1
EXHIBIT 10.27
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BETWEEN
CHANCELLOR MEDIA CORPORATION
AND
RANGER EQUITY HOLDINGS CORPORATION
DATED AS OF JULY 7, 1998
2
TABLE OF CONTENTS
ARTICLE I
THE MERGER
1.1 THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 EFFECTIVE TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 CERTIFICATE OF INCORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 BYLAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.6 DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.7 OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.8 EFFECT ON LIN CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Outstanding LIN Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Treasury Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Impact of Stock Splits, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.9 EFFECT ON CHANCELLOR CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.10 EXCHANGE OF CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Exchange Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Letter of Transmittal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Distributions with Respect to Unexchanged Shares . . . . . . . . . . . . . . . . . . . . . 6
(e) No Further Ownership Rights in LIN Common Stock . . . . . . . . . . . . . . . . . . . . . . 6
(f) No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(g) Termination of Payment Fund . . . . . . . . . . . . . . . . . . . . . . . 7
(h) No Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(i) Withholding of Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.11 DISSENTING SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF LIN
2.1 ORGANIZATION, STANDING AND CORPORATE POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 CAPITAL STRUCTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.3 AUTHORITY; NONCONTRAVENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.4 LIN SEC DOCUMENT; FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.5 ABSENCE OF CERTAIN CHANGES OR EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.6 NO EXTRAORDINARY PAYMENTS OR CHANGE IN BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.7 VOTING REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.8 STATE TAKEOVER STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.9 LIN FCC LICENSES; OPERATIONS OF LIN LICENSED FACILITIES . . . . . . . . . . . . . . . . . . . . . . 15
2.10 BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.11 FCC QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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2.12 COMPLIANCE WITH APPLICABLE LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.13 ABSENCE OF UNDISCLOSED LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.14 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.15 TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.16 LABOR MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.17 EMPLOYEE ARRANGEMENTS AND BENEFIT PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.18 TAX MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.19 INTELLECTUAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.20 ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.21 MATERIAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.22 TANGIBLE PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.23 NBC STATION VENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.24 NO OTHER REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CHANCELLOR
3.1 ORGANIZATION, STANDING AND CORPORATE POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.2 CAPITAL STRUCTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.3 AUTHORITY; NONCONTRAVENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.4 CHANCELLOR SEC DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.5 ABSENCE OF CERTAIN CHANGES OR EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.6 NO EXTRAORDINARY PAYMENTS OR CHANGE IN BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.7 BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.8 OPINION OF FINANCIAL ADVISOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.9 ABSENCE OF UNDISCLOSED LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.10 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.11 TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.12 CHANCELLOR COMMON STOCK
3.13 VOTING REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.14 FCC QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.15 EMPLOYEE ARRANGEMENTS AND BENEFIT PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.16 TAX MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.17 INTELLECTUAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.18 ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.19 NO OTHER REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 PREPARATION OF FORM S-4 AND PROXY STATEMENT/PROSPECTUS; INFORMATION SUPPLIED . . . . . . . . . . . . 37
4.2 STOCKHOLDER APPROVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.3 ACCESS TO INFORMATION; CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.4 PUBLIC ANNOUNCEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.5 ACQUISITION PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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4.6 CONSENTS, APPROVALS AND FILINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.7 AFFILIATES LETTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.8 NASDAQ LISTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.9 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.10 LETTER OF CHANCELLOR'S ACCOUNTANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.11 LETTER OF LIN'S ACCOUNTANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.12 EMPLOYEE BENEFIT MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.13 TERMINATION OF STOCKHOLDERS AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR TO MERGER
5.1 CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.2 STOCK OPTIONS; PHANTOM STOCK PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.3 OTHER ACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER . . . . . . . . . . . . . . . . . . . . . 49
(a) Stockholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(b) FCC Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(c) Governmental and Regulatory Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(d) HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(e) No Injunctions or Restraints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(f) Nasdaq Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(g) Form S-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.2 CONDITIONS TO OBLIGATIONS OF LIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
(b) Performance of Obligations of Chancellor . . . . . . . . . . . . . . . . . . . . . . . . . 51
(c) Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(d) Chancellor Stockholders Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.3 CONDITIONS TO OBLIGATIONS OF CHANCELLOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(b) Performance of Obligations of LIN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(c) Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(d) KXTX Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(e) Network Affiliation Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(f) Financial Services Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(g) Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.2 EFFECT OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.3 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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7.4 EXTENSION; CONSENT; WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.5 PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION, CONSENT OR WAIVER . . . . . . . . . . . . . . . . . 56
ARTICLE VIII
SURVIVAL OF PROVISIONS
8.1 SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE IX
NOTICES
9.1 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE X
MISCELLANEOUS
10.1 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.2 EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.3 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.4 NO THIRD PARTY BENEFICIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.6 ASSIGNMENT; BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.7 HEADINGS, GENDER, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.8 INVALID PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.9 NO RECOURSE AGAINST OTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Exhibits
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Exhibit A Form of Affiliate Letter
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LIST OF DEFINED TERMS
Acquisition Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Assumed Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
breaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Chancellor Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Chancellor SEC Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Chancellor Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chancellor Stockholders Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Chancellor 7% Convertible Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Chancellor $3.00 Convertible Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Chancellor Convertible Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Chancellor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chancellor Disclosure Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Chancellor Stockholders Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Chancellor Operating Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Chancellor Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Chancellor Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Chancellor Stockholders Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Chancellor Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Chancellor Stock Option Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Communications Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
D&O Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Delaware Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Delaware Secretary of State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
DSHC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Employment Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Environmental Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Equity Holdings A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Equity Holdings B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Exchange Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
FCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
FCC Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Financial Advisory Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Form S-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Form S-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
GECC Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
v
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Governmental Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Xxxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Xxxxx Muse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Indemnified Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
IRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
KXTX Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
KXTX Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
KXTX-Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
LIN Stock Option Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
LIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
LIN SEC Document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
LIN Licensed Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
LIN Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
LIN Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
LIN Disclosure Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
LIN Stockholders Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
LIN Holdings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
LIN Operating Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
LIN LMA Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
LIN Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
LIN Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
LIN FCC Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
LIN Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
LIN/Ranger Merger Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
LIN Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
LIN Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
LMA Facility FCC Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
LMA Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
M&O Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Material Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Merger Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Xxxxxx Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Network Affiliation Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
New LIN Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Payment Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Phantom Stock Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Phantom Stock Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Proxy Statement/Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
vi
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Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
significant subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Sports Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Stockholders Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Substitute LIN Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Surviving Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Tax Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Xxxxxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
vii
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of July 7, 1998, by and between CHANCELLOR MEDIA CORPORATION, a
Delaware corporation ("Chancellor") and RANGER EQUITY HOLDINGS CORPORATION, a
Delaware corporation ("LIN").
RECITALS
WHEREAS, Chancellor and LIN and their respective subsidiaries are
engaged in the radio and television broadcasting businesses, respectively;
WHEREAS, Chancellor and LIN believe it is in the best interests of
their respective stockholders to combine their respective broadcast businesses;
WHEREAS, subject to the terms and conditions set forth herein, (i) the
Board of Directors of Chancellor, upon the recommendation of a duly authorized
special committee thereof (consisting of independent directors), has approved
the merger of LIN with Chancellor and the issuance of shares of the Common
Stock, $0.01 par value (the "Chancellor Common Stock"), of Chancellor in
connection therewith, and (ii) the Board of Directors of LIN has approved the
foregoing merger;
WHEREAS, it is the intention of Chancellor and LIN that such merger
will qualify as a tax-free reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, Chancellor and LIN desire to make certain representations,
warranties, covenants and agreements in connection with such merger and also to
prescribe various conditions to such merger;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
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ARTICLE I
THE MERGER
1.1 THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.3), LIN shall merge
with and into Chancellor (the "Merger") in accordance with the General
Corporation Law of the State of Delaware (the "Delaware Code"). At the
Effective Time, the separate corporate existence of LIN shall cease and
Chancellor shall continue as the surviving corporation of the Merger (the
"Surviving Corporation") under the laws of the State of Delaware and with all
the rights, privileges, immunities and powers, and subject to all the duties
and liabilities, of a corporation organized under the Delaware Code. The
Merger shall have the effects set forth in the Delaware Code.
1.2 CLOSING. Unless this Agreement shall have been terminated
and the transactions herein contemplated shall have been abandoned pursuant to
Section 7.1, and subject to the satisfaction or waiver of the conditions set
forth in Article VI, the closing of the Merger (the "Closing") will take place
at 10:00 a.m., Dallas, Texas time, on the second business day following the
date on which the last to be fulfilled or waived of the conditions set forth in
Article VI shall be fulfilled or waived in accordance with this Agreement (the
"Closing Date"), at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, unless another date, time or place is
agreed to in writing by the parties hereto.
1.3 EFFECTIVE TIME. The parties hereto will file with the
Secretary of State of the State of Delaware (the "Delaware Secretary of State")
on the Closing Date (or on such other date as the parties may agree) a
certificate of merger or other appropriate documents, executed in accordance
with the relevant provisions of the Delaware Code, and make all other filings
or recordings required under the Delaware Code in connection with the Merger.
The Merger shall become effective upon the filing of the certificate of merger
with the Delaware Secretary of State, or at such later time specified in such
certificate of merger (the "Effective Time").
1.4 CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of Chancellor shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter amended in accordance with its terms and
as provided by the Delaware Code.
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1.5 BYLAWS. The Bylaws of Chancellor in effect immediately
prior to the Merger shall be the bylaws of the Surviving Corporation until
thereafter amended in accordance with their terms and as provided by applicable
law.
1.6 DIRECTORS. The directors of Chancellor immediately prior
to the Effective Time and Xxxx X. Xxxxxxx shall, from and after the Effective
Time, be the directors of the Surviving Corporation (with respect to Chancellor
directors, in the same class and term expiration as such director currently
serves on the Chancellor Board of Directors and, with respect to Xxxx X.
Xxxxxxx, in such class and term expiration as determined by the Board of
Directors of Chancellor prior to Closing), until their successors shall have
been duly elected or appointed or qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's
Certificate of Incorporation and Bylaws.
1.7 OFFICERS. The officers of Chancellor immediately prior to
the Effective Time shall, from and after the Effective Time, be the officers
of the Surviving Corporation until their successors shall have been duly
elected or appointed or qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Certificate of
Incorporation and Bylaws.
1.8 EFFECT ON LIN CAPITAL STOCK.
(a) Outstanding LIN Common Stock. Each share of common
stock, $0.01 par value, of LIN ("LIN Common Stock"), issued and outstanding
immediately prior to the Effective Time (other than shares of LIN Common Stock
held as treasury shares by LIN and other than Dissenting Shares, as defined in
Section 1.11) shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into the right to receive 0.0300 validly
issued, fully paid and nonassessable shares of Chancellor Common Stock. The
ratio of the shares of Chancellor Common Stock to be issued in exchange for
each whole share of LIN Common Stock is referred to as the "Exchange Ratio."
The shares of Chancellor Common Stock to be issued to holders of LIN Common
Stock in accordance with this Section 1.8(a), and any cash to be paid in
accordance with Section 1.10(f) in lieu of fractional shares of Chancellor
Common Stock, are referred to as the "Merger Consideration."
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(b) Treasury Shares. Each share of LIN Common Stock
which is held as a treasury share by LIN at the Effective Time shall, by virtue
of the Merger and without any action on the part of LIN, be cancelled and
retired and cease to exist, without any conversion thereof.
(c) Impact of Stock Splits, etc. In the event of any
change in Chancellor Common Stock and/or LIN Common Stock between the date of
this Agreement and the Effective Time of the Merger in accordance with the
terms of this Agreement by reason of any stock split, stock dividend,
subdivision, reclassification, recapitalization, combination, exchange of
shares or the like, the number and class of shares of Chancellor Common Stock
to be issued and delivered in the Merger in exchange for each outstanding share
of LIN Common Stock as provided in this Agreement shall be appropriately
adjusted so as to maintain the relative proportionate interests of the holders
of LIN Common Stock and Chancellor Common Stock.
1.9 EFFECT ON CHANCELLOR CAPITAL STOCK. Each share of
Chancellor Common Stock, 7% Convertible Preferred Stock, $0.01 par value
("Chancellor 7% Convertible Preferred Stock"), and $3.00 Convertible
Exchangeable Preferred, $0.01 par value ("Chancellor $3.00 Convertible
Preferred Stock" and, collectively with the Chancellor 7% Convertible Preferred
Stock, the "Chancellor Convertible Preferred Stock"), of Chancellor issued and
outstanding immediately prior to the Effective Time shall remain outstanding
and shall be unaffected by the Merger.
1.10 EXCHANGE OF CERTIFICATES.
(a) Paying Agent. Immediately following the Effective
Time, Chancellor shall deposit with its transfer agent and registrar (the
"Paying Agent"), for the benefit of the holders of LIN Common Stock (other than
treasury shares and Dissenting Shares), certificates representing the shares of
Chancellor Common Stock to be issued to such holders pursuant to Section 1.8
(such certificates, together with any dividends or distributions with respect
to the shares represented by such certificates and any cash paid in lieu of
fractional shares of Chancellor Common Stock pursuant to Section 1.10(f), being
hereinafter referred to as the "Payment Fund").
(b) Exchange Procedures. As soon as practicable after
the Effective Time, each holder of an outstanding certificate or certificates
which prior thereto represented shares of LIN Common Stock shall, upon
surrender to the Paying Agent of such certificate or certificates and
acceptance thereof by the Paying Agent, be entitled to a certificate
representing
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that number of whole shares of Chancellor Common Stock which the aggregate
number of shares of LIN Common Stock previously represented by such certificate
or certificates surrendered shall have been converted into the right to receive
pursuant to Section 1.8 of this Agreement, as the case may be, plus any cash to
be received in lieu of fractional shares, as provided in Section 1.10(f) below.
The Paying Agent shall accept such certificates upon compliance with such
reasonable terms and conditions as the Paying Agent may impose to effect an
orderly exchange thereof in accordance with its normal exchange practices. If
the Merger Consideration (or any portion thereof) is to be delivered to any
person other than the person in whose name the certificate or certificates
representing the shares of LIN Common Stock surrendered in exchange therefor is
registered, it shall be a condition to such exchange that the certificate or
certificates so surrendered shall be properly endorsed or otherwise be in
proper form for transfer and that the person requesting such exchange shall pay
to the Paying Agent any transfer or other Taxes (as defined in Section 2.18)
required by reason of the payment of such consideration to a person other than
the registered holder of the certificate(s) surrendered, or shall establish to
the satisfaction of the Paying Agent that such Tax has been paid or is not
applicable. After the Effective Time, there shall be no further transfer on
the records of LIN or its transfer agent of certificates representing shares of
LIN Common Stock, and if such certificates are presented to the Surviving
Corporation, they shall be cancelled against delivery of the Merger
Consideration as hereinabove provided. Until surrendered as contemplated by
this Section 1.10(b), each certificate representing shares of LIN Common Stock
(other than certificates representing treasury shares to be cancelled in
accordance with the terms of this Agreement), shall be deemed at any time after
the Effective Time to represent only the right to receive upon such surrender
the Merger Consideration without any interest thereon, as contemplated by
Section 1.8.
(c) Letter of Transmittal. Promptly after the
Effective Time (but in no event more than five business days thereafter),
Chancellor shall require the Paying Agent to mail to each record holder of
certificates that immediately prior to the Effective Time represented shares of
LIN Common Stock which have been converted pursuant to Section 1.8, a form of
letter of transmittal (which shall specify that delivery shall be effected, and
risk of loss and title shall pass, only upon proper delivery of certificates
representing shares of LIN Common Stock to the Paying Agent, and which shall be
in such form and have such provisions as Chancellor reasonably may specify) and
instructions for use in surrendering such certificates and receiving the
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Merger Consideration to which such holder shall be entitled therefor pursuant
to Section 1.8.
(d) Distributions with Respect to Unexchanged Shares.
No dividends or other distributions with respect to Chancellor Common Stock
with a record date after the Effective Time shall be paid to the holder of any
certificate that immediately prior to the Effective Time represented shares of
LIN Common Stock which have been converted pursuant to Section 1.8, until the
surrender for exchange of such certificate in accordance with this Article I.
Following surrender for exchange of any such certificate, there shall be paid
to the holder of such certificate, without interest, (i) at the time of such
surrender, the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to the number of whole
shares of Chancellor Common Stock into which the shares of LIN Common Stock
represented by such certificate immediately prior to the Effective Time were
converted pursuant to Section 1.8, and (ii) at the appropriate payment date,
the amount of dividends or other distributions with a record date after the
Effective Time, but prior to such surrender, and with a payment date subsequent
to such surrender, payable with respect to such whole shares of Chancellor
Common Stock.
(e) No Further Ownership Rights in LIN Common Stock.
The Merger Consideration (or, in the case of Dissenting Shares, the cash
payment therefor) paid upon the surrender for exchange of certificates
representing shares of LIN Common Stock in accordance with the terms of this
Article I shall be deemed to have been issued and paid in full satisfaction of
all rights pertaining to the shares of LIN Common Stock theretofore represented
by such certificates, subject, however, to Chancellor's obligation (if any) to
pay any dividends or make any other distributions with a record date prior to
the Effective Time which may have been declared by LIN on the shares of LIN
Common Stock in accordance with the terms of this Agreement or prior to the
date of this Agreement and which remain unpaid at the Effective Time.
(f) No Fractional Shares. No certificates or scrip
representing fractional shares of Chancellor Common Stock shall be issued upon
the surrender for exchange of certificates that immediately prior to the
Effective Time represented shares of LIN Common Stock which have been converted
pursuant to Section 1.8, and such fractional share interests will not entitle
the owner thereof to vote or any rights of a stockholder of Chancellor. In
lieu of any such fractional shares, the Paying Agent shall, on behalf of all
holders of fractional shares of Chancellor Common
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Stock, aggregate all such fractional interests (collectively, the "Fractional
Shares") and such Fractional Shares shall be sold by the Paying Agent as agent
for the holders of such Fractional Shares at the then prevailing price on the
Nasdaq Stock Market, all in the manner provided hereinafter. Until the net
proceeds of such sale or sales have been distributed to the holders of
Fractional Shares, the Paying Agent shall retain such proceeds in trust for the
benefit of such holders as part of the Payment Fund. All commissions, transfer
taxes and other out-of-pocket transaction costs, including reasonable expenses
and compensation of the Paying Agent shall be charged against the proceeds from
the sale of the Fractional Shares. The sale of the Fractional Shares shall be
executed on the Nasdaq Stock Market or through one or more member firms of the
Nasdaq Stock Market and will be executed in round lots, to the extent
practicable. The Paying Agent will determine the portion, if any, of the net
proceeds of such sale or sales to which each holder of Fractional Shares is
entitled, by multiplying the amount of the aggregate net proceeds of the sale
of the Fractional Shares by a fraction, the numerator of which is the amount of
Fractional Shares to which such holder is entitled and the denominator of which
is the aggregate amount of Fractional Shares to which all holders of Fractional
Shares are entitled; provided, however, that in lieu of the foregoing, at the
sole option of Chancellor, Chancellor may instead satisfy payment with respect
to such Fractional Shares by delivering to the Paying Agent reasonably promptly
following the Effective Time cash (without interest) in an amount equal to the
aggregate amount of all such Fractional Shares multiplied by the closing price
per share of Chancellor Common Stock on the Nasdaq Stock Market on the trading
day immediately prior to the Effective Time.
(g) Termination of Payment Fund. Any portion of the
Payment Fund which remains undistributed to the holders of certificates
representing shares of LIN Common Stock for 120 days after the Effective Time
shall be delivered to Chancellor, upon demand, and any holders of shares of LIN
Common Stock who have not theretofore complied with this Article I shall
thereafter look only to Chancellor and only as general creditors thereof for
payment of their claims for any Merger Consideration and any dividends or
distributions with respect to Chancellor Common Stock to which they are
entitled pursuant to this Article I.
(h) No Liability. Neither the Surviving Corporation
nor the Paying Agent shall be liable to any person in respect of any cash,
shares, dividends or distributions payable from the Payment Fund delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law. If any certificates representing shares of LIN Common Stock shall
not
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have been surrendered prior to five years after the Effective Time (or
immediately prior to such earlier date on which any Merger Consideration in
respect of such certificate would otherwise escheat to or become the property
of any Governmental Entity (as defined in Section 2.3)), any such cash, shares,
dividends or distributions payable in respect of such certificate shall, to the
extent permitted by applicable law, become the property of Surviving
Corporation, free and clear of all claims or interest of any person previously
entitled thereto.
(i) Withholding of Tax. Chancellor shall be entitled
to deduct and withhold from the Merger Consideration otherwise payable pursuant
to this Agreement to any former holder of LIN Common Stock such amount as
Chancellor (or any affiliate thereof) or the Paying Agent is required to deduct
and withhold with respect to the making of such payment under the Code or
state, local or foreign Tax law. To the extent that amounts are so withheld by
Chancellor, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the former holder of LIN Common Stock in
respect of which such deduction and withholding was made by Chancellor.
1.11 DISSENTING SHARES. Notwithstanding anything herein to the
contrary in this Agreement, shares of LIN Common Stock outstanding immediately
prior to the Effective Time and held by a holder who has not voted in favor of
the Merger or consented thereto and who properly demands in writing appraisal
of such shares of LIN Common Stock in accordance with Section 262 of the
Delaware Code and who shall not have withdrawn such demand or otherwise have
forfeited appraisal rights, shall not be converted into or represent the right
to receive the Merger Consideration therefor ("Dissenting Shares"). Such
stockholders shall be entitled to receive payment of the appraised value of
such shares of LIN Common Stock held by them in accordance with the provisions
of Section 262 of the Delaware Code, except that all Dissenting Shares held by
stockholders who shall have failed to perfect or who effectively shall have
withdrawn or lost their rights to appraisal of such securities under Section
262 shall thereupon be deemed to have been converted into, as of the Effective
Time, the right to receive, without any interest thereon, the Merger
Consideration, upon surrender, in the manner provided in this Article I, of the
certificate or certificates that formerly represented such securities. LIN
shall take all actions required to be taken by it in accordance with Section
262(d) of the Delaware Code with respect to the holders of LIN Common Stock.
LIN shall give to Chancellor prompt written notice of any demands for appraisal
received by it, withdrawals of such demands, and any other instruments served
pursuant to Delaware law and received by it, and Chancellor shall have the
right to
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participate in all negotiations and proceedings with respect to such demands.
Prior to the Effective Time, LIN shall not, except with the prior written
consent of Chancellor, make any payments with respect to any demands for
appraisal, or settle or offer to settle, any such demands.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XXX
XXX hereby represents and warrants to Chancellor as follows:
2.1 ORGANIZATION, STANDING AND CORPORATE POWER. Each of LIN
and the LIN Significant Subsidiaries (as defined below) is a corporation,
limited partnership or limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized and has the requisite corporate, partnership or limited liability
company power and authority to carry on its business as now being conducted.
Each of LIN and the LIN Significant Subsidiaries is duly qualified to do
business and is in good standing in each jurisdiction in which the nature of
its business or the ownership or leasing of its properties makes such
qualification necessary, except where the failure to be so qualified could not
reasonably be expected to have a material adverse effect on the business,
properties, results of operations, or condition (financial or otherwise) of LIN
and its subsidiaries, considered as a whole (other than as a result of changes
in general economic conditions or in economic conditions generally affecting
the television broadcasting industry) (a "LIN Material Adverse Effect"). LIN
has delivered to Chancellor complete and correct copies of its Certificate of
Incorporation and Bylaws, as amended to the date of this Agreement. For
purposes of this Agreement, a "LIN Significant Subsidiary" means (i) Ranger
Equity Holdings A Corp., a Delaware corporation ("Equity Holdings A"), (ii)
Ranger Equity Holdings B Corp., a Delaware corporation ("Equity Holdings B"),
(iii) LIN Holdings Corp., a Delaware corporation ("LIN Holdings"), (iv) LIN
Television Corporation, a Delaware corporation (the "LIN Operating
Subsidiary"), and (v) any other subsidiary of LIN that operates, or holds an
FCC license to operate, a LIN Licensed Facility (as defined in Section 2.9) or
a LIN LMA Facility (as defined in Section 2.9) or is a party to a Material
Agreement (as defined in Section 2.21). For purposes of this Agreement, a
"subsidiary" of any person shall mean any other entity at least a majority of
the equity interests in which is beneficially owned, directly or indirectly, by
the specified person.
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2.2 CAPITAL STRUCTURE. (a) The authorized capital stock of
LIN consists of (i) 1,000,000,000 shares of LIN Common Stock and (ii) 5,000,000
shares of preferred stock, $0.01 par value, none of which shares of preferred
stock are issued and outstanding. At the close of business on July 6, 1998,
539,321,532 shares of LIN Common Stock were issued and outstanding, 30,100,000
shares of LIN Common Stock were reserved for issuance pursuant to options to
purchase LIN Common Stock which have been, or will be prior to the Effective
Time, granted to directors, officers or employees of LIN or others ("New LIN
Stock Options") pursuant to the LIN 1998 Stock Option Plan (the "LIN Stock
Option Plan"), 5,594,086 shares of LIN Common Stock were reserved for issuance
pursuant to certain additional options to purchase LIN Common Stock that have
been granted to directors, officers or employees of LIN or others (the
"Substitute LIN Stock Options" and, collectively with the New LIN Stock
Options, the "LIN Stock Options"), and no shares of LIN Common Stock were held
as treasury shares by LIN or any subsidiary of LIN. At the close of business
on July 6, 1998, 14,152,290 Phantom Stock Units ("Phantom Stock Units") were
outstanding under LIN's Phantom Stock Plan (the "Phantom Stock Plan"). Except
as set forth above, at the close of business on July 6, 1998, no shares of
capital stock or other equity securities of LIN were authorized, issued,
reserved for issuance or outstanding. All outstanding shares of LIN Common
Stock are, and all shares which may be issued pursuant to the LIN Stock Option
Plan, or upon the exercise of outstanding LIN Stock Options will be, when
issued, duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. No bonds, debentures, notes or other
indebtedness of LIN or any subsidiary of LIN having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote) on
any matters on which the stockholders of LIN or any subsidiary of XXX xxx vote
are issued or outstanding. All the outstanding shares of capital stock or
other equity interests of each subsidiary of LIN have been validly issued and
are fully paid and nonassessable and are owned by LIN, by one or more
wholly-owned subsidiaries of LIN or by LIN and one or more such wholly-owned
subsidiaries, free and clear of all pledges, claims, liens, charges,
encumbrances and security interests of any kind or nature whatsoever
(collectively, "Liens"), except for (i) Liens arising out of the senior credit
facility of the LIN Operating Subsidiary, and (ii) Liens arising out of the
guarantee by Equity Holdings B of certain obligations of Station Venture
Holdings, LLC to General Electric Capital Corporation (the "GECC Guarantee").
Except as set forth above and except as set forth in that certain Stockholders
Agreement, dated as of March 3, 1998 (the "Stockholders Agreement"), among LIN
and the holders of LIN Common Stock parties thereto (which provides for
preemptive rights and restrictions on transfer),
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neither LIN nor any subsidiary of LIN has any outstanding option, warrant,
subscription or other right, agreement or commitment that either (i) obligates
LIN or any subsidiary of LIN to issue, sell or transfer, repurchase, redeem or
otherwise acquire or vote any shares of the capital stock of LIN or any LIN
Significant Subsidiary or (ii) restricts the transfer of LIN Common Stock.
Since the close of business on July 6, 1998 to the date hereof, neither LIN nor
any subsidiary of LIN has issued any capital stock or securities or other
rights convertible into or exercisable or exchangeable for shares of such
capital stock.
(b) LIN owns and has good and marketable title to all
of the issued and outstanding shares of capital stock of each of Equity
Holdings A and Equity Holdings B, in each case free and clear of all Liens, and
LIN has no independent assets, operations or liabilities other than the
ownership of the capital stock of Equity Holdings A and Equity Holdings B.
Equity Holdings A and Equity Holdings B collectively own and have good and
marketable title to all of the outstanding capital stock of LIN Holdings, free
and clear of all Liens other than with respect to Equity Holdings B, the GECC
Guarantee, and neither Equity Holdings A nor Equity Holdings B has any
independent assets, operations or liabilities other than the ownership of the
capital stock of LIN Holdings.
2.3 AUTHORITY; NONCONTRAVENTION. LIN has the requisite
corporate power and authority to enter into this Agreement and, subject to the
approval of its stockholders as set forth in Section 4.2(a) with respect to the
approval of this Agreement and the consummation of the Merger (the "LIN
Stockholders Approval"), to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement by LIN and the
consummation by LIN of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of LIN, subject, in
the case of the Merger, to the LIN Stockholders Approval. This Agreement has
been duly executed and delivered by LIN and, assuming this Agreement
constitutes the valid and binding agreement of each of the other parties
hereto, constitutes a valid and binding obligation of LIN, enforceable against
it in accordance with its terms except that the enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to creditor's rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). Except as disclosed in writing
by LIN to Chancellor in a disclosure letter (the "LIN Disclosure Letter")
delivered prior to the execution and delivery of the Agreement, the execution
and delivery of this Agreement do not, and the consummation of the transactions
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contemplated by this Agreement and compliance with the provisions hereof will
not, (i) conflict with any of the provisions of the Certificate of
Incorporation or Bylaws of LIN or the comparable documents of any LIN
Significant Subsidiary, (ii) subject to the governmental filings and other
matters referred to in the following sentence, conflict with, result in a
breach of or default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancellation or acceleration of any
obligation or loss of a material benefit under, or require the consent of any
person under, any indenture or other agreement, permit, concession, franchise,
license or similar instrument or undertaking to which LIN or any of the LIN
Significant Subsidiaries is a party or by which LIN or any of the LIN
Significant Subsidiaries or any of their assets is bound or affected, (iii)
result in an obligation by LIN, the Surviving Corporation, Chancellor, or any
of their respective subsidiaries to redeem, repurchase or retire (or offer to
redeem, repurchase or retire) any indebtedness of LIN or any of its
subsidiaries outstanding as of the date hereof or equity security of LIN or any
of its subsidiaries outstanding as of the date hereof, or (iv) subject to the
governmental filings and other matters referred to in the following sentence,
contravene any law, rule or regulation of any state or of the United States or
any political subdivision thereof or therein, or any order, writ, judgment,
injunction, decree, determination or award currently in effect, except, in the
cases of the foregoing clauses (ii) through (iv), for conflicts, breaches,
defaults or other consequences (collectively, "breaches") that, individually or
in the aggregate, could not reasonably be expected to have a LIN Material
Adverse Effect or to materially hinder LIN's ability to consummate the
transactions contemplated by this Agreement. No consent, approval or
authorization of, or declaration or filing with, or notice to, any governmental
agency or regulatory authority (a "Governmental Entity") which has not been
received or made, is required by or with respect to LIN or any of the LIN
Significant Subsidiaries in connection with the execution and delivery of this
Agreement by LIN or the consummation by LIN of the transactions contemplated
hereby, except for (i) the filing of premerger notification and report forms
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), with respect to the Merger and the termination or earlier
expiration of the applicable waiting period thereunder, (ii) such filings with
and approvals required by the Federal Communications Commission or any
successor entity (the "FCC") under the Communications Act of 1934, as amended,
and the rules, regulations and policies of the FCC promulgated thereunder
(collectively, the "Communications Act") including those required in connection
with the transfer of control of LIN FCC Licenses (as defined in Section 2.9)
for the operation of the LIN Licensed
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Facilities, (iii) the filing of the certificate of merger with the Delaware
Secretary of State and appropriate documents with the relevant authorities of
other states in which LIN is qualified to do business, (iv) such filings and
consents as may be required under any environmental, health or safety law or
regulation pertaining to any notification, disclosure or required approval
triggered by the Merger or the other transactions contemplated by this
Agreement, and (v) such filings as may be required in connection with statutory
provisions and regulations relating to real property transfer gains taxes and
real property transfer taxes..
2.4 LIN SEC DOCUMENT; FINANCIAL STATEMENTS. (i) LIN Holdings
and the LIN Operating Subsidiary (together with certain subsidiary guarantors
thereof) have filed with the Securities and Exchange Commission (the "SEC") a
Registration Statement on Form S-1 (the "LIN SEC Document"), filed on May 29,
1998, with respect to the registration of certain senior discount notes of LIN
Holdings and senior subordinated notes of the LIN Operating Subsidiary; (ii) as
of the date of such filing, the LIN SEC Document complied in all material
respects with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations of the SEC promulgated
thereunder applicable to such LIN SEC Document, and such LIN SEC Document as of
such date did not contain any untrue statement of a material fact or omit 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 (provided, however, it is acknowledged and agreed by
Chancellor that the Merger and the transactions contemplated by this Agreement
and further developments since the date of such filing with respect to the
matters described in Section 5.1(b)(i) were not disclosed or required to be
disclosed in the LIN SEC Document on the date of such filing); and (iii) as of
their respective dates, the consolidated financial statements of LIN Holdings
and its predecessors included in the LIN SEC Document complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles ("GAAP") applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto or, in the case of unaudited statements, as permitted by Rule
10-01 of Regulation S-X) and fairly present, in all material respects, the
consolidated financial position of LIN Holdings and its consolidated
subsidiaries (or its predecessors and their respective consolidated
subsidiaries) as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (on the basis stated
therein and subject, in
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the case of unaudited quarterly statements, to normal year-end audit
adjustments).
2.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed
in the LIN SEC Document or the LIN Disclosure Letter, or as otherwise agreed to
in writing after the date hereof by Chancellor, or as expressly permitted by
this Agreement, since the date of the most recent audited financial statements
of LIN Holdings contained in the LIN SEC Document, LIN and its subsidiaries
have conducted their business only in the ordinary course, and there has not
been (i) any change which could reasonably be expected to have a LIN Material
Adverse Effect (including as a result of the consummation of the transactions
contemplated by this Agreement), (ii) any declaration, setting aside or payment
of any dividend or other distribution (whether in cash, stock or property) with
respect to any of LIN's outstanding capital stock, (iii) any split, combination
or reclassification of any of its outstanding capital stock or any issuance or
the authorization of any issuance of any other securities in respect of, in
lieu of or in substitution for shares of its outstanding capital stock, (iv)
(x) any granting by LIN or any of its subsidiaries to any director, officer or
other employee or independent contractor of LIN or any of its subsidiaries of
any increase in compensation or acceleration of benefits, except in the
ordinary course of business consistent with prior practice or as was required
under employment agreements in effect as of the date of the most recent audited
financial statements of LIN Holdings contained in the LIN SEC Document, (y) any
granting by LIN or any of its subsidiaries to any director, officer or other
employee or independent contractor of any increase in, or acceleration of
benefits in respect of, severance or termination pay, or pay in connection with
any change of control of LIN, except in the ordinary course of business
consistent with prior practice or as was required under any employment,
severance or termination agreements in effect as of the date of the most recent
audited financial statements of LIN Holdings contained in the LIN SEC Document,
or (z) any entry by LIN or any of its subsidiaries into any employment,
severance, change of control, or termination or similar agreement with any
director, executive officer or other employee or independent contractor other
than in the ordinary course of business consistent with past practices, or (v)
any change in accounting methods, principles or practices by LIN or any of its
subsidiaries materially affecting its assets, liability or business, except
insofar as may have been required by a change in generally accepted accounting
principles.
2.6 NO EXTRAORDINARY PAYMENTS OR CHANGE IN BENEFITS. Except as
disclosed in the LIN Disclosure Letter, no current or
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former director, officer, employee or independent contractor of LIN or any of
its subsidiaries is entitled to receive any payment under any agreement,
arrangement or policy (written or oral) relating to employment, severance,
change of control, termination, stock options, stock purchases, compensation,
deferred compensation, fringe benefits or other employee benefits currently in
effect (collectively, the "LIN Benefit Plans"), nor will any benefit received
or to be received by any current or former director, officer, employee or
independent contractor of LIN or any of its subsidiaries under any LIN Benefit
Plan be accelerated or modified, as a result of or in connection with the
execution and delivery of, or the consummation of the transactions contemplated
by, this Agreement.
2.7 VOTING REQUIREMENTS. The affirmative vote of a majority of
the outstanding shares of LIN Common Stock entitled to vote with respect to the
approval of the Merger is the only vote of the holders of any class or series
of LIN's capital stock necessary to approve this Agreement and the transactions
contemplated by this Agreement.
2.8 STATE TAKEOVER STATUTES. The Board of Directors of LIN has
approved the terms of this Agreement and the consummation of the transactions
contemplated by this Agreement, and such approval is sufficient to render
inapplicable to the Merger and the other transactions contemplated by this
Agreement the provisions of Section 203 of the Delaware Code. To LIN's
knowledge, no other state takeover statute or similar statute or regulation
applies or purports to apply to the Merger, this Agreement or any of the
transactions contemplated by this Agreement and no provision of the Certificate
of Incorporation, Bylaws or other governing instrument of LIN or any of its
subsidiaries would, directly or indirectly, restrict or impair the ability of
LIN to consummate the transactions contemplated by this Agreement.
2.9 LIN FCC LICENSES; OPERATIONS OF LIN LICENSED FACILITIES.
LIN and its subsidiaries have operated the television stations for which LIN
and any of its subsidiaries holds licenses from the FCC, in each case which are
owned or operated by LIN and its subsidiaries (each a "LIN Licensed Facility"
and collectively the "LIN Licensed Facilities"), in material compliance with
the terms of the licenses issued by the FCC to LIN and its subsidiaries (the
"LIN FCC Licenses") (complete and correct copies of each of which have been
made available to Chancellor), and in material compliance with the
Communications Act, except where the failure to do so could not, individually
or in the aggregate, reasonably be expected to have a LIN Material Adverse
Effect. To the knowledge of LIN, each
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broadcast television station for which LIN or any of its subsidiaries provides
programming and advertising services pursuant to a local marketing agreement
(each a "LIN LMA Facility" and collectively the "LIN LMA Facilities") has been
operated in material compliance with the terms of the licenses issued by the
FCC to the owner of such LIN LMA Facility (each an "LMA Facility FCC License"
and collectively the "LMA Facility FCC Licenses"). LIN has, and its
subsidiaries have, timely filed or made all applications, reports and other
disclosures required by the FCC to be made with respect to the LIN Licensed
Facilities and have timely paid all FCC regulatory fees with respect thereto,
except where the failure to do so could not, individually or in the aggregate,
reasonably be expected to have a LIN Material Adverse Effect. LIN and each of
its subsidiaries have, and are the authorized legal holders of, all the LIN FCC
Licenses necessary or used in the operation of the businesses of the LIN
Licensed Facilities as presently operated. To the knowledge of LIN, the
third-parties with which LIN or its subsidiaries have entered into local
marketing agreements with respect to the LIN LMA Facilities have, and are the
authorized legal holders of, the LMA Facility FCC License necessary or used in
the operation of the business of the respective LIN LMA Facility to which such
local marketing agreement relates. All LIN FCC Licenses and, to the knowledge
of LIN, LMA Facility FCC Licenses are validly held and are in full force and
effect, unimpaired by any act or omission of LIN, each of its subsidiaries (or,
to LIN's knowledge, their respective predecessors) or their respective
officers, employees or agents, except where such impairments could not,
individually or in the aggregate, reasonably be expected to have a LIN Material
Adverse Effect. As of the date hereof, except as set forth in the LIN
Disclosure Letter, no application, action or proceeding is pending for the
renewal of any LIN FCC License or, to the knowledge of LIN, LMA Facility FCC
License as to which any petition to deny has been filed and, to LIN's
knowledge, there is not now before the FCC any material investigation,
proceeding, notice of violation or order of forfeiture relating to any LIN
Licensed Facility or LIN LMA Facility that, if adversely determined, could
reasonably be expected to have a LIN Material Adverse Effect, and LIN is not
aware of any basis that could reasonably be expected to cause the FCC not to
renew any of the LIN FCC Licenses or the LMA Facility FCC Licenses (other than
proceedings to amend FCC rules or the Communications Act of general
applicability to the television or broadcast industry). There is not now
pending and, to LIN's knowledge, there is not threatened, any action by or
before the FCC to revoke, suspend, cancel, rescind or modify in any material
respect any of the LIN FCC Licenses or, to the knowledge of LIN, any of the LMA
Facility FCC Licenses that, if adversely determined, could reasonably be
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expected to have a LIN Material Adverse Effect (other than proceedings to amend
FCC rules or the Communications Act of general applicability to the television
or broadcast industry).
2.10 BROKERS. Except with respect to Xxxxx, Muse & Co.
Partners, L.P. ("Xxxxx Muse") and Xxxxxxxxx & Co., LLC ("Greenhill"), all
negotiations relating to this Agreement and the transactions contemplated
hereby have been carried out by LIN directly with Chancellor without the
intervention of any person on behalf of LIN in such a manner as to give rise to
any valid claim by any person against LIN, Chancellor, the Surviving
Corporation or any subsidiary of any of them for a finder's fee, brokerage
commission, or similar payment. The LIN Disclosure Letter sets forth a written
summary of the terms of its agreement relating to the transactions contemplated
by this Agreement with Greenhill and Section 6.3(f) of this Agreement sets
forth a summary of the terms of its agreement relating to the transactions
contemplated by this Agreement with Xxxxx Muse, and LIN has no other agreements
or understandings (written or oral) with respect to such services.
2.11 FCC QUALIFICATION. LIN and its subsidiaries are fully
qualified under the Communications Act to be the transferors of control of the
LIN FCC Licenses. Except as disclosed in the LIN Disclosure Letter, LIN is not
aware of any facts or circumstances relating to the FCC qualifications of LIN
or any of its subsidiaries that would prevent the FCC's granting the FCC Form
315 Transfer of Control Application to be filed with respect to the Merger.
2.12 COMPLIANCE WITH APPLICABLE LAWS. Each of LIN and its
subsidiaries has in effect all federal, state, local and foreign governmental
approvals, authorizations, certificates, filings, franchises, licenses,
notices, permits and rights (collectively, "Permits") necessary for it to own,
lease or operate its properties and assets and to carry on its business as now
conducted, other than such Permits the absence of which could not, individually
or in the aggregate, reasonably be expected to have a LIN Material Adverse
Effect, and there has occurred no default under any such Permit other than such
defaults which, individually or in the aggregate, could not reasonably be
expected to have a LIN Material Adverse Effect. Except as disclosed in the LIN
Disclosure Letter, LIN and its subsidiaries are in compliance with all
applicable statutes, laws, ordinances, rules orders and regulations of any
Governmental Entity, except for such noncompliance which individually or in the
aggregate could not reasonably be expected to have a LIN Material Adverse
Effect.
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2.13 ABSENCE OF UNDISCLOSED LIABILITIES. Except for (x)
liabilities disclosed in the LIN SEC Document, (y) current liabilities incurred
by LIN Holdings and its subsidiaries in the ordinary course of business
consistent with past practices since the date of the most recent consolidated
balance sheet of LIN Holdings set forth in the LIN SEC Document and (z)
liabilities contemplated by this Agreement or disclosed in the LIN Disclosure
Letter, LIN and its subsidiaries do not have any material indebtedness,
obligations or liabilities of any kind (whether accrued, absolute, contingent
or otherwise) (i) required by GAAP to be reflected on a consolidated balance
sheet of LIN and its consolidated subsidiaries or in the notes, exhibits or
schedules thereto or (ii) which reasonably could be expected to have a LIN
Material Adverse Effect.
2.14 LITIGATION. Except as disclosed in the LIN SEC Document or
the LIN Disclosure Letter, to the date of this Agreement, there is no
litigation, administrative action, arbitration or other proceeding pending
against LIN or any of its subsidiaries or, to the knowledge of LIN, threatened
that, individually or in the aggregate, could reasonably be expected to (i)
have a LIN Material Adverse Effect or (ii) prevent, or significantly delay the
consummation of the transactions contemplated by this Agreement. Except as set
forth in the LIN Disclosure Letter, to the date of this Agreement, there is no
judgment, order, injunction or decree of any Governmental Entity outstanding
against LIN or any of its subsidiaries that, individually or in the aggregate,
could reasonably be expected to have any effect referred to in the foregoing
clauses (i) and (ii) of this Section 2.14.
2.15 TRANSACTIONS WITH AFFILIATES. Other than the transactions
contemplated by this Agreement, or except to the extent disclosed in the LIN
SEC Document or in the LIN Disclosure Letter, there have been no transactions,
agreements, arrangements or understandings between LIN or its subsidiaries, on
the one hand, and LIN's affiliates (other than subsidiaries of LIN) or any
other person, on the other hand, that would be required to be disclosed under
Item 404 of Regulation S-K under the Securities Act.
2.16 LABOR MATTERS. Except as set forth in the LIN Disclosure
Letter or in the LIN SEC Document, (i) neither LIN nor any of its subsidiaries
is a party to any labor or collective bargaining agreement, and no employees of
LIN or any of its subsidiaries are represented by any labor organization, (ii)
to the knowledge of LIN, there are no material representation or certification
proceedings, or petitions seeking a representation proceeding, pending or
threatened to be brought or filed with the
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National Labor Relations Board or any other labor relations tribunal or
authority and (iii) to the knowledge of LIN, there are no material organizing
activities involving LIN or any of its subsidiaries with respect to any group
of employees of LIN or its subsidiaries.
2.17 EMPLOYEE ARRANGEMENTS AND BENEFIT PLANS. (a) The LIN
Disclosure Letter sets forth a complete and correct list of (i) all LIN Benefit
Plans, including all employee benefit plans within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and (ii) all written employment, severance, termination, change-in-control, or
indemnification agreements (collectively, the "Employment Arrangements"), in
each case under which LIN or any of its subsidiaries has any obligation or
liability (contingent or otherwise), except for on-air agreements entered into
in the ordinary course of business consistent with past practices and any
Employment Arrangement which provides for annual compensation (excluding
benefits) of $150,000 or less or has an unexpired term of and can be terminated
(before, on or after a change in control) in less than one year from the date
hereof without additional cost or penalty. Except as set forth in the LIN SEC
Document or in the LIN Disclosure Letter and except as could not, individually
or in the aggregate, reasonably be expected to have a LIN Material Adverse
Effect: (A) each LIN Benefit Plan has been administered and is in compliance
with the terms of such plan and all applicable laws, rules and regulations, (B)
no "reportable event" (as such term is used in section 4043 of ERISA) (other
than those events for which the 30 day notice has been waived pursuant to the
regulations), "prohibited transaction" (as such term is used in section 406 of
ERISA or section 4975 of the Code) or "accumulated funding deficiency" (as such
term is used in section 412 or 4971 of the Code) has heretofore occurred with
respect to any LIN Benefit Plan and (C) each LIN Benefit Plan intended to
qualify under Section 401(a) of the Code has received a favorable determination
from the United States Internal Revenue Service ("IRS") regarding its qualified
status and no notice has been received from the IRS with respect to the
revocation of such qualification.
(b) To the date of this Agreement, there is no
litigation or administrative or other proceeding involving any LIN Benefit Plan
or Employment Arrangement nor has LIN or any of its subsidiaries received
written notice that any such proceeding is threatened, in each case where an
adverse determination could reasonably be expected to have a LIN Material
Adverse Effect. Except as set forth in the LIN Disclosure Letter, neither LIN
nor any of its subsidiaries has contributed to any "multiemployer plan" (within
the meaning of section 3(37) of ERISA) and neither
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LIN nor any of its subsidiaries has incurred, nor, to the best of LIN's
knowledge, is reasonably likely to incur any withdrawal liability which remains
unsatisfied in an amount which could reasonably be expected to have a LIN
Material Adverse Effect. The termination of, or withdrawal from, any LIN
Benefit Plan or multiemployer plan to which LIN or its subsidiaries
contributes, on or prior to the Closing Date, will not subject LIN or any of
its subsidiaries to any liability under Title IV of ERISA that could reasonably
be expected to have a LIN Material Adverse Effect.
2.18 TAX MATTERS. Except as set forth in the LIN Disclosure
Letter, (A) LIN and each of its subsidiaries have timely filed with the
appropriate taxing authorities all material Tax Returns (as defined below)
required to be filed through the date hereof and will timely file any such
material Tax Returns required to be filed on or prior to the Closing Date
(except those under valid extension) and all such Tax Returns are and will be
true and correct in all material respects, (B) all Taxes (as defined below) of
LIN and each of its subsidiaries shown to be due on the Tax Returns described
in (A) above have been or will be timely paid or adequately reserved for in
accordance with GAAP (except to the extent that such Taxes are being contested
in good faith), (C) no material deficiencies for any Taxes have been proposed,
asserted or assessed against LIN or any of its subsidiaries that have not been
fully paid or adequately provided for in the appropriate financial statements
of LIN and its subsidiaries, and no power of attorney with respect to any Taxes
has been executed or filed with any taxing authority and no material issues
relating to Taxes have been raised in writing by any governmental authority
during any presently pending audit or examination, (D) LIN and its subsidiaries
are not now subject to audit by any taxing authority and no waivers of statutes
of limitation with respect to the Tax Returns have been given by or requested
in writing from LIN or any of its subsidiaries, (E) there are no material liens
for Taxes (other than for Taxes not yet due and payable) on any assets of LIN
or any of its subsidiaries, (F) neither LIN nor any of its subsidiaries is a
party to or bound by (nor will any of them become a party to or bound by) any
tax indemnity, tax sharing, tax allocation agreement, or similar agreement,
arrangement or practice with respect to Taxes, (G) neither LIN nor any of its
subsidiaries has ever been a member of an affiliated group of corporations
within the meaning of Section 1504 of the Code, other than the affiliated group
of which LIN is the common parent, (H) neither LIN nor any of its subsidiaries
has filed a consent pursuant to the collapsible corporation provisions of
Section 341(f) of the Code (or any corresponding provision of state or local
law) or agreed to have Section 341(f)(2) of the Code (or any
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corresponding provisions of state or local law) apply to any disposition of any
asset owned by LIN or any of its subsidiaries, as the case may be, (l) neither
LIN nor any of its subsidiaries has agreed to make, nor is any required to
make, any adjustment under Section 481(a) of the Code or any similar provision
of state, local or foreign law by reason of a change in accounting method or
otherwise, (J) LIN and its subsidiaries have complied in all material respects
with all applicable laws, rules and regulations relating to withholding of
Taxes and (K) no property owned by LIN or any of its subsidiaries (i) is
property required to be treated as being owned by another person pursuant to
the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as
amended and in effect immediately prior to the enactment of the Tax Reform Act
of 1986; (ii) constitutes "tax exempt use property" within the meaning of
Section 168(h)(l) of the Code; or (iii) is tax exempt bond financed property
within the meaning of Section 168(g) of the Code.
As used in this Agreement, "Tax Return" shall mean any return, report,
claim for refund, estimate, information return or statement or other similar
document relating to or required to be filed with any governmental authority
with respect to Taxes, including any schedule or attachment thereto, and
including any amendment thereof. As used in this Agreement, "Taxes" shall mean
taxes of any kind, including but not limited to those measured by or referred
to as income, gross receipts, sales, use, ad valorem, franchise, profits,
license, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, value added, property or windfall profits taxes, customs,
duties or similar fees, assessments or charges of any kind whatsoever, together
with any interest and any penalties, additions to tax or additional amounts
imposed by any governmental authority, domestic or foreign.
2.19 INTELLECTUAL PROPERTY. Except as set forth in the LIN
Disclosure Letter and except to the extent that the inaccuracy of any of the
following (or the circumstances giving rise to such inaccuracy), individually
or in the aggregate, could not reasonably be expected to have a LIN Material
Adverse Effect: (a) LIN and each of its subsidiaries owns, or is licensed to
use (in each case, free and clear of any Liens), all Intellectual Property (as
defined below) used in or necessary for the conduct of its business as
currently conducted; (b) the use of any Intellectual Property by LIN and its
subsidiaries does not infringe on or otherwise violate the rights of any person
and is in accordance with any applicable license pursuant to which LIN or any
subsidiary acquired the right to use any Intellectual Property; (c) to the
knowledge of LIN, no person is challenging, infringing on or otherwise
violating any right of LIN or any of
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its subsidiaries with respect to any Intellectual Property owned by and/or
licensed to LIN or its subsidiaries; and (d) neither LIN nor any of its
subsidiaries has received any written notice of any pending claim with respect
to any Intellectual Property used by LIN and its subsidiaries and to its
knowledge no Intellectual Property owned and/or licensed by LIN or its
subsidiaries is being used or enforced in a manner that would result in the
abandonment, cancellation or unenforceability of such Intellectual Property.
For purposes of this Agreement, "Intellectual Property" shall mean
trademarks, service marks, brand names and other indications of origin, the
goodwill associated with the foregoing and registrations in any jurisdiction
of, and applications in any jurisdiction to register, the foregoing, including
any extension, modification or renewal of any such registration or application;
inventions, discoveries and ideas, whether patentable or not, in any
jurisdiction; patents, applications for patents (including, without limitation,
divisions, continuations, continuations in part and renewal applications), and
any renewals, extensions or reissues thereof, in any jurisdiction; nonpublic
information, trade secrets and confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any person; writings and
other works, whether copyrightable or not, in any jurisdiction; registrations
or applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof; any similar intellectual property or
proprietary rights; and any claims or causes of action arising out of or
relating to any infringement or misappropriation of any of the foregoing.
2.20 ENVIRONMENTAL MATTERS. Except as disclosed in the LIN SEC
Document or in the LIN Disclosure Letter and except as could not reasonably be
expected to have a LIN Material Adverse Effect: (i) the operations of LIN and
its subsidiaries have been and are in compliance with all Environmental Laws
(as defined below) and with all Permits required by Environmental Laws, (ii) to
the date of this Agreement, there are no pending or, to the knowledge of LIN,
threatened, actions, suits, claims, investigations or other proceedings
(collectively, "Actions") under or pursuant to Environmental Laws against LIN
or its subsidiaries or involving any real property currently or, to the
knowledge of LIN, formerly owned, operated or leased by LIN or its
subsidiaries, (iii) LIN and its subsidiaries are not subject to any
Environmental Liabilities (as defined below), and, to the knowledge of LIN, no
facts, circumstances or conditions relating to, arising from, associated with
or attributable to any real property currently or, to the knowledge of LIN,
formerly owned, operated or leased by LIN or its subsidiaries or operations
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thereon that could reasonably be expected to result in Environmental
Liabilities, (iv) all real property owned and to the knowledge of LIN all real
property operated or leased by LIN or its subsidiaries is free of contamination
from Hazardous Material (as defined below) and (v) there is not now, nor, to
the knowledge of LIN, has there been in the past, on, in or under any real
property owned, leased or operated by LIN or any of its predecessors (a) any
underground storage tanks, above-ground storage tanks, dikes or impoundments
containing Hazardous Materials, (b) any asbestos-containing materials, (c) any
polychlorinated biphenyls, or (d) any radioactive substances.
As used in this Agreement, "Environmental Laws" means any and all
federal, state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decisions, injunctions, orders, decrees, requirements of any
Governmental Entity, any and all common law requirements, rules and bases of
liability regulating, relating to or imposing liability or standards of conduct
concerning pollution, Hazardous Materials or protection of human health or the
environment, as currently in effect and includes, but is not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., the Hazardous Materials
Transportation Act 49 U.S.C. Section 1801 et seq., the Resource Conservation
and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et seq., the Clean Water
Act, 33 U.S.C. Section 1251 et seq., the Clean Air Act, 33 U.S.C. Section
2601 et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C., Section
136 et seq., and the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et
seq., as such laws have been amended or supplemented, and the regulations
promulgated pursuant thereto, and all analogous state or local statutes. As
used in this Agreement, "Environmental Liabilities" with respect to any person
means any and all liabilities of or relating to such person or any of its
subsidiaries (including any entity which is, in whole or in part, a predecessor
of such person or any of such subsidiaries), whether vested or unvested,
contingent or fixed, actual or potential, known or unknown, which (i) arise
under or relate to matters covered by Environmental Laws and (ii) relate to
actions occurring or conditions existing on or prior to the Closing Date. As
used in this Agreement, "Hazardous Materials" means any hazardous or toxic
substances, materials or wastes, defined, listed, classified or regulated as
such in or under any Environmental Laws which includes, but is not limited to,
petroleum, petroleum products, friable asbestos, urea formaldehyde and
polychlorinated biphenyls.
2.21 MATERIAL AGREEMENTS. (a) Except as disclosed in the LIN
Disclosure Letter, from and after the date of filing of the
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LIN SEC Document, to the date of this Agreement, neither LIN nor any of its
subsidiaries has entered into any contract, agreement or other document or
instrument (other than this Agreement) that would be required to be filed with
the SEC or any material amendment, modification or waiver under any contract,
agreement or other document or instrument (other than any such amendments,
modifications or waivers entered into following the date of this Agreement in
connection with the transactions contemplated hereby) that was previously filed
with the SEC or would be required to be so filed.
(b) Except as filed as an exhibit to the LIN SEC
Document or as set forth in the LIN Disclosure Letter, to the date of this
Agreement, neither LIN nor any of its subsidiaries is a party to or has entered
into or made any material amendment or modification to or granted any material
waiver under the following (collectively, the "Material Agreements"): (A) any
network affiliation agreement for any LIN Licensed Facility or LIN LMA Facility
(a "Network Affiliation Agreement"), (B) any material sports broadcasting
agreement (a "Sports Agreement"), (C) any main transmitter site or main studio
lease for any LIN Licensed Facility or LIN LMA Facility, (D) any agreement
pursuant to which LIN agrees to provide programming to a LIN LMA Facility, or
pursuant to which LIN has either a contingent programming obligation or the
right to purchase the assets of a LIN LMA Facility or any shares of capital
stock of any corporation holding any assets relating to a LIN LMA Facility (an
"LMA Agreement"), or (E) any partnership or joint venture agreement obligating
LIN to contribute cash in excess of $200,000 per year.
(c) Each of the Material Agreements is valid and
enforceable against LIN in accordance with its terms, and there is no default
under any Material Agreements either by LIN or any of its subsidiaries which is
a party to such Material Agreements or, to the knowledge of LIN, by any other
party thereto, and no event has occurred that with the lapse of time or the
giving of notice or both would constitute a default thereunder by LIN or, to
the knowledge of LIN, any other party thereto, in any such case in which such
default or event could reasonably be expected to have a LIN Material Adverse
Effect. In addition, neither LIN nor any subsidiary of LIN is in material
breach of any Network Affiliation Agreement, Sports Agreement or LMA Agreement
(including any breach which would give rise to a right to terminate any such
agreement). To the date of this Agreement, neither LIN nor any subsidiary of
LIN has received any written notice (or to the knowledge of LIN any other
notice) of default or termination under any Material Agreement, and to the
knowledge of LIN, there exists no basis for any assertion of a right of default
or termination under such agreements. To the date of
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this Agreement, neither LIN nor any subsidiary of LIN has received any written
notice (or to the knowledge of LIN any other notice) of the exercise of a put
option or other right pursuant to which LIN or any of its subsidiaries would be
obligated to purchase capital stock or assets relating to any LIN LMA Facility.
2.22 TANGIBLE PROPERTY. All of the assets of LIN and its
Significant Subsidiaries are in good operating condition, reasonable wear and
tear excepted, and usable in the ordinary course of business, except where the
failure to be in such condition or so usable could not, individually or in the
aggregate, reasonably be expected to have a LIN Material Adverse Effect.
2.23 NBC STATION VENTURE. To the knowledge of LIN, except as
disclosed in the LIN SEC Document, since the date of the most recent financial
statements of LIN Holdings contained in the LIN SEC Document, there has been no
material adverse change in the business, properties, results of operations, or
condition (financial or otherwise) of Station Venture Holdings, LLC (a minority
equity investment of one of LIN's subsidiaries) and its subsidiaries, taken as
a whole, that could reasonably be expected to have a LIN Material Adverse
Effect.
2.24 NO OTHER REPRESENTATIONS AND WARRANTIES. Except for the
representations and warranties made by LIN as expressly set forth in this
Agreement or in any certificate or document delivered pursuant this Agreement,
neither LIN nor any of its affiliates has made and shall not be construed as
having made to Chancellor or to any affiliate thereof any representation or
warranty of any kind.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CHANCELLOR
Chancellor represents and warrants to LIN as follows:
3.1 ORGANIZATION, STANDING AND CORPORATE POWER. Each of
Chancellor and the Chancellor Significant Subsidiaries (as defined below) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated and has the requisite
corporate power and authority to carry on its business as now being conducted.
Each of Chancellor and the Chancellor Significant Subsidiaries is duly
qualified to do business and is in good standing in each jurisdiction in which
the nature of its business or the ownership
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or leasing of its properties makes such qualification necessary, except where
the failure to be so qualified could not reasonably be expected to have a
material adverse effect on the business, properties, results of operations, or
condition (financial or otherwise) of Chancellor and its subsidiaries,
considered as a whole (other than as a result of changes in general economic
conditions or in economic conditions generally affecting the radio broadcasting
industry) (a "Chancellor Material Adverse Effect"). Chancellor has delivered
to LIN complete and correct copies of its Certificate of Incorporation and
Bylaws, as amended to the date of this Agreement. For purposes of this
Agreement, a "Chancellor Significant Subsidiary" means any subsidiary of
Chancellor that would constitute a "significant subsidiary" within the meaning
of Rule 1-02 of Regulation S-X of the SEC.
3.2 CAPITAL STRUCTURE. The authorized capital stock of
Chancellor consists of (i) 75,000,000 shares of Chancellor Class A Common
Stock, none of which are issued and outstanding, (ii) 200,000,000 shares of
Chancellor Common Stock and (iii) 50,000,000 shares of preferred stock, $0.01
par value, of which (x) 2,200,000 shares have been designated as 7% Convertible
Preferred Stock and (y) 6,000,000 shares have been designated as $3.00
Convertible Exchangeable Preferred Stock. At the close of business on July 6,
1998: (i) 142,288,959 shares of Chancellor Common Stock were issued and
outstanding, 14,160,810 shares of Chancellor Common Stock were reserved for
issuance pursuant to outstanding options or warrants to purchase Chancellor
Common Stock which have been granted to directors, officers or employees of
Chancellor or others ("Chancellor Stock Options"), 18,059,088 shares of
Chancellor Common Stock were reserved for issuance upon the conversion of the
Chancellor Convertible Preferred Stock, and no shares of Chancellor Common
Stock were held as treasury shares by Chancellor or any subsidiary of
Chancellor; (ii) 2,200,000 shares of Chancellor 7% Convertible Preferred Stock
were issued and outstanding; (iii) 6,000,000 shares of Chancellor $3.00
Convertible Preferred Stock were issued and outstanding; and (iv) no shares of
Chancellor Convertible Preferred Stock were held as treasury shares by
Chancellor or any subsidiary of Chancellor. Except as set forth above, at the
close of business on July 6, 1998, no shares of capital stock or other equity
securities of Chancellor were authorized, issued, reserved for issuance or
outstanding. All outstanding shares of capital stock of Chancellor are, and
all shares which may be issued pursuant to Chancellor's stock option plans, as
amended to the date hereof (the "Chancellor Stock Option Plans"), or upon the
exercise of outstanding Chancellor Stock Options or upon the conversion of
outstanding shares of Chancellor Convertible Preferred Stock will be, when
issued, duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. No bonds,
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debentures, notes or other indebtedness of Chancellor or any subsidiary of
Chancellor having the right to vote (or convertible into, or exchangeable for,
securities having the right to vote) on any matters on which the stockholders
of Chancellor or any subsidiary of Chancellor may vote are issued or
outstanding. All the outstanding shares of capital stock of each subsidiary of
Chancellor have been validly issued and are fully paid and nonassessable and
(except for the shares of 12-1/4% Series A Senior Cumulative Exchangeable
Preferred Stock, $0.01 par value, of Chancellor Media Corporation of Los
Angeles, a Delaware corporation (the "Chancellor Operating Subsidiary")), are
owned by Chancellor, by one or more wholly-owned subsidiaries of Chancellor or
by Chancellor and one or more such wholly-owned subsidiaries, free and clear of
all Liens, except for Liens arising out of the senior credit facility of
Chancellor Operating Subsidiary and those that, individually or in the
aggregate, could not reasonably be expected to have a Chancellor Material
Adverse Effect. Except as set forth above and in the Chancellor Stockholders
Agreement (as defined in Section 6.2(d)) (which restricts the transfer of
shares of Chancellor Common Stock by the parties to the Chancellor Stockholders
Agreement in certain circumstances), and except for certain provisions of the
Certificate of Incorporation of Chancellor relating to "alien ownership" of the
Chancellor Common Stock, neither Chancellor nor any subsidiary of Chancellor
has any outstanding option, warrant, subscription or other right, agreement or
commitment that either (i) obligates Chancellor or any subsidiary of Chancellor
to issue, sell or transfer, repurchase, redeem or otherwise acquire or vote any
shares of the capital stock of Chancellor or any Chancellor Significant
Subsidiary or (ii) restricts the transfer of Chancellor Common Stock. Since
the close of business on July 6, 1998 to the date hereof, neither Chancellor
nor any subsidiary of Chancellor has issued any capital stock or securities or
other rights convertible into or exercisable or exchangeable for shares of such
capital stock, other than shares of Chancellor Common Stock issued upon the
exercise of Chancellor Stock Options outstanding on July 6, 1998 or upon the
conversion of shares of Chancellor Convertible Preferred Stock outstanding on
July 6, 1998.
3.3 AUTHORITY; NONCONTRAVENTION. Chancellor has the requisite
corporate power and authority to enter into this Agreement and, subject to the
approval of its stockholders as set forth in Section 4.2(b) with respect to the
approval of this Agreement and the consummation of the Merger and the issuance
of shares of Chancellor Common Stock therein (the "Chancellor Stockholders
Approval"), to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement by Chancellor and the consummation by
Chancellor
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of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Chancellor, subject, in the case of
the Merger and the issuance of shares of Chancellor Common Stock therein, the
Chancellor Stockholders Approval. This Agreement has been duly executed and
delivered by Chancellor and, assuming this Agreement constitutes the valid and
binding agreement of each of the other parties hereto, constitutes a valid and
binding obligation of Chancellor, enforceable against it in accordance with its
terms except that the enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws now or hereafter in
effect relating to creditor's rights generally and (b) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity). The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions hereof will not, (i) conflict with any of the provisions of
the Certificate of Incorporation or Bylaws of Chancellor or the comparable
documents of any subsidiary of Chancellor, (ii) subject to the governmental
filings and other matters referred to in the following sentence, conflict with,
result in a breach of or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a material benefit under, or require
the consent of any person under, any indenture or other agreement, permit,
concession, franchise, license or similar instrument or undertaking to which
Chancellor or any of its subsidiaries is a party or by which Chancellor or any
of its subsidiaries or any of their assets is bound or affected, (iii) result
in an obligation by Chancellor or any of its subsidiaries to redeem, repurchase
or retire (or offer to redeem, repurchase or retire) any indebtedness of
Chancellor or any of its subsidiaries outstanding as of the date hereof or
equity security of Chancellor or any of its subsidiaries outstanding as of the
date hereof, or (iv) subject to the governmental filings and other matters
referred to in the following sentence, contravene any law, rule or regulation
of any state or of the United States or any political subdivision thereof or
therein, or any order, writ, judgment, injunction, decree, determination or
award currently in effect, except, in the cases of the foregoing clauses (ii)
through (iv), for breaches that, individually or in the aggregate, could not
reasonably be expected to have a Chancellor Material Adverse Effect or to
materially hinder Chancellor's ability to consummate the transactions
contemplated by this Agreement. No consent, approval or authorization of, or
declaration or filing with, or notice to, any Governmental Entity which has not
been received or made, is required by or with respect to Chancellor or any of
its subsidiaries in connection with the execution and delivery of
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this Agreement by Chancellor or the consummation by Chancellor of the
transactions contemplated hereby, except for (i) the filing of premerger
notification and report forms under the HSR Act with respect to the Merger and
the termination or earlier expiration of the applicable waiting period
thereunder, (ii) such filings with and approvals required by the FCC under the
Communications Act, including those required in connection with the acquisition
of control of the LIN FCC Licenses for the operation of the LIN Licensed
Facilities, (iii) the filing of a registration statement under the Securities
Act with respect to the issuance of shares of Chancellor Common Stock in the
Merger, (iv) a proxy statement to be filed with the SEC by Chancellor relating
to the Chancellor Stockholders Approval (such proxy statement, as amended or
supplemented from time to time, the "Proxy Statement/Prospectus"), (v) any
filing required by the Nasdaq Stock Market with respect to the issuance of
shares of Chancellor Common Stock in the Merger and upon exercise of Assumed
Stock Options (as defined in Section 5.2(a)), (vi) the filing of such reports
under the Exchange Act as may be required in connection with this Agreement and
the transactions contemplated by this Agreement, (vii) such filings and
consents as may be required under any environmental, health or safety law or
regulation pertaining to any notification, disclosure or required approval
triggered by the Merger or the other transactions contemplated by this
Agreement, and (viii) such filings as may be required in connection with
statutory provisions and regulations relating to real property transfer gains
taxes and real property transfer taxes..
3.4 CHANCELLOR SEC DOCUMENTS. (i) Chancellor and its
predecessors have filed all required reports, schedules, forms, statements and
other documents with the SEC since January 1, 1995 (such reports, schedules,
forms, statements and other documents and any other documents filed with the
SEC and publicly available prior to the date of this Agreement are hereinafter
referred to as the "Chancellor SEC Documents"); (ii) as of their respective
dates, the Chancellor SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations of the SEC promulgated thereunder applicable to such
Chancellor SEC Documents, and none of the Chancellor SEC Documents as of such
dates 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; and (iii) as of their respective dates, the consolidated
financial statements of Chancellor and its predecessors included in the SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and
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regulations of the SEC with respect thereto, have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto
or, in the case of unaudited statements, as permitted by Rule 10-01 of
Regulation S-X) and fairly present, in all material respects, the consolidated
financial position of Chancellor and its consolidated subsidiaries (or its
predecessors and their respective consolidated subsidiaries) as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (on the basis stated therein and subject, in the case of
unaudited quarterly statements, to normal year-end audit adjustments).
3.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed
in the Chancellor SEC Documents or except as disclosed in writing by Chancellor
to LIN in a disclosure letter (the "Chancellor Disclosure Letter") prior to the
execution and delivery of the Agreement, or as otherwise agreed to in writing
after the date hereof by LIN, or as expressly permitted by this Agreement,
since the date of the most recent audited financial statements included in the
Chancellor SEC Documents, Chancellor and its subsidiaries have conducted their
business only in the ordinary course, and there has not been (i) any change
which could reasonably be expected to have a Chancellor Material Adverse Effect
(including as a result of the consummation of the transactions contemplated by
this Agreement), (ii) any declaration, setting aside or payment of any dividend
or other distribution (whether in cash, stock or property) with respect to any
of Chancellor's currently outstanding capital stock (other than the payment of
regular cash dividends on the Chancellor 7% Convertible Preferred Stock and
Chancellor $3.00 Convertible Preferred Stock, and other than the payment of
dividends (including accrued dividends) on the 12% Exchangeable Preferred
Stock, $0.01 par value, and 12 1/4% Series A Senior Cumulative Exchangeable
Preferred Stock, $0.01 par value, of Chancellor Operating Subsidiary, in each
case in accordance with usual record and payment dates (other than accrued and
unpaid dividends paid on the 12% Exchangeable Preferred Stock)), (iii) any
split, combination or reclassification of any of its outstanding capital stock
or any issuance or the authorization of any issuance of any other securities in
respect of, in lieu of or in substitution for shares of its outstanding capital
stock, (iv) (x) any granting by Chancellor or any of its subsidiaries to any
director, officer or other employee or independent contractor of Chancellor or
any of its subsidiaries of any increase in compensation or acceleration of
benefits, except in the ordinary course of business consistent with prior
practice or as was required under employment agreements in effect as of the
date of the most recent audited
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financial statements included in the Chancellor SEC Documents, (y) any granting
by Chancellor or any of its subsidiaries to any director, officer or other
employee or independent contractor of any increase in, or acceleration of
benefits in respect of, severance or termination pay, or pay in connection with
any change of control of Chancellor, except in the ordinary course of business
consistent with prior practice or as was required under any employment,
severance or termination agreements in effect as of the date of the most recent
audited financial statements included in the Chancellor SEC Documents or (z)
any entry by Chancellor or any of its subsidiaries into any employment,
severance, change of control, or termination or similar agreement with any
director, executive officer or other employee or independent contractor other
than in the ordinary course of business consistent with past practices, or (v)
any change in accounting methods, principles or practices by Chancellor or any
of its subsidiaries materially affecting its assets, liability or business,
except insofar as may have been required by a change in generally accepted
accounting principles.
3.6 NO EXTRAORDINARY PAYMENTS OR CHANGE IN BENEFITS. Except as
disclosed in the Chancellor Disclosure Letter, no current or former director,
officer, employee or independent contractor of Chancellor or any of its
subsidiaries is entitled to receive any payment under any agreement,
arrangement or policy (written or oral) relating to employment, severance,
change of control, termination, stock options, stock purchases, compensation,
deferred compensation, fringe benefits or other employee benefits currently in
effect (collectively, the "Chancellor Benefit Plans"), nor will any benefit
received or to be received by any current or former director, officer, employee
or independent contractor of Chancellor or any of its subsidiaries under any
Chancellor Benefit Plan be accelerated or modified, as a result of or in
connection with the execution and delivery of, or the consummation of the
transactions contemplated by, this Agreement.
3.7 BROKERS. Except with respect to Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx") and Xxxxxxxxxxx Xxxxxxx & Co. ("Xxxxxxxxxxx"),
all negotiations relating to this Agreement and the transactions contemplated
hereby have been carried out by Chancellor directly with LIN without the
intervention of any person on behalf of Chancellor in such a manner as to give
rise to any valid claim by any person against Chancellor, LIN, the Surviving
Corporation or any subsidiary of any of them for a finder's fee, brokerage
commission, or similar payment. The Chancellor Disclosure Letter sets forth a
written summary of the terms of its agreements relating to the transactions
contemplated by this Agreement with Xxxxxx Xxxxxxx and Xxxxxxxxxxx, and
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Chancellor has no other agreements or understandings (written or oral) with
respect to such services.
3.8 OPINION OF FINANCIAL ADVISOR. Chancellor has received the
opinion of Xxxxxxxxxxx, dated the date hereof, to the effect that, as of such
date, the Exchange Ratio is fair, from a financial point of view, to Chancellor
and the holders of Chancellor Common Stock.
3.9 ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed
in the Chancellor SEC Documents and except for liabilities contemplated by this
Agreement or disclosed in the Chancellor Disclosure Letter, Chancellor and its
subsidiaries do not have any material indebtedness, obligations or liabilities
of any kind (whether accrued, absolute, contingent or otherwise) (i) required
by GAAP to be reflected on a consolidated balance sheet of Chancellor and its
consolidated subsidiaries or in the notes, exhibits or schedules thereto or
(ii) which reasonably could be expected to have a Chancellor Material Adverse
Effect.
3.10 LITIGATION. Except as disclosed in the Chancellor SEC
Documents, to the date of this Agreement, there is no litigation,
administrative action, arbitration or other proceeding pending against
Chancellor or any of its subsidiaries or, to the knowledge of Chancellor,
threatened that, individually or in the aggregate, could reasonably be expected
to (i) have a Chancellor Material Adverse Effect or (ii) prevent, or
significantly delay the consummation of the transactions contemplated by this
Agreement. Except as set forth in the Chancellor SEC Documents, to the date of
this Agreement, there is no judgment, order, injunction or decree of any
Governmental Entity outstanding against Chancellor or any of its subsidiaries
that, individually or in the aggregate, could reasonably be expected to have
any effect referred to in the foregoing clauses (i) and (ii) of this Section
3.10.
3.11 TRANSACTIONS WITH AFFILIATES. Other than the transactions
contemplated by this Agreement or except to the extent disclosed in the
Chancellor SEC Documents or in the Chancellor Disclosure Letter, there have
been no transactions, agreements, arrangements or understandings between
Chancellor or its subsidiaries, on the one hand, and Chancellor's affiliates
(other than subsidiaries of Chancellor) or any other person, on the other hand,
that would be required to be disclosed under Item 404 of Regulation S-K under
the Securities Act.
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3.12 CHANCELLOR COMMON STOCK. The shares of Chancellor Common
Stock to be issued in the Merger will be, upon delivery against receipt of the
shares of LIN Common Stock for which such shares will be issued in accordance
with Section 1.8 of this Agreement, duly authorized, validly issued, fully paid
and nonassessable. The shares of Chancellor Common Stock to be issued upon
exercise of the Assumed Stock Options (as defined in Section 5.2(a)) will be,
upon delivery of the exercise price therefor in accordance with the terms of
the LIN Stock Option Plan and agreements pursuant to which such Assumed Stock
Options were issued, duly authorized, validly issued, fully paid and
nonassessable.
3.13 VOTING REQUIREMENTS. The affirmative vote of a majority of
the outstanding shares of Chancellor Common Stock entitled to vote with respect
to the approval of the Merger and the issuance of shares of Chancellor Common
Stock therein is the only vote of the holders of any class or series of
Chancellor's capital stock necessary to approve this Agreement and the
transactions contemplated by this Agreement.
3.14 FCC QUALIFICATION. Chancellor and its subsidiaries are
fully qualified under the Communications Act to be the transferees of control
of the LIN FCC Licenses. Except as disclosed in the Chancellor Disclosure
Letter, Chancellor is not aware of any facts or circumstances relating to the
FCC qualifications of Chancellor or any of its subsidiaries that would prevent
the FCC's granting the FCC Form 315 Transfer of Control Application to be filed
with respect to the Merger.
3.15 EMPLOYEE ARRANGEMENTS AND BENEFIT PLANS. (a) Except as
set forth in the Chancellor SEC Documents or in the Chancellor Disclosure
Letter and except as could not, individually or in the aggregate, reasonably be
expected to have a Chancellor Material Adverse Effect: (A) each Chancellor
Benefit Plan has been administered and is in compliance with the terms of such
plan and all applicable laws, rules and regulations, (B) no "reportable event"
(as such term is used in section 4043 of ERISA) (other than those events for
which the 30 day notice has been waived pursuant to the regulations),
"prohibited transaction" (as such term is used in section 406 of ERISA or
section 4975 of the Code) or "accumulated funding deficiency" (as such term is
used in section 412 or 4971 of the Code) has heretofore occurred with respect
to any Chancellor Benefit Plan and (C) each Chancellor Benefit Plan intended to
qualify under Section 401(a) of the Code has received a favorable determination
from the IRS regarding its qualified status and no notice has been received
from the IRS with respect to the revocation of such qualification.
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(b) To the date of this Agreement, there is no
litigation or administrative or other proceeding involving any Chancellor
Benefit Plan nor has Chancellor or its subsidiaries received written notice
that any such proceeding is threatened, in each case where an adverse
determination could reasonably be expected to have a Chancellor Material
Adverse Effect. Neither Chancellor nor any of its subsidiaries has incurred,
nor, to the best of Chancellor's knowledge, is reasonably likely to incur any
withdrawal liability with respect to any "multiemployer plan" (within the
meaning of section 3(37) of ERISA) which remains unsatisfied in an amount which
could reasonably be expected to have a Chancellor Material Adverse Effect. The
termination of, or withdrawal from, any Chancellor Benefit Plan or
multiemployer plan to which Chancellor or its subsidiaries contributes, on or
prior to the Closing Date, will not subject Chancellor or any of its
subsidiaries to any liability under Title IV of ERISA that could reasonably be
expected to have a Chancellor Material Adverse Effect.
3.16 TAX MATTERS. Except as set forth in the Chancellor
Disclosure Letter, (A) Chancellor and each of its subsidiaries have timely
filed with the appropriate taxing authorities all material Tax Returns required
to be filed through the date hereof and will timely file any such material Tax
Returns required to be filed on or prior to the Closing Date (except those
under valid extension) and all such Tax Returns are and will be true and
correct in all material respects, (B) all Taxes of Chancellor and each of its
subsidiaries shown to be due on the Tax Returns described in (A) above have
been or will be timely paid or adequately reserved for in accordance with GAAP
(except to the extent that such Taxes are being contested in good faith), (C)
no material deficiencies for any Taxes have been proposed, asserted or assessed
against Chancellor or any of its subsidiaries that have not been fully paid or
adequately provided for in the appropriate financial statements of Chancellor
and its subsidiaries, and no power of attorney with respect to any Taxes has
been executed or filed with any taxing authority and no material issues
relating to Taxes have been raised in writing by any governmental authority
during any presently pending audit or examination, (D) Chancellor and its
subsidiaries are not now subject to audit by any taxing authority and no
waivers of statutes of limitation with respect to the Tax Returns have been
given by or requested in writing from Chancellor or any of its subsidiaries,
(E) there are no material liens for Taxes (other than for Taxes not yet due and
payable) on any assets of Chancellor or any of its subsidiaries, (F) neither
Chancellor nor any of its subsidiaries is a party to or bound by (nor will any
of them become a party to or bound by) any tax indemnity, tax sharing, tax
allocation agreement, or similar agreement,
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arrangement or practice with respect to Taxes, (G) neither Chancellor nor any
of its subsidiaries has ever been a member of an affiliated group of
corporations within the meaning of Section 1504 of the Code, other than the
affiliated group of which Chancellor is the common parent, (H) neither
Chancellor nor any of its subsidiaries has filed a consent pursuant to the
collapsible corporation provisions of Section 341(f) of the Code (or any
corresponding provision of state or local law) or agreed to have Section
341(f)(2) of the Code (or any corresponding provisions of state or local law)
apply to any disposition of any asset owned by Chancellor or any of its
subsidiaries, as the case may be, (I) neither Chancellor nor any of its
subsidiaries has agreed to make, nor is any required to make, any adjustment
under Section 481(a) of the Code or any similar provision of state, local or
foreign law by reason of a change in accounting method or otherwise, (J)
Chancellor and its subsidiaries have complied in all material respects with all
applicable laws, rules and regulations relating to withholding of Taxes and (K)
no property owned by Chancellor or any of its subsidiaries (i) is property
required to be treated as being owned by another person pursuant to the
provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as
amended and in effect immediately prior to the enactment of the Tax Reform Act
of 1986; (ii) constitutes "tax exempt use property" within the meaning of
Section 168(h)(l) of the Code; or (iii) is tax exempt bond financed property
within the meaning of Section 168(g) of the Code.
3.17 INTELLECTUAL PROPERTY. Except as set forth in the
Chancellor Disclosure Letter and except to the extent that the inaccuracy of
any of the following (or the circumstances giving rise to such inaccuracy),
individually or in the aggregate, could not reasonably be expected to have a
Chancellor Material Adverse Effect: (a) Chancellor and each of its
subsidiaries owns, or is licensed to use (in each case, free and clear of any
Liens), all Intellectual Property used in or necessary for the conduct of its
business as currently conducted; (b) the use of any Intellectual Property by
Chancellor and its subsidiaries does not infringe on or otherwise violate the
rights of any person and is in accordance with any applicable license pursuant
to which Chancellor or any subsidiary acquired the right to use any
Intellectual Property; and (c) to the knowledge of Chancellor, no person is
challenging, infringing on or otherwise violating any right of Chancellor or
any of its subsidiaries with respect to any Intellectual Property owned by
and/or licensed to Chancellor or its subsidiaries; and (d) neither Chancellor
nor any of its subsidiaries has received any written notice of any pending
claim with respect to any Intellectual Property used by Chancellor and its
subsidiaries and to its knowledge no Intellectual Property owned and/or
licensed by Chancellor or its subsidiaries is being
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used or enforced in a manner that would result in the abandonment, cancellation
or unenforceability of such Intellectual Property.
3.18 ENVIRONMENTAL MATTERS. Except as disclosed in the
Chancellor SEC Documents or in the Chancellor Disclosure Letter and except as
could not reasonably be expected to have a Chancellor Material Adverse Effect
(i) the operations of Chancellor and its subsidiaries have been and are in
compliance with all Environmental Laws and with all Permits required by
Environmental Laws, (ii) to the date of this Agreement, there are no pending
or, to the knowledge of Chancellor, threatened, Actions under or pursuant to
Environmental Laws against Chancellor or its subsidiaries or involving any real
property currently or, to the knowledge of Chancellor, formerly owned, operated
or leased by Chancellor or its subsidiaries, (iii) Chancellor and its
subsidiaries are not subject to any Environmental Liabilities, and, to the
knowledge of Chancellor, no facts, circumstances or conditions relating to,
arising from, associated with or attributable to any real property currently
or, to the knowledge of Chancellor, formerly owned, operated or leased by
Chancellor or its subsidiaries or operations thereon that could reasonably be
expected to result in Environmental Liabilities, (iv) all real property owned
and to the knowledge of Chancellor all real property operated or leased by
Chancellor or its subsidiaries is free of contamination from Hazardous Material
and (v) there is not now, nor, to the knowledge of Chancellor, has there been
in the past, on, in or under any real property owned, leased or operated by
Chancellor or any of its predecessors (a) any underground storage tanks,
above-ground storage tanks, dikes or impoundments containing Hazardous
Materials, (b) any asbestos-containing materials, (c) any polychlorinated
biphenyls, or (d) any radioactive substances.
3.19 NO OTHER REPRESENTATIONS AND WARRANTIES. Except for the
representations and warranties made by Chancellor as expressly set forth in
this Agreement or in any certificate or document delivered pursuant this
Agreement, neither Chancellor nor any of its affiliates has made and shall not
be construed as having made to LIN or to any affiliate thereof any
representation or warranty of any kind.
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ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 PREPARATION OF FORM S-4 AND PROXY STATEMENT/PROSPECTUS;
INFORMATION SUPPLIED.
(a) As soon as practicable following the date of this
Agreement, Chancellor shall prepare and file with the SEC (i) a preliminary
Proxy Statement/Prospectus and (ii) a Registration Statement on Form S-4 (the
"Form S-4") with respect to the registration of the issuance of shares of
Chancellor Common Stock in the Merger, of which the Proxy Statement/Prospectus
will form a part. Chancellor shall use its reasonable best efforts to have the
Form S-4 declared effective under the Securities Act as promptly as practicable
after such filing. Chancellor shall use its best efforts to cause the Proxy
Statement/Prospectus to be mailed to Chancellor's stockholders and LIN's
stockholders as promptly as practicable after the Form S-4 is declared
effective under the Securities Act. Chancellor shall also take any action
(other than qualifying to do business in any jurisdiction in which it is not
now so qualified or take any action that would subject it to the service of
process in suits, other than as to matters and transactions relating to the
Form S-4, in any jurisdiction where it is not so subject) required to be taken
under any applicable state securities laws in connection with the issuance of
the Chancellor Common Stock in the Merger and LIN shall furnish all information
concerning itself and the holders of shares of LIN Common Stock as may be
reasonably requested in connection with any such action.
(b) LIN agrees and represents and warrants that the
information supplied or to be supplied by it specifically for inclusion or
incorporation by reference in the (i) Form S-4 will not, at the time the Form
S-4 is filed with the SEC, at any time it is amended or supplemented or at the
time it becomes effective under the Securities Act, 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 light
of the circumstances under which they are made, not misleading, or (ii) the
Proxy Statement/Prospectus will not, at the date it is first mailed to
Chancellor's stockholders or at the time of the Chancellor Stockholders Meeting
(as defined in Section 4.2), contain any statement which, at the time and in
light of the circumstances under which it is made, is false or misleading with
respect to any material fact, or omits to state any material fact necessary in
order to make the statements therein not false or misleading or necessary to
correct any statement in any earlier communication with respect to the
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solicitation of a proxy for the same meeting or subject matter thereof which
has become false or misleading.
(c) Chancellor agrees and represents and warrants that
the information supplied or to be supplied by it specifically for inclusion or
incorporation by reference in (i) the Form S-4 will not, at the time the Form
S-4 is filed with the SEC, at any time it is amended or supplemented or at the
time it becomes effective under the Securities Act, 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 light
of the circumstances under which they are made, not misleading, or (ii) the
Proxy Statement/Prospectus will not, at the date it is first mailed to
Chancellor's stockholders or at the time of the Chancellor Stockholders
Meeting, contain any statement which, at the time and in light of the
circumstances under which it is made, is false or misleading with respect to
any material fact, or omits to state any material fact necessary in order to
make the statements therein not false or misleading or necessary to correct any
statement in any earlier communication with respect to the solicitation of a
proxy for the same meeting or subject matter thereof which has become false or
misleading. Chancellor agrees that the Form S-4 will comply as to form in all
material respects with the requirements of the Securities Act and the rules and
regulations promulgated thereunder and Chancellor agrees that the Proxy
Statement/Prospectus will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations promulgated
thereunder, except in each case with respect to statements made or incorporated
by reference in the Form S-4 or the Proxy Statement/Prospectus supplied by LIN
specifically for inclusion or incorporation by reference therein as to which
Chancellor assumes no responsibility.
4.2 STOCKHOLDER APPROVAL. (a) LIN agrees that it will take
all action necessary in accordance with applicable law and its Certificate of
Incorporation and Bylaws to convene a meeting of its common stockholders or
obtain the written consent of its common stockholders for the approval of this
Agreement and the Merger. LIN will use its best efforts to obtain the LIN
Stockholders Approval as soon as practicable after the date hereof. Without
limiting the generality of the foregoing, LIN agrees that its obligations
pursuant to the first two sentences of this Section 4.2(a) shall not be
affected by (i) the commencement, public proposal, public disclosure or
communication to Chancellor of any Acquisition Proposal (as defined in Section
4.5(a) below) or (ii) the withdrawal or modification by the Board of Directors
of LIN of its approval or recommendation of this
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Agreement or the Merger. The Board of Directors of LIN shall recommend to its
stockholders that they vote in favor of the adoption of this Agreement and the
Merger.
(b) Chancellor agrees that it will take all action necessary in
accordance with applicable law and its Certificate of Incorporation and Bylaws
to convene a meeting of its stockholders (the "Chancellor Stockholders
Meeting") to submit this Agreement, together with the affirmative
recommendation of Chancellor's Board of Directors, to the Chancellor's
stockholders so that they may consider and vote upon the approval of this
Agreement, the Merger and the issuance of shares of Chancellor Common Stock
therein. Chancellor will use its best efforts to hold the Chancellor
Stockholders Meeting as soon as practicable after the date hereof and to obtain
the favorable votes of its stockholders. The Board of Directors of Chancellor
shall recommend to its stockholders that they vote in favor of the adoption of
this Agreement and the Merger.
4.3 ACCESS TO INFORMATION; CONFIDENTIALITY. Upon reasonable
notice, each of Chancellor and LIN shall, and shall cause each of its
respective subsidiaries to, afford to the other parties hereto and to their
respective officers, employees, counsel, financial advisors and other
representatives reasonable access during normal business hours during the
period prior to the Effective Time to all its properties, books, contracts,
commitments, personnel and records and, during such period, each of Chancellor
and LIN shall, and shall cause each of its respective subsidiaries to, furnish
as promptly as practicable to the other parties hereto such information
concerning its business, properties, financial condition, operations and
personnel as such parties may from time to time reasonably request. Except as
required by law or the rules of regulations of the Nasdaq Stock Market or any
national stock exchange, each of Chancellor and LIN agree that, until the
earlier of (i) two years from the date of this Agreement and (ii) the Effective
Time, each of Chancellor and LIN and their respective subsidiaries will not,
and will cause its respective directors, officers, partners, employees, agents,
accountants, counsel, financial advisors and other representatives and
affiliates (collectively, "Representatives") not to, disclose any nonpublic
information obtained from Chancellor or LIN, as the case may be, to any other
person, in whole or in part, other than to its Representatives in connection
with an evaluation of the transactions contemplated by this Agreement, and each
of Chancellor and LIN and their respective subsidiaries will not, and will
cause its respective Representatives not to, use any of such nonpublic
information to directly or indirectly divert or
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attempt to divert any business, customer or employee of the other.
4.4 PUBLIC ANNOUNCEMENTS. Chancellor and LIN agree that each
of them will consult with each of the others before issuing, and will provide
each other the opportunity to review and comment upon, any press release or
other public statements with respect to the transactions contemplated by this
Agreement, including the Merger, and shall not issue any such press release or
make any such public statement prior to such consultation, except as may be
required by applicable law, court process or by obligations pursuant to rules
of any national securities exchange or The Nasdaq Stock Market (to the extent
applicable to them).
4.5 ACQUISITION PROPOSALS. (a) From and after the date hereof,
without the prior written consent of Chancellor, LIN shall not, and shall not
authorize or permit any of its subsidiaries to, and shall direct and use its
best efforts to cause its and its subsidiaries' Representatives not to, (i)
directly or indirectly, solicit, initiate or encourage (including by way of
furnishing information or assistance) or take any other action to facilitate
any inquiries or the making of any proposal which constitutes or may reasonably
be expected to lead to an Acquisition Proposal (as defined below) or (ii) enter
into or participate in any discussions or negotiations regarding any
Acquisition Proposal. LIN shall immediately cease and terminate any existing
solicitation, initiation, encouragement, activity, discussion or negotiation
with any persons conducted heretofore by it or its Representatives with respect
to the foregoing. LIN agrees not to release any third party from, or waive any
provision of, any standstill agreement to which it is a party or any
confidentiality agreement between it and another person who has made, or who
may reasonably be considered likely to make, an Acquisition Proposal. LIN
agrees that it will notify Chancellor orally and in writing, of any such
inquiries, offers or proposals (including, without limitation, the terms and
conditions of any such proposal).
(b) Neither the Board of Directors of LIN nor any
committee thereof shall (i) withdraw or modify, or propose to withdraw or
modify, in a manner adverse to Chancellor, the approval or recommendation by
such Board of Directors or committee thereof of this Agreement or the Merger,
(ii) approve or recommend, or propose to approve or recommend, any Acquisition
Proposal or (iii) cause LIN to enter into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement related to any
Acquisition Proposal.
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(c) For purposes of this Agreement, an "Acquisition
Proposal" means any proposal or offer from any person (other than Chancellor or
any of its subsidiaries) for a tender or exchange offer, merger, consolidation,
other business combination, recapitalization, liquidation, dissolution or
similar transaction involving LIN or any LIN Significant Subsidiary, or any
proposal to acquire in any manner a substantial equity interest in, or an
substantial portion of the assets of, LIN or a LIN Significant Subsidiary;
provided that an Acquisition Proposal shall not include any direct or indirect
acquisition or disposition of television broadcast stations (or the assets
thereof) disclosed in the LIN Disclosure Letter.
4.6 CONSENTS, APPROVALS AND FILINGS. Chancellor and LIN will
make and cause their respective subsidiaries and, to the extent necessary,
their other affiliates to make all necessary filings, including, without
limitation, those required under the HSR Act, the Securities Act, the Exchange
Act, and the Communications Act (including filing an application with the FCC
for the transfer of control of the LIN FCC Licenses, which the parties shall
file as soon as practicable (and in any event not more than 20 business days)
after the date of this Agreement), in order to facilitate the prompt
consummation of the Merger and the other transactions contemplated by this
Agreement. In addition, Chancellor and LIN will each use its best efforts, and
will cooperate fully and in good faith with each other, (i) to comply as
promptly as practicable with all governmental requirements applicable to the
Merger and the other transactions contemplated by this Agreement, and (ii) to
obtain as promptly as practicable all necessary permits, orders or other
consents of Governmental Entities and consents of all third parties necessary
for the consummation of the Merger and the other transactions contemplated by
this Agreement, including without limitation, the consent of the FCC to the
transfer of control of the LIN FCC Licenses. Each of Chancellor and LIN shall
use its best efforts to promptly provide such information and communications to
Governmental Entities as such Governmental Entities may reasonably request.
Each of the parties hereto shall provide to the other parties copies of all
applications in advance of filing or submission of such applications to
Governmental Entities in connection with this Agreement and shall make such
revisions thereto as reasonably requested by each other party hereto. Each of
the parties hereto shall provide to the other parties the opportunity to
participate in all meetings and material conversations with Governmental
Entities with respect to the matters contemplated by this Agreement.
4.7 AFFILIATES LETTERS. Prior to the Closing Date, LIN shall
deliver to Chancellor a letter identifying all persons who,
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at the time the Merger is submitted for approval to the stockholders, may be
deemed to be an "affiliate" of such party for purposes of Rule 145 under the
Securities Act. LIN shall use its best efforts to cause each such person to
deliver to Chancellor on or prior to the Closing Date a written agreement
substantially in the form attached as Exhibit A hereto.
4.8 NASDAQ LISTING. Chancellor shall use its best efforts to
cause the shares of Chancellor Common Stock to be issued in the Merger and upon
the exercise of the Assumed Stock Options (as defined in Section 6.2(a)) to be
approved for quotation in the Nasdaq Stock Market.
4.9 INDEMNIFICATION. The Certificate of Incorporation of the
Surviving Corporation shall contain the provisions with respect to
indemnification contained in the certificate of incorporation of LIN, as in
effect on the date hereof, and none of such provisions shall be amended,
repealed or otherwise modified for a period of six years after the Effective
Time in any manner that would adversely affect the rights thereunder of
individuals who at any time prior to the Effective Time were directors or
officers of LIN, or any of its respective subsidiaries (the "Indemnified
Parties") in respect of actions or omissions occurring at or prior to the
Effective Time (including, without limitation, the transactions contemplated by
this Agreement), unless such modification is required by law. Chancellor will
cause to be maintained for a period of not less than six years from the
Effective Time LIN's current directors' and officers' insurance and
indemnification policies to the extent that they provide coverage for events
occurring prior to the Effective Time (the "D&O Insurance") for all persons who
are directors and executive officers of LIN on the date of this Agreement, so
long as the annual premium therefor would not be in excess of 250% of the last
annual premium paid prior to the date of this Agreement; provided, however,
that Chancellor or its subsidiaries may, in lieu of maintaining such existing
D&O Insurance as provided above, cause coverage to be provided under any policy
maintained for the benefit of Chancellor and its subsidiaries so long as the
terms thereof are not less advantageous to the beneficiaries thereof than the
existing D&O Insurance. The provisions of this Section 4.9 are intended to be
for the benefit of, and shall be enforceable by, each Indemnified Party, his
heirs and his personal representatives and shall be binding on all successors
and assigns of Chancellor, the Surviving Corporation and LIN.
4.10 LETTER OF CHANCELLOR'S ACCOUNTANTS. Chancellor shall use
its reasonable best efforts to cause to be delivered to LIN a letter of
PricewaterhouseCoopers, LLP, Chancellor's independent
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public accountants, and any other independent public accountants whose report
would be required to be included in the Form S-4 pursuant to the rules and
regulations under the Securities Act, each dated a date within two business
days before the date on which the Form S-4 shall become effective and an
additional letter from each of them dated a date within two business days
before the Closing Date, each addressed to such party, in form and substance
reasonably satisfactory to LIN and customary in scope and substance for letters
delivered by independent public accountants in connection with registration
statements similar to the Form S-4.
4.11 LETTER OF LIN'S ACCOUNTANTS. LIN shall use its reasonable
best efforts to cause to be delivered to Chancellor, a letter of
PricewaterhouseCoopers, LLP, LIN's independent public accountants, and any
other independent public accountants whose report would be required to be
included in the Form S-4 pursuant to the rules and regulations under the
Securities Act, each dated a date within two business days before the date on
which the Form S-4 shall become effective and an additional letter from each of
them dated a date within two business days before the Closing Date, each
addressed to such party, in form and substance reasonably satisfactory to
Chancellor and customary in scope and substance for letters delivered by
independent public accountants in connection with registration statements
similar to the Form S-4.
4.12 EMPLOYEE BENEFIT MATTERS. Chancellor acknowledges and
agrees that the LIN Operating Subsidiary is bound by the terms of Section 5.4
of that certain Merger Agreement, dated as of August 12, 1997, among LIN
Holdings (formerly known as Ranger Holdings Corp.) and the LIN Operating
Subsidiary (successor by merger to each of Ranger Acquisition Company and LIN
Television Corporation) (as amended, the "LIN/Ranger Merger Agreement"), with
respect to employee benefit matters set forth therein in effect at the time of
the consummation of the transactions contemplated by the LIN/Ranger Merger
Agreement, and Chancellor agrees that it shall take all such action as is
necessary or desirable to cause the LIN Operating Subsidiary to satisfy such
obligations thereunder.
4.13 TERMINATION OF STOCKHOLDERS AGREEMENT. Prior to Closing,
LIN shall use its reasonable best efforts to obtain the consent of all parties
to the Stockholders Agreement to terminate such Stockholders Agreement at the
Effective Time. At any special meeting of LIN stockholders (or written consent
in lieu thereof) called for the purpose of obtaining the LIN Stockholders
Approval, LIN agrees that the vote on the Merger will be structured so that a
vote in favor of the Merger by a LIN
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stockholder will constitute a waiver of each LIN stockholder of rights with
respect to the Stockholders Agreement following the Effective Time.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR TO MERGER
5.1 CONDUCT OF BUSINESS.
(a) Except as expressly contemplated by this
Agreement, during the period from the date of this Agreement to the Effective
Time, LIN shall, and shall cause its subsidiaries to, act and carry on their
respective businesses in the ordinary course of business and, to the extent
consistent therewith, use reasonable efforts to preserve intact their current
business organizations, keep available the services of their current officers
and employees and preserve the goodwill of those engaged in material business
relationships with them. Without limiting the generality of the foregoing,
during the period from the date of this Agreement to the Effective Time and
except as set forth in the LIN SEC Document or the LIN Disclosure Letter, LIN
shall not, and shall not permit any of its subsidiaries to, without the prior
consent of Chancellor (which shall not be unreasonably delayed or withheld):
(i) (w) declare, set aside or pay any
dividends on, or make any other distributions (whether in cash, stock or
property) in respect of, any of its or its subsidiaries' outstanding capital
stock (except dividends and distributions by a direct or indirect wholly owned
subsidiary of LIN to its parent), (x) split, combine or reclassify any of its
outstanding capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
outstanding capital stock, (y) except in connection with the termination of the
employment of any employees, purchase, redeem or otherwise acquire any shares
of outstanding capital stock or any rights, warrants or options to acquire any
such shares, or (z) issue, sell, grant, pledge or otherwise encumber any shares
of its capital stock, any other equity securities or any securities convertible
into, or any rights, warrants or options to acquire, any such shares, equity
securities or convertible securities (other than (A) upon the exercise of LIN
Stock Options outstanding on the date of this Agreement or issued under clause
(C) below, (B) pursuant to employment agreements or other contractual
arrangements in effect on the date of this Agreement, (C) LIN Stock Options
granted after the date of this Agreement to purchase up to an aggregate
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amount of (1) 31,100,000 shares of LIN Common Stock, minus (2) that number of
shares of LIN Common Stock for which LIN Stock Options have been granted on or
prior to the date of this Agreement, at an exercise per share of at least
$1.00, which are to be issued to existing or future employees and (D) issuances
of stock of any direct or indirect wholly owned Subsidiary of LIN to its
parent);
(ii) amend its Certificate of Incorporation,
Bylaws or other comparable charter or organizational documents;
(iii) acquire any business (including the assets
thereof) or any corporation, partnership, joint venture, association or other
business organization or division thereof;
(iv) sell, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its properties or assets
that are material to LIN and its subsidiaries, taken as whole;
(v) (x) other than working capital borrowings
in the ordinary course of business and consistent with past practices, incur
any indebtedness for borrowed money or guarantee any such indebtedness of
another person, other than indebtedness owing to or guarantees of indebtedness
owing to LIN or any of its direct or indirect wholly-owned subsidiaries or (y)
make any material loans or advances to any other person, other than to LIN or
any of its direct or indirect wholly-owned subsidiaries and other than routine
advances to employees consistent with past practices;
(vi) make any Tax election or settle or
compromise any Tax liability that could reasonably be expected to be material
to LIN and its subsidiaries, taken as a whole or change its Tax or accounting
methods, policies, practice or procedures, except as required by GAAP;
(vii) pay, discharge, settle or satisfy any
material claims, liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment, discharge or
satisfaction, in the ordinary course of business consistent with past practice
or in accordance with their terms, of liabilities reflected or reserved against
in, or contemplated by, the most recent consolidated financial statements (or
the notes thereto) of LIN (for this purpose meaning LIN Holdings) included in
the LIN SEC Document or incurred since the date of such financial statements in
the ordinary course of business consistent with past practice;
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(viii) make any material commitments or
agreements for capital expenditures or capital additions or betterments except
as materially consistent with the budget for capital expenditures as of the
date of this Agreement, in the ordinary course of business consistent with past
practices;
(ix) except as may be required by law:
(A) other than in the ordinary course of
business and consistent with past practices, make any representation
or promise, oral or written, to any employee or former director,
officer or employee of LIN or any of its subsidiaries which is
inconsistent with the terms of any LIN Benefit Plan;
(B) other than in the ordinary course
of business, make any change to, or amend in any way, the contracts,
salaries, wages, or other compensation of any director, employee or
any agent or consultant of LIN or any of its subsidiaries other than
routine changes or amendments that are required under existing
contracts;
(C) except for renewals in the
ordinary course of business consistent with past practices, adopt,
enter into, amend, alter or terminate, partially or completely, any
LIN Benefit Plan, or any election made pursuant to the provisions of
any LIN Benefit Plan, to accelerate any payments, obligations or
vesting schedules under any LIN Benefit Plan; or
(D) other than in the ordinary course
of business consistent with past practices, approve any general or
company-wide pay increases for employees;
(x) except in the ordinary course of business,
modify, amend or terminate any material agreement, permit, concession,
franchise, license or similar instrument to which LIN or any of its
subsidiaries is a party or waive, release or assign any material rights or
claims thereunder; or
(xi) authorize any of, or commit or agree to
take any of, the foregoing actions.
(b) Notwithstanding the foregoing, nothing in this
Section 5.1 shall prohibit (i) LIN Television of Texas, L.P. ("LIN Texas") from
entering into an agreement with Dallas Sports Holding Company ("DSHC") relating
to the assets used or useful in the operation of television station KXTX-TV
(Dallas, TX) (the "KXTX Transaction"), including without limitation, in a
federal
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income tax-free transaction, (A) the assignment by LIN Texas to DSHC of its
rights under that certain Option and Put Agreement, dated as of May 31, 1994,
as amended on December 24, 1997, among the LIN Operating Subsidiary, LIN Texas,
KXTX of Texas, Inc. ("KXTX-Texas"), and KXTX, Inc. (the "KXTX Option"), and the
assignment of its rights under the local marketing agreement relating thereto,
or (B) the exercise of the KXTX Option by LIN and subsequent sale of the
capital stock of KXTX-Texas to DSHC, in exchange for (Y) $50 million
liquidation preference of DSHC convertible preferred stock, the terms of which
shall include a 6% annual paid-in-kind dividend, payable semiannually, and
permit LIN Texas to convert such shares of convertible preferred stock into
common stock of DSHC upon the consummation of a firm commitment underwritten
initial public offering of the shares of common stock of DSHC at a conversion
price per share equal to the public offering price of such common stock, or (Z)
such other consideration that is mutually agreed by each of Chancellor and LIN
to be of comparable or superior value or (ii) any amendments to the M&O
Agreement and Financial Advisory Agreement (each as defined in Section 6.3(f))
upon the terms set forth in Section 6.3(f) or any amendment under the LIN Stock
Option Plan to include the LIN Substitute Stock Options.
5.2 STOCK OPTIONS; PHANTOM STOCK PLAN. (a) At the
Effective Time, each outstanding LIN Stock Option that is outstanding and
unexercised immediately prior to the Effective Time shall be deemed to have
been assumed by Chancellor, without further action by Chancellor, the Surviving
Corporation or the holders of such options, and shall thereafter be deemed to
be an option to acquire shares of Chancellor Common Stock in such amount and at
the exercise price provided below and otherwise having the same terms and
conditions as are in effect immediately prior to the Effective Time (except to
the extent that such terms and conditions may be altered in accordance with
their terms as a result of the transactions contemplated hereby) (such LIN
Stock Options assumed by Chancellor being the "Assumed Stock Options"):
(i) the number of shares of Chancellor Common
Stock to be subject to the new option shall be equal to the product of (x) the
number of shares of LIN Common Stock subject to the original option and (y) the
Exchange Ratio (rounded to the nearest 1/100 of a share);
(ii) the exercise price per share of Chancellor
Common Stock under the new option shall be equal to (x) the exercise price per
share of LIN Common Stock under the original option divided by (y) the Exchange
Ratio (rounded to the nearest $0.01); and
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(iii) in accordance with the terms of the LIN
Stock Option Plan under which the LIN Stock Options were issued, fractional
shares of any Assumed Stock Options resulting from the adjustments set forth in
this Section 5.2(a) shall be eliminated.
The adjustments provided herein to any options which are "incentive
stock options" (as defined in Section 422 of the Code) shall be effected in a
manner consistent with Section 424(a) of the Code.
(b) LIN shall take all actions reasonably necessary
(including, if appropriate, by way of obtaining the written consent of
optionholders) to ensure that the consummation of the Merger is not deemed to
constitute a "change of control" (or transaction of similar import) with
respect to such stock options or otherwise result, in and of itself, in the
acceleration of any LIN Stock Option outstanding immediately prior to the
Effective Time, and to ensure that all such options shall be exercisable after
the Merger solely for shares of Chancellor Common Stock.
(c) At the Effective Time, Chancellor shall assume the
LIN Stock Option Plan, with such changes thereto as may be necessary to reflect
the consummation of the transactions contemplated hereby. Nothing in this
Section 5.2(c) shall be construed to prevent Chancellor in any way from
terminating or freezing the benefits under any such plans (subject to the
rights of the holders of the Assumed Stock Options thereunder) and adopting one
or more new stock option plans, as approved by the Board of Directors of
Chancellor following the Effective Time.
(d) Promptly following the Effective Time, Chancellor
shall use its reasonable best efforts to file with the SEC a Registration
Statement on Form S-8 (or an amendment to any such form of Chancellor currently
on file with the SEC that is available therefor) (the "Form S-8") for the
purpose of registering the shares of Chancellor Common Stock issuable upon the
exercise of the Assumed Stock Options, and Chancellor shall use its reasonable
best efforts to have the Form S-8 (or any post-effective amendment thereto)
declared effective under the Securities Act as soon as practicable after such
filing.
(e) At the Effective Time, Chancellor shall assume the
Phantom Stock Plan. Each Phantom Stock Unit outstanding under the Phantom
Stock Plan that is outstanding immediately prior to the Effective Time shall be
appropriately adjusted to reflect the Exchange Ratio as if each such Phantom
Stock Unit was one share of LIN Common Stock immediately prior to the Effective
Time and was converted into the appropriate fraction of a share of Chancellor
Common Stock pursuant to Section 1.8 of this
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Agreement. To the extent shares of Chancellor Common Stock are issued in
satisfaction of Phantom Stock Units, Chancellor shall use its reasonable best
efforts to register such shares on Form S-8.
5.3 OTHER ACTIONS. Neither Chancellor nor LIN shall, and
neither of them shall permit any of their respective subsidiaries to, take any
action that would, or that could reasonably be expected to, result in any of
the conditions of the Merger set forth in Article VI not being satisfied.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligation of each party to effect the Merger is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Stockholder Approval. The LIN Stockholders
Approval and Chancellor Stockholders Approval shall have been
obtained.
(b) FCC Order. The FCC shall have issued an order
(the "FCC Order") approving the transfers of control pursuant to the
Merger of the LIN FCC Licenses for the operation of the LIN Licensed
Facilities without the imposition of any conditions or restrictions
that could reasonably be expected to have a LIN Material Adverse
Effect, and which FCC Order has not been reversed, stayed, enjoined,
set aside or suspended and with respect to which no timely request for
stay, petition for reconsideration or appeal has been filed and as to
which the time period for filing of any such appeal or request for
reconsideration or for any sua sponte action by the FCC with respect
to the FCC Order has expired, or, in the event that such a filing or
review sua sponte has occurred, as to which such filing or review
shall have been disposed of favorably to the grant of the FCC Order
and the time period for seeking further relief with respect thereto
shall have expired without any request for such further relief having
been filed or review initiated.
(c) Governmental and Regulatory Consents. All
required consents, approvals, permits and authorizations to the
consummation of the Merger shall be obtained from any Governmental
Entity (other than the FCC) whose consent,
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approval, permission or authorization is required by reason of a
change in law after the date of this Agreement, unless the failure to
obtain such consent, approval, permission or authorization could not
reasonably be expected to have a LIN Material Adverse Effect, or to
materially and adversely affect the validity or enforceability of this
Agreement or the Merger.
(d) HSR Act. The waiting period (and any extension
thereof) applicable to the Merger under the HSR Act shall have been
terminated or shall have otherwise expired.
(e) No Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint
or prohibition preventing the consummation of the Merger shall be in
effect; provided, however, that the party invoking this condition
shall use its reasonable best efforts to have any such order or
injunction vacated.
(f) Nasdaq Listing. The shares of Chancellor Common
Stock issuable pursuant to the Merger shall have been approved for
quotation in the Nasdaq Stock Market.
(g) Form S-4. The Form S-4 shall have become
effective under the Securities Act and shall not be the subject of any
stop order or proceedings seeking a stop order.
6.2 CONDITIONS TO OBLIGATIONS OF LIN. The obligation of LIN to
effect the Merger is further subject to the following conditions:
(a) Representations and Warranties. The
representations and warranties of Chancellor contained in this
Agreement shall have been true and correct on the date of this
Agreement and shall be true and correct at and as of the Closing Date
as though made at and as of such time (except to the extent that any
such representations and warranties expressly relate only to an
earlier time, in which case they shall have been true and correct at
such earlier time); provided, however, that this condition shall be
deemed to have been satisfied unless the individual or aggregate
impact of all inaccuracies of such representations and warranties
(without regard to any materiality or Chancellor Material Adverse
Effect qualifier(s) contained therein) could reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise) of
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Chancellor and its subsidiaries, considered as a whole, and except to
the extent that any inaccuracies of such representations and
warranties are a result of changes in the United States financial
markets generally or in national, regional or local economic
conditions generally, or are a result of matters arising after the
date hereof that affect the broadcast industry generally. Chancellor
shall have delivered to LIN a certificate dated as of the Closing
Date, signed by a senior executive officer of Chancellor, to the
effect set forth in this Section 6.2(a).
(b) Performance of Obligations of Chancellor.
Chancellor shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or
prior to the Closing Date, and LIN shall have received a certificate
signed on behalf of Chancellor by a senior executive officer to such
effect.
(c) Tax Opinion. LIN shall have received an opinion
of Xxxxxx & Xxxxxx L.L.P., dated as of the Closing Date, to the effect
that (i) the Merger will constitute a reorganization under Section
368(a) of the Code, (ii) Chancellor and LIN will each be a party to
the reorganization under Section 368(b) of the Code, and (iii) no gain
or loss will be recognized by the stockholders of LIN upon the receipt
of Chancellor Common Stock in exchange for LIN Common Stock pursuant
to the Merger except with respect to any cash received in lieu of
Fractional Shares or any cash received in respect of Dissenting
Shares. In rendering such opinion, Xxxxxx & Xxxxxx L.L.P. shall
receive and may rely upon representations contained in certificates of
Chancellor, LIN and certain stockholders of LIN.
(d) Chancellor Stockholders Agreement. Chancellor
shall have amended or caused to be amended the terms of that certain
Amended and Restated Stockholders Agreement, dated as of February 14,
1996, as amended by the First Amendment to Amended and Restated
Stockholders Agreement dated as of September 4, 1997, among Chancellor
and the stockholders parties thereto (the "Chancellor Stockholders
Agreement"), in order that (A) in the event that the holders of LIN
Common Stock receive shares of Chancellor Common Stock which are
deemed to be "restricted securities" (within the meaning of Rule 144
under the Securities Act) in the Merger, all holders of LIN Common
Stock at the Effective Time shall be deemed "Holders" thereunder and
the shares of Chancellor Common Stock received by them in the Merger
shall be "Registrable Shares" thereunder, or (B) in the event that
holders of LIN Common Stock receive shares of Chancellor
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Common Stock which are not deemed to be "restricted securities"
(within the meaning of Rule 144 under the Securities Act) in the
Merger, the holders of LIN Common Stock at the Effective Time that,
after giving effect to the Merger and the issuance of shares of
Chancellor Common Stock therein, will own at least 1% of the
outstanding shares of Chancellor Common Stock immediately following
the Effective Time, shall be (and their transferees shall be) deemed
"Holders" thereunder and shares of Chancellor Common Stock received in
the Merger shall be "Registrable Shares" thereunder.
6.3 CONDITIONS TO OBLIGATIONS OF CHANCELLOR. The obligations
of Chancellor to effect the Merger is further subject to the following
conditions:
(a) Representations and Warranties. The
representations and warranties of LIN contained in this Agreement
shall have been true and correct on the date of this Agreement and
shall be true and correct at and as of the Closing Date as though made
at and as of such time (except to the extent that any such
representations and warranties expressly relate only to an earlier
time, in which case they shall have been true and correct at such
earlier time); provided, however, that this condition shall be deemed
to have been satisfied unless the individual or aggregate impact of
all inaccuracies of such representations and warranties (without
regard to any materiality or LIN Material Adverse Effect qualifier(s)
contained therein) could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise) of LIN (or,
following the Effective Time, the Surviving Corporation) and its
subsidiaries, considered as a whole, and except to the extent that any
inaccuracies of such representations and warranties are a result of
changes in the United States financial markets generally or in
national, regional or local economic conditions generally, or are a
result of matters arising after the date hereof that affect the
broadcast industry generally. LIN shall have delivered to Chancellor
a certificate dated as of the Closing Date, signed by a senior
executive officer of LIN, to the effect set forth in this Section
6.3(a).
(b) Performance of Obligations of LIN. LIN shall have
performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date,
and Chancellor shall have received a certificate signed on behalf of
LIN by a senior executive officer of LIN to such effect.
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(c) Tax Opinion. Chancellor shall have received an
opinion of Weil, Gotshal & Xxxxxx LLP, dated as of the Closing Date,
to the effect that (i) the Merger will constitute a reorganization
under Section 368(a) of the Code, (ii) Chancellor and LIN will each be
a party to the reorganization under Section 368(b) of the Code, and
(iii) no gain or loss will be recognized by Chancellor or LIN by
reason of the Merger. In rendering such opinion, Weil, Gotshal &
Xxxxxx LLP shall receive and may rely upon representations contained
in certificates of Chancellor, LIN and certain stockholders of LIN.
(d) KXTX Transaction. In the event that LIN Texas
shall have consummated the KXTX Transaction, LIN Texas, LIN or one of
its other subsidiaries shall have received the convertible preferred
stock of DSHC on substantially the terms set forth in Section
5.1(b)(i) or such other consideration that is deemed by the Board of
Directors of Chancellor to be of comparable or superior value.
(e) Network Affiliation Agreements. LIN and its
subsidiaries shall have received any necessary consents required as a
result of the Merger and transactions contemplated by this Agreement
with respect to each Network Affiliation Agreement relating to a LIN
Licensed Facility, a true and correct list of which is set forth in
the LIN Disclosure Letter.
(f) Financial Services Agreements. LIN and certain of
its subsidiaries and Xxxxx Muse shall have entered into an amendment
to each of the Monitoring and Oversight Agreement (the "M&O
Agreement") and the Financial Advisory Agreement (the "Financial
Advisory Agreement") that provides (i) the M&O Agreement will
terminate at the Effective Time and, in consideration therefor, LIN
shall deliver to Xxxxx Muse at Closing a one-time cash payment of
$11,000,000, (ii) Xxxxx Muse will receive a fee from LIN of
$11,000,000 in cash, payable at Closing, in satisfaction of its
services performed under the Financial Advisory Agreement in
connection with the Merger, and (iii) the Financial Advisory Agreement
would terminate with respect to LIN (and as successor in the Merger,
Chancellor) but not its subsidiaries (the "LIN Entities") and would be
amended to provide that following the Closing Date (A) Xxxxx Muse will
be the exclusive financial advisor to the LIN Entities and (B) Xxxxx
Muse will receive a "market fee" for the services it provides,
provided that (1) Xxxxx Muse would not receive a fee in a transaction
in which the Chief Executive Officer of Chancellor does not elect to
retain an outside financial
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advisor to any the LIN Entities, and (2) if the Chief Executive
Officer of Chancellor and Xxxxx Muse mutually agree that an additional
financial advisor to any of the LIN Entities would be appropriate in a
given transaction, Xxxxx Muse will split its fee equally with such
co-advisor unless otherwise agreed to between the Chief Executive
Officer of Chancellor and Xxxxx Muse.
(g) Dissenting Shares. Holders of not more than 5% of
the outstanding shares of LIN Common Stock shall have properly
demanded appraisal rights for their shares under the Delaware Code.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 TERMINATION. This Agreement may be terminated and the
Merger abandoned as follows:
(a) at any time prior to the Effective Time, whether
before or after approval of this Agreement and the Merger by the
stockholders of LIN or Chancellor, by mutual written consent of
Chancellor and LIN;
(b) at any time prior to the Effective Time, whether
before or after approval of this Agreement and the Merger by the
stockholders of LIN or Chancellor:
(i) by Chancellor if the LIN Stockholders
Approval shall not have been obtained after submission by
the Board of Directors of LIN of this Agreement and the
Merger for approval by the common stockholders of LIN at a
special meeting called for such purpose or by written
consent of such stockholders in accordance with Section
4.2(a);
(ii) by LIN if the Chancellor Stockholders
Approval shall not have been obtained after submission by
the Board of Directors of Chancellor of this Agreement and
the Merger for approval by the common stockholders of
Chancellor at a special meeting called for such purpose in
accordance with Section 4.2(b);
(iii) by Chancellor or LIN if the Merger shall
not have been consummated on or before June 30, 1999,
unless the failure to consummate the Merger is the
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result of a willful and material breach of this Agreement
by the party seeking to terminate this Agreement;
(iv) by Chancellor or LIN if any Governmental
Entity shall have issued an order, decree or ruling or
taken any other action permanently enjoining, restraining
or otherwise prohibiting the Merger and such order, decree,
ruling or other action shall have become final and
nonappealable;
(v) by Chancellor or LIN in the event of a
breach by the other party of any representation, warranty,
covenant or other agreement contained in this Agreement
which (A) would give rise to the failure of a condition set
forth in Section 6.2(a) or (b) or Section 6.3(a) or (b), as
applicable, and (B) cannot be or has not been cured within
30 days after the giving of written notice to the breaching
party of such breach (a "Material Breach"), provided that
the terminating party is not then in Material Breach of any
representation, warranty, covenant or other agreement
contained in this Agreement; or
(vi) by Chancellor if LIN shall have breached
the requirements of Section 4.5 hereof, unless Chancellor
shall at such time be in Material Breach of any
representation, warranty, covenant or other agreement
contained in this Agreement.
7.2 EFFECT OF TERMINATION. (a) In the event that Chancellor
or LIN terminates this Agreement as provided in Section 7.1(a), 7.1(b)(iii) or
7.1(b)(iv), this Agreement shall forthwith become void and have no effect,
without any liability or obligation on the part of Chancellor or LIN, other
than the last sentence of Section 4.3 and Sections 2.10, 3.7, 9.2 and 10.2.
(b) In the event that this Agreement is terminated by
Chancellor pursuant to Section 7.1(b)(i), 7.1(b)(vi) or 7.1(b)(v), LIN shall
promptly reimburse Chancellor for all substantiated out-of-pocket costs and
expenses incurred by them in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, costs and
expenses of accountants, attorneys and financial advisors. In the event that
this Agreement is terminated by LIN pursuant to Section 7.1(b)(ii) or
7.1(b)(v), Chancellor shall promptly reimburse LIN for all substantiated
out-of-pocket costs and expenses incurred by it in connection with this
Agreement and the
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transactions contemplated hereby, including, without limitation, costs and
expenses of accountants, attorneys and financial advisors. This Agreement
shall not be deemed to have been validly terminated until all payments
contemplated by this Section 7.2(b) shall have been made in full. In the event
of a termination pursuant to Sections 7.1(b)(v) or 7.1(b)(vi), the
reimbursement of expenses by the breaching party pursuant to this Section
7.2(b) shall be the parties sole remedy unless the termination resulted from a
willful material breach of the representations, warranties, covenants or other
agreements in this Agreement, in which case the non-breaching party may seek
damages or any other appropriate remedy at law or in equity.
7.3 AMENDMENT. Subject to the applicable provisions of the
Delaware Code, at any time prior to the Effective Time, the parties hereto may
modify or amend this Agreement, by written agreement executed and delivered by
duly authorized officers of the respective parties; provided, however, that
after the LIN Stockholders Approval has been obtained, no amendment shall be
made which reduces the consideration payable in the Merger or adversely affects
the rights of LIN's stockholders hereunder without the approval of such
stockholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
7.4 EXTENSION; CONSENT; WAIVER. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of any
of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties of the other parties
contained in this Agreement or in any document delivered pursuant to this
Agreement or (c) subject to Section 7.3, waive compliance with any of the
agreements or conditions of the other parties contained in this Agreement or
consent to any action requiring consent pursuant to this Agreement. Any
agreement on the part of a party to any such extension, waiver or consent shall
be valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
7.5 PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION, CONSENT OR
WAIVER. A termination of this Agreement pursuant to Section 7.1, an amendment
of this Agreement pursuant to Section 7.3 or an extension, consent or waiver
pursuant to Section 7.4 shall, in order to be effective, require in the case of
Chancellor or LIN, action by its Board of Directors or a duly authorized
committee of its Board of Directors.
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ARTICLE VIII
SURVIVAL OF PROVISIONS
8.1 SURVIVAL. The representations and warranties of Chancellor
and LIN made in this Agreement, or in any certificate, respectively, delivered
by any of them pursuant to this Agreement, will not survive the Closing.
ARTICLE IX
NOTICES
9.1 NOTICES. All notices and other communications under this
Agreement must be in writing and will be deemed to have been duly given if
delivered, telecopied or mailed, by certified mail, return receipt requested,
first-class postage prepaid, to the parties at the following addresses:
If to Chancellor, to:
Chancellor Media Corporation
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and
Xxxxxxxx & Xxxxxx, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxxx, Xx.
Facsimile: (000) 000-0000
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If to LIN, to:
LIN Television Corporation
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
and
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
All notices and other communications required or permitted under this Agreement
that are addressed as provided in this Article IX will, if delivered
personally, be deemed given upon delivery, will, if delivered by telecopy, be
deemed delivered when confirmed and will, if delivered by mail in the manner
described above, be deemed given on the third business day after the day it is
deposited in a regular depository of the United States mail. Any party from
time to time may change its address for the purpose of notices to that party by
giving a similar notice specifying a new address, but no such notice will be
deemed to have been given until it is actually received by the party sought to
be charged with the contents thereof.
ARTICLE X
MISCELLANEOUS
10.1 ENTIRE AGREEMENT. Except for the documents executed by
Chancellor and LIN pursuant hereto, this Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter of this Agreement, and this
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Agreement (including the exhibits hereto and other documents delivered in
connection herewith) contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
10.2 EXPENSES. Except as provided in Section 7.2, whether or
not the Merger is consummated, each of Chancellor and LIN will pay its own
costs and expenses incident to preparing for, entering into and carrying out
this Agreement and the consummation of the transactions contemplated hereby.
In the event of any lawsuit or other judicial proceeding brought by either
party to enforce any of the provisions of this Agreement, the losing party in
such proceeding shall reimburse the prevailing party's fees and expenses
incurred in connection therewith, including the fees and expenses of its
attorneys.
10.3 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument and shall become effective when one
or more counterparts have been signed by each of the parties and delivered to
the other parties.
10.4 NO THIRD PARTY BENEFICIARY. Except for Sections 4.9 and
4.12, the terms and provisions of this Agreement are intended solely for the
benefit of the parties hereto, and their respective successors or assigns, and
it is not the intention of the parties to confer third-party beneficiary rights
upon any other person.
10.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
10.6 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
of the rights, interests or obligations under this Agreement shall be assigned,
in whole or in part, by operation of law or otherwise by any of the parties
without the prior written consent of the other parties, and any such assignment
that is not consented to shall be null and void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by, the parties and their respective successors and assigns.
10.7 HEADINGS, GENDER, ETC. The headings used in this Agreement
have been inserted for convenience and do not constitute matter to be construed
or interpreted in connection with this Agreement. Unless the context of this
Agreement otherwise requires, (a) words of any gender are deemed to include
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each other gender; (b) words using the singular or plural number also include
the plural or singular number, respectively; (c) the terms "hereof," "herein,"
"hereby," "hereto," and derivative or similar words refer to this entire
Agreement; (d) the terms "Article" or "Section" refer to the specified Article
or Section of this Agreement; (e) all references to "dollars" or "$" refer to
currency of the United States of America; (f) the term "person" shall include
any natural person, corporation, limited liability company, general
partnership, limited partnership, or other entity, enterprise, authority or
business organization; and (g) the term "or" is not exclusive.
10.8 INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under any present or future law,
and if the rights or obligations of LIN or Chancellor under this Agreement will
not be materially and adversely affected thereby, (a) such provision will be
fully severable; (b) this Agreement will be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part hereof;
and (c) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid, or unenforceable
provision or by its severance herefrom.
10.9 NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, stockholder, incorporator or partner, as such, of
Chancellor, LIN or the Surviving Corporation shall have any liability for any
obligations of Chancellor, LIN or the Surviving Corporation under this
Agreement or for any claim based on, in respect of or by reason of such
obligations or their creation.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of Chancellor and LIN effective as of
the date first written above.
CHANCELLOR MEDIA CORPORATION
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name:
Title:
RANGER EQUITY HOLDINGS CORPORATION
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name:
Title:
70
EXHIBIT A
_________, 1998
Chancellor Media Corporation
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
I have been advised that I have been identified as a possible
"affiliate" of Ranger Equity Holdings Corporation, a Delaware corporation (the
"Company"), as that term is defined for purposes of paragraphs (c) and (d) of
Rule 145 of the General Rules and Regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933 (the "Securities Act"), although nothing contained herein should be
construed as an admission of such fact.
Pursuant to the terms of an Agreement and Plan of Merger dated as of
July 7, 1998 (the "Merger Agreement"), by and among the Company and Chancellor
Media Corporation, a Delaware corporation ("Chancellor"), the Company will be
merged with and into Chancellor (the "Merger"), with Chancellor continuing as
the surviving corporation in the Merger. As a result of the Merger, I will
receive Merger Consideration (as defined in the Merger Agreement), including
shares of Common Stock, $0.01 par value, of Chancellor ("Chancellor Common
Stock") in exchange for shares of Common Stock, $.01 par value, of the Company
(collectively, the "Shares") owned by me at the effective time of the Merger as
determined pursuant to the Merger Agreement.
A. In connection therewith, I represent, warrant and agree that:
1. I shall not make any sale, transfer or other
disposition of the Chancellor Common Stock I receive as a result of
the Merger in violation of the Securities Act or the Rules and
Regulations.
2. I have been advised that the issuance of Chancellor
Common Stock to me as a result of the Merger has been registered with
the Commission under the Securities Act
71
on a Registration Statement on Form S-4. However, I have also been
advised that, if at the time the Merger was submitted for a vote of
the stockholders of the Company I am determined to have been an
"affiliate" of the Company, any sale by me of the shares of Chancellor
Common Stock I receive as a result of the Merger must be (i)
registered under the Securities Act, (ii) made in conformity with the
provisions of Rule 145 promulgated by the Commission under the
Securities Act or (iii) made pursuant to a transaction which, in the
opinion of counsel reasonably satisfactory to Chancellor or as
described in a "no action" or interpretive letter from the staff of
the Commission, is not required to be registered under the Securities
Act.
3. I have carefully read this letter and the Merger
Agreement and have discussed the requirements of the Merger Agreement
and other limitations upon the sale, transfer or other disposition of
the shares of Chancellor Common Stock to be received by me, to the
extent I have felt necessary, with my counsel or with counsel for the
Company.
B. Furthermore, in connection with the matters set forth herein,
I understand and agree that:
1. I understand that Chancellor will give stop transfer
instructions to its transfer agents with respect to the Chancellor
Common Stock and that the certificates for the Chancellor Common Stock
issued to the undersigned, or any substitutions therefor, will bear a
legend substantially to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN
A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, MAY APPLY. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT, DATED _____________
1998, BETWEEN THE REGISTERED HOLDER HEREOF AND CHANCELLOR
MEDIA CORPORATION, A COPY OF WHICH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICES OF CHANCELLOR MEDIA CORPORATION."
2. I also understand that unless the transfer by the
undersigned of any Chancellor Common Stock has been registered under
the Securities Act or is a sale made in conformity with the provisions
of Rule 145, Chancellor
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reserves the right to place the following legend on the certificates
issued to any transferee:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SECURITIES IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, MAY APPLY. THE SECURITIES HAVE NOT BEEN ACQUIRED
BY THE HOLDER WITH A VIEW TO, OR FOR RESALE IN CONNECTION
WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING OF SUCH ACT
AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR IN
ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT.
It is understood and agreed that the legends set forth in paragraphs
(B) 1 and 2 above shall be removed by delivery of new certificates without such
legend if Chancellor receives an opinion of counsel reasonably satisfactory to
Chancellor to the effect that such legend is not required for purposes of the
Securities Act. It is understood and agreed that such legends and the stop
orders referred to above will be removed if (i) one year shall have elapsed
from the date the undersigned acquired Chancellor Common Stock received in the
Merger and the provisions of Rule 145(d)(2) under the Securities Act are then
available to the undersigned, (ii) two years shall have elapsed from the date
the undersigned acquired Chancellor Common Stock received in the Merger and the
provisions of Rule 145(d)(3) under the Securities Act are then available to the
undersigned, or (iii) Chancellor has received under the Securities Act an
opinion of counsel, which opinion and counsel shall be reasonably satisfactory
to Chancellor, to the effect that the restrictions imposed by Rule 145 under
the Securities Act no longer apply to the undersigned.
Except pursuant to any contractual registration rights, if any, that I
have on the date hereof or may hereafter enter into, Chancellor shall be under
no further obligation to register the sale, transfer or other disposition of
the shares of Chancellor Common Stock received by me as a result of the Merger
or to take any other action necessary in order to make compliance with an
exemption from registration available.
Very truly yours,
