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EXHIBIT 2.5
AMENDMENT NO. 4
TO
STOCK PURCHASE AGREEMENT
AMENDMENT NO. 4 dated as of January 29, 1998 (this "Amendment"), by
and among Xxxxxxxxx Broadcasting, Inc., a Delaware corporation (the "Company"),
Capstar Broadcasting Corporation, a Delaware corporation ("Buyer"), Capstar
Acquisition Company, Inc., a Delaware corporation ("Assignor"), Capstar
Broadcasting Partners, Inc., a Delaware corporation ("Capstar"), and The
Xxxxx-Xxxxxxx-Xxxxx Corporation, a Delaware corporation, as representative of
the stockholders of the company (the "Stockholders' Representative"), to the
Stock Purchase Agreement dated as of June 12, 1997, as amended by Amendment No.
1 dated as of July 2, 1997, Amendment No. 2 dated as of August 25, 1997 and
Amendment No. 3 dated as of January 19, 1998 (as amended, the "Purchase
Agreement"), by and among Assignor, Capstar Partners, the Company, the
Stockholders' Representative and each of the person identified ion Schedule I
thereto (the "Selling Stockholders"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the
Purchase Agreement.
WITNESSETH:
WHEREAS, the parties hereto have entered into the Purchase Agreement
pursuant to which, among other things, the Selling Stockholders have agreed to
sell, and Assignor has agreed to purchase, the Shares and the Series A
Preferred Shares;
WHEREAS, effective as of January 26, 1998, Buyer has assumed all of
Assignor's rights an obligations under the Purchase Agreement; and
WHEREAS, the parties hereto desire to amend certain of the provisions
of the Purchase Agreement as more particularly described below.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
AMENDMENT TO PURCHASE AGREEMENT
1.01 Buyer hereby represents and warrants to each Selling
Stockholder and the Company as of the date hereof (with the understanding that
the Selling Stockholders and the Company are relying on such representations
and warranties in entering into and performing the Purchase Agreement) that
each of the representations and warranties set forth on Exhibit A hereto are
true and correct as of the date hereof, all of which representations and
warranties are incorporated into the
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Purchase Agreement by reference as if such representations and warranties were
made in the Purchase Agreement. Buyer hereby acknowledges and agrees that, by
its execution hereof, Buyer hereby assumes all of the obligations and duties of
Assignor under or in respect of the Purchase Agreement, as amended by this
Amendment, without releasing the Assignor from any of its obligations or duties
thereunder.
1.02 The parties hereby acknowledge and agree that Paragraph
B(8)(c)(11) of Schedule 3.1(p) of the Purchase Agreement is hereby amended by
adding the following footnote (1) at the end thereof:
"(1) The Company must report the date and nature
of the change of ownership of the stations within 30 days of
such change."
1.03 The parties hereto acknowledge and agree that Section
9.2(b)(vii) of the Purchase Agreement is hereby deleted in its entirety.
1.04 The parties hereto acknowledge and agree that Section 5.8 of
the Purchase Agreement is hereby deleted in its entirety and the following
substituted therefor:
"5.8 Employment Agreements. Subject to the terms
and conditions hereof, Buyer shall enter into an (x) Agreement
with Xxxxx X. Xxxxxx, Xx. in the form attached as Exhibit 1 to
Amendment No. 4 to the Purchase Agreement and (y) Employment
Agreement with Xxxxx X. Xxxxxx in the form attached as Exhibit
2 to Amendment No. 4 to the Purchase Agreement."
1.05 The parties hereto acknowledge and agree that Section 5.9 of
the Purchase Agreement is hereby deleted in its entirety.
1.06 The parties hereto acknowledge and agree that the definition
of "Cash on Hand" is hereby deleted in its entirety and the following
substituted therefor:
"Cash on Hand" means all cash and cash equivalents of
the Company or its subsidiaries as of 12:01 a.m. on January
28, 1998 (Pacific Time) that is not utilized to pay Funded
Debt or otherwise utilized pursuant to Section 2.9, but shall
not include any Acquisition Escrow Amount."
ARTICLE II
MISCELLANEOUS
2.01 INVALIDITY, ETC. If any provision of this Amendment, or the
application of any such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction,
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the remainder of this Amendment, or the application of such provision to
persons or circumstances other than those as to which it is held invalid, shall
not be affected thereby.
2.02 GOVERNING LAW. This Amendment shall be interpreted,
construed, and enforced under and according to the laws of the State of New
York.
2.03 RECITALS. The recitals set forth in the "Whereas" clauses in
this Amendment are true and correct and are hereby incorporated herein by
reference and made a part of the Purchase Agreement as amended hereby.
2.04 COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
2.05 RATIFICATION. The parties hereto hereby ratify and approve
the Purchase Agreement, as amended hereby, and the parties hereto acknowledge
that all of the terms and provisions of the Purchase Agreement as amended
hereby, are and remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
ASSIGNOR:
CAPSTAR ACQUISITION COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
BUYER:
CAPSTAR BROADCASTING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
CAPSTAR:
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
THE COMPANY:
XXXXXXXXX BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: President
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THE STOCKHOLDERS' REPRESENTATIVE:
THE XXXXX-XXXXXXX-XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF BUYER
(a) ORGANIZATION STANDING AND POWER. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
Buyer is the ultimate parent of Assignor, Capstar, the entities acquired in the
Benchmark Acquisition and directly or indirectly holds all of the issued and
outstanding capital stock of each entity set forth on Schedule 3.4(a) to the
Purchase Agreement.
(b) AUTHORITY. Buyer has all requisite corporate power and
authority to enter into this Amendment and the other Transaction Documents to
which it is a party and to consummate the transactions contemplated by the
Purchase Agreement, as amended by this Amendment, and the Transaction
Documents. The execution and delivery of this Amendment and the other
Transaction Documents to which it is a party and the consummation by it of the
transactions contemplated by the Purchase Agreement, as amended by this
Amendment, and the other Transaction Documents have been duly authorized by all
necessary action on the part of Buyer. The Purchase Agreement, as amended by
this Amendment, and the other Transaction Documents to which Buyer is a party
have been, or upon execution and delivery will be, duly executed and delivered
and constitute the valid and binding obligations of Buyer.
(c) NO CONFLICT; REQUIRED FILINGS AND CONSENTS. Neither the
execution and delivery of this Amendment and the other Transaction Documents to
which Buyer is a party nor the performance by Buyer of the transactions
contemplated by the Purchase Agreement, as amended by this Amendment, or the
other Transaction Documents will, subject to obtaining the consents, approvals,
authorizations, and permits and making the filings set forth on Schedule 3.4(c)
to the Purchase Agreement or as described in this clause (c), (i) violate,
conflict with, or result in any breach of any provisions of Buyer's Certificate
of Incorporation or Bylaws, (ii) violate, conflict with, or result in a
violation or breach of, or constitute a default (with or without due notice or
lapse of time or both) under, any of the terms, conditions, or provisions of
any loan or credit Agreement, note, bond, mortgage, indenture, or deed of
trust, or any license, lease, Agreement, or other instrument or obligation to
which Buyer is a party or by which it or any of its assets is bound, or (iii)
violate any order, writ, judgment, injunction, decree, statute, law, rule or
regulation, of or registration, declaration, or filing with any Governmental
Entity applicable to Buyer or by which it or any of its assets is bound. No
Consent of any Governmental Entity is required by or with respect to Buyer in
connection with the execution and delivery of this Amendment or any other
Transaction Documents by Buyer or the consummation by it of the transactions
contemplated by the Purchase Agreement, as amended by this Amendment, or the
other Transaction Documents, except for (A) the FCC Consents (as contemplated
by Section 7.1 of the Purchase Agreement) and notification to the FCC upon
consummation, (B) the filing of a premerger notification report and any other
filing required under the HSR Act and the expiration or termination of any
waiting period in connection
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therewith, and (C) applicable requirements, if any, of the Securities Act and
Exchange Act and the rules and regulations thereunder and state securities or
blue sky laws.
(d) LITIGATION. As of the date hereof, there is no action, suit,
judicial or administrative proceeding pending or, to the Knowledge of Buyer,
threatened against it relating to the transactions contemplated by the Purchase
Agreement, as amended by this Amendment, or any other Transaction Documents or
which, if adversely determined, would adversely affect its ability to
consummate the transactions contemplated by the Purchase Agreement, as amended
by this Amendment, or the other Transaction Documents or to perform its
covenants and agreements under the Purchase Agreement, as amended by this
Amendment, or any other Transaction Document.
(e) FCC MATTERS. Except as set forth in Schedule 3.3(e) to the
Purchase Agreement, there are no facts relating to Buyer (or an Affiliate
thereof) under the Communications Act that would disqualify it (or any
Affiliate or assignee) from obtaining control of the Station Licenses or that
would prevent it (or any Affiliate or assignee) from consummating the
transactions contemplated by this Agreement or materially delay the grant of
the FCC Consents. Except as may be set forth in Schedule 3.3(e) to the
Purchase Agreement, it is not necessary for Buyer, Capstar or any subsidiary or
other Affiliate of Buyer or Capstar to seek or obtain any waiver from the FCC,
dispose of any interest in any media or communications property or interest
(including, without limitation, any of the Stations), terminate any venture or
arrangement, or effectuate any change or restructuring of its ownership
(including, without limitation, the removal or withdrawal of officers or
directors or the conversion or repurchase of equity securities in Buyer or
Capstar or any Affiliate) to obtain, or to avoid any delay in obtaining, the
FCC Consents. Buyer is able to certify on an FCC Form 315 that it is
financially qualified.
(f) INVESTMENT INTENT. The Shares and Series A Preferred Shares
to be acquired by Buyer are being acquired for its own account, for investment
and with no intention of distributing or reselling such Shares or Series A
Preferred Shares or any part thereof or interest therein in any transaction
which would be a violation of the securities laws of the United States of
America or any state or any foreign country or jurisdiction. Buyer has not
been formed for the purpose of acquiring the Shares or Series A Preferred
Shares and Buyer is a sophisticated investor and has such Knowledge,
sophistication and experience in business and financial matters so as to be
capable to evaluating the merits and the risks of acquiring the Shares and
Series A Preferred Shares and is able to bear the risks of such investment.
Buyer acknowledges that (i) the Shares and Series A Preferred Shares are
"restricted securities" (as defined under the rules and regulations promulgated
under the Securities Act), (ii) the Shares and Series A Preferred Shares have
not been issued or sold pursuant to any registration or similar filing,
listing, prospectus or document, or pursuant to any delivery requirements under
the laws of any Governmental Entity or the rules, regulations or guidelines of
any stock exchange or quotation system and (iii) it has had access to all
information which it considers necessary or advisable to enable it to make a
decision concerning the purchase of the Shares and Series A Preferred Shares.
At the date hereof, Buyer is an "accredited investor" as defined in Rule 501
under the Securities Act.
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