IN WITNESS WHEREOF, the Parties have executed, sealed and delivered
this Agreement as of the date first written above.
BUYER:
OUTDOOR SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Chairman of the Board
----------------------------------
Attest:
By: /s/ Xxxx X. Beverage
----------------------------
Secretary
SELLER:
OUTDOOR MEDIA GROUP, INC.
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------------
Title: President
----------------------------------
Attest:
By: /s/ Xxx X. Xxxxxxxxx
----------------------------
Secretary
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EXHIBIT A
DEFINITIONS
"ADVERTISING CONTRACTS" -- as defined in Section 2.2(c).
"AFFILIATES" -- when used with reference to a specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Specified
Person. For purposes of this definition of Affiliate, "control" means the
possession, directly or indirectly, of the power to direct or to cause the
direction of management and policies of the Person in question, whether through
the ownership of voting securities or by contract or otherwise.
"ASSUMED LIABILITIES" -- as defined in Section 2.3.
"BEST EFFORTS" -- the commercially reasonable efforts that a prudent
Person desirous of achieving a result would use in similar circumstances.
"XXXX OF SALE" -- the Xxxx of Sale, Assignment and Assumption Agreement
in the form of Exhibit B attached hereto.
"BOOKS AND RECORDS" -- All of Seller's books and records relating to
the Purchased Assets, including, without limitation, all Site Lease files,
Advertising Contract files, Permit files, maintenance and other records for the
Structures, logs, advertiser, customer and supplier lists.
"BUYER" -- as defined in the first paragraph of this Agreement.
"CLOSING" -- as defined in Section 2.5.
"CLOSING DATE" -- the date and time as of which the Closing actually
takes place.
"CLOSING DOCUMENTS" -- as defined in Section 3.2(a).
"CONFIDENTIAL INFORMATION" -- any information concerning the businesses
and affairs of Seller that is not generally available to the public.
"CONSENT" -- any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"CONTEMPLATED TRANSACTIONS" -- all of the transactions contemplated by
this Agreement, including: (a) the purchase of the Purchased Assets by Buyer
from Seller and assignment to and assumption by Buyer of the Assumed
Liabilities, and (b) the performance by Buyer and Seller of their respective
covenants and obligations under this Agreement.
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"CONTRACT" -- any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
"DAMAGES" -- as defined in Section 10.1.
"DISCLOSURE SCHEDULE" -- the disclosure schedule, delivered by Seller
to Buyer concurrently with the execution and delivery of this Agreement.
"DUE DILIGENCE PERIOD" -- as defined in Section 5.2.
"ENCUMBRANCE" -- any charge, claim, condition, equitable interest,
lien, option, pledge, security interest, right of first refusal, or restriction
of any kind, including any restriction on use, transfer, receipt of income, or
exercise of any other attribute of ownership.
"ENVIRONMENT" -- soil, land surface or subsurface strata, surface
waters, groundwaters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life, and any other environmental
medium or natural resource.
"ENVIRONMENTAL LAW" -- any Legal Requirement pertaining to
environmental discharges, Release, emissions or spills or the manufacture, sale,
processing, handling, transportation, storage or disposal of any Hazardous
Materials, or relating to any environmental processes or condition, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), the Clean Air Act, the Clean Water Act, the Resource
Conservation and Recovery Act ("RCRA"), the Endangered Species Act, the Federal
Insecticide, Fungicide and Rodenticide Act, the Hazardous Materials
Transportation Act, the Surface Mining Control and Reclamation Act, the
Emergency Planning and Community Right to Know Act, the Safe Drinking Water Act,
the Toxic Substances Control Act, the Coastal Zone Management Act, the National
Environmental Policy Act, the Noise Control Act. As used in this Agreement,
Environmental Laws shall mean any of such laws or regulations as the same exist
now or at the Closing Date.
"EXCLUDED ASSETS" -- as defined in Section 2.2 and in Schedule 2.2(x).
"EXCLUDED LIABILITIES" -- as defined in Section 2.4.
"GOVERNMENTAL AUTHORIZATION" -- any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"GOVERNMENTAL BODY" -- any federal, state, local, municipal, foreign,
or other government; or governmental or quasi-governmental authority of any
nature (including any governmental agency, branch, department, official, or
entity and any court or other tribunal).
"HAZARDOUS MATERIALS" -- any waste or other substance that is listed,
defined, designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law, and specifically including petroleum and
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all derivatives thereof or synthetic substitutes therefor and asbestos or
asbestos-containing materials.
"HSR ACT" -- the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and any regulations and rules promulgated thereunder.
"INDEMNIFIED PERSON" -- any of the Seller Indemnified Persons or the
Buyer Indemnified Persons, as the context requires.
"INDEMNIFYING PARTY" -- the Buyer or the Seller, as the context
requires.
"INTANGIBLE PROPERTY" -- All right, title and interest in and to the
goodwill and other intangible property (except for Seller's corporate or trade
names and trade logos) used exclusively in connection with the Purchased Assets,
all licenses, permits and authorizations pertaining to the Purchased Assets or
the right to own and operate the Purchased Assets and all right, title and
interest in and to (i) any intellectual property used exclusively in connection
with the Purchased Assets, and (ii) all records and data relating specifically
to the Purchased Assets.
"IRC" -- the Internal Revenue Code of 1986, as amended from time to
time, or any successor law, and regulations issued by the IRS pursuant to the
Internal Revenue Code or any successor law.
"IRS" -- the United States Internal Revenue Service and, to the extent
relevant, the United States Department of the Treasury.
"KNOWLEDGE" -- a Person will be deemed to have "Knowledge" of a
particular fact or other matter only if such Person is actually aware of such
fact or other matter without making any independent inquiry or investigation. A
Person (other than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving as a director,
officer, partner, executor, or trustee of such Person (or in any similar
capacity) has Knowledge of such fact or other matter.
"LEGAL REQUIREMENT" -- any federal, state, local, municipal, foreign,
international, multinational, or other administrative Order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"MATERIAL ADVERSE CHANGE" -- a change that will probably cause a
Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" -- a material adverse effect on the Purchased
Business or the Purchased Assets, or operations or conditions (financial or
otherwise) relating thereto, taken as a whole.
"NON-COMPETITION AGREEMENT" - The Non-Competition Agreement in the form
of Exhibit C between Buyer and the individual(s) named therein.
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"ORDER" -- any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"ORDINARY COURSE OF BUSINESS" -- an action taken by a Person will be
deemed to have been taken in the "Ordinary Course of Business" if such action is
consistent with the past custom and practices of such Person and is taken in the
ordinary course of the normal day-to-day operations of such Person (including
with respect to quantity and frequency).
"ORGANIZATIONAL DOCUMENTS" -- (a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) the partnership agreement and
any statement of partnership of a general partnership; (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (d) any charter or similar document adopted or filed in connection
with the creation, formation, or organization of a Person; and (e) any amendment
to any of the foregoing.
"OTHER CONTRACT" -- any Contract (other than a Site Lease or
Advertising Contract) relating to or affecting the Purchased Assets or the
operation thereof (i) under which Seller has any rights as of the Closing, (ii)
under which Seller has any obligation or liability as of the Closing, or (iii)
by which Seller or any of the Purchased Assets is or may become bound as of the
Closing.
"PARTY" -- as defined in the first paragraph of this Agreement.
"PERMITS" -- as defined in Section 2.2(d).
"PERMITTED LIENS" -- liens for taxes not yet delinquent, mechanic's,
materialmen's and similar liens which have arisen in the Ordinary Course of
Business.
"PERSON" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"PROCEEDING" -- any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"PURCHASE PRICE" -- as defined in Section 2.6.
"PURCHASED ASSETS" -- as defined in Section 2.2.
"RELEASE" -- any spilling, leaking, emitting, discharging, depositing,
escaping, leaching, dumping, or other releasing into the Environment, whether
intentional or unintentional.
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"REPRESENTATIVE" -- with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"SECURITY INTEREST" -- any mortgage, pledge, lien, encumbrance, charge
or other security interest or option or right of any third party with respect
thereto.
"SELLER" -- as defined in the first paragraph of this Agreement.
"SITE LEASES" -- as defined in Section 2.2(b).
"STRUCTURES" -- as defined in Section 2.2(a).
"TAX" -- shall mean all tax (including income tax, capital gains tax,
value added tax, sales tax, property tax, transfer tax or intangibles tax), levy
assessment, tariff, duty, deficiency or other fee and any related charge or
amount (including fine, penalty and interest) imposed, assessed or collected by
or under the authority of any Governmental Body.
"TAX CLEARANCES" -- as defined in Section 5.9.
"TAX RETURN" -- any return (including any information return), report,
statement, schedule, notice, form, or other document or information filed with
or submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection, or payment of
any Tax or in connection with the administration, implementation, or enforcement
of or compliance with any Legal Requirement relating to any Tax.
"THREATENED" -- a claim, Proceeding or dispute will be deemed to have
been "THREATENED" if any demand or statement has been made or any notice has
been given that would lead a prudent Person to conclude that such a claim,
Proceeding or dispute is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
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SCHEDULE 2.2(x)
The sale of the Purchased Assets from Seller to Buyer pursuant to this
Agreement includes only the Purchased Assets and does not include the Excluded
Assets. The Excluded Assets include all assets, whether tangible or intangible,
of Seller except for the Purchased Assets, including, without limitation, all
structures, site leases, real property, contracts, permits, accounts receivable
and prepaid expenses of all types, books and records, tangible personal property
(including, without limitation, vehicles, stationery, supplies and telephone
numbers), intangible property (including, without limitation, goodwill and the
trade name "Outdoor Media Group") and all other rights of Seller not comprising
the Purchased Assets.
