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EXHIBIT 10.17
STOCK PURCHASE AGREEMENT
AMONG
XXXXX ADVERTISING COMPANY
AND
THE SHAREHOLDERS LISTED ON EXHIBIT A
September 25, 1996
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TABLE OF CONTENTS
SECTION HEADINGS PAGE
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Purchase and Sale of Company Shares . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Basic Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Deliveries at the Closing . . . . . . . . . . . . . . . . . . . . . . . 5
3. Representations and Warranties Concerning the Transaction . . . . . . . . . . . . . . 5
(a) Representations and Warranties of the Sellers . . . . . . . . . . . . . 5
(b) Representations and Warranties of the Buyer . . . . . . . . . . . . . . 6
4. Representations and Warranties Concerning the Company . . . . . . . . . . . . . . . . 7
(a) Organization, Qualification, and Corporate Power . . . . . . . . . . . . 7
(b) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(d) Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(e) Title to Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . 8
(f) Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(g) Events Subsequent to Most Recent Fiscal Month End . . . . . . . . . . . 8
(h) Legal Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(i) Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(j) Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(k) Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . 9
(l) Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(m) Advertising Structures . . . . . . . . . . . . . . . . . . . . . . . . . 10
(n) Advertising Contracts . . . . . . . . . . . . . . . . . . . . . . . . . 10
(o) Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(p) Site Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(q) Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(r) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(s) Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(t) Certain Business Relationships with the Company . . . . . . . . . . . . 11
(u) Environmental Matter . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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5. Pre-Closing Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Notices and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) Operation of Business . . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Full Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(e) Notice of Developments . . . . . . . . . . . . . . . . . . . . . . . . . 13
6. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7. Conditions to Obligation to Close . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Conditions to Obligation of the Buyer . . . . . . . . . . . . . . . . . 13
(b) Conditions to Obligation of the Sellers . . . . . . . . . . . . . . . . 14
8. Remedies for Breaches of This Agreement . . . . . . . . . . . . . . . . . . . . . . . 15
(a) Survival of Representations and Warranties . . . . . . . . . . . . . . . 15
(b) Indemnification Provisions for Benefit of the Buyer . . . . . . . . . . 15
(c) Indemnification Provisions for Benefit of the Sellers . . . . . . . . . 16
(d) Matters Involving Third Parties . . . . . . . . . . . . . . . . . . . . 16
(e) Determination of Adverse Consequences . . . . . . . . . . . . . . . . . 17
(f) Exclusive Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . 17
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Nature of Certain Obligation . . . . . . . . . . . . . . . . . . . . . . 18
(b) Press Releases and Public Announcements . . . . . . . . . . . . . . . . 18
(c) No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . 18
(d) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(e) Succession and Assignment . . . . . . . . . . . . . . . . . . . . . . . 18
(f) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(g) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(h) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(i) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(j) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . 19
(k) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(l) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(m) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(n) Incorporation of Exhibits, Annexes, and Schedules . . . . . . . . . . . 20
(o) Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") entered into as of
September 25, 1996, by and among Xxxxx Advertising Company, a Delaware
corporation (the "Buyer"), and the Persons listed on Exhibit A attached hereto
(collectively the "Sellers"). The Buyer and the Sellers are referred to
collectively herein as the "Parties."
W I T N E S S E T H
WHEREAS, the Sellers in the aggregate own all of the outstanding
capital stock of FKM Advertising Co., Inc., a Delaware corporation (the
"Company"); and
WHEREAS, this Agreement contemplates a transaction in which the Buyer
will purchase from the Sellers, and the Sellers will sell to the Buyer, all of
the outstanding capital stock of the Company in return for cash.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
reasonable amounts paid in settlement, liabilities, obligations, taxes, liens,
losses, expenses, and fees, including court costs and reasonable attorneys'
fees and expenses.
"Advertising Contract" has the meaning set forth in Section 4(n)
below.
"Affiliate" means, when used with reference to a specified Person, any
other Person (a) that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
the specified Person, (b) that is a principal officer of, partner in or trustee
of, or serves in a similar capacity with respect to, the specified Person, or
(c) of which the specified Person is a principal officer, partner or trustee,
or with respect to which the specified Person serves in a similar capacity.
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.
"Affiliated Group" means any affiliated group within the meaning of
Code Section 1504.
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"Allocable Portion" means with respect to the share of any Seller in a
particular amount, that fraction equal to (i) the portion of the Purchase Price
to be paid to such Seller as set forth in the Allocation Schedule over (ii) the
total Purchase Price; provided, however, that with respect to any matter
arising from a breach of the representations and warranties contained in
Section 4 hereof, the Allocable Portion means that fraction equal to the (x)
portion of the Purchase Price to be paid to such Seller as set forth in the
Allocation Schedule over (y) the total Purchase Price less the aggregate of
that portion of the Purchase Price to be paid to the Excluded Sellers.
"Allocation Schedule" means that schedule to be delivered by Sellers
pursuant to Section 2(b) hereof.
"Buyer" has the meaning set forth in the preface above.
"Billboard" has the meaning set forth in Section 4(m) below.
"Cash" means cash and cash equivalents (including marketable
securities and short term investments) calculated in accordance with GAAP
applied on a basis consistent with the preparation of the Financial Statements.
"Closing" has the meaning set forth in Section 2(d) below.
"Closing Date" has the meaning set forth in Section 2(d) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Xxxx Agreements" means (i) that certain Employment Agreement between
the Company and Xxxxxxx X. Xxxx dated as of May 18, 1994 and as amended
November 14, 1995, (ii) that certain Noncompetition Agreement between the
Company and Xxxxxxx X. Xxxx dated as of May 18, 1994, and (iii) that certain
Nondisclosure Agreement between the Company and Xxxxxxx X. Xxxx dated as of May
18, 1994.
"Company" has the meaning set forth in the preface above.
"Company Share" means any share of the Class A Common Stock, par value
$.01 per share, Class B Common Stock, par value $.01 per share and Series A
Preferred Stock, par value $.01 per share, of the Company.
"Confidential Information" means any information concerning the
businesses and affairs of the Company that is not already generally available
to the public.
"Credit Agreements" means (i) that certain Amended and Restated Loan
Agreement between ABN AMRO Bank N.V. and the Company dated November 15, 1996,
(ii) that certain Subordinate Loan Agreement between the Company and Coast
Mezzanine Investments, Ltd. dated November 15, 1996 and (iii) that certain
Subordinate Loan Agreement between the Company and Coast Mezzanine Investments,
Ltd. dated November 15, 1996.
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"Disclosure Schedule" has the meaning set forth in Section 4 below.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee Pension
Benefit Plan, (b) qualified defined contribution retirement plan or arrangement
which is an Employee Pension Benefit Plan, (c) qualified defined benefit
retirement plan or arrangement which is an Employee Pension Benefit Plan
(including any Multiemployer Plan), or (d) Employee Welfare Benefit Plan or
material fringe benefit plan or program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
Section 3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
Section 3(1).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Agent" means a Person mutually acceptable to Buyer and
Sellers' Representative.
"Escrow Agreement" means the Escrow Agreement among Seller, Buyer and
Escrow Agent substantially in the form of Exhibit C hereto.
"Excluded Sellers" means those Sellers who individually own three
percent (3%) or less of the capital stock of the Company, as of the date
hereof, being: ABN AMRO Bank, N.V., Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxx
X. Xxxx, Xxxx X. Xxxxx and Xxxxx Xxxxxxxx.
"Financial Statements" has the meaning set forth in Section 4(f)
below.
"Financing Payments" means those payments in the aggregate sufficient
to satisfy all amounts outstanding as of the Closing Date under Credit
Agreements and payment for the repurchase of the Warrants on the Closing Date
by the Company.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"Income Tax" means any federal, state, local, or foreign income tax,
including any interest, penalty, or addition thereto, whether disputed or not.
"Income Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Income Taxes, including
any schedule or attachment thereto.
"Indemnified Party" has the meaning set forth in Section 8(d) below.
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"Indemnifying Party" has the meaning set forth in Section 8(d) below.
"Knowledge" means actual knowledge without independent investigation.
"Lenders" means ABN AMRO Bank N.V., Coast Mezzanine Investments, Ltd.,
and Cascade Communications Ventures, L.P.
"Most Recent Financial Statements" has the meaning set forth in
Section 4(f) below.
"Most Recent Fiscal Month End" has the meaning set forth in Section
4(f) below.
"Multiemployer Plan" has the meaning set forth in ERISA Section 3(37).
"Ordinary Course of Business" means the ordinary course of business
consistent with part custom and practice (including with respect to quantity
and frequency).
"Party" has the meaning set forth in the preface above.
"Permit" has the meaning set forth in Section 4(o) below.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Reportable Event" has the meaning set forth in ERISA Section 4043.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for taxes not yet due and payable or for taxes
that the taxpayer is contesting in good faith through appropriate proceedings,
(c) purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business
and not incurred in connection with the borrowing of money.
"Sellers" has the meaning set forth in the preface above.
"Sellers' Representative" means Xxxxxxx X. Xxxxx initially, and
thereafter as determined pursuant to the Escrow Agreement.
"Site Lease" has the meaning set forth in Section 4(p) below.
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"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Third Party Claim" has the meaning set forth in Section 8(d) below.
"Warrants" means (i) that certain Warrant to Purchase Class A Common
Stock of the Company dated as of November 15, 1995 for 25,530 shares held by
Cascade Communications Ventures, L.P., and (ii) that certain Warrant to
Purchase Class A Common Stock of the Company dated as of November 15, 1995 for
25,530 shares held by Coast Mezzanine Investments, Ltd.
2. Purchase and Sale of Company Shares.
(a) Basic Transaction. On and subject to the terms and conditions of
this Agreement, the Buyer agrees to purchase from each of the Sellers, and each
of the Sellers agrees to sell to the Buyer, all of his or its Company Shares
for the consideration specified below in this Section 2.
(b) Purchase Price. The Buyer agrees to pay at the Closing Forty
Million Dollars ($40,000,000) (the "Purchase Price") by wire transfer in
immediately available funds, of which $1,000,000 shall be delivered to the
Escrow Agent to be held pursuant to the Escrow Agreement, an amount equal to
the Financing Payments shall be delivered to the Lenders on behalf of Sellers
and as further specified by Sellers, and the balance shall be delivered to
Sellers. The Purchase Price shall be allocated among and paid to the Sellers
in accordance with a schedule to be delivered to Buyer by Sellers prior to
Closing.
(c) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Powell, Goldstein,
Xxxxxx & Xxxxxx in Atlanta, Georgia, commencing at 9:00 a.m. local time on the
fifth (5th) business day following the satisfaction or waiver of all conditions
to the obligations of the Parties to consummate the transactions contemplated
hereby (other than conditions with respect to actions the respective Parties
will take at the Closing itself) or such other date as the Buyer and the
Sellers may mutually determine (the "Closing Date").
(d) Deliveries at the Closing. At the Closing, (i) the Sellers will
deliver to the Buyer the various certificates, instruments, and documents
referred to in Section 7(a) below, (ii) the Buyer will deliver to the Sellers
the various certificates, instruments, and documents referred to in Section
7(b) below, (iii) each of the Sellers will deliver to the Buyer stock
certificates representing all of his or its Company Shares, endorsed in blank
or accompanied by duly executed assignment documents, and (iv) the Buyer will
deliver to the Lenders, each of the Sellers and the Escrow Agent the
consideration specified in Section 2(b) above.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Sellers. Each of the
Sellers, severally and not jointly, represents and warrants to the Buyer that
the statements contained in this Section 3(a) are
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correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
3(a)) with respect to himself or itself, except as set forth in Annex I
attached hereto.
(i) Organization of Certain Sellers. If the Seller is a
partnership or limited liability company, the Seller is duly
organized, validly existing, and in good standing under the laws of
the jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Seller has full
power and authority to execute and deliver this Agreement and to
perform his or its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Seller, enforceable in
accordance with its terms and conditions. Except for appropriate
filings under the Xxxx-Xxxxx-Xxxxxx Act, the Seller need not give any
notice to, make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
(iii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which the Seller is subject or, if the Seller is a partnership or
limited liability company, any provision of its partnership agreement
or operating agreement or (B) except as set forth in Section 3(a)(iii)
of the Disclosure Schedule, conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel any
agreement, contract, lease, license, instrument, or other arrangement
to which the Seller is a party or by which he or it is bound or to
which any of his or its assets is subject.
(iv) Brokers' Fees. Except for fees owed to Brush, Xxxx &
Daven, L.L.C., the Seller has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which the Buyer
could become liable or obligated.
(b) Representations and Warranties of the Buyer. The Buyer represents
and warrants to the Sellers that the statements contained in this Section 3(b)
are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
Section 3(b)), except as set forth in Annex II attached hereto.
(i) Organization of the Buyer. The Buyer is a corporation
duly organized, validly existing, and in good standing under the laws
of the jurisdiction of its incorporation.
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(ii) Authorization of Transaction. The Buyer has full
corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Buyer, enforceable in
accordance with its terms and conditions. Except for appropriate
filings under the Xxxx-Xxxxx-Xxxxxx Act, the Buyer need not give any
notice to, make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
(iii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which the Buyer is subject or any provision of its charter or
bylaws or (B) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the
right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or
other arrangement to which the Buyer is a party or by which it is
bound or to which any of its assets is subject.
(iv) Brokers' Fees. The Buyer has no liability or
obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement
for which any Seller could become liable or obligated.
(v) Investment. The Buyer is an Accredited Investor
acquiring the Company Shares for investment purposes only and not with
a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act.
4. Representations and Warranties Concerning the Company. Each of the
Sellers other than the Excluded Sellers represents and warrants to the Buyer
that, to the Knowledge of such Seller, the statements contained in this Section
4 are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
Section 4), except as set forth in the disclosure schedule delivered by the
Sellers to the Buyer on the date hereof, as the same may be amended as provided
herein (the "Disclosure Schedule").
(a) Organization, Qualification, and Corporate Power. The Company is
a corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware. The Company is duly authorized to conduct
business and is in good standing under the laws of each jurisdiction where such
qualification is required, except where the lack of such qualification would
not have a material adverse effect on the financial condition of the Company
taken as a whole. The Company has full corporate power and authority to carry
on the businesses in which it is engaged and to own and use the properties
owned and used by it.
(b) Capitalization. The Company has authorized capital stock
consisting of: 1,000,132 shares of Class A Common Stock, $.01 par value, of
which 270,160 shares are issued and outstanding; 170,000 shares of Class B
Common Stock, $.01 par value, of which 110,000 shares
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are issued and outstanding; and 619,972 shares of Series A Preferred Stock,
$.01 par value, of which 619,972 shares are issued and outstanding. All of the
issued and outstanding Company Shares have been duly authorized, are validly
issued, fully paid, and nonassessable, and are held of record by the respective
Sellers as set forth in Section 4(b) of the Disclosure Schedule. There are no
outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require the Company to issue, sell, or otherwise cause to become
outstanding any of its capital stock other than as set forth in Section 4(b) of
the Disclosure Schedule. There are no outstanding or authorized stock
appreciation, phantom stock, profit participation, or similar rights with
respect to the Company.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Company is subject or any provision
of the charter or bylaws of the Company or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which the Company is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security Interest upon
any of its assets), except as set forth in Section 4(c) of the Disclosure
Schedule or where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation, or Security Interest would not have a
material adverse effect on the financial condition of the Company taken as a
whole. The Company is not required to give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement, except where the failure to give notice, to
file, or to obtain any authorization, consent, or approval would not have a
material adverse effect on the financial condition of the Company taken as a
whole or on the ability of the Parties to consummate the transactions
contemplated by this Agreement.
(d) Brokers' Fees. The Company has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
(e) Title to Tangible Assets. The Company has good and valid title,
or a valid lease, to the material tangible personal property assets its uses in
the conduct of its business.
(f) Financial Statements. Attached hereto as Exhibit B are the
following financial statements (collectively, the "Financial Statements"): (i)
audited balance sheets and statements of income, changes in stockholders'
equity, and cash flow as of and for the fiscal years ended December 31, 1995,
December 31, 1994, and December 31, 1993 for the Company; and (ii) unaudited
balance sheets and statements of income, changes in stockholders' equity, and
cash flow (the "Most Recent Financial Statements") as of and for the seven (7)
months ended July, 1996 (the "Most Recent Fiscal Month End") for the Company.
The Financial Statements (including the notes thereto) have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby and present fairly the financial condition of the Company as of
such dates and the results of operations of the Company for such periods;
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provided, however, that the Most Recent Financial Statements are subject to
normal year-end adjustments and lack footnotes and other presentation items.
(g) Events Subsequent to Most Recent Fiscal Month End. Since the Most
Recent Fiscal Month End, there has not been any material adverse change in the
financial condition of the Company taken as a whole.
(h) Legal Compliance. The Company has complied with all applicable
laws (including rules, regulations, codes, plans, injunctions, judgments,
orders, decrees, rulings, and charges thereunder) of federal, state, local, and
foreign governments (and all agencies thereof), except where the failure to
comply would not have a material adverse effect upon the financial condition of
the Company taken as a whole.
(i) Tax Matters.
(i) The Company has filed all Income Tax Returns that it
was required to file, and has paid all Income Taxes shown thereon as
owing, except where the failure to file Income Tax Returns or to pay
Income Taxes would not have a material adverse effect on the financial
condition of the Company taken as a whole.
(ii) No Income Tax Returns with respect to the Company for
taxable periods ended on or after December 31, 1992 have been audited,
and no Income Tax Returns of the Company are currently the subject of
audit. The Sellers have delivered to the Buyer correct and complete
copies of all federal Income Tax Returns filed by the Company since
December 31, 1992.
(iii) The Company has not waived any statute of limitations
in respect of Income Taxes or agreed to any extension of time with
respect to an Income Tax assessment or deficiency.
(iv) The Company is not a party to any Income Tax
allocation or sharing agreement.
(v) The Company has not been a member of an Affiliated
Group filing a consolidated federal Income Tax Return.
(j) Real Property.
(i) Section 4(j)(i) of the Disclosure Schedule lists all
real property that the Company owns. With respect to each such parcel
of owned real property, and except for matters which would not have a
material adverse effect on the financial condition of the Company
taken as a whole, the Company has good and marketable title to the
parcel of real property, free and clear of any Security Interest,
easement, covenant, or other restriction, except for installments of
special assessments not yet delinquent, recorded easements, covenants,
and other restrictions, and utility easements, building restrictions,
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zoning restrictions, and other easements and restrictions which do not
impair the current use of the parcel of real property.
(ii) Section 4(j)(ii) of the Disclosure Schedule lists all
real property leased or subleased to the Company (other than Site
Leases). The Sellers have delivered to the Buyer correct and complete
copies of the leases and subleases listed in Section 4(j)(ii) of the
Disclosure Schedule (as amended to date). Each lease and sublease
listed in Section 4(j)(ii) of the Disclosure Schedule is in full force
and effect.
(k) Intellectual Property. Section 4(k) of the Disclosure Schedule
identifies each of Company's trade names, trademarks and patents or
registrations thereof which have been issued to the Company with respect to any
of its intellectual property, identifies any pending patent application or
application for trademark registration which the Company has made, and
identifies any material license or agreement which the Company has granted to
any third party with respect to any of its intellectual property.
(l) Contracts. Section 4(l) of the Disclosure Schedule lists all
written agreements (other than Advertising Contracts or Site Leases) to which
the Company is a party the performance of which will involve consideration paid
by or to the Company in excess of $5,000 per annum. The Sellers have delivered
to the Buyer a correct and complete copy of each contract or other agreement
listed in Section 4(l) of the Disclosure Schedule (as amended to date).
(m) Advertising Structures. Section 4(m) of the Disclosure Schedule
lists all outdoor advertising structures owned by Company (the "Billboards").
Each of said Billboards (i) is in condition to accept faces; and (ii) is in
good condition and repair. The Company has obtained all material Permits
necessary for the installation, maintenance and operation of the Billboards.
(n) Advertising Contracts. Section 4(n) of the Disclosure Schedule
lists all material written contracts to which Company is a party relating to
the display of outdoor advertising (the "Advertising Contracts"). The
Advertising Contracts all are in full force and effect, and there exists no
fact which, with the passage of time or the giving of notice, would constitute
a default by the Company under any material Advertising Contract or entitle any
other party to terminate or amend such agreement. The Company has received no
notice that any party to any of the material Advertising Contracts intends to
cancel or terminate any such contract.
(o) Permits. Section 4(o) of the Disclosure Schedule lists all
material governmental permits, certificates, registrations, licenses and
authorizations to erect and maintain advertising structures and to occupy
advertising sites to which the Company has any right, title or interest (the
"Permits"). The Company is in material compliance with the terms of the
Permits.
(p) Site Leases. Section 4(p) of the Disclosure Schedule lists all
written agreements, leases and licenses (other than Permits) held by the
Company for the use of real estate on which the Billboards are or may be
located (the "Site Leases"). Each Site Lease listed in Section 4(p) of the
Disclosure Schedule is in full force and effect, except as listed in Section
4(p) of the Disclosure Schedule or where the failure to be in effect would not
have a material adverse effect on the financial condition of the Company taken
as a whole.
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(q) Powers of Attorney. There are no outstanding powers of attorney
executed on behalf of the Company.
(r) Litigation. Section 4(r) of the Disclosure Schedule sets forth
each instance in which the Company (i) is subject to any outstanding
injunction, judgment, order, decree, ruling, or charge or (ii) is a party to
any action, suit, proceeding, hearing, or investigation of, in, or before any
court or quasi-judicial or administrative agency of any federal, state, local,
or foreign jurisdiction, except where the suit, proceeding, hearing, or
investigation would not have a material adverse effect on the financial
condition of the Company taken as a whole.
(s) Employee Benefits.
(i) Section 4(s) of the Disclosure Schedule lists each
Employee Benefit Plan that the Company maintains or to which the
Company contributes.
(A) Each such Employee Benefit Plan (and each related
trust, insurance contract, or fund) complies in form and in
operation in all material respects with the applicable
requirements of ERISA and the Code, except where the
failure to comply would not have a material adverse effect
on the financial condition of the Company taken as a whole.
(B) The only Employee Pension Benefit Plan maintained
by the Company is the subject of a favorable determination
letter from the Internal Revenue Service to the effect that
in form it meets the requirements of Code Section 401(a).
(C) The Sellers have delivered to the Buyer correct
and complete copies of the plan documents and summary plan
descriptions, the most recent determination letter received
from the Internal Revenue Service, the most recent Form
5500 Annual Report, and all related trust agreements,
insurance contracts, and other funding agreements which
implement each such Employee Benefit Plan.
(ii) With respect to each Employee Benefit Plan that the
Company maintains or ever has maintained or to which it contributes,
ever has contributed, or ever has been required to contribute:
(A) No such Employee Benefit Plan is a Multiemployer
Plan or was or has been subject to Title IV of ERISA.
(B) No action, suit, proceeding, hearing, or
investigation with respect to the administration or the
investment of the assets of any such Employee Benefit Plan
(other than routine claims for benefits) is pending, except
where the action, suit, proceeding, hearing, or
investigation would not have a material adverse effect on
the financial condition of the Company taken as a whole.
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(t) Certain Business Relationships with the Company. Except as set
forth in Section 4(t) of the Disclosure Schedule, none of the Sellers and their
Affiliates has been involved in any material business arrangement or
relationship with the Company within the past twelve months and none of the
Sellers and their Affiliates owns any material asset, tangible or intangible,
which is used in the business of the Company.
(u) Environmental Matters.
(i) There have been no material claims, litigation,
administrative proceedings, whether actual or threatened, or judgments
or orders, against or applicable to Company relating to any hazardous
substances or hazardous wastes with respect to any real property owned
or leased by Company, including the property under Site Leases.
(ii) Except as disclosed in Section 4(u) of the
Disclosure Schedule, there have been no hazardous substances or
hazardous wastes, as defined by the Resource Conservation and Recovery
Act (42 U.S.C. Subsection 6901, et seq.) and the Comprehensive
Environmental Responsibility Compensation and Liability Act (42 U.S.C.
Subsection 9601, et seq,), stored, handled, or disposed of on such
real property by Company in material violation of applicable
environmental laws.
(v) Insurance. The Company has maintained continuously since January
17, 1992 and now maintains adequate insurance protection against all
liabilities, claims, and risks against which it is customary in the industry to
insure.
5. Pre-Closing Covenants. The Parties agree as follows with respect
to the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use his or its reasonable best
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions
set forth in Section 7 below).
(b) Notices and Consents. Each of the Parties will (and the Sellers
will cause the Company to) give any notices to, make any filings with, and use
its reasonable best efforts to obtain any authorizations, consents, and
approvals of governments and governmental agencies in connection with the
matters referred to in Section 3(a)(ii), Section 3(b)(ii) and Section 4(c)
above. Without limiting the generality of the foregoing, each of the Parties
will file (and the Sellers will cause the Company to file) any Notification and
Report Forms and related material that he or it may be required to file with
the Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act, will use his or its
reasonable best efforts to obtain (and the Sellers will cause the Company to
use its reasonable best efforts to obtain) a waiver from the applicable waiting
period, and will make (and the Sellers will cause the Company to make) any
further filings pursuant thereto that may be necessary, proper, or advisable in
connection therewith.
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(c) Operation of Business. The Sellers will not cause or permit the
Company to engage in any practice, take any action, or enter into any
transaction outside the Ordinary Course of Business, except that the Company's
401(k) plan will be terminated prior to Closing, and that each of the Xxxx
Agreements will be terminated at Closing.
(d) Full Access. Each of the Sellers will permit, and the Sellers
will cause the Company to permit, representatives of the Buyer to have access
in a manner so as not to interfere with the normal business operations of the
Company at all reasonable times to all premises, properties, personnel, books,
records (including tax records), contracts, and documents of or pertaining to
the Company. The Buyer will treat and hold as such any Confidential Information
it receives from any of the Sellers and the Company in the course of the
reviews contemplated by this Section 5(d), will not use any of the Confidential
Information except in connection with this Agreement, and, if this Agreement is
terminated for any reason whatsoever, will return to the Seller and the Company
all tangible embodiments (and all copies) of the Confidential Information which
are in its possession.
(e) Notice of Developments.
(i) Any of the Sellers may elect at any time to notify the
Buyer of any development causing a breach of any of the
representations and warranties in Section 4 above. Unless the Buyer
has the right to terminate this Agreement pursuant to Section 9(a)(ii)
below by reason of the development and exercises that right in
accordance with Section 9(a)(ii) below, the written notice pursuant to
this Section 5(e)(i) will be deemed to have amended the Disclosure
Schedule, to have qualified the representations and warranties
contained in Section 4 above, and to have cured any misrepresentation
or breach of warranty that otherwise might have existed hereunder by
reason of the development.
(ii) Each Party will give prompt written notice to the
others of any material adverse development causing a breach of any of
his or its own representations and warranties in Section 3 above. No
disclosure by any Party pursuant to this Section 5(e)(ii), however,
shall be deemed to amend or supplement Annex I, Annex II, or the
Disclosure Schedule or to prevent or cure any misrepresentation or
breach of warranty.
6. Further Assurances. In case at any time after the Closing any
further action is necessary to carry out the purposes of this Agreement, each
of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party
reasonably may request, all at the sole cost and expense of the requesting
Party (unless the requesting Party is entitled to indemnification therefor
under Section 8 below).
7. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer
to consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions:
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(i) the representations and warranties set forth in
Section 3(a) and Section 4 above shall be true and correct in all
material respects at and as of the Closing Date;
(ii) the Sellers shall have performed and complied with
all of their covenants hereunder in all material respects through the
Closing;
(iii) there shall not be any injunction, judgment,
order, decree, ruling, or charge in effect preventing consummation of
any of the transactions contemplated by this Agreement;
(iv) the Sellers shall have delivered to the Buyer a
certificate to the effect that each of the conditions specified above
in Section 7(a)(i)-(iii) is satisfied in all respects;
(v) all applicable waiting periods (and any
extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired
or otherwise been terminated;
(vi) the Buyer shall have received an Escrow Agreement
executed by Sellers, Escrow Agent and Sellers' Representative;
(vii) the Buyer shall have received from counsel to the
Sellers an opinion addressed to the Buyer in form and substance
reasonably satisfactory to counsel to Buyer, dated as of the Closing
Date; and
(viii) all actions to be taken by the Sellers in
connection with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this Section 7(a) at or prior to
the Closing.
(b) Conditions to Obligation of the Sellers. The obligation of the
Sellers to consummate the transactions to be performed by them in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
Section 3(b) above shall be true and correct in all material respects
at and as of the Closing Date;
(ii) the Buyer shall have performed and complied with
all of its covenants hereunder in all material respects through the
Closing;
(iii) there shall not be any injunction, judgment,
order, decree, ruling, or charge in effect preventing consummation of
any of the transactions contemplated by this Agreement;
(iv) the Buyer shall have delivered to the Sellers a
certificate to the effect that each of the conditions specified above
in Section 7(b)(i)-(iii) is satisfied in all respects;
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(v) all applicable waiting periods (and any
extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired
or otherwise been terminated;
(vi) the Sellers shall have received an Escrow
Agreement executed by Buyer, Escrow Agent and Sellers' Representative;
(vii) the Sellers shall have received from counsel to
the Buyer an opinion addressed to the Sellers, and dated as of the
Closing Date in form and substance reasonably satisfactory to counsel
to Sellers; and
(ix) all actions to be taken by the Buyer in
connection with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Sellers.
The Sellers may waive any condition specified in this Section 7(b) at or prior
to the Closing.
8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties. All of the
representations and warranties of certain Sellers contained in Section 4 above
shall survive the Closing hereunder (unless the Buyer knew or had reason to
know of any misrepresentation or breach of warranty at the time of Closing) and
continue in full force and effect for a period of one year thereafter. All of
the representations and warranties of the Parties contained in Section 3 above
shall survive the Closing (unless the damaged Party knew or had reason to know
of any misrepresentation or breach of warranty at the time of Closing) and
continue in full force and effect for a period of five years thereafter
(subject to any applicable statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer.
(i) In the event any of the Sellers breaches any of
their representations, warranties, and covenants contained herein
(other than the covenants in Section 2(a) above and the
representations and warranties in Section 3(a) above), and, if there
is an applicable survival period pursuant to Section 8(a) above,
provided that the Buyer makes a written claim for indemnification
against any of the Sellers pursuant to Section 10(h) below within such
survival period, then each of the Sellers agrees to indemnify the
Buyer from and against his or its Allocable Portion of any Adverse
Consequences the Buyer shall suffer through and after the date of the
claim for indemnification (but excluding any Adverse Consequences the
Buyer shall suffer after the end of any applicable survival period)
caused proximately by the breach; provided, however, that the Sellers
shall not have any obligation to indemnify the Buyer from and against
any Adverse Consequences caused by the breach of any representation or
warranty of the Sellers contained in Section 4 above (A) until the
Buyer has suffered Adverse Consequences by reason of all such breaches
in excess of a $250,000 aggregate deductible (after which point the
Sellers will be obligated only to indemnify the Buyer from and against
further Adverse Consequences) or thereafter (B) to the extent the
Adverse Consequences the Buyer has suffered by reason of all such
breaches exceeds a
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$1,000,000 aggregate ceiling (after which point the Sellers will have
no obligation to indemnify the Buyer from and against further Adverse
Consequences).
(ii) In the event any of the Sellers breaches any of
his or its respective covenants in Section 2(a) above or any of his or
its respective representations and warranties in Section 3(a) above,
and, if there is an applicable survival period pursuant to Section
8(a) above, provided that the Buyer makes a written claim for
indemnification against the Seller pursuant to Section 10(h) below
within such survival period, then such Seller agrees to indemnify the
Buyer from and against the entirety of any Adverse Consequences the
Buyer shall suffer through and after the date of the claim for
indemnification (but excluding any Adverse Consequences the Buyer
shall suffer after the end of any applicable survival period) caused
proximately by the breach. The obligation of Sellers pursuant to this
Section 8(b)(ii) are several and not joint.
(c) Indemnification Provisions for Benefit of the Sellers. In the
event the Buyer breaches any of its representations, warranties, and covenants
contained herein, and, if there is an applicable survival period pursuant to
Section 8(a) above, provided that any of the Sellers makes a written claim for
indemnification against the Buyer pursuant to Section 10(h) below within such
survival period, then the Buyer agrees to indemnify each of the Sellers from
and against the entirety of any Adverse Consequences the Seller shall suffer
through and after the date of the claim for indemnification (but excluding any
Adverse Consequences the Seller shall suffer after the end of any applicable
survival period) caused proximately by the breach.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party
Claim") which may give rise to a claim for indemnification against any
other Party (the "Indemnifying Party") under this Section 8, then the
Indemnified Party shall promptly (and in any event within ten business
days after receiving notice of the Third Party Claim) notify each
Indemnifying Party thereof in writing.
(ii) Any Indemnifying Party will have the right to
assume and thereafter conduct the defense of the Third Party Claim
with counsel of his or its choice reasonably satisfactory to the
Indemnified Party; provided, however, that the Indemnifying Party will
not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be withheld unreasonably)
unless the judgment or proposed settlement involves only the payment
of money damages and does not impose an injunction or other equitable
relief upon the Indemnified Party.
(iii) Unless and until an Indemnifying Party assumes
the defense of the Third Party Claim as provided in Section 8(d)(ii)
above, however, the Indemnified Party may defend against the Third
Party Claim in any manner he or it reasonably may deem appropriate.
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(iv) In no event will the Indemnified Party consent to
the entry of any judgment or enter into any settlement with respect to
the Third Party Claim without the prior written consent of each of the
Indemnifying Parties (not to be withheld unreasonably).
(e) Determination of Adverse Consequences. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage in determining
Adverse Consequences for purposes of this Section 8. All indemnification
payments under this Section 8 shall be deemed adjustments to the Purchase
Price.
(f) Exclusive Remedy. The indemnification provisions in this Section
8 are the exclusive remedy of the Parties for any breach of a representation,
warranty, or covenant contained herein.
9. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate
this Agreement as provided below:
(i) the Buyer and the Sellers may terminate this
Agreement by mutual written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving
written notice to the Sellers at any time prior to the Closing in the
event (A) any of the Sellers has within the then previous ten (10)
business days given the Buyer any notice pursuant to Section 5(e)(i)
above and (B) the development that is the subject of the notice has
had a material adverse effect upon the financial condition of the
Company taken as a whole;
(iii) the Buyer may terminate this Agreement by giving
written notice to the Sellers at any time prior to the Closing (A) in
the event any of the Sellers has breached any material representation,
warranty, or covenant contained in this Agreement (other than the
representations and warranties in Section 4 above) in any material
respect, the Buyer has notified the Sellers of the breach, and the
breach has continued without cure for a period of ten (10) business
days after the notice of breach or (B) if the Closing shall not have
occurred on or before November 15, 1996, by reason of the failure of
any condition precedent under Section 7(a) hereof (unless the failure
results primarily from the Buyer itself breaching any representation,
warranty, or covenant contained in this Agreement); and
(iv) the Sellers may terminate this Agreement by
giving written notice to the Buyer at any time prior to the Closing
(A) in the event the Buyer has breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect, any of the Sellers has notified the Buyer of the breach, and
the breach has continued without cure for a period of ten (10)
business days after the notice of breach or (B) if the Closing shall
not have occurred on or before November 15, 1996, by reason of the
failure of any condition precedent under Section 7(b) hereof (unless
the failure results primarily from any of the Sellers themselves
breaching any representation, warranty, or covenant contained in this
Agreement).
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(b) Effect of Termination. If any Party terminates this Agreement
pursuant to Section 9(a) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach); provided, however, that
the confidentiality provisions contained in Section 5(d) above shall survive
termination.
10. Miscellaneous.
(a) Nature of Certain Obligation.
(i) The covenants of each of the Sellers in Section
2(a) above concerning the sale of his or its Company Shares to the
Buyer and the representations and warranties of each of the Sellers in
Section 3(a) above concerning the transaction are several obligations.
The particular Seller making the representation, warranty, or covenant
will be solely responsible to the extent provided in Section 8 above
for any Adverse Consequences the Buyer may suffer as a result of any
breach thereof.
(ii) The remainder of the representations, warranties,
and covenants in this Agreement are joint obligations. Each Seller
will be responsible to the extent provided in Section 8 above only for
his or its Allocable Portion of any Adverse Consequences the Buyer may
suffer as a result of any breach thereof.
(b) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
Buyer and the Sellers; provided, however, that any Party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in
which case the disclosing Party will use its reasonable best efforts to advise
the other Parties prior to making the disclosure).
(c) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they have related in any way to the
subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder without the prior
written approval of the Buyer and the Sellers; provided, however, that the
Buyer may assign all of its rights, interests and obligations hereunder to one
of its Subsidiaries; provided, however, that in such event the Buyer shall not
be relieved of any of its obligations hereunder.
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(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing and shall be deemed duly given (i)
on the date on which the same was delivered in person or by courier, including,
but not limited to, overnight express mail couriers, provided that a receipt is
obtained for a courier delivery; or (ii) two (2) business days after the same
was sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth below:
If to the Sellers: To the appropriate address(es) set forth on
Exhibit A attached hereto.
If to the Buyer: Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
P. O. Xxx 00000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxx
With a copy to: Xxx X. Xxxxxx, Xx. Esq.
Xxxx, Xxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxxxx, XX 00000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any Party may change the
address to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Parties notice in the manner
herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Delaware without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and the Sellers. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default,
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misrepresentation, or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of the Buyer and the Company will bear its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby. The Company will
also bear all of the Sellers' costs and expenses (including all of their legal
fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby (other than any Income Tax on any gain
resulting from the sale of the Company Shares hereunder).
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of
any of the provisions of this Agreement. Any reference to any federal, state,
local, or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(n) Incorporation of Exhibits, Annexes, and Schedules. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
(o) Enforcement. Each of the Parties (i) submits to personal
jurisdiction in the State of Delaware for the enforcement of this Agreement,
and (ii) waives any and all rights under the laws of any state to object to
jurisdiction within the State of Delaware for the purposes of litigation to
enforce this Agreement. Notwithstanding the foregoing, nothing contained in
this Agreement shall prevent a party from bringing any action against another
party within any other state or country. Initiating such proceeding or taking
such action in any jurisdiction shall not constitute a waiver of the submission
made by a party to personal jurisdiction within the State of Delaware.
[The remainder of this page is intentionally left blank]
20
24
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
BUYER: XXXXX ADVERTISING COMPANY
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
SELLERS:
-----------------------------------------------
Xxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxx
-----------------------------------------------
Xxxxx X. Xxxx
-----------------------------------------------
Xxxx X. Xxxxx
-----------------------------------------------
Xxxxx Xxxxxxxx
21
25
Canaan Capital Limited Partnership
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
Canaan Capital Offshore Limited Partnership C.V.
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
ABN AMRO Bank NV
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
-----------------------------------------------
Xxxxxxx X. Xxxx
Cascade Communications Ventures, L.L.C.
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
Quai Ltd.
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
26
Exhibit A
Sellers:
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxx X. Xxxxx
Xxxxx Xxxxxxxx
Canaan Capital Limited Partnership
Canaan Capital Offshore Limited Partnership C.V.
ABN AMRO Bank NV
Xxxxxxx X. Xxxx
Cascade Communications Ventures, LLC
Quai Ltd.
