PURCHASE AGREEMENT dated as of April 23, 2009 by and among WESTWOOD ONE, INC. and THE PURCHASERS SIGNATORY HERETO
Exhibit 10.3
dated as of April 23, 2009
by and among
WESTWOOD ONE, INC.
and
THE PURCHASERS SIGNATORY HERETO
This Purchase Agreement is entered into and dated as of April 23, 2009 (this “Agreement”),
among Westwood One, Inc., a Delaware corporation (the “Company”), and Gores Radio Holdings, LLC (in
each case together with its designees that are Affiliates of The Gores Group, LLC, the
“Purchasers”); and
WHEREAS, subject to the terms and conditions set forth in this Agreement, the Company desires
to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to
purchase from the Company, certain securities of the Company pursuant to the terms set forth
herein.
NOW, THEREFORE, the Company and each Purchaser, severally and not jointly, hereby agree as
follows:
ARTICLE I.
DEFINITIONS
DEFINITIONS
1.1 Definitions. The following terms shall have the meanings set forth in this
Section 1.1:
“$” means U.S. Dollars.
“Affiliate” of a Person means any other Person that, directly or indirectly through one or
more intermediaries, controls or is controlled by or is under common control with the first Person.
Without limiting the foregoing with respect to a Purchaser, any investment fund, managed account
or investment Person that is managed by the same investment manager (or an Affiliate of such
investment manager) as such Purchaser will be deemed to be an Affiliate of such Purchaser.
“Alternative Proposal” means any bona fide, written, unsolicited offer from a Person (the
“Offeror”) to acquire solely for cash, whether by merger, consolidation or other business
combination, (i) 100% of all classes of equity securities of the Company, or (ii) 100% of the
assets of the Company, other than the transactions contemplated by this Agreement, together with
reasonable evidence that the Person making such offer has or can obtain pursuant to legally binding
obligations sufficient capital to consummate such transaction.
“Amended and Restated Bylaws” means the Company’s Amended and Restated Bylaws in the form
attached hereto as Exhibit A.
“assets” or “property” means all assets and property of any nature whatsoever, real, personal,
mixed, tangible, intangible or otherwise.
“Base Balance Sheet” has the meaning set forth in Section 3.1(g).
“Board” means the Board of Directors of the Company.
“Business Day” means any day except Saturday, Sunday and any day on which banking institutions
in New York City are authorized or required by Law or the action of any Governmental Authority to
close.
“Certificate of Incorporation” means the Company’s Restated Certificate of Incorporation, as
amended to date.
1
“Certifications” has the meaning set forth in Section 3.1(g)(iv).
“Certificates” means the Series A-1 Certificate of Designations and the Series B Certificate
of Designations.
“Xxxxxx Fee Letter” means the letter agreement, dated January 15, 2009, between Gores Radio
Holdings, LLC and the Company in connection with the reimbursement of fees and expenses incurred by
Xxxxxx Capital Partners.
“Charter Amendment” means an amendment to the Certificate of Incorporation in the form
attached hereto as Exhibit B to (i) increase the number of authorized shares of Common
Stock to 5,000,000,000, (ii) effectuate a subsequent reverse stock split of the outstanding Common
Stock, (iii) define the term “Continuing Directors” that is used but not currently defined in the
Certificate of Incorporation, (iv) delete Article Sixteenth of the Certificate of Incorporation and
(v) delete the second sentence of Article Seventeenth of the Certificate of Incorporation.
“Closing” means the closing of the purchase and sale of the Gores Series B Preferred Shares
and the issuance and exchange with respect to the Gores Series A-1 Preferred Shares.
“Closing Date” means the date on which the Closing occurs.
“Code” means the Internal Revenue Code of 1986.
“Commission” means the U.S. Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.01 per share, and any
securities into which such stock may hereafter be reclassified.
“Company” has the meaning set forth in the recitals hereto.
“Company Counsel” means Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Company.
“Company Employee Plan” means any employee benefit or compensation plans, contracts,
arrangements or commitments (including “employee benefit plans,” as defined in Section 3(3) of
ERISA) or any other plans, policies, trust funds or arrangements (whether written or unwritten,
insured or self-insured) established, maintained, sponsored or contributed to (or with respect to
any obligation that has been undertaken) by the Company, any Subsidiary or any entity that would be
treated as a single employer with the Company under Section 414(b), (c), (m) or (o) of the Code or
Section 4001 of ERISA for any Employee, officer, director, consultant or stockholder or their
beneficiaries of the Company or any Subsidiary or with respect to which the Company or any
Subsidiary has liability, or makes or has an obligation to make contributions on behalf of any such
Employee, officer, director, consultant or stockholder or beneficiary.
“Confidentiality Agreement” means the letter agreement, dated October 1, 2007, between The
Gores Group, LLC and the Company.
“Consent” means any approval, consent, ratification, license, permission, registration,
Permit, waiver or other authorization.
2
“contract” or “agreement” means any agreement, contract, lease, mortgage, power of attorney,
evidence of indebtedness, letter of credit, undertaking, covenant not to compete, license,
instrument, obligation, commitment, understanding, policy, purchase or sales order, quotation or
other commitment, whether oral or written, express or implied.
“control” including the terms “controlled by” and “under common control with” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, as trustee or
executor, by contract or credit arrangement or otherwise.
“Debt Restructuring Agreements” means the Financing Documents and the New Loan Agreement
Documents as such terms are defined in the Securities Purchase Agreement.
“Employees” means the employees of the Company and its Subsidiaries.
“Encumbrance” means any charge, claim, community property interest, condition, easement,
covenant, warrant, demand, encumbrance, equitable interest, lien, mortgage, option, purchase right,
pledge, security interest, right of first refusal or other right of third parties or restriction of
any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any
other attribute of ownership.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Evaluation Material” has the meaning set forth in the Confidentiality Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Fairness Opinion” has the meaning set forth in Section 5.1(k).
“FCC” means the Federal Communications Commission.
“FCC Licenses” has the meaning set forth in Section 3.1(d).
“Fee Letters” means, collectively, the Xxxxxx Fee Letter and the Gores Fee Letter.
“14f-1 Notice” has the meaning set forth in Section 3.1(h).
“GAAP” means United States generally accepted accounting principles, as recognized by the
American Institute of Certified Public Accountants or the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis for the Company and its Subsidiaries
throughout the period indicated.
“Gores” means The Gores Group, LLC and any successor or assignee thereof.
“Gores Credit Guarantee” means a guarantee in the form attached to the New Credit Facility.
“Gores Fee Letter” means the letter agreement, dated January 28, 2009, between Gores Radio
Holdings, LLC and the Company in connection with the reimbursement of the fees and expenses
incurred by Gores.
3
“Gores NFL Guarantee” means the Guarantee Agreement, dated March 12, 2009, among Gores Capital
Partners II, L.P., Gores Co-invest Partnership II, X.X. Xxxxx Capital Advisors II, LLC, Westwood
One Radio Networks, Inc., and the National Football League.
“Gores Preferred Shares” means the Gores Series A-1 Preferred Shares and the Gores Series B
Preferred Shares.
“Gores Securities” means the Gores Preferred Shares and the Underlying Shares with respect to
the Gores Preferred Shares.
“Gores Series A-1 Preferred Shares” has the meaning set forth in Section 2.1.
“Gores Series B Preferred Shares” means the 25,000 shares of Series B Preferred Stock that are
being purchased by the Purchasers at the Closing.
“Governmental Authority” means any United States federal, state, provincial, supranational,
county or local or any foreign government, governmental, regulatory or administrative authority,
agency, self-regulatory body, instrumentality or commission, and any court, tribunal, or judicial
or arbitral body (including private bodies) and any political or other subdivision, department or
branch of any of the foregoing.
“HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and
regulations and rules issued pursuant to that act.
“Indemnified Party” has the meaning set forth in Section 4.11(b).
“Investor Rights Agreement” means the Investor Rights Agreement, dated as of the Closing Date,
among the Company, Gores Radio Holdings, LLC and the other investors party thereto, in the form of
Exhibit C.
“knowledge” when used with respect to the Company means the actual knowledge, after reasonable
inquiry, of the Persons listed on Schedule B attached hereto, with respect to the matter in
question.
“Laws” means any foreign, federal, state or local statute, law (including common law), rule,
ordinance, code or regulation, any Order, and any regulation, rule, interpretation, guidance,
directive, policy statement or opinion of any Governmental Authority.
“liability” means any liability or obligation of any kind whatsoever (whether known or
unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, due or to become due, and whether or not reflected or required by GAAP to be
reflected on the Base Balance Sheet).
“Losses” means any and all damages, fines, penalties, deficiencies, liabilities, claims,
losses (including diminution in or loss of value), judgments, awards, settlements, Taxes, actions,
obligations and costs and expenses in connection therewith (including interest, court costs and
reasonable fees and expenses of attorneys, accountants and other experts, and any other expenses of
litigation or other Proceedings (including costs of investigation, preparation and travel) or of
any default or assessment).
4
“Material Adverse Change” means any change, effect, event, occurrence, state of facts or
developments that has had, or would reasonably be expected to have, a Material Adverse Effect;
provided, that, a “Material Adverse Change” shall not be deemed to include any Material
Adverse Effect to the extent resulting from (i) changes, after the date hereof, in generally
accepted accounting principles, (ii) changes, after the date hereof, in laws, rules or regulations
of general applicability or interpretations thereof by Governmental Authorities, or (iii) changes,
after the date hereof, in general economic or market conditions, except, with respect to clauses
(i), (ii) and (iii), to the extent that the effects of such changes are disproportionately adverse
to the condition (financial or otherwise), results of operations, assets, liabilities or business
of the Company and its Subsidiaries, taken as a whole.
“Material Adverse Effect” means any material adverse effect on (a) the condition (financial or
otherwise), results of operations, assets, liabilities or business of the Company and its
Subsidiaries taken as a whole, (b) the ability of the Company or any Subsidiary to perform its
obligations under this Agreement or any of the other Transaction Documents without substantial
delay, or (c) the legality, validity or enforceability of any Transaction Document.
“New Credit Facility” means the Credit Agreement, dated as of the Closing Date between the
Company, the lenders from time to time party thereto and Xxxxx Fargo Foothill, Inc. as
Administrative Agent for the lenders and as a lender.
“NFL Letter” shall have the meaning set forth in Section 5.1(n).
“Non-Gores Director” means H. Xxxxxx Xxxx, Xxxxxxx Xxxxx and Xxxxxx X. Xxxxxx, so long as each
is member of the Board.
“Order” means any award, writ, stipulation, determination, decision, injunction, judgment,
order, decree, ruling, subpoena or verdict entered, issued, made or rendered by, or any contract
with, any Governmental Authority.
“ordinary course of business” means the ordinary course of business of the Company and the
Subsidiaries consistent with past practice.
“Permits” means all Orders, Consents, franchises, grants, easements, variances, exceptions and
certificates of any Governmental Authority.
“Person” means an individual or corporation, partnership, limited partnership, limited
liability company, trust, incorporated or unincorporated association, joint venture, joint stock
company, Governmental Authority or other entity of any kind.
“Preferred Shares” means the shares of Series A-1 Preferred Stock and Series B Preferred Stock
to be issued in connection with the Transactions.
“Proceeding” means an action, charge, claim, demand, suit, arbitration, inquiry, notice of
violation, investigation, litigation, audit or other proceeding (including a partial proceeding,
such as a deposition), whether civil, criminal, administrative, investigative or informal.
“Proxy Statement” means the proxy statement and ancillary materials to be sent to the
stockholders of the Company for the purpose of the Stockholder Approval and all amendments and
supplements thereto.
“Purchase Price” has the meaning set forth in Section 2.1(a).
5
“Purchasers” has the meaning set forth in the recitals hereto.
“Radio Rights Agreement” means the Radio Rights Agreement, dated March 12, 2009, between
National Football League and Westwood One Radio Networks, Inc. and, with respect to Section 10.d
thereof only, the Company.
“Related Person” means (x) any Affiliate of a Purchaser and any officer, director, partner or
member of such Purchaser or any of its Affiliates and (y) any investment fund, investment
partnership, investment account or other investment Person whose investment manager, investment
advisor, managing member or general partner, is (i) a Purchaser or an Affiliate of a Purchaser or
(ii) any officer, director, partner or member of a Purchaser or any of its Affiliates.
“Registration Rights Agreement” means the Registration Rights Agreement, dated March 3, 2008,
between the Company and Gores Radio Holdings, LLC.
“Registration Rights Amendment” means an amendment to the Registration Rights Agreement in the
form attached hereto as Exhibit D.
“Restricted Period” means from and after the date of this Agreement until May 28, 2009.
“Rule 144” and “Rule 424” means Rule 144 and Rule 424, respectively, promulgated by the
Commission pursuant to the Securities Act, as such Rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having substantially the same effect
as such Rule.
“SEC Documents” means all SEC Reports filed with or furnished to the Commission by the Company
since December 31, 2004, including any amendment thereto since the time of filing (or furnishing),
and any documents filed or furnished as exhibits thereto.
“SEC Reports” means all forms, reports, schedules, registration statements, definitive proxy
or information statements, and other documents required to be filed with or furnished to the
Commission, including any amendment thereto since the time of filing (or furnishing), and all
documents required to be filed or furnished as exhibits thereto.
“Securities” means the Preferred Shares and the Underlying Shares.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Securities Purchase Agreement” means the Securities Purchase Agreement, dated as of the date
hereof, between the Company and the parties set forth on Schedule A thereto.
“Series A Preferred Stock” means the Company’s 7.50% Series A Convertible Preferred Stock.
“Series A-1 Certificate of Designations” means the certificate of designations relating to the
Company’s 7.50% Series A-1 Convertible Preferred Stock, in the form of Exhibit E.
6
“Series A-1 Preferred Stock” means the new series of the Company’s preferred stock to be
designated 7.50% Series A-1 Convertible Preferred Stock having the rights, preferences and
privileges set forth in the Series A-1 Certificate of Designations.
“Series A Purchase Agreement” means the Purchase Agreement, dated February 25, 2008, between
the Company and Gores Radio Holdings, LLC.
“Series B Certificate of Designations” means the certificate of designations relating to the
Company’s 8.0% Series B Convertible Preferred Stock, in the form of Exhibit F.
“Series B Preferred Stock” means the new series of the Company’s preferred stock to be
designated 8.0% Series B Convertible Preferred Stock having the rights, preferences and privileges
set forth in the Series B Certificate of Designations.
“Stockholder Approval” means the affirmative vote of the holders of at least 75% of the voting
power of all outstanding shares of capital stock of the Company having general voting power,
regardless of class and voting together as a single class, for the approval of the Charter
Amendment.
“Stockholders’ Meeting” means the special meeting of stockholders of the Company called for
the purpose of obtaining the Stockholder Approval, including any postponement or adjournment
thereof.
“Subsidiary” means (a) a corporation more than 50% of the combined voting power of the
outstanding voting stock of which is owned, directly or indirectly, by the Company, or by one or
more Subsidiaries, or by the Company and one or more Subsidiaries, (b) a partnership of which the
Company, or one or more other Subsidiaries, or the Company and one or more Subsidiaries, directly
or indirectly, is the general partner and has the power to direct the policies management and
affairs or (c) any other Person (other than a corporation) in which the Company, or one or more
Subsidiaries, or the Company and one or more Subsidiaries, directly or indirectly, has at least a
majority ownership interest and power to direct the policies, management and affairs thereof.
“Superior Alternative Proposal” means any Alternative Proposal that provides for (i) full
payment in cash of the Superior Alternative Proposal Payment concurrently with the termination of
this Agreement, regardless of whether the Superior Alternative Proposal is consummated, and (ii)
the majority of Non-Gores Directors determine is more favorable to the Company’s common
stockholders than the Transactions, taking into account all of the terms and conditions of such
Alternative Proposal and this Agreement (including any proposal by Gores to amend the terms of the
Transactions), as well as the anticipated timing, conditions and prospects for completion of such
Alternative Proposal.
“Superior Alternative Proposal Payment” shall mean the aggregate of the following amounts
payable to Gores, offset by the amounts paid by the Company in connection with the reimbursement of
actual out-of-pocket fees and expenses of Gores and its Affiliates pursuant to the Fee Letters:
(a) (i) $90 million, representing the liquidation preference of Gores’ existing Series A
Preferred Stock or Series A-1 Preferred Stock, as the case may be, plus (ii) all accrued and unpaid
dividends thereon, plus (iii) a make whole premium of $15 million; plus
(b) consistent with any compensation received by the holders of Common Stock, any compensation
for Gores’ ownership of Common Stock; plus
7
(c) (i) $25 million, representing the liquidation preference of the Gores Series B Preferred
Shares, plus (ii) all accrued and unpaid dividends thereon; plus
(d) $3 million, representing the fee for providing the Gores Credit Guarantee and the Gores
NFL Guarantee; plus
(e) reimbursement of any and all payments by Gores or any of its Affiliates pursuant to the
Gores NFL Guarantee; plus
(f) reimbursement of any and all payments by Gores or any of its Affiliates pursuant to the
Gores Credit Guarantee; plus
(g) reimbursement of all actual out-of-pocket fees and expenses of Gores and its Affiliates
pursuant to the Fee Letters.
“Taxes” means any and all taxes, fees, levies, duties, tariffs, imposts and other charges of
any kind (together with any and all interest, penalties, additions to tax and additional amounts
imposed with respect thereto) imposed by any Governmental Authority or other taxing authority,
including: taxes or other charges on or with respect to income, franchise, windfall or other
profits, gross receipts, property, sales, use, payroll, employment, social security, workers’
compensation, unemployment compensation or net worth; taxes or other charges in the nature of
excise, withholding, ad valorem, stamp, transfer, value-added or gains taxes; license, registration
and documentation fees; and customers’ duties, tariffs and similar charges.
“Trading Day” means (a) any day on which the Common Stock is listed and traded on the Trading
Market, or (b) if the Common Stock is not then listed and traded on a Trading Market, then any
Business Day.
“Trading Market” means any national securities exchange, if the Common Stock is then listed on
such exchange.
“Transaction Documents” means this Agreement, the Investor Rights Agreement, the Certificates,
the Gores NFL Guarantee, the Gores Credit Guarantee, the Debt Restructuring Agreements and any
other document, instrument or agreement entered into in connection with transactions contemplated
hereby and thereby, including the purchase and sale of the Series B Preferred Stock.
“Transactions” means the transactions contemplated by the Transaction Documents.
“Underlying Shares” means the Common Stock issuable upon conversion of Gores Preferred Shares
or otherwise in satisfaction of any other obligation or right of the Company to issue Common Stock
pursuant to the Transaction Documents, and in each case, any securities issued or issuable in
exchange for or in respect of such securities.
“U.S.” means the United States of America.
“Warrants” means the warrants to purchase (i) up to 3,330,000 shares of Common Stock at a
strike price of $5.00 per share, (ii) up to 3,330,000 shares of Common Stock at a strike price of
$6.00 per share, and (iii) up to 3,340,000 shares of Common Stock at a strike price of $7.00 per
share, previously sold by the Company to the Purchasers pursuant to the Purchase Agreement dated as
February 25, 2008, between the Company and Gores Radio Holdings, LLC.
8
ARTICLE II.
PURCHASE AND SALE
PURCHASE AND SALE
2.1 Closing.
(a) On the terms and subject to the conditions set forth in this Agreement, at the Closing,
(i) the Company shall issue and sell to the Purchasers, and the Purchasers shall purchase from the
Company, the Gores Series B Preferred Shares, for an aggregate purchase price of $25,000,000 (the
“Purchase Price”), allocated among the Purchasers as reflected on Schedule 2.1(a), and (ii)
the Company shall issue to each Purchaser the number of shares of Series A-1 Preferred Stock set
forth opposite that Purchaser’s name on Schedule 2.1(a) (the “Gores Series A-1 Preferred
Shares”), and each Purchaser shall exchange all of its Series A Preferred Stock for the Gores
Series A-1 Preferred Shares. Immediately following the consummation of such exchange, all of the
outstanding shares of Series A Preferred Stock shall be cancelled.
(b) The Closing shall take place at the Los Angeles offices of Proskauer Rose LLP at 10:00
A.M. local time on a date designated by Gores that is reasonably satisfactory to the Company, which
shall be as soon as practicable, but not later than two (2) Business Days after the satisfaction or
waiver of all of the conditions set forth in Article V (other than those conditions that by
their nature must be satisfied on the Closing Date), or at such other location or time as the
parties may agree (it being understood and agreed that the parties desire the Closing to occur
simultaneously with the closing of the transactions contemplated by the Debt Restructuring
Agreements).
2.2 Closing Deliveries.
(a) At the Closing, the Company shall deliver or cause to be delivered to each Purchaser the
following:
(i) a certificate representing the number of shares of Series B Preferred Stock to be
purchased by each such Purchaser at the Closing, registered in the name of such Purchaser;
(ii) a certificate representing the number of shares of Series A-1 Preferred Stock to be
issued to each such Purchaser at the Closing, registered in the name of such Purchaser;
(iii) the legal opinion of Company Counsel, in form and substance reasonably satisfactory to
the Purchasers, executed by such counsel, the legal opinion of the General Counsel of the Company,
in form and substance reasonably satisfactory to the Purchasers, executed by such counsel, and the
legal opinion of Lerman Senter PLLC, in form and substance reasonably satisfactory to the
Purchasers, executed by such counsel;
(iv) evidence that the Series B Certificate of Designations has been filed with and accepted
by the Secretary of State of the State of Delaware;
(v) evidence that the Series A-1 Certificate of Designations has been filed with and accepted
by the Secretary of State of the State of Delaware;
(vi) the Investor Rights Agreement, duly executed by the Company and all holders of Series B
Preferred Stock (other than the Purchasers);
(vii) the Proxy Statement, in form and substance reasonably satisfactory to the Purchasers;
9
(viii) a certificate dated as of the Closing Date and signed by the Chief Executive Officer or
Chief Financial Officer of the Company certifying as to the fulfillment of each of the conditions
set forth in Section 5.1; and
(ix) any other document applicable to the Closing reasonably requested by the Purchasers at
least five (5) Business Days prior to the Closing Date.
(b) At the Closing, each Purchaser shall deliver or cause to be delivered to the Company (i)
the percentage of the Purchase Price indicated below such Purchaser’s name on the signature page of
this Agreement under the heading “Applicable Percentage,” in U.S. Dollars and in immediately
available funds, by wire transfer to an account designated in writing by the Company for such
purpose and (ii) the certificates evidencing the shares of such Purchaser’s Series A Preferred
Stock (or affidavits of loss, as applicable) in exchange for the certificate(s) evidencing the
Gores Series A-1 Preferred Shares set forth opposite the name of such Purchaser on Schedule
2.1(a); provided, that the surrender of such certificates by such Purchaser shall not
be a precondition to the cancellation thereof.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. The Company hereby represents and
warrants to each of the Purchasers that, as of the date hereof and, except for representations and
warranties that speak as of a specific date other than the Closing Date, on the Closing Date:
(a) Organization and Qualification. Except as disclosed in Schedule 3.1(a),
each of the Company and the Subsidiaries is an entity duly incorporated, validly existing and in
good standing under the Laws of the jurisdiction of its incorporation, with the requisite power and
authority to own and use its properties and assets and to carry on its business as currently
conducted. Except as disclosed in Schedule 3.1(a), each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation
in each jurisdiction in which the nature of the business conducted or property owned by it makes
such qualification necessary, except where the failure to be so qualified or in good standing, as
the case may be, would not reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect.
(b) Authorization; Enforcement. The Company has the requisite power and authority to
enter into and to consummate the Transactions and otherwise to carry out its obligations hereunder
and thereunder; provided, that the full conversion of the Preferred Shares is subject to
the Stockholder Approval. The execution and delivery of each of the Transaction Documents by the
Company and the consummation of the Transactions have been duly authorized by all necessary action
on the part of the Company and no further action, approval, consent, ratification, license,
permission, registration, waiver or other authorization is required by the Company, the Board or
the Company’s stockholders; provided, that the full conversion of the Preferred Shares is
subject to the Stockholder Approval. Each Transaction Document has been (or upon delivery will
have been) duly executed by the Company and, when delivered in accordance with the terms hereof,
will constitute the valid and binding obligation of the Company enforceable against the Company in
accordance with its terms. Each of the Board and a duly authorized committee of the Board
consisting solely of Non-Gores Directors, by resolutions duly adopted by unanimous vote at a
meeting duly called and held and not subsequently rescinded or modified in any way, has duly
determined that this Agreement and the Transactions are advisable and in the best interests of, the
Company and its stockholders (other than Gores). This Agreement and the Transactions are advisable
and fair to, and in the best interests of, the Company and its stockholders (other than Gores).
10
(c) No Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company and the consummation of the Transactions do not and will not (i) conflict
with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, by-laws or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any contract to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected,
or (iii) result in a violation of any Law, except, in the cases of clauses (ii) and (iii), for any
such conflict, default, right, violation or other occurrence which would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Filings, Consents and Approvals. Except as listed on Schedule 3.1(d),
neither the Company nor any Subsidiary is required to obtain any Consent of, give any notice to, or
make any filing or registration with, any Governmental Authority or other Person in connection with
the execution and delivery of the Transaction Documents or the consummation of the Transactions.
In connection with this Agreement or any of the Transactions, no SEC Reports are required to be
filed by the Company or the Purchasers with the Commission nor is any vote of the stockholders of
the Company required, other than (i) Schedule 13D or Form 4 filings by the Purchasers, (ii) filings
on Form 3 by newly appointed directors, (iii) filings by the Company on Form 8-K, (iv) in the case
of the change in the Board only, the 14f-1 Notice and (v) in the case of the Charter Amendment
only, the Proxy and the Stockholder Approval. Schedule 3.1(d) contains a list of all
Permits obtained by the Company from the FCC (the “FCC Licenses”). The FCC Licenses are all FCC
Permits necessary for the Company to own its property and assets and to carry on its business as
currently conducted, except where the failure to have any additional FCC license would not
reasonably be expected to, individually or in the aggregate, have a material effect. For purpose
of the foregoing sentence, the term “material” means material in relation to the business,
operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries
taken as a whole. To the knowledge of the Company, the FCC Licenses are in full force and effect.
For purposes of the foregoing sentence, the term “full force and effect” means that to the
knowledge of the Company: (a) the FCC orders or other actions issuing the FCC Licenses have become
effective; (b) no stay of effectiveness of such orders or other actions has been issued by the FCC;
(c) the FCC Licenses have not been revoked, not renewed, or invalidated; and (d) other than
conditions resulting from Proceedings of general applicability or conditions typically imposed on
entities with similar FCC Permits, the FCC Licenses have not been subject to the imposition of a
material adverse condition by any subsequent published FCC Proceeding.
(e) Issuance of the Securities. Upon the filing with, and acceptance of, the
Certificates by the Secretary of State of the State of Delaware, the Preferred Shares, and, upon
the filing with, and acceptance of, the Charter Amendment by the Secretary of State of the State of
Delaware the Underlying Shares, will be duly authorized, and, when issued and paid for in
accordance with the Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Encumbrances and shall not be subject to preemptive rights or
similar rights. Upon the Stockholder Approval and the filing with, and acceptance of, the Charter
Amendment by the Secretary of State of the State of Delaware, the number of authorized shares of
Common Stock shall be sufficient to permit the conversion in full of the Preferred Shares.
11
(f) Capitalization. The number of shares and type of all authorized, issued and
outstanding capital stock of the Company (as of the date hereof and on a pro forma basis after
giving effect to the Transactions) are set forth in Schedule 3.1(f). Except as set forth
on Schedule 3.1(f), no securities of the Company or any Subsidiary are entitled or subject
to preemptive or similar rights, and no Person has any right of first refusal, preemptive right,
right of participation, or any similar right to participate in any of the Transactions. All
outstanding shares of capital stock of the Company and each
Subsidiary have been duly authorized and validly issued, are fully paid and are nonassessable,
and have been issued in compliance with all Laws. Except as a result of the sale of the Securities
and as set forth on Schedule 3.1(f), there are no outstanding options, warrants, rights to
subscribe for, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exchangeable for, or giving any Person any right to subscribe
for or acquire, or contracts by which the Company or any Subsidiary is or may become bound to issue
or sell any shares of capital stock of the Company or any Subsidiary, or securities or rights
convertible or exchangeable into shares of capital stock of the Company or any Subsidiary. Except
as set forth on Schedule 3.1(f), the issue and sale of the Securities will not obligate the
Company to issue any securities to any Person (other than the Purchasers) and will not result in a
right of any holder of the Company’s securities to adjust the exercise, conversion, exchange or
reset price under such securities. Except as set forth on Schedule 3.1(f), the Company has
not granted or agreed to grant to any Person any rights (including “piggy back” registration
rights) to have any securities of the Company registered with the Commission or any other
Governmental Authority.
(g) SEC Reports; Press Releases; Financial Statements.
(i) Since December 31, 2004, the Company has filed all SEC Reports required to be filed by it
under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, on a timely basis. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Securities Act and the Exchange Act, and none
of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(ii) As of their respective dates, the financial statements of the Company included in the SEC
Documents (A) comply in all material respects with applicable accounting requirements and the rules
and regulations of the Commission with respect thereto as in effect at the time of filing, (B) have
been prepared in accordance with GAAP and (C) fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, year-end audit adjustments. Except as set forth on Schedule
3.1(g)(ii), the financial statements included in the SEC Documents filed since December 31,
2006 do not reflect the reversal of reserves or any non-recurring revenue or expense in each case,
that is material, except as expressly set forth in the notes thereto. Neither the Company nor any
Subsidiary has any liabilities, except liabilities (i) stated or reflected in the Company’s most
recent balance sheet included within the SEC Documents filed before the date hereof (the “Base
Balance Sheet”), (ii) incurred as a result of or arising out of the Transactions, (iii) liabilities
incurred in the ordinary course of business since the date of the Base Balance Sheet that are not
individually or in the aggregate material to the Company and its Subsidiaries taken as a whole or
(iv) as set forth in Schedule 3.1(g)(ii).
(iii) The Company does not have pending before the Commission any request for confidential
treatment of information. There are no outstanding or unresolved comments in comment letters from
the Commission with respect to any of the SEC Reports. To the knowledge of the Company, none of
the SEC Reports is the subject of any ongoing review by the Commission.
12
(iv) The Company is in compliance with the requirements of the Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations promulgated by the Commission thereunder. The chief executive officer
and the chief financial officer of the Company have signed, and the Company has furnished to the
SEC, all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the
“Certifications”). Such Certifications contain no qualifications or exceptions to the matters
certified therein and have not been modified or withdrawn, and neither the Company nor any of it
officers
has received notice from any Governmental Authority questioning or challenging the accuracy,
completeness, content, form or manner of filing or submission of such Certifications. Since the
adoption of the Xxxxxxxx-Xxxxx Act, the Company has complied in all material respects with the
laws, rules and regulations thereunder. The Company has designed disclosure controls and
procedures to ensure that material information relating to the Company and the Subsidiaries is made
known to the Chief Executive Officer and the Chief Financial Officer of the Company by others
within those entities. The Company has disclosed, based on its most recent evaluation before the
date of this Agreement, to the Company’s auditors and the audit committee of the Board (i) any
significant deficiencies and material weaknesses in the design or operation of internal controls
over financial reporting that are reasonably likely to adversely affect in any material respect the
Company’s ability to record, process, summarize and report financial information and (ii) any fraud
or allegation of fraud, whether or not material, that involves management or other Employees who
have a significant role in the Company’s internal controls over financial reporting.
(h) 14f-1 Notice. On March 31, 2009, the Company sent to its stockholders a notice
complying with Rule 14f-1 of the Exchange Act (the “14f-1 Notice”) notifying its stockholders of
the changes in the Board of Directors pursuant to this Agreement, a true and correct copy of which
has been provided to the Purchasers.
(i) Transactions With Affiliates and Employees. None of the officers or directors or
other Affiliates of the Company or any Subsidiary and, to the knowledge of the Company, none of the
Employees, is a party to any transaction with the Company or any Subsidiary, including any contract
providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer, director, Affiliate or
such Employee or, to the knowledge of the Company, any entity in which any officer, director,
Affiliate or any such Employee has a substantial interest or is an officer, director, trustee or
partner that in any such case is or would be required to be disclosed under Item 404 of Regulation
S-K promulgated under the Securities Act (other than as adequately disclosed in the SEC Documents).
(j) Certain Fees. Except as set forth on Schedule 3.1(j), no brokerage or
finder’s fees or commissions are or will be payable by the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or other Person with respect to the
Transactions. The Purchasers shall have no obligation with respect to any fees or with respect to
any claims (other than such fees or commissions owed by a Purchaser pursuant to written contracts
executed by such Purchaser which fees or commissions shall be the sole responsibility of such
Purchaser) made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the Transactions. The Company shall indemnify and hold harmless
the Purchasers, their employees, officers, directors, agents, and partners, and their respective
Affiliates, from and against all Losses and expenses suffered in respect of any such claimed or
existing fees, as such fees and expenses are incurred.
(k) Application of Takeover Protections. The Company and its Board have taken all
necessary action to render inapplicable any control share acquisition, business combination, poison
pill (including a rights agreement) or other similar anti-takeover provision under the Company’s
Certificate of Incorporation (or similar charter documents) or the Laws of its state of
incorporation that is or could become applicable to the Purchasers as a result of the Purchasers
and the Company fulfilling their obligations or exercising their rights under the Transaction
Documents, including the Company’s issuance of the Securities and the Purchasers’ ownership of the
Gores Securities and issuance of any additional Securities pursuant to the Transaction Documents.
13
(l) Investment Company; FIRPTA. The Company is not, and is not an Affiliate of, an
investment company within the meaning of the Investment Company Act of 1940. The Company is not a
U.S. real property holding corporation within the meaning of Section 897(c) of the Code.
(m) Disclosure. No representation or warranty by the Company contained in this
Agreement, and no information contained in the Schedules attached hereto, contains any untrue
statement of a material fact or omits to state any material fact necessary in order to make the
statements made herein or therein, in the light of the circumstances under which they were made,
not misleading. Since the date of the Base Balance Sheet, except as specifically disclosed in the
SEC Documents filed before the date hereof or as described in Schedule 3.1(m), there has
been no Material Adverse Change, and neither the Company nor any of its Subsidiaries has
(i) changed its method of accounting or the identity of its auditors, (ii) declared or made any
dividend or distribution of cash or other property to its stockholders or repurchased, redeemed or
made any contracts to repurchase or redeem any shares of its capital stock or (iii) issued any
equity securities to any officer, director or Affiliate, except pursuant to a Company Employee
Plan.
(n) Debt Restructuring Agreements. Each of the representations and warranties of the
Company contained in the Debt Restructuring Agreements is true and correct and is hereby
incorporated into this Agreement for all purposes.
3.2 Representations and Warranties of the Purchasers. Each Purchaser hereby, as to
itself only and for no other Purchaser, severally but not jointly, represents and warrants to the
Company as follows:
(a) Organization; Authority. Such Purchaser is an entity duly organized, validly
existing and in good standing under the Laws of the jurisdiction of its organization with the
requisite corporate, limited liability company or partnership power and authority to enter into and
to consummate the Transactions and otherwise to carry out its obligations hereunder and thereunder.
The execution, delivery and performance by such Purchaser of the Transaction Documents to which it
is a party have been duly authorized by all necessary corporate or, if such Purchaser is not a
corporation, such partnership, limited liability company or other applicable like action, on the
part of such Purchaser. Each of the Transaction Documents to which such Purchaser is a party has
been duly executed by such Purchaser and, when delivered by such Purchaser in accordance with terms
hereof, will constitute the valid and binding obligation of such Purchaser, enforceable against it
in accordance with its terms.
(b) Investment Intent. Such Purchaser is acquiring the Securities for investment
purposes and not with a view to distributing or reselling such Securities or any part thereof in
violation of applicable securities Laws, without prejudice, however, to such Purchaser’s right at
all times to sell or otherwise dispose of all or any part of such Securities in compliance with
applicable federal or state securities Laws. Nothing contained herein shall be deemed a
representation or warranty by such Purchaser to hold the Securities for any period of time. Such
Purchaser understands that the Securities have not been registered under the Securities Act, and
therefore the Securities may not be sold, assigned or transferred in the U.S. other than pursuant
to (i) a registration statement under the Securities Act and applicable state securities Laws, or
(ii) an exemption from such registration requirements.
(c) Purchaser Status. Such Purchaser is an “accredited investor” within the meaning
of Rule 501(a) of Regulation D under the Securities Act.
(d) General Solicitation. Such Purchaser is not purchasing the Securities as a result
of any advertisement, article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio or presented at any
seminar or any other general solicitation or general advertisement.
14
(e) Reliance on Exemptions. Such Purchaser understands that the Securities are being
offered and sold to it in reliance on specific exemptions from the registration requirements of
U.S. federal and state securities Laws and that the Company is relying in part upon the truth and
accuracy of, and such Purchaser’s representations and warranties set forth herein in order to
determine the availability of such exemptions and the eligibility of such Purchaser to acquire the
Securities.
(f) Certain Fees. Except as set forth on Schedule 3.2(f), there is no broker,
investment banker, financial advisor, finder or other Person that has been retained by or is
authorized to act on behalf of the Purchasers that is entitled to any fee or commission from the
Company or any of its Subsidiaries or Affiliates in connection with the Transactions. Other than
as set forth in the Fee Letters, the Company shall have no obligation with respect to any fees or
with respect to any claims (other than such fees or commissions owed by the Company pursuant to
written contracts executed by the Company which fees or commissions shall be the sole
responsibility of the Company) made by or on behalf of any Purchaser for fees of a type
contemplated in this Section that may be due in connection with the Transactions. The Purchasers
shall indemnify and hold harmless the Company, and its directors, officers, employees, agents and
representatives, and their respective Affiliates, from and against all Losses suffered in respect
of any such claimed or existing fees, as such fees and expenses are incurred.
(g) Ability to Protect Its Own Investment and Bear Economic Risks. By reason of the
business and financial experience of each Purchaser, such Purchaser has the capacity to protect its
own interests in connection with the Transactions and is able to bear the economic risk of an
investment in the Securities.
(h) Ability to Consummate Transactions. The Purchasers have available to them
sufficient funds to pay the Purchase Price and to make other necessary payments by the Purchasers
in connection with the Transactions and will have available to them on the Closing Date sufficient
funds to pay such amounts.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions.
(a) Securities may only be disposed of pursuant to an effective registration statement under
the Securities Act or pursuant to an available exemption from the registration requirements of the
Securities Act, and in compliance with any applicable state securities Laws.
(b) The Purchasers agree to the imprinting on any certificate evidencing Securities of a
restrictive legend in substantially the form set forth in the Investor Rights Agreement.
4.2 Integration. The Company shall not, and shall use its reasonable best efforts to
ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that
would be integrated with the offer or sale of the Securities in a manner that would require the
registration under the Securities Act of the sale of the Securities to the Purchasers, or that
would be integrated with the offer or sale of the Securities for purposes of the rules and
regulations of the Trading Market, if any.
15
4.3 Reservation and Listing of Securities. Prior to the Stockholder Approval and the
filing of the Charter Amendment, to the fullest extent authorized by the Certificate of
Incorporation, the Company shall maintain a reserve from its duly authorized Common Stock, for
issuance pursuant to the Transaction Documents, the maximum amount of Common Stock authorized by
the Certificate of Incorporation. After the Stockholder Approval and the filing of the Charter
Amendment, the Company shall maintain a reserve from its duly authorized Common Stock, for issuance
pursuant to the Transaction Documents, in such amount as may be required to fulfill its obligations
in full under the Transaction Documents.
4.4 Investigation. No investigation made by Gores and its employees, advisors and
other representatives shall affect the representations, warranties and agreements made by the
Company pursuant to this Agreement, and each such representation, warranty and agreement shall
survive any such investigation in accordance with the terms of this Agreement.
4.5 Standstill. Upon the last day of the Restricted Period, unless the Company has
entered into, and not terminated, a definitive agreement in connection with a Superior Alternative
Proposal, the provisions set forth in Section 4.14 of the Series A Purchase Agreement shall
automatically terminate and be of no further force and effect.
4.6 Use of Proceeds. The Company shall use the net proceeds from the sale of the
Gores Securities hereunder to pay a portion of the amounts payable by the Company in connection
with the Transactions.
4.7 Warrants. Upon successful completion of the Stockholder Approval and filing and
acceptance of the Charter Amendment with the Secretary of State of the State of Delaware and
concurrently with the automatic conversion of all of the outstanding shares of Series A-1 Preferred
Stock and Series B Preferred Stock into shares of Common Stock (as provided for in the
Certificates), the Warrants shall be cancelled and Gores Radio Holdings, LLC shall surrender the
Warrants to the Company, provided, that the surrender of such warrants by Gores Radio
Holdings, LLC shall not be a precondition to the cancellation thereof.
4.8 Properties, Business Insurance. The Company shall obtain and maintain and cause
each of its Subsidiaries to maintain as to their respective properties and business, with
financially sound and reputable insurers, insurance against such casualties, contingencies and
other risks and hazards and of such types and in such amounts as are reasonably prudent.
4.9 Exclusivity.
(a) The Company will not, and will cause its Affiliates and the directors, officers,
employees, agents and representatives of each of them not to, directly or indirectly, solicit,
initiate, respond to, encourage, or provide any information or negotiate with respect to, any
inquiry, proposal or offer from any other party or enter into any contract, agreement or
arrangement relating to any equity or equity linked transaction (other than pursuant to bona fide
employment benefit plans), or any sale of all or any material part of the Company’s or any
Subsidiary’s business or assets, including through any asset sale, exclusive license, merger,
reorganization or other form of business combination, or any other transaction that would otherwise
be inconsistent in any material respect with the Transactions. The Company will promptly (and in
any event within two (2) Business Days) notify the Purchasers in writing describing the initial and
all other material contacts (including copies of all written material, and reasonably detailed
summary of all material oral contacts) between the Company or a Subsidiary of the Company or any of
their respective directors, officers, employees, agents or representatives and any other Person
regarding any such inquiry, proposal or offer received on or after the date hereof.
16
(b) Notwithstanding the foregoing clause (a), if, during the Restricted Period, the Company
receives an Alternative Proposal and the majority of the Non-Gores Directors reasonably conclude in
good faith, after consultation with the Company’s outside legal counsel and a financial advisor of
national recognized reputation, that (i) the failure to consider and negotiate such Alternative
Proposal would be inconsistent with fiduciary duties to its stockholders under applicable Law, and
(ii) such Alternative Proposal, if consummated is likely to result in a Superior Alternative
Proposal, the majority of the Non-Gores Directors after giving the Purchasers prior written notice
of the identity of the third party making such Alternative Proposal, the material terms and
conditions of such Alternative Proposal, and the Company’s intention to furnish information to, or
participate in discussions or negotiations with, the Person making such proposal, may, and may
authorize and permit the Company’s officers, directors, employees, financial advisors,
representatives, or agents to, (A) provide the Offeror with nonpublic information, (B) participate
in discussions and negotiations with the Offeror relating to such Alternative Proposal and (C)
enter into or execute any confidentiality agreements relating thereto; provided, that (1)
the Company provides the Purchasers with a copy of all such information that has not been
previously provided to the Purchasers simultaneously with the delivery to the Offeror and (2) the
Company enters into a confidentiality agreement with the Offeror on terms no less favorable to the
Company than those contained in the Confidentiality Agreement. For purposes of clarification, only
the majority of the Non-Gores Directors (and not the full Board) shall be involved in the
evaluation and negotiation of any Superior Alternative Proposal. If any Superior Alternative
Proposal involves a merger of the Company, such Superior Alternative Proposal shall be recommended
by the majority of the Non-Gores Directors to the full Board. The full Board will only reject the
recommendation of the majority of the Non-Gores Directors if the full Board reasonably concludes in
good faith, after consultation with the Company’s outside legal counsel and a financial advisor of
national recognized reputation, that the failure to adopt the recommendation of the majority of the
Non-Gores Directors would be consistent with fiduciary duties to its stockholders under applicable
Law.
(c) Prior to the Board voting upon a Superior Alternative Proposal or the termination of this
Agreement, the Company shall provide to the Purchasers a written notice (i) that the majority of
the Non-Gores Directors are prepared to recommend the Superior Alternative Proposal and to
recommend the termination of this Agreement, (ii) specifying in reasonable detail the consideration
and other material terms and conditions of such Superior Alternative Proposal and including a copy
of all material written materials provided to or by the Company in connection with such Superior
Alternative Proposal, (iii) stating such Alternative Proposal meets the requirements of Section
4.9(b) and (iv) identifying the Offeror. The Company shall cooperate and negotiate in good
faith with the Purchasers during the five (5) Business Day period following such notice (it being
understood that any amendment to the financial terms or any other material term of such Alternative
Proposal shall require a new notice and a new five (5) Business Day period) to make an offer to
invest in or acquire the Company. If the Purchasers do not make a bona fide written offer
(together with reasonable evidence that such Persons have or can obtain pursuant to legally binding
obligations sufficient funds to consummate such offer) that the majority of the Non-Gores Directors
determine in their reasonable good faith judgment (after consultation with the Company’s outside
legal counsel and a financial advisor of nationally recognized reputation) to be at least as
favorable to the holders of Common Stock (other than the Purchasers and their respective
Affiliates), from a financial point of view, as such Superior Alternative Proposal, and the Company
has complied with Section 4.9(a) and (b) above, the Board may accept such Superior
Alternative Proposal; provided, that, concurrently with such acceptance of the Superior
Alternative Proposal, the Company pays the Superior Alternative Proposal Payment, and causes the
immediate termination of the Gores NFL Guarantee and the Gores Credit Guarantee. In addition, upon
payment of the Superior Alternative Proposal Payment, all outstanding securities of the Company
(including any shares of Series B Preferred Stock, Warrants, shares of Common Stock, shares of
Series A Preferred Stock and shares of Series A-1 Preferred Stock) held by the Purchasers shall be
retired or cancelled.
17
(d) Without limitation, for the purposes of the foregoing, any communications that discuss the
consideration or any other material term or condition of an Alternative Proposal shall be deemed to
be material.
4.10 Stockholder Vote.
(a) As soon as reasonably practicable, but in no event later than two (2) Business Days
following the clearance of the preliminary Proxy Statement by the Commission, the Company shall (i)
take all action necessary to duly call, give notice of, convene and hold the Stockholders’ Meeting,
and (ii) use its reasonable best efforts to obtain the Stockholder Approval (including, at the
request of the Purchasers, holding additional Stockholders’ Meetings or filing additional proxy
statements upon any failure to obtain the Stockholder Approval at a Stockholders’ Meeting or
postponing or adjourning the Stockholders’ Meeting to obtain a quorum or solicit additional
proxies; provided that the Company shall not, except as required by Law, postpone or
adjourn the Stockholders’ Meeting for any other reason without the prior consent of the
Purchasers). Unless this Agreement is terminated in accordance with Section 6.1 hereof, the
Company shall remain obligated to convene and hold the Stockholders’ Meeting to consider the
adoption of the Charter Amendment and to take the other actions required by this paragraph.
Notwithstanding anything in this Agreement to the contrary, the record date with respect to the
Stockholders’ Meeting shall be no earlier than the day after the Closing Date.
(b) The Company shall file with the Commission the Proxy Statement no later than immediately
following the Closing. The Company shall give Purchasers and their counsel a reasonable
opportunity to review and comment upon the Proxy Statement (which shall not be less than five (5)
Business Days) before the filing thereof with the Commission. The Company shall provide Purchasers
and their counsel with copies of all written comments and other communications (including any
material verbal responses) the Company or its counsel receives from the Commission or its staff
with respect to the Proxy Statement, in such case promptly after receipt of such comments or other
communications. The Company shall give Purchasers and their counsel a reasonable opportunity to
review and comment upon any written or verbal responses to the Commission (which shall not be less
than three (3) Business Days) before the provision thereof to the Commission. If at any time prior
to the approval and adoption of the Charter Amendment by the Company’s stockholders there shall
occur any event that is required to be set forth in an amendment or supplement to the Proxy
Statement, so that the Proxy Statement would not include any misstatement of a material fact or
omit to state any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, the Company shall promptly prepare and
mail to its stockholders such amendment or supplement. The Company shall not mail the Proxy
Statement or any amendment or supplement thereto, without reasonable advance consultation with
Purchasers and their counsel (which shall not be less than three (3) Business Days).
(c) The Company hereby represents, warrants and covenants that: the Proxy Statement will not,
at the date it is filed with the Commission, at the date it is mailed or distributed to the
stockholders of the Company or at the time of the Stockholders’ Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they are made, not misleading, except for any corrections or supplements to any preliminary proxy
statement that are made in the final Proxy Statement. The Proxy Statement will comply as to form
in all material respects with the requirements of the Exchange Act, except for any corrections or
supplements to any preliminary proxy statement that are made in the final Proxy Statement.
Notwithstanding the foregoing, the Company makes no representation or warranty with respect to any
information supplied by the Purchasers specifically for inclusion or incorporation by reference in
the Proxy Statement.
18
4.11 Indemnification.
(a) The Company shall indemnify, to the fullest extent lawful, and hold harmless each
Purchaser and Related Person, and their respective directors, officers, employees, agents and
representatives (collectively, “Indemnified Parties”) from and against any and all Losses, as
incurred, directly or indirectly arising out of, based upon or relating to (a) any breach by the
Company of any of its representations, warranties or covenants in this Agreement or any other
Transaction Document or (b) any Proceeding by or against any Person, directly or indirectly, in
connection with or as a result of any of any of the Transactions except to the extent any such
Proceeding arose out of, is based upon or relates to any act or failure to act by the Purchasers
that is in breach in any material respect of this Agreement or in violation of any Law.
(b) If any Proceeding shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify the Company in writing, and the Company shall assume the
defense thereof, including the engagement of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with defense thereof;
provided, that the failure of any Indemnified Party to give such notice shall not relieve
the Company of its obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure shall have materially
adversely prejudiced the Company.
An Indemnified Party shall have the right to engage separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (i) the Company has agreed in writing to
pay such fees and expenses; (ii) the Company shall have failed promptly to assume the defense of
such Proceeding; (iii) the Company shall have failed promptly to engage counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding (in each case, only with respect to
such Indemnified Party); or (iv) the named parties to any such Proceeding (including any impleaded
parties) include both such Indemnified Party and the Company or any of its Affiliates, and such
Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist
if the same counsel were to represent such Indemnified Party and the Company or such Affiliates (in
which case, under any of clauses (i) through (iv), such counsel shall be at the expense of the
Company). The Company shall not be liable for any settlement of any Proceeding effected without
its written consent, which consent shall not be unreasonably withheld. The Company shall not,
without the prior written consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out of such Proceeding.
(c) The indemnification and expense reimbursement obligations of the Company under this
Section 4.11 shall be in addition to any liability that the Company may otherwise have and
shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Indemnified Parties. If the Company breaches its obligations under any
Transaction Document, then, in addition to any other liabilities the Company may have under any
Transaction Document or applicable Law, the Company shall pay or reimburse the Indemnified Parties
on demand for all costs of collection and enforcement (including reasonable attorneys’ fees and
expenses), provided that the Indemnified Parties prevail in such matters. Without limiting
the generality of the foregoing, the Company specifically agrees to reimburse the Indemnified
Parties on demand for all costs of enforcing the indemnification obligations in this paragraph,
subject to the Indemnified Parties entering into an undertaking to reimburse all such amounts, in
the event the Indemnified Parties do not prevail on such matters. For purposes of clarity, the
provisions contained in this Section 4.11 shall not constitute the exclusive remedies of
any Indemnified Party hereunder.
19
4.12 Approvals; Taking of Actions. Subject to the terms and conditions of this
Agreement, the Company shall use its commercially reasonable best efforts to (i) take or cause to
be taken all actions, and to do or cause to be done all other things, necessary, proper or
advisable to consummate the Transactions as promptly as practicable, and (ii) obtain in a timely
manner all necessary Consents and effect all necessary registrations and filings, including the
approval of the Trading Market, if any, and any approvals required under the HSR Act. The Company
shall be responsible for all filing fees required to be paid in connection any filings or approvals
required under the HSR Act. The Purchasers and the Company shall cooperate with each other in
connection with the making of all such filings, including providing copies of all such documents to
the non-filing party and its advisors before filing. The Purchasers and the Company shall use
their respective commercially reasonable efforts to furnish to each other all information required
for any application or other filing to be made pursuant to the rules and regulations of any
applicable Law in connection with the Transactions. The Company shall give any notices to third
parties, and use their commercially reasonable efforts to obtain any third party Consents related
to or required in connection with or to consummate the Transactions. Notwithstanding the foregoing
or any other covenant contained herein, in connection with the receipt of any necessary Consents,
including under the HSR Act or under any applicable foreign anti-trust Laws, nothing shall require
the Company to (i) divest or hold separate any material part of its businesses or operations or
(ii) agree not to compete in any geographic area or line of business or agree to take, or not to
take, any other action or comply with any other term or condition, in such a manner as would
reasonably be expected to result in a Material Adverse Effect.
4.13 Tax Treatment of the Preferred Stock. The Company shall not treat the Preferred
Shares as “preferred stock” within the meaning of Section 305 of the Code, unless and until there
is a “final determination” to the contrary within the meaning of Section 1313(a) of the Code.
4.14 Public Disclosures; Confidentiality. On or before the Closing Date, except as
provided in Sections 4.9 and 4.10, neither the Company nor any Purchaser will issue
(or cause or authorize any of its Affiliates to issue) any press release or make any other public
disclosures concerning the Transactions or the contents of the Transaction Documents without prior
consultation with the other party. Notwithstanding the above, nothing in this Section will
preclude any party hereto or its Affiliates from making any disclosures required by applicable Law
or the rules of any applicable securities exchange or necessary and proper in conjunction with any
document required to be filed with any Governmental Authority. To the extent the Confidentiality
Agreement expires prior to the last day of the Restricted Period, Purchasers and their Affiliates
subject to the Confidentiality Agreement shall maintain the confidentiality of the Evaluation
Material in accordance with the terms of the Confidentiality Agreement through the last day of the
Restricted Period.
ARTICLE V.
CONDITIONS
CONDITIONS
5.1 Conditions Precedent to the Obligations of the Purchasers. The obligation of each
Purchaser to acquire the Gores Securities is subject to the satisfaction or, to the extent
permitted by Law, waiver by such Purchaser, at or before the Closing, of each of the following
conditions:
(a) Representations and Warranties. All representations and warranties of the Company
contained in this Agreement shall have been true and correct as of the date hereof and, except for
representations and warranties that speak as of a specific date other than the Closing Date, which
need only be true and correct as of such specific date, shall have been true and correct in all
material respects as of the Closing Date.
20
(b) Performance. The Company shall have (i) performed, satisfied and complied in all
material respects with all covenants, agreements and conditions required by the Transaction
Documents, and (ii) delivered or caused to be delivered those items required to be delivered
pursuant to Section 2.2.
(c) Required Approvals. The Company shall have obtained in a timely fashion any and
all Consents, Permits and waivers necessary or appropriate for consummation of the purchase and
sale of the Securities, and all of which shall be and remain so long as necessary in full force and
effect; provided, that the full conversion of the Preferred Shares is subject to the
Stockholder Approval.
(d) No Injunction. No Law or Order shall have been enacted, entered, promulgated or
endorsed by any Governmental Authority of competent jurisdiction that prohibits the consummation of
any of the Transactions.
(e) HSR Act. Any waiting period (and any extension thereof) applicable to the
consummation of the Transactions under the HSR Act shall have expired or been terminated.
(f) Certificates of Designations. Each of the Certificates shall have been duly
adopted and executed and filed with the Secretary of State of the State of Delaware. The Company
shall not have adopted or filed any other document designating terms, relative rights or
preferences of the Preferred Shares, other than the Securities Purchase Agreement. The
Certificates shall not have been amended or modified, and a copy of the each of the Certificates
certified by the Secretary of State of the State of Delaware shall have been delivered to Gores.
(g) Directors. The Persons listed on Schedule 5.1(g)(i) shall have resigned
or retired from the Board. Substantially concurrently with the Closing, the Persons listed on
Schedule 5.1(g)(ii) shall be elected to the Board and the Board shall consist only of such
Persons. The Company’s stockholders of record shall have received the 14f-1 Notice at least 10
days prior to the date of such change in the Board.
(h) Adverse Changes. Since the date of execution of this Agreement, no Material
Adverse Change shall have occurred.
(i) Amendment. The Registration Rights Agreement shall have been amended by the
Registration Rights Amendment.
(j) Debt Restructuring. The transactions contemplated by the Debt Restructuring
Agreements, shall have been (or will be concurrently be) consummated. Assuming the effectiveness
of the Transactions, no Default or Event of Default (as such terms are defined therein) shall have
occurred and be continuing under the Debt Restructuring Agreements and no other condition exists
that, with notice or lapse of time or both, would constitute a Default or Event of Default
thereunder prior to or after consummation of the Transactions.
(k) Fairness Opinion. Prior to the time of the execution of this Agreement, the
Purchasers shall have received, solely for informational purposes, a copy of a fairness opinion of
Moelis & Company delivered to the Board with respect to the Transactions (the “Fairness Opinion”).
No qualification, withdrawal, revocation, amendment or other modification shall have been made to
the Fairness Opinion since its distribution to the Purchasers.
(l) Termination of Automatic Equity Grants. The Company shall have taken all Board
action necessary to eliminate automatic or mandatory grants of equity (including capital stock,
options or restricted stock units) of the Company to members of the Board.
21
(m) Bylaws. Substantially concurrently with the Closing, the Company shall have
amended its bylaws substantially in the form of the Amended and Restated Bylaws.
(n) NFL Radio Rights Agreement. National Football League shall have agreed in a
letter (the “NFL Letter”) that it will not (and shall have waived its right to) terminate the Radio
Rights Agreement pursuant to Section 3.e thereof and a true and correct copy of the NFL Letter
shall have been previously delivered to Purchasers. The NFL Letter and the Radio Rights Agreement
shall be in full force and effect.
5.2 Conditions Precedent to the Obligations of the Company. The obligation of the
Company to sell the Gores Securities is subject to the satisfaction or, to the extent permitted by
Law, waiver by the Company, at or before the Closing, of each of the following conditions:
(a) Representations and Warranties. The representations and warranties of the
Purchasers contained herein shall be true and correct in all material respects as of the date when
made and as of the Closing Date as though made on and as of such date.
(b) Performance. The Purchasers shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Purchasers at or before the Closing,
including delivering or causing the delivery of those items required to be delivered pursuant to
Section 2.2.
(c) No Injunction. No Law or Order shall have been enacted, entered, promulgated or
endorsed by any Governmental Authority of competent jurisdiction that prohibits the consummation of
any of the Transactions.
(d) HSR Act. Any waiting period (and any extension thereof) applicable to the
consummation of the Transactions under the HSR Act shall have expired or been terminated.
(e) Guarantees. To the extent required by the underlying agreement, Gores shall have
delivered to the applicable counterparty thereto an executed copy of the Gores Credit Guarantee.
(f) Fairness Opinion. The Board shall have received the Fairness Opinion.
ARTICLE VI.
MISCELLANEOUS
MISCELLANEOUS
6.1 Termination.
(a) This Agreement may be terminated and any Transactions not then consummated may be
abandoned at any time before the Closing Date:
(i) By the mutual consent of the Company and Gores, on behalf of itself and all Purchasers.
(ii) By the Company or Gores, on behalf of itself and all Purchasers, if the Closing has not
been consummated on the date of this Agreement (the “Termination Date”); provided, that the
right to terminate this Agreement pursuant to this Section 6.1(a)(ii) shall not be
available to any party whose breach of the covenants set forth in this Agreement has been the
principal cause of, or resulted in, the failure of the Closing to be consummated by the Termination
Date.
22
(iii) By Gores, on behalf of itself and all Purchasers, if the Debt Restructuring Agreements
are terminated prior to the Closing.
(iv) By Gores, on behalf of itself and all Purchasers, if the Company is in material breach of
its obligations under this Agreement which breach shall have not been cured within fifteen (15)
Business Days after written notice thereof from Gores or which breach cannot be cured within
fifteen (15) Business Days.
(v) By the Company if the Purchasers are in material breach of their obligations under this
Agreement which breach shall have not been cured within fifteen (15) Business Days after written
notice thereof from the Company or which breach cannot be cured within fifteen (15) Business Days.
(vi) By the Company if the Company has complied with Section 4.9(c) and concurrently
with such termination the Company (A) enters into a definitive agreement in connection with a
Superior Alternative Proposal that the majority of the Non-Gores Directors determine in their
reasonable good faith judgment (after consultation with Company Counsel and a financial advisor of
nationally recognized reputation) is more favorable to the holders of Common Stock (other than
Purchasers and their respective Affiliates), from a financial point of view, as any offer made by
Purchasers pursuant to Section 4.9(c), (B) pays the Superior Alternative Proposal Payment
and (B) pays all fees due pursuant to Section 6.3.
(b) No termination of this Agreement shall affect the right of any party to xxx for any breach
by the other party (or parties).
(c) Section 4.4, Section 4.11 and Article VI, in each case, together
with all applicable definitions, shall survive any termination of this Agreement.
6.2 Survival. Except for the representations and warranties set forth in Sections
3.1(a), (b), (e), (f) (regarding capitalization only), (j) and (k) and
Section 3.2(f), each of which shall survive indefinitely, the representations and
warranties of a party contained in this Agreement (and the portion of any certificate certifying
such representations and warranties) shall survive the closing of the transactions contemplated in
this Agreement until the 24-month anniversary of the Closing, unless a bona fide notice of a claim
shall have been made in writing before such date, in which case the representation and warranty to
which such notice applies shall survive in respect of that claim until the final determination or
settlement of the claim, and, notwithstanding such closing nor any investigation made by or on
behalf of the party entitled to rely on such representation and warranty, shall continue in full
force and effect for the benefit of such party during such period.
6.3 Fees and Expenses.
(a) The Company shall pay the actual and reasonable legal, accounting, consulting, travel and
all other out-of-pocket expenses incurred by or on behalf of the Purchasers in connection with due
diligence and the preparation and negotiation of the Transaction Documents and otherwise in
connection with the Transactions as set forth in the Fee Letters.
(b) Except as expressly set forth in this paragraph or the Transaction Documents to the
contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all
transfer agent fees, stamp Taxes and other Taxes and duties levied in connection with the issuance
of the Securities.
Expenses incurred in connection with the filing, printing and mailing of the Proxy Statement shall
be the expenses of the Company.
23
6.4 Entire Agreement. The Transaction Documents, together with the Exhibits and
Schedules thereto, contain the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both oral or written.
6.5 Further Assurances. At or after the Closing, and without further consideration,
each of the parties will execute and deliver to the other parties such further documents and take
such further action as may be reasonably requested in order to give practical effect to the
intention of the parties under the Transaction Documents.
6.6 Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earliest of (i) the date of transmission, if such notice or communication is delivered via
facsimile or by other means of electronic communication at the facsimile number or e-mail address
specified in this Section before 5:30 p.m. (New York City time) on a Trading Day, (ii) the Trading
Day after the date of transmission, if such notice or communication is delivered via facsimile or
by other means of electronic communication at the facsimile number or e-mail address specified in
this Agreement later than 5:30 p.m. (New York City time) on any date and earlier than 11:59 p.m.
(New York City time) on such date, (iii) the Trading Day following the date of sending, if sent by
nationally recognized overnight courier service, specifying next business day delivery or (iv) upon
actual receipt by the party to whom such notice is required to be given if mailed by registered or
certified mail, return receipt requested, postage prepaid or otherwise delivered by hand. The
address for such notices and communications shall be as follows:
If to the Company:
|
Westwood One, Inc. | |
00 Xxxx 00xx Xxxxxx | ||
0xx Xxxxx | ||
Xxx Xxxx, Xxx Xxxx 00000 | ||
Attn: General Counsel | ||
Phone: (000) 000-0000 | ||
Fax: (000) 000-0000 | ||
Email: xxxxxxxx@xxxxxxxxxxx.xxx | ||
With a copy to
(which shall not
constitute notice):
|
With a copy to: | |
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP 000 Xxxxx Xxxxx Xxxxxx |
||
Xxxxx 0000 | ||
Xxx Xxxxxxx, Xxxxxxxxxx 00000 | ||
Attn: Xxxxx X. XxXxxxxx | ||
Phone: (000) 000-0000 | ||
Fax: (000) 000-0000 | ||
Email: xxxxx.xxxxxxxx@xxxxxxx.xxx | ||
If to the Purchasers:
|
To the addresses set forth under such Purchaser’s name on the signature pages attached hereto. |
or such other address as may be designated in writing hereafter, in the same manner, by such Person
by two (2) Trading Days’ prior notice to the other party in accordance with this
Section 6.6.
24
6.7 Amendments; Waivers. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the same shall be in writing and
signed by the Company, and the Purchasers who, if before the Closing, have agreed to purchase not
less than majority of the Gores Series B Preferred Shares pursuant to Section 2.1 of this
Agreement, and if after the Closing Date, hold not less than majority of the Gores Securities
actually issued hereunder on a fully diluted as-converted basis (the “Majority Purchasers”). Any
waiver executed by the Majority Purchasers shall be binding on the Company and all holders of Gores
Securities. No waiver of any default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any
subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall
any delay or omission of either party to exercise any right hereunder in any manner impair the
exercise of any such right.
6.8 Construction. The headings herein are for convenience of reference only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof. Whenever the words “include”, “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation.” The words
“hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement. The
definitions contained in this Agreement are applicable to the singular as well as the plural forms
of such terms and to the masculine as well as to the feminine and neuter genders of such term. The
language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party. Any
contract, statute or rule defined or referred to herein means such contract, statute or rule as
from time to time amended, modified or supplemented, including (in the case of contracts) by waiver
or consent and (in the case of statutes or rules) by succession of comparable successor statutes or
rules and references to all attachments thereto and instruments incorporated therein. References
to a Person are also to its permitted successors and assigns.
6.9 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns. The Company may not
assign this Agreement or any rights or obligations hereunder without the prior written consent of
the Purchasers. Any Purchaser may assign its rights under this Agreement after the Closing to any
Person to whom such Purchaser assigns or transfers any Gores Securities, provided such transferee
agrees in writing to be bound, with respect to the transferred Gores Securities, by the provisions
hereof and of the applicable Transaction Documents that apply to the “Purchasers” and thereafter
shall be deemed a Purchaser for all purposes hereunder and under the other Transaction Documents.
Notwithstanding anything to the contrary herein, Securities may be pledged to a bank or financial
lending institution in connection with a bona fide loan or financing arrangement, provided,
that prior to any foreclosure thereunder such pledgee shall enter into an agreement, in form and
substance reasonably satisfactory to the Company, making the restrictions set forth in the
Transaction Documents applicable to such pledgee.
6.10 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person, except that each Indemnified Party
is an intended third party beneficiary of Section 4.11 and (in each case) may enforce the
provisions of Section 4.11 directly against the parties with obligations thereunder.
25
6.11 Governing Law; Venue; Waiver of Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal Laws of the State of New York. Each party
agrees that all legal proceedings concerning the interpretations, enforcement and defense of the
Transactions (whether brought against a party hereto or its respective Affiliates, directors,
officers, stockholders, employees or agents) shall be commenced exclusively in the state and U.S.
federal courts sitting in The City of New York, Borough of Manhattan. Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the state and U.S. federal courts sitting in
The City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any Transaction or discussed herein (including with respect to the
enforcement of any of this Agreement), and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper. Each party hereto hereby
irrevocably waives personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to
serve process in any manner permitted by Law. Each party hereto hereby irrevocably waives, to the
fullest extent permitted by applicable Law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or any of the Transaction Documents or the
Transactions. If either party shall commence a proceeding to enforce any provisions of this
Agreement or any Transaction Document, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its reasonable attorneys fees and other reasonable costs and
expenses incurred with the investigation, preparation and prosecution of such proceeding.
6.12 Execution. This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. If any signature is delivered by
facsimile transmission, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature page were an original thereof.
6.13 Severability. If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt
in good faith to agree upon a valid and enforceable provision that is a reasonable substitute
therefor and effects the original intent of the parties as closely as possible, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
6.14 Rescission and Withdrawal Right. Notwithstanding anything to the contrary
contained in (and without limiting any similar provisions of) the Transaction Documents, whenever
any Purchaser exercises a right, election, demand or option under a Transaction Document and the
Company does not timely perform its related obligations within the periods therein provided, then
such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written
notice to the Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights.
26
6.15 Replacement of Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, upon receipt of evidence to the Company’s
reasonable satisfaction of such mutilation, loss, theft or destruction, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of
and substitution therefor, a new certificate or instrument. Applicants for such substitute
certificates shall also comply with such other reasonable regulations and pay such other reasonable
charges incidental thereto as the Company may reasonably prescribe.
6.16 Remedies. In addition to being entitled to exercise all rights provided herein
or granted by Law, including recovery of damages, each of the Purchasers and the Company will be
entitled to specific performance under the Transaction Documents. The parties agree that monetary
damages may not be adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in any Proceeding for
specific performance of any such obligation the defense that a remedy at Law would be adequate.
6.17 Adjustments in Share Numbers and Prices. After the date hereof and before the
Closing, in the event of any stock split, subdivision, dividend or distribution payable in Common
Stock (or other securities or rights convertible into, or entitling the holder thereof to receive,
directly or indirectly, Common Stock), combination or other similar recapitalization or event (and
including all Common Stock issuable upon conversion of Gores Series B Preferred Shares) occurring
after the date hereof, each reference in this Agreement to a number of shares or a price per share
shall be amended to appropriately account for such event.
6.18 Series A Consent. The Purchasers, in their capacity as the holders of all of the
Company’s issued and outstanding Series A Preferred Stock, consent to the Transactions concurrently
with the Closing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW.]
SIGNATURE PAGES FOLLOW.]
27
IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement to be duly executed
by their respective authorized signatories as of the date first indicated above.
WESTWOOD ONE, INC. |
||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Chief Administrative Officer, Secretary and General Counsel |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF PURCHASER(S) FOLLOW.]
SIGNATURE PAGES OF PURCHASER(S) FOLLOW.]
GORES RADIO HOLDINGS, LLC | ||||||||
By: | The Gores Group, LLC, its Managing Member | |||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||||
Name: Xxxxxx X. Xxxxxx | ||||||||
Title: Vice President | ||||||||
Applicable Percentage: 100% | ||||||||
Address for Notice: | ||||||||
GORES RADIO HOLDINGS, LLC 00000 Xxxxxxxx Xxxxxxxxx 00xx Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000 Attn: General Counsel Phone: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxx@xxxxx.xxx |
||||||||
With a copy to (which shall not constitute notice): | With a copy to (which shall not constitute notice): | |||||||
GORES RADIO HOLDINGS, LLC 00000 Xxxxxxxx Xxxxxxxxx 00xx Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000 Attn: Xxx Xxxxxxxxxx Phone: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxx@xxxxx.xxx |
PROSKAUER ROSE LLP 0000 Xxxxxxx Xxxx Xxxx 00xx Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000 Attn: Xxxxxxx X. Xxxxxxxx, Esq. Phone: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxx@xxxxxxxxx.xxx |
Schedule 2.1(a)
Purchaser | Security | Allocation | Shares | |||||||||
Gores Radio Holdings, LLC |
Series A-1 Preferred Stock | 100 | % | 75,000 | ||||||||
Gores Radio Holdings, LLC |
Series B Preferred Stock | 100 | % | 25,000 |