Exhibit 99.1
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ASSET PURCHASE AGREEMENT
AMONG
FRANKLIN CAPITAL CORPORATION
(THE "PURCHASER")
AND
WINSTAR RADIO NETWORKS, LLC,
WINSTAR GLOBAL MEDIA, INC.
AND
WINSTAR RADIO PRODUCTIONS, LLC
(COLLECTIVELY, THE "SELLERS")
AUGUST 8, 2001
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), is entered into this
8th day of August, 2001, by and among WINSTAR RADIO NETWORKS, LLC., a Delaware
limited liability company, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("WRN"), WINSTAR GLOBAL MEDIA, INC., a Delaware corporation, 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ( "WGM"), and WINSTAR RADIO
PRODUCTIONS, LLC, a Delaware limited liability company, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("WRP" and, together with WRN and WGM,
"Sellers") and FRANKLIN CAPITAL CORPORATION., a Delaware corporation, 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx 00000 ( "Purchaser").
RECITALS
WHEREAS, Sellers are engaged in the business of producing and
distributing programming on various radio networks and selling advertising in
relation thereto (the "Business"); and
WHEREAS, Sellers have concluded that it would be in their collective
best interests if Sellers sold substantially all of their assets; and
WHEREAS, Purchaser desires to purchase from Sellers, and Sellers
desire to sell to Purchaser, certain of Sellers' assets as more fully described
herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, AGREE AS FOLLOWS:
1. The Purchase and Sale of Assets. Subject to the terms and conditions of this
Agreement, at the Closing, Purchaser shall purchase and accept from Sellers for
the Purchase Price (as defined in Section 2 herein), and Sellers shall sell,
assign, transfer, convey and deliver to Purchaser, all of Sellers' respective
rights, title and interest in and to the following assets (the "Assets"):
1.1 Sellers' accounts receivables, security deposits, and prepayments
except those receivables identified on SCHEDULE 1.1;
1.2 The contracts between the Sellers and the producers, advertisers,
employees, and independent contractors listed on SCHEDULE 1.2;
1.3 All Sellers' program archives and interviews ;
1.4 The furniture and fixtures listed in SCHEDULE 1.4;
1.5 The desktop computers, printers, software and equipment listed in
SCHEDULE 1.5. In the event that any computers, printers, software or equipment
located at the Sellers' facilities (the "Facilities") and used in the Business
are not owned by the Sellers, Sellers will cause the owner of such computers,
printers, software or equipment to enter into an agreement providing for
Purchaser's use such property free of charge or at such owner's actual cost (if
there is a cost associated with such equipment) for a period of not less than
twelve (12) months;
1.6 The production equipment listed in SCHEDULE 1.6;
1.7 The office leases for certain facilities listed in SCHEDULE 1.7;
and
1.8 All intellectual property owned by Sellers that is associated
with the assigned radio programs and program archives, including without
limitation all of Sellers' right title and interest in and to the name "Global
Media," but excluding any and all trade names trademarks or other intellectual
property that includes the name "Winstar." Purchaser acknowledges that Sellers
make no representations or warranties regarding any trademarks and/or trade
names, and that Sellers have not taken any steps to perfect their rights in and
to the name "Global Media."
2. Purchase Price. The purchase price for the Assets (the "Purchase Price")
shall be the aggregate of the amounts detailed in Section 2.1 below.
2.1 Purchase Price. The Purchase Price will be Six Million Two
Hundred Thousand Fifty Dollars ($6,250,000). The Purchaser will pay Sellers the
Purchase Price as follows:
2.1.1 $5,250,000, less Counsel Fees (as defined in Section 2.2
herein) by wire transfer in immediately available funds or by certified check,
at Closing, as directed by Sellers in writing to Purchaser (the "Payment");
2.1.2 a promissory note (the "Note") in the amount of $1,000,000 with
simple interest at LIBOR, with a maturity date six months from the Closing Date.
The Note shall provide that Purchaser shall have the right to set off against
the payment of principal and interest at maturity any amounts incurred by
Purchaser arising from Sellers' breach of its representations and warranties
contained in sections 5.5 and 5.6 herein and/or amounts incurred in defending
against third party claims arising from or relating to Sellers' alleged breaches
of such representations and warranties.
2.2 Sellers' Counsel Fees. The Purchaser shall deduct from the
Purchase Price and pay directly to Sellers' counsel their legal fees associated
with this transaction, if any, that have not already been paid by Sellers
("Counsel Fees") as reflected in an invoice from Sellers' counsel (the "Counsel
Invoice"), which will be provided to the Sellers at least two Business Days
prior to Closing. A Business Day is any Monday through Friday of the year on
which national banking institutions in the City of New York, New York are open
to the public for conducting business and are not required to be closed.
2.3 Payment. At Closing, Purchaser shall pay the Payment, as directed
by Sellers to Purchaser in writing, by wire transfer in immediately available
funds or by certified check, and shall pay the Counsel Fees, if any, directly to
Sellers' counsel, by wire transfer in immediately available funds or by
certified check.
3. Assumption of Liabilities. Upon Closing, the Purchaser shall assume the
obligation to satisfy the following (the "Assumed Liabilities"):
3.1 all payables related to the Business that have arisen in the
ordinary course of business in the thirty (30) days prior to the Closing (other
than such payables which the Purchaser has not been made aware of on or prior to
the Closing) that will be listed in SCHEDULE 3.1, which schedule will be
delivered to Purchaser at least 2 Business Days prior to Closing; provided,
however, such liabilities shall not exceed $500,000 in the aggregate;
3.2 all liabilities related to the operation of the Business incurred
or arising after the Closing Date,
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3.3 all amounts due and payable to Xxxxxx Xxxx at the time of Closing
as listed in SCHEDULE 3.1, which liability shall not exceed $500,000; and
3.4 all amounts due and payable to Launch Media at the time of
Closing which liability shall not exceed $329,000.
Purchaser is not assuming any liability of any of the Sellers or of
the Business except as expressly provided in this Section 3. Furthermore, it is
expressly agreed that Purchaser is not assuming any of the liabilities on
Schedule 1.1.
4. Retained Assets and Obligations. Sellers shall retain the following assets
and liabilities (the "Retained Assets and Liabilities"):
4.1 all liabilities related to the Business other than the Assumed
Liabilities; and
4.2 all other rights and assets of Sellers and of the Business not
expressly assigned or transferred to or assumed by Purchaser hereunder.
5. Sellers' Representations. Each Seller, jointly and severally, represents and
warrants to Purchaser as follows:
5.1 Organization. Such Seller is a duly and validly organized limited
liability company or corporation, as applicable, in good standing under the laws
of the State of Delaware, and has all requisite limited liability company or
corporate, as the case may be, power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby (the "Transaction").
5.2 Authority. Such Seller has duly and validly taken all action
necessary to authorize the execution, delivery and performance of this Agreement
and all other agreements and instruments to be delivered by such Seller in
connection with the Transaction, and this Agreement and such other agreements
and instruments required to be executed and delivered by such Seller have been,
or when delivered, will have been, duly executed and delivered by such Seller.
5.3 Binding. Subject to the terms and conditions hereof, this
Agreement constitutes the valid, binding and enforceable obligations of such
Seller, enforceable in accordance with its terms, except as enforceability may
be limited or barred by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws of general application now or
hereafter in effect affecting the rights and remedies of creditors and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
5.4 No Conflicts. Neither the execution and delivery of this
Agreement by such Seller or any other agreements or instruments to be delivered
by such Seller in connection with the Transaction nor the consummation by such
Seller of the transactions contemplated hereby or thereby: (a) violates or
conflicts with the certificate of formation or incorporation or the limited
liability operating agreement or by-laws of such Seller; (b) violates or
conflicts with, or constitutes a default under, or results in a breach of, or
gives rise to any right of termination, cancellation or acceleration under, any
term or provision of any license, loan agreement, promissory note, indenture or
other contract to which such Seller is a party or by which such Seller or the
Assets are bound or affected; or (c) violates or conflicts with any order, writ,
injunction, or decree of any court, administrative agency or governmental body,
or require the approval, consent, or permission of any governmental or
regulatory body or authority.
5.5 Title to Assets. Such Seller has or, at Closing will have, good
and marketable title, and at the Closing, such Seller shall deliver to Buyer,
good and marketable title to all of the Assets owned by such Seller, free and
clear of all liens, encumbrances and rights of third parties.
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5.6 Consents. To the best of Sellers' knowledge, no consent or
approval from any individual, corporation, partnership, firm, joint venture,
association, joint-stock company, trust, unincorporated organization or limited
liability corporation (collectively, "Person") or governmental authority
(including, without limitation, any bankruptcy court or creditors' committee) is
required for the execution and delivery of this Agreement by the Sellers.
5.7 Litigation. Except as disclosed on SCHEDULE 5.7, there is no
claim, dispute, grievance, arbitration, action, proceeding or investigation
pending or threatened against such Seller including, without limitation, by
former employees arising from such individuals' employment with such Seller,
related to the Business or the Assets and such Seller is not in default in
respect of any judgment, order, writ, injunction or decree of any court or any
federal, state, local or other governmental department, commission, board,
bureau, agency or instrumentality related to the Business or the Assets.
5.8 Taxes. Such Seller has satisfied all federal, state and local tax
liabilities due prior to Closing in connection with the Business.
5.9 Accounts Receivable and Payable. SCHEDULE 5.9 will be delivered
to Purchaser at least two Business prior to the Closing Date, which Schedule
will reflect the accounts receivable of the Business as of three Business Days
prior to the Closing Date and the related aging report as of such date. The
accounts receivables being sold to the Purchaser hereunder are valid and genuine
accounts receivables, arising in the ordinary course of business. Sellers have
been paying off their respective accounts payable in the ordinary course of
business consistent with past practice.
5.10 The amount of Sellers' accounts receivable at the time of
Closing will be approximately $4,900,000 ("Closing Receivables"), and the
accounts payable to third party producers associated with such receivables will
be approximately $2,600,000 ("Producer Payables"). In the event that the
difference between the actual Closing Receivables and actual Producer Payables
("Receivables Differential") is less than $2,200,000 as reflected in SCHEDULE
5.10, Purchaser may reduce the Purchase Price by the amount by an amount equal
to $2,200,000 less the Receivables Differential (the "Payment Reduction"), which
Capital Reduction shall be Purchaser's sole remedy for a breach of this section.
In the event that the Receivables Differential exceeds $2,400,000, the Purchase
Price shall be increased by an amount equal to the Receivables Differential less
$2,400,000 (the "Payment Increase").
5.11 Contracts. True, correct and complete copies of the contracts
listed on SCHEDULE 1.2 (the "Assumed Contracts") have been reviewed by
Purchaser. Sellers are not in material breach of or default under any of the
Assumed Contracts. There has not occurred any material default by any Seller or,
to the best of Seller's knowledge by any other person, who is a party thereto
under any Assumed Contract. The Assumed Contracts were made in the ordinary
course of business, are valid and binding agreements and are in full force and
effect and have not been revoked or canceled by any Seller or by any other party
thereto. No Seller has received any notice from a party to any Assumed Contract
that it is a party to that such party intends to terminate such Assumed Contract
or that such Seller is in breach of such Assumed Contract.
5.12 Financial Information. Sellers have delivered to Buyer correct
and complete copies of an unaudited balance sheet and the related statements of
operations for the Business for the period ended June 30, 2001 (collectively,
the "Financial Statements"), copies of which are attached as SCHEDULE 5.12. The
Financial Statements (i) have been prepared in accordance with the books and
records of Sellers and Generally Accepted Accounting Principles and (ii) fairly
present, in all material respects, the financial condition and the results of
operations of the Business as of and for the respective period ended on such
date, subject to normal year-end adjustments (none of which are anticipated to
be material in amount).
5.13 Employee Matters. Set forth on SCHEDULE 5.13 is a correct and
complete list of each of the employees of the Business, their current salaries
and the respective dates such employees began working for the Business. A
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correct and complete summary of the benefit package that the Sellers' current
employees receive is set forth on SCHEDULE 5.13. No employee has notified any of
the Sellers' that such employee intends to terminate his or her employment with
such Seller.
5.14 Proprietary Rights. The Sellers are the exclusive owners of the
Intellectual Property being transferred pursuant to Section 1.8. Sellers have
not received any notices of any challenge of any kind with respect thereto.
5.15 Programming and Affiliate Stations. SCHEDULE 5.15 will be
delivered to Purchaser at least three Business Days prior to the Closing Date
and such schedule will contain a listing of the owned and operated programming
of the Business and of the affiliate stations by owned and operated programming
that is true and correct in all material respects.
5.16 Insurance. SCHEDULE 5.16 is a true and accurate listing of
insurance policies currently in effect relating to the Business.
6. Purchaser's Representations. The Purchaser represents and warrants to Sellers
as follows:
6.1 Organization. Purchaser is a duly and validly organized
corporation in good standing under the laws of its State of Delaware
and it has all requisite corporate power and authority to enter into
this Agreement and to consummate the Transaction.
6.2 Authority. All corporate action necessary to be taken by
Purchaser to authorize the execution, delivery and performance of
this Agreement and all other agreements associated herewith has, or
at the Closing will have been, duly and validly taken and this
Agreement and such other agreements and instruments have been, or
when delivered, will have been, duly executed and delivered by
Purchaser.
6.3 Binding. Subject to the terms and conditions hereof, this
Agreement constitutes valid, binding and enforceable obligations of
Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited or barred by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
similar laws of general application now or hereafter in effect
affecting the rights and remedies of creditors and by general
principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity).
6.4 Financing. Prior to 5:00 p.m. in New York City on Friday, August
10, 2001, Purchaser shall have financing available sufficient to
consummate the Transaction, and has the ability to deliver the
Purchase Price with no further third party approvals.
7. Purchaser's Retention of Employees. Promptly after mutual execution
of this Agreement, Purchaser shall make contingent offers of
employment ("Offers") to all of Sellers' current employees listed on
SCHEDULE 5.13 (the "Employees"). Purchaser shall offer each Employee
employment in positions comparable to such Employee's current
position with Sellers, with salaries and benefits which, taken as a
whole are generally no less favorable than are currently provided by
Sellers. The Offers shall be contingent on Closing, and will require
each Employee to voluntarily resign his or her position with Sellers
on or before Closing. Provided that Purchaser is in compliance with
the terms of this Section, Sellers waive any objection to Purchaser's
solicitation of its employees listed on SCHEDULE 5.13 Purchaser
agrees to employ each Employee with no reduction in salary or
benefits or material modification in responsibilities or seniority
until December 31, 2001 provided that Purchaser shall have the right
to terminate any such Employee for cause at any time. Purchaser shall
be solely liable for any and all severance liability associated with
terminating any Employee for any reason, including for cause, after
Closing, and will indemnify and hold harmless Sellers against any
claim asserted by an Employee based on Purchaser's breach of the
terms of this section.
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8 The Closing.
8.1 Closing. Subject to the terms and conditions of this Agreement,
the closing of the transactions contemplated herein (the "Closing")
shall take place at the offices of Arent Fox Xxxxxxx Xxxxxxx & Xxxx,
PLLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. on or
about August 15, 2001, or at such time, date or place as the parties
may agree upon in writing. The date on which the Closing occurs is
referred to herein as the "Closing Date."
8.2 Sellers' Deliveries. At the Closing, Sellers shall deliver
to Purchaser:
8.2.1 Assignment Agreement, in the form attached as EXHIBIT
A, or such other form as necessary to convey good and
marketable title to the Purchaser, for all contracts,
intellectual property and receivables included in the
Assets.
8.2.2 Xxxx of Sale, in the form attached as EXHIBIT B, or
such other form as necessary to convey good and marketable
title to the Purchaser, for all inventory, personal
property and real estate included in the Assets.
8.2.3 Receipt for the Payment.
8.2.4 Counsel Invoice, as described in Section 2.1.
8.2.5 Copies, certified by the Secretaries of Sellers, of
the minutes of the meetings of Sellers' governing body at
which authority was granted to consummate this transaction.
8.2.6 A consent of the Sellers' sole shareholder,
approving the transactions contemplated herein.
8.2.7 A certificate, executed by an officer of each of the
Sellers, certifying that the representations and warranties
are true and correct as of the Closing Date.
8.2.8. Documentation reflecting that all liens relating
to the Assets have been terminated.
8.2.9 A consent from Xxxxxx Xxxx pursuant to Section 11.6
herein.
8.2.10 A consent from any third party whose consent is
required to effect the transfer of good and marketable
title to the Assets as contemplated herein.
8.3 Purchaser's Deliveries. At the Closing, Purchaser shall
deliver to the Sellers:
8.3.1 Copies, certified by the Secretary of Purchaser, of
the minutes of the meeting of Purchaser's Board of
Directors at which authority was granted to consummate this
transaction.
8.3.2 Payment of the Payment as outlined in Section 2.2
herein.
8.3.3 Evidence of payment of Sellers' Counsel Fees.
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8.4 Further Assurances. After the Closing Date, each party, at the
request of the other, shall furnish, execute, and deliver such
documents, instruments, certificates, notices, or other further
assurances as the requesting party shall reasonably request as
necessary or desirable to effect complete consummation of this
Agreement.
9. Survival of Representations, Warranties and Covenants. The representations,
warranties and covenants of the parties contained in this Agreement, and all
statements contained in this Agreement, the Schedules and the Exhibits to this
Agreement, and any other document delivered by the parties pursuant to this
Agreement or in connection with the transactions contemplated by this Agreement
(collectively, the "Transaction Documents"), shall survive the Closing Date
until the first anniversary of the Closing Date.
10. Additional Covenants.
10.1 Conduct of Business. Between the date of this Agreement and the
Closing Date, the Sellers shall operate the Business only in the
usual, regular and ordinary manner as such Business was conducted
prior to the date hereof and, to the extent consistent with such
operation, use their reasonable efforts to preserve, consistent with
past practice, their relationships with customers, suppliers,
employees, program producers and others having business dealings with
Sellers until the Closing Date.
10.2 Financial Matters. Between the date of this Agreement and the
Closing Date, the Sellers will not shorten or lengthen the customary
payment cycles or modify the terms of any of their receivables or
payables, respectively.
10.3 Maintenance of Insurance. The insurance policies as listed on
SCHEDULE 5.16 will remain in full force and effect between this date
and the Closing Date.
10.4 Cooperation with Auditors. The Sellers will use their best
efforts to make their outside auditors available to the Purchaser and
cooperate with the Purchaser and such auditors in connection with
Purchaser's preparation of audited financial statements for the
Business; provided, however, the cost of such auditors shall be borne
by the Purchaser.
10.5 Transition Services. Sellers shall provide the services listed
on SCHEDULE 10.5 to Purchaser for ninety (90) days after Closing at
customary rates, if any.
11. Conditions to Obligations of Purchaser. The obligation of Purchaser
to consummate the transactions contemplated by this Agreement shall
be subject to the fulfillment, at or prior to the Closing, of each of
the following conditions:
11.1 No Proceeding or Litigation. (i) No action shall have been
commenced by any governmental authority against Sellers or Purchaser
seeking to restrain or materially and adversely alter the
transactions contemplated hereby and (ii) no injunction or order of
any governmental authority or law shall be in effect, which, in the
case of each of (i) and (ii), is likely to render it impossible or
unlawful to consummate the transactions contemplated by this
Agreement.
11.2 Organizational Documents and Resolutions. Purchaser shall have
received true and complete copies of resolutions duly and validly
adopted by the governing body of each of the Sellers and of the
Sellers' sole shareholder evidencing their authorization of the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, accompanied by a certificate of the
Secretary or Assistant Secretary of such Seller, dated as of the
Closing Date, stating that such resolutions were duly adopted and are
in full force and effect.
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11.3 Sellers' Deliveries. Sellers shall have provided to Purchaser
the items specified in Section 8.2 herein.
11.4 Termination of Liens. On or before the Closing Date, Purchaser
shall have received written evidence from Sellers that all liens
related to the Assets, if any, have been terminated.
11.5 Representations and Warranties of Sellers. All representations
and warranties of Sellers contained in this Agreement, subject to the
variance contemplated in sections 5.10, shall be true and correct, as
of the date of this Agreement and as of the Closing Date, as though
made on and as of the Closing Date.
11.6 Consent of Xxxxxx Xxxx. Xxxxxx Xxxx shall have consented to the
assignment of his employment contract to Purchaser, and will have
certified that all amounts due to him as of the Closing Date, except
amounts relating to the liabilities assumed by Purchaser under
Section 3.3 herein have been paid in full.
11.7 Material Adverse Change. There will be no material adverse
change in the business, properties, results of operations, condition
(financial or otherwise) or prospects of the Sellers between June 30,
2001 and the Closing Date.
12. Termination.
12.1 Termination. This Agreement may be terminated (by delivery of
written notice) at any time prior to the Closing Date only as
follows:
12.1.1 by written agreement of Sellers and Purchaser at
any time;
12.1.2 by Purchaser or by Sellers in the event that any
governmental authority shall have issued an order, decree
or ruling or taken any other action restraining, enjoining
or otherwise prohibiting the transactions contemplated by
this Agreement and such order, decree, ruling or other
action shall have become final and nonappealable; provided
that the terminating party has not instigated or been
instrumental in instigating the action in which any such
order, decree or ruling is issued;
12.1.3 by either Sellers or Purchaser by written notice
given to the other at any time after September 30, 2001 if
, through no fault of the party seeking termination, the
Closing shall not have occurred;
12.1.4 by Sellers in the event that the Payment Reduction
pursuant to Section 5.10 exceeds $500,000, unless
Purchaser waives its right to have the Purchase Price
reduced the amount of the Payment Reduction in excess of
$500,000; and
12.1.5 by Purchaser, in the event that the Payment
Increase pursuant to Section 5.10 exceeds $500,000, unless
Sellers waives their right to have the Purchase Price
increased the amount of the Payment Increase in excess of
$500,000
12.2 Effect of Termination. In the event this Agreement is terminated
pursuant to Section 12.1, this Agreement shall forthwith be canceled
and rendered null and void in its entirety without further liability
or obligation of any party to another party, except that if this
Agreement terminates as a result of Sellers' failure to meet a
condition necessary for Closing, or if Seller otherwise refuses to
complete this transaction, Seller shall reimburse Purchaser for its
reasonable out of pocket expenses incurred to the date of
termination; provided, however, any termination pursuant to Section
12.1. shall not be deemed a waiver of any rights or remedies
otherwise available under this Agreement, by operation of law or
otherwise and shall not relieve a breaching party (whether or not it
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is the terminating party) from any liability to the other party
hereto arising from or related to such breach.
13. Miscellaneous.
13.1 Non-Disclosure. Subject to Sellers' obligation to disclose the
terms and conditions of this Agreement to Franklin, and the
obligations of Sellers' direct and indirect parent corporations,
Winstar New Media Co., Inc. and Winstar Communications, Inc., to
secure the highest and best offers pursuant to section 363 of the
Bankruptcy Code, unless otherwise mutually agreed or required by
applicable law, none of the parties will disclose in any way to any
third party any information whatsoever relating to this transaction,
except as required by law, including securities laws and regulations.
Moreover, except as required by law and except for the press release
in the form of SCHEDULE 14 annexed hereto, none of the parties will
issue a news release or other public announcement concerning this
transaction prior to Closing Date, and thereafter will not make any
such announcement without the prior approval of the others.
13.2 Notices. All notices, requests, deliveries, payments, demands
and other communications which are required or permitted to be given
under this Agreement shall be deemed given if given in writing, by
hand, or delivered by nationally recognized overnight courier, or by
telecopier and confirmed by mail (registered or certified mail,
postage prepaid, return receipt requested) at their respective
addresses set forth herein, or to such other address as either shall
have specified by notice in writing to the other.
13.3 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
13.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended except by writing executed
by Sellers and Purchaser.
13.5 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and, to the extent
not prohibited herein, their respective heirs, successors, assigns
and representatives. Nothing in this Agreement, expressed or implied,
is intended to confer any rights, remedies, obligations or
liabilities on any person other than the parties hereto and as
provided above, their respective heirs, successors, assigns and
representatives.
13.6 Governing Law and Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions). Each party (i) agrees
that any legal suit, action or proceeding arising out of or relating
to this Agreement shall be instituted exclusively in the state or
federal courts located in New York County, New York, (ii) waives any
objection to the venue of any such suit, action or proceeding and the
right to assert that such forum is not a convenient forum, and (iii)
irrevocably consents to the jurisdiction of the New York Supreme
Court, County of New York, and the United States District Court for
the Southern District of New York (as specified above) in any such
suit, action or proceeding. Each party further agrees to accept and
acknowledge service of any and all process which may be served in any
such suit, action or proceeding in the New York Supreme Court, County
of New York, or in the United States District Court for the Southern
District of New York and agrees that service of process upon him or
it mailed by registered mail to his or its address shall be deemed in
every respect effective service of process in any such suit, action
or proceeding.
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13.7 Headings. The headings contained in this Agreement are solely
for convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or
provisions of this Agreement.
13.8 Severability. The invalidity or unenforceability of any term or
provision of this Agreement in any situation or jurisdiction shall
not affect the validity or enforceability of the other terms or
provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction
and the remaining terms and provisions shall remain in full force and
effect, unless doing so would result in an interpretation of this
Agreement which is manifestly unjust.
13.9 Fees and Expenses. All costs and expenses (including, without
limitation, legal and financial advisory fees and expenses) incurred
in connection with, or in anticipation of, this Agreement and the
transactions contemplated hereby shall be paid by the party incurring
such expenses.
13.10 Counterparts This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original
instrument and all of which together shall constitute a single
agreement.
13.11 Assignment. This Agreement and the rights and obligations
hereunder may not be assigned by any party hereto without the prior
written consent of the other parties (other than to a party's parent
company, majority-owned affiliates of the parent company,
majority-owned subsidiaries of the party, or to the surviving entity
resulting from the merger or the sale of stock of such party to a
third party).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by the appropriate officers,
hereunder duly authorized on the day and year first written above:
PURCHASER:
FRANKLIN CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman & CEO
SELLERS:
WINSTAR RADIO NETWORKS, LLC
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: CEO
WINSTAR GLOBAL MEDIA, INC
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: CEO
WINSTAR RADIO PRODUCTIONS, LLC
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: CEO
11
