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EXHIBIT 2.1
MERGER AGREEMENT
AMONG
WPBF MERGER, INC. AND WPBF LICENSE, INC.
AND
XXXXXX COMMUNICATIONS OF WEST PALM BEACH-25, INC.
AND
XXXXXX WEST PALM BEACH LICENSE, INC.
April 29, 1997
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TABLE OF CONTENTS
1. Definitions............................................................................................-1-
2. Basic Transaction......................................................................................-5-
(a) The Merger....................................................................................-5-
(b) The Closing...................................................................................-5-
(c) Deliveries at the Closing.....................................................................-5-
(d) Effect of Merger..............................................................................-5-
3. Representations and Warranties of Acquirors............................................................-6-
(a) Organization of Acquiror 1 and Acquiror 2.....................................................-6-
(b) Authorization of Transaction..................................................................-6-
(c) Noncontravention..............................................................................-6-
(d) Brokers' Fees.................................................................................-6-
(e) Investment....................................................................................-7-
4. Representations and Warranties of Targets..............................................................-7-
(a) Authorization of Transaction..................................................................-7-
(b) Capitalization................................................................................-7-
(c) Noncontravention..............................................................................-7-
(d) Brokers' Fees.................................................................................-8-
(e) Stock Ownership...............................................................................-8-
(f) Tax Matters...................................................................................-8-
(g) Employee Benefits.............................................................................-9-
(h) Incorporated Representations and Warranties...................................................-9-
(i) Disclosure...................................................................................-10-
5. Pre-Closing Covenants.................................................................................-10-
(a) General......................................................................................-10-
(b) Notices and Consents.........................................................................-10-
(c) Operation of Business........................................................................-11-
(d) Preservation of Business.....................................................................-11-
(e) Full Access..................................................................................-11-
(f) Notice of Developments.......................................................................-11-
(g) Shareholder Approval.........................................................................-11-
6. Post-Closing Covenants................................................................................-11-
(a) General......................................................................................-11-
(b) Transition...................................................................................-11-
(c) The Acquiror Note............................................................................-12-
(d) Employee Benefits............................................................................-12-
(e) Paramount Stations Group, Inc. Transaction...................................................-12-
(f) Consummation of Hearst Transactions..........................................................-13-
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(g) Certain Tax Matters..........................................................................-13-
7. Conditions to Obligation to Close.....................................................................-14-
(a) Conditions to Obligation of Acquirors........................................................-14-
(b) Conditions to Obligation of Targets..........................................................-15-
8. Remedies for Breaches of This Agreement...............................................................-16-
(a) Survival of Representations and Warranties...................................................-16-
(b) Indemnification Provisions for Benefit of Acquirors..........................................-16-
(c) Indemnification Provisions for Benefit of Targets............................................-17-
(d) Matters Involving Third Parties..............................................................-17-
(e) Determination of Adverse Consequences........................................................-18-
(f) Recoupment Under the Acquiror Note...........................................................-18-
(g) Other Indemnification Provisions.............................................................-18-
9. Termination...........................................................................................-19-
(a) Termination of Agreement.....................................................................-19-
(b) Effect of Termination........................................................................-19-
10. Miscellaneous.........................................................................................-20-
(a) No Third-Party Beneficiaries.................................................................-20-
(b) Entire Agreement.............................................................................-20-
(c) Succession and Assignment....................................................................-20-
(d) Counterparts.................................................................................-20-
(e) Headings.....................................................................................-20-
(f) Notices......................................................................................-20-
(g) Governing Law................................................................................-21-
(h) Amendments and Waivers.......................................................................-21-
(i) Severability.................................................................................-21-
(j) Expenses.....................................................................................-21-
(k) Construction.................................................................................-21-
(l) Incorporation of Exhibits and Schedules......................................................-22-
(m) Specific Performance.........................................................................-22-
(n) Submission to Jurisdiction...................................................................-22-
Exhibit A-1 - Plan of Merger regarding the Operating Merger
Exhibit A-2 - Plan of Merger regarding the License Merger
Exhibit B-1 - Articles of Merger regarding the Operating Merger
Exhibit B-2 - Articles of Merger regarding the License Merger
Exhibit C - Time Brokerage Agreement
Exhibit D - Acquirors' Controlling Shareholder Agreement
Disclosure - Exceptions to Representations and Warranties
Schedule
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MERGER AGREEMENT
This merger agreement (the "Agreement") is entered into to be effective
as of April 28, 1997, by and among WPBF MERGER, INC., a Florida corporation
("Acquiror 1") and WPBF LICENSE, INC., a Florida corporation ("Acquiror 2" and
collectively with Acquiror 1, "Acquirors"), XXXXXX COMMUNICATIONS OF WEST PALM
BEACH-25, INC., a Florida corporation ("Target 1"), and XXXXXX WEST PALM BEACH
LICENSE, INC., a Florida corporation ("Target 2" and collectively with Target 1,
"Targets"). Acquirors and Targets are referred to collectively herein as the
"Parties."
RECITALS
X. Xxxxxx Communications of Florida, Inc., a Florida corporation
("Targets' Ultimate Shareholder"), owns all of the issued and outstanding
capital stock of Target 1. Target 1 owns all of the issued and outstanding
capital stock of Target 2. WPBF Exchange, Inc., a Florida corporation, owns all
of the issued and outstanding capital stock of Acquiror 1. Acquiror 1 owns all
of the issued and outstanding capital stock of Acquiror 2.
B. This Agreement contemplates two mergers, a merger of Target 1 with and
into Acquiror 1 and a merger of Target 2 with and into Acquiror 2, both pursuant
to Florida Business Corporation Act ss. 607.1101. Targets' Ultimate Shareholder
will receive cash and a promissory note (the "Acquiror Note") from Acquirors as
consideration in such mergers for the capital stock in Targets.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. Definitions.
"Acquiror Note" has the meaning set forth in the preface above.
"Acquirors" has the meaning set forth in the preface above.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule of the regulations
promulgated under the Securities Exchange Act.
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"Applicable Rate" means the Federal Funds Rate plus 1% per annum.
"Articles of Merger" has the meaning set forth in ss.2(c) below.
"Business Day" means any day other than a Saturday, Sunday or legal
holiday on which banks in New York, New York are open for the transaction of a
substantial part of their commercial banking business.
"Closing" has the meaning set forth in ss.2(b) below.
"Closing Date" has the meaning set forth in ss.2(b) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the
businesses and affairs of Targets that is not already generally available to the
public.
"Controlled Group of Corporations" has the meaning set forth in Code Sec.
1563.
"Disclosure Schedule" has the meaning set forth in ss.4 below.
"Effective Time" has the meaning set forth in ss.2(d)(ii) below.
"Employee Benefit Plan" means any (a) nonqualified deferred compensation
or retirement plan or arrangement that is an Employee Pension Benefit Plan, (b)
qualified defined contribution retirement plan or arrangement that is an
Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or
arrangement that is an Employee Pension Benefit Plan (including any
Multiemployer Plan), or (d) Employee Welfare Benefit Plan or material fringe
benefit plan or program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA Sec.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"401(k) Plan" means the Xxxxxx Communications Corp. 401(k) Plan, as it
may be amended from time to time by Xxxxxx Communications Corporation.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action or actions by the FCC granting its consent, to
the extent required, to the transactions contemplated by this Agreement.
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"Federal Funds Rate," for any period, means a fluctuating interest rate
per annum (based on a 365 or 366 day year (as the case may be) equal for each
day during such period to the average of the rates of interest charged on
overnight federal funds transactions with member banks of the Federal Reserve
System only, as published for any day which is a Business Day by the Federal
Reserve Bank of New York (or, in the absence of such publication, as reasonably
determined by Acquirors.
"Florida Business Corporation Act" means the Florida Business Corporation
Act, as amended.
"Hearst" means the Hearst Corporation, a Delaware corporation.
"Hearst Agreement" means that certain Asset Purchase Agreement, dated
March 25, 1997, by and among Target 1, Target 2, and Hearst providing for the
sale of substantially all the assets of Target 1 and Target 2 to Hearst.
"Incorporated Definitions" means any term defined in the Hearst Agreement
which is contained in the Incorporated Representations and Warranties.
"Incorporated Representations and Warranties" means the representations
and warranties made by either of Targets in the Hearst Agreement.
"Indemnified Party" has the meaning set forth in ss.8(d) below.
"Indemnifying Party" has the meaning set forth in ss.8(d) below.
"IRS" means the Internal Revenue Service.
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Merger" has the meaning set forth in ss.2(a) below.
"Multiemployer Plan" has the meaning set forth in ERISA Sec. 3(37).
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
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"Parent" has the meaning set forth in ss.6(h)(ii) below.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Plan of Merger" has the meaning set forth in ss.2(c) below.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for Taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Surviving Corporations" has the meaning set forth in ss.2(a) below.
"Target 1 Share" means any share of the common stock, $0.01 par value per
share, of Target 1.
"Target 2 Share" means any share of the common stock, $0.01 par value per
share, of Target 2.
"Targets" has the meaning set forth in the preface above.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code ss.59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
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"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Third Party Claim" has the meaning set forth in ss.8(d) below.
2. Basic Transaction.
(a) The Merger. On and subject to the terms and conditions of this
Agreement, Target 1 will merge with and into Acquiror 1 (the "Operating Merger")
and Target 2 will merge with and into Acquiror 2 (the "License Merger" and
collectively with the Operating Merger, the "Merger") simultaneously at the
Effective Time. Acquiror 1 shall be the corporation surviving the Operating
Merger and Acquiror 2 shall be the corporation surviving the License Merger
(collectively, the "Surviving Corporations").
(b) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at a place and time designated by
Acquirors following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
(other than conditions with respect to actions the respective Parties will take
at the Closing itself) or such other date as the Parties may mutually determine
(the "Closing Date").
(c) Deliveries at the Closing. At the Closing, (i) Targets will
deliver to Acquirors the various certificates, instruments, and documents
referred to in ss.7(a) below, (ii) Acquirors will deliver to Targets the various
certificates, instruments, and documents referred to in ss.7(b) below, and (iii)
Acquirors and Targets will file with the Secretary of State of Florida Articles
of Merger substantially in the forms of Exhibits "B-1" and "B-2," as applicable,
hereto (collectively, the "Articles of Merger").
(d) Effect of Merger.
(i) Plan of Merger. The plan of merger regarding the Operating
Merger, substantially in the form of Exhibit "A-1" hereto, and the plan
of merger regarding the License Merger, substantially in the form of
Exhibit "A-2" hereto (collectively, the "Plan of Merger") are
incorporated herein by reference.
(ii) General. The Merger shall become effective at the time (the
"Effective Time") Acquirors and Targets file the Articles of Merger with
the Secretary of State of Florida. The Surviving Corporations may, at any
time after the Effective Time, take any action (including executing and
delivering any
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document) in the name and on behalf of any of Acquirors or Targets in
order to carry out and effectuate the transactions contemplated by this
Agreement.
(iii) Articles of Incorporation. The Articles of Incorporation of
Acquirors in effect at and as of the Effective Time will remain the
Articles of Incorporation of the Surviving Corporations without any
modification or amendment in the Merger, except as stated in the Plan of
Merger.
(iv) Bylaws. The Bylaws of Acquirors in effect at and as of the
Effective Time will remain the Bylaws of the Surviving Corporations
without any modification or amendment in the Merger, other than to
reflect the name changes of the Acquirors referenced in the Articles of
Merger.
(v) Directors and Officers. The directors and officers of
Acquirors in office at and as of the Effective Time will remain the
directors and officers of the Surviving Corporations (retaining their
respective positions and terms of office).
3. Representations and Warranties of Acquirors. Each of Acquiror 1 and
Acquiror 2 represents and warrants to Targets that the statements contained in
this ss.3 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
ss.3).
(a) Organization of Acquiror 1 and Acquiror 2. Each of Acquiror 1 and
Acquiror 2 is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction. Each of Acquiror 1 and Acquiror 2
has full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of Acquiror
1 and Acquiror 2, enforceable in accordance with its terms and conditions. Other
than the FCC Consent, neither Acquiror 1 nor Acquiror 2 need give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(A) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Acquiror 1 or Acquiror 2 is subject or
any provision of its charter or bylaws or (B) conflict with, result in a breach
of, constitute a default under, result in the
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acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which either Acquiror 1 or Acquiror 2 is a
party or by which it is bound or to which any of its assets is subject.
(d) Brokers' Fees. Neither Acquiror 1 nor Acquiror 2 has Liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which either of
Target 1 or Target 2 could become liable or obligated.
(e) Investment. Neither Acquiror 1 nor Acquiror 2 is acquiring Target
1 Shares or Target 2 Shares with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act.
4. Representations and Warranties of Targets. Target 1 and Target 2
represent and warrant to Acquirors that the statements contained in this ss.4
are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
ss.4), except as set forth in the disclosure schedule delivered by Targets to
Acquirors on the date hereof and attached hereto (the "Disclosure Schedule") or
as disclosed in the Hearst Agreement. The Disclosure Schedule will be arranged
in paragraphs corresponding to the lettered and numbered paragraphs contained in
this ss.4.
(a) Authorization of Transaction. Each of Target 1 and Target 2 has
full corporate power and authority and all licenses, permits, and authorizations
necessary to carry on the businesses in which it is engaged and in which it
presently proposes to engage and to own and use the properties owned and used by
it. Each of Target 1 and Target 2 has delivered to Acquirors correct and
complete copies of its charter and bylaws (as amended to date). The minute books
(containing the records of meetings of the shareholders, the board of directors,
and any committees of the board of directors), the stock certificate books, and
the stock record books of each of Target 1 and Target 2 are correct and
complete.
(b) Capitalization. The entire authorized capital stock of Target 1
consists of 10,000 Target 1 Shares, of which 100 Target 1 Shares are issued and
outstanding. All of the issued and outstanding Target 1 Shares have been duly
authorized, are validly issued, fully paid, and nonassessable. The entire
authorized capital stock of Target 2 consists of 10,000 Target 2 Shares, of
which 100 Target 2 Shares are issued and outstanding. All of the issued and
outstanding Target 2 Shares have been duly authorized, are validly issued, fully
paid, and nonassessable. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could
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require either Target 1 or Target 2 to issue, sell, or otherwise cause to become
outstanding any of its capital stock. There are no outstanding or authorized
stock appreciation, phantom stock, profit participation, or similar rights with
respect to Target 1 or Target 2. There are no voting trusts, proxies, or other
agreements or understandings with respect to the voting of the capital stock of
Target 1 or Target 2.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which either of Target 1 or Target 2 is subject
or any provision of the charter or bylaws of either of Target 1 or Target 2 or
(ii) conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which either of Target 1 or Target
2 is a party or by which either is bound or to which any of its assets is
subject (or result in the imposition of any Security Interest upon any of its
assets). Other than the FCC Consent, neither Target 1 nor Target 2 needs to give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement.
(d) Brokers' Fees. Neither Target 1 nor Target 2 has any Liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
(e) Stock Ownership. Target 2 is the sole subsidiary of Target 1.
Target 2 has no subsidiaries. Target 1 holds of record and owns beneficially all
of the outstanding shares of Target 2, free and clear of any restrictions on
transfer (other than restrictions under the Securities Act and state securities
laws), Taxes, Security Interests, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands. Targets' Ultimate Shareholder holds
of record and owns beneficially all of the outstanding shares of Target 1, free
and clear of any restrictions on transfer (other than restrictions under the
Securities Act and state securities laws), Taxes, Security Interests, options,
warrants, purchase rights, contracts, commitments, equities, claims, and
demands. Neither Target 1 nor Target 2 controls directly or indirectly or has
any direct or indirect equity participation in any other corporation,
partnership, trust, or other business association.
(f) Tax Matters.
(i) Each of Target 1 and Target 2 has filed all Tax Returns that
it was required to file. All such Tax Returns were correct and complete
in all
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material respects. All Taxes owed by either of Target 1 or Target 2
(whether or not shown on any Tax Return) have been paid.
(ii) Targets are not the beneficiary of any extension of time
within which to file any Tax Return. No claim has ever been made by an
authority in a jurisdiction where any of Targets do not file Tax Returns
that it is or may be subject to taxation by that jurisdiction. There are
no Security Interests on any of the assets of any of Targets that arose
in connection with any failure (or alleged failure) to pay any Tax.
(iii) Targets have withheld and paid all Taxes required to have
been withheld and paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, shareholder, or other third
party.
(iv) No Target shareholder or director or officer (or employee
responsible for Tax matters) of either of Targets expects any authority
to assess any additional Taxes for any period for which Tax Returns have
been filed. There is no dispute or claim concerning any Tax Liability of
Targets either (A) claimed or raised by any authority in writing or (B)
as to which either Targets' shareholders and the directors and officers
(and employees responsible for Tax matters) of Targets have knowledge
based upon personal contact with any agent of such authority.
(g) Employee Benefits.
(i) Each Employee Benefit Plan (and each related trust,
insurance contract, or fund) maintained by Target 1 or Target 2 or to
which a contribution on behalf of either of them is made complies in form
and in operation in all respects with the applicable requirements of
ERISA, the Code, and other applicable laws.
(ii) All contributions (including all employer contributions and
employee salary reduction contributions) that are due have been paid to
each such Employee Benefit Plan that is an Employee Pension Benefit Plan
and all contributions for any period ending on or before the Closing Date
that are not yet due have been paid to each such Employee Pension Benefit
Plan or accrued in accordance with the past custom and practice of Target
1 and Target 2. All premiums or other payments for all periods ending on
or before the Closing Date due or owing have been paid with respect to
each such Employee Benefit Plan that is an Employee Welfare Benefit Plan.
(iii) None of Target 1 or Target 2, and the other members of the
Controlled Group of Corporations, which includes Target 1 and Target 2,
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contributes to, ever has contributed to, or ever has been required to
contribute to any Multiemployer Plan or has any Liability (including
withdrawal Liability) under any Multiemployer Plan. Neither Target 1 nor
Target 2 maintains or ever has maintained or contributes, ever has
contributed, or ever has been required to contribute to any Employee
Pension Benefit Plan subject to Title IV of ERISA.
(h) Incorporated Representations and Warranties.
(i) Targets have delivered to Acquirors a true and complete
copy of the Hearst Agreement (together with all exhibits and schedules
thereto), as in effect on the date hereof. Targets represent and warrant
that each of the Incorporated Representations and Warranties is true and
correct in all material respects on and as of the date hereof, with the
same force and effect as if each of such representations and warranties
were set forth at length herein and made directly to Acquirors on and as
of the date hereof and as if each schedule thereto referred to therein
and attached thereto were attached to and a part of this Agreement.
(ii) If any Incorporated Definitions contained in the Hearst
Agreement incorporated by reference into this ss.4(h)(ii) is also defined
elsewhere in this Agreement, then for the purposes of this ss.4(h)(ii)
(but not for the purpose of any other provision of this Agreement) such
term shall have the meaning assigned to it in the Hearst Agreement as in
effect on the date of this Agreement (notwithstanding any subsequent
termination, amendment, or modification thereof, unless consented to in
writing by Target 1 and Target 2), except: (a) all references to Buyers
in the Hearst Agreement shall be deemed to be references to Acquirors (as
defined in this Agreement); (b) all references to Owner in the Hearst
Agreement shall be deemed to be references to Target 1 (as defined in
this Agreement); (c) all references to Licensee in the Hearst Agreement
shall be deemed to be references to Target 2 (as defined in this
Agreement); and (d) all references in the Hearst Agreement to a Seller or
the "Sellers" shall be deemed to be references to Target 1 and Target 2
as reasonably appropriate.
(i) Disclosure. The representations and warranties contained in
this ss.4 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this ss.4 not misleading.
5. Pre-Closing Covenants. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
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(a) General. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary, proper, or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
ss.7 below).
(b) Notices and Consents. Each of Target 1 and Target 2 will give any
notices to third parties, that Acquirors may request in connection with the
matters referred to in ss.4(c) above. Each of the Parties will give any notices
to, make any filings with, and use its best efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in ss.3(b), ss.4(a), and ss.4(c)
above.
(c) Operation of Business. Except as contemplated or permitted hereby,
without the consent of each of the Acquirors, neither Target 1 nor Target 2 will
engage in any practice, take any action, or enter into any transaction outside
the Ordinary Course of Business.
(d) Preservation of Business. Each of Target 1 and Target 2 will keep
its business and properties substantially intact.
(e) Full Access. Each of Target 1 and Target 2 will permit
representatives of Acquirors to have full access to all premises, properties,
personnel, books, records (including Tax records), contracts, and documents of
or pertaining to each of Target 1 and Target 2.
(f) Notice of Developments. Each of Target 1 and Target 2 will give
prompt written notice to Acquirors of any material adverse development causing a
breach of any of the representations and warranties in ss.4 above. Each Party
will give prompt written notice to the others of any material adverse
development causing a breach of any of its own representations and warranties in
ss.3 above. No disclosure by any Party pursuant to this ss.5(f), however, shall
be deemed to amend or supplement the Disclosure Schedule or to prevent or cure
any misrepresentation, breach of warranty, or breach of covenant.
(g) Shareholder Approval. Each of Target 1 and Target 2 will obtain
the written consent of its shareholders approving the Merger in accordance with
the Florida Business Corporation Act. Each of Acquiror 1 and Acquiror 2 will
obtain the written consent of its shareholders approving the Merger in
accordance with the Florida Business Corporation Act.
6. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
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(a) General. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this Agreement, each of
the Parties will take such further action (including the execution and delivery
of such further instruments and documents) as any other Party reasonably may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under ss.8 below). Each
of Target 1 and Target 2 acknowledges and agrees that from and after the
Closing, Acquirors will be entitled to possession of all documents, books,
records (including Tax records), agreements, and financial data of any sort
relating to Targets.
(b) Transition. Neither Target 1 nor Target 2 will take any action
that is designed or intended to have the effect of breaching the Hearst
Agreement.
(c) The Acquiror Note. The Acquiror Note will be imprinted with a
legend substantially in the following form:
The payment of principal and interest on this Note is subject to
certain recoupment provisions set forth in a Merger Agreement
dated as of April 29, 1997 (the "Merger Agreement") among the
issuer of this Note and the person to whom this Note originally
was issued and others. This Note was originally issued on April
29, 1997, and has not been registered under the Securities Act of
1933, as amended. The transfer of this Note is subject to certain
restrictions set forth in the Merger Agreement. The issuer of this
Note will furnish a copy of these provisions to the holder hereof
without charge upon written request.
Any holder of the Acquiror Note desiring to transfer the Acquiror Note first
must furnish Acquirors with (A) a written opinion reasonably satisfactory to
each of Acquirors in form and substance from counsel reasonably satisfactory to
each of Acquirors by reason of experience to the effect that the holder may
transfer the Acquiror Note as desired without registration under the Securities
Act and (B) a written undertaking executed by the desired transferee reasonably
satisfactory to each of Acquirors in form and substance agreeing to be bound by
the recoupment provisions and the restrictions on transfer contained herein. The
Acquiror Note shall be subject to a subordination agreement made by one or more
of the Parties in favor of one or more lenders of Acquirors.
(d) Employee Benefits. To the extent permitted by applicable law, and
in accordance with the terms and conditions of the 401(k) Plan, Targets'
Ultimate Shareholder shall cause its Affiliates to permit employees of each of
Targets to
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continue to participate in the 401(k) Plan to the same extent as employees of
Targets' Ultimate Shareholder and its Affiliates. At such time (if any) prior to
the Closing under the Hearst Agreement either Target ceases to be a member of
the Controlled Group of Corporations that includes Targets' Ultimate
Shareholder, either (i) Acquirors and Targets' Ultimate Shareholder shall (and
shall each cause its Affiliates to the extent applicable or necessary) enter
into appropriate employee leasing arrangements to provide for the leasing of the
then employees of Targets to Targets' Ultimate Shareholder or Affiliate of
Targets' Ultimate Shareholder designated by Targets' Ultimate Shareholder, or
(ii) Targets shall become participating employers in the 401(k) Plan in
accordance with the terms and conditions thereof.
(e) Paramount Stations Group, Inc. Transaction. The Parties
acknowledge that Target 1 has certain television programming rights and related
rights that are currently being used in connection with the operation of WTVX-TV
and that substantially all of the assets used in the operation of such station
are being sold by an Affiliate of Targets' Ultimate Shareholder to an assignee
of Paramount Stations Group, Inc. and that such Affiliate of Targets' Ultimate
Shareholder has agreed to ensure that such assets of Target 1 are transferred
free and clear of all Security Interests to the proposed assignee thereof
pursuant to such Agreement. The Parties agree to take such further action as may
be necessary or desirable to accomplish the foregoing. In addition, the Parties
acknowledge that an Affiliate of Targets' Ultimate Shareholder has certain
television programming rights that are required to be transferred to Hearst free
and clear of all Security Interests pursuant to the Hearst Agreement and
Targets' Ultimate Shareholder agrees to take such action (or cause any Affiliate
of it to take such action) as may be necessary or desirable to carry out the
foregoing. Each Party agrees that such acts shall be taken at the sole cost and
expense of the Party needing such action to be taken. If requested, prior to
Closing, Target 1 shall declare and pay at or before Closing a dividend of the
programming rights in kind to its sole shareholder.
(f) Consummation of Hearst Transactions. Each of the Parties agrees to
take all actions determined necessary or desirable by the other Parties to
timely comply with all obligations necessary or desirable to consummate the
transactions contemplated by the Hearst Agreement and fulfill all of their
respective obligations thereunder.
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(g) Certain Tax Matters.
(i) Targets are members of an affiliated group of corporations
filing a consolidated federal income tax return with their ultimate
parent corporation, Xxxxxx Communications Corporation ("Parent"). For
federal income tax purposes, the Merger will be treated as though each of
Targets have sold all of its assets to the respective Acquirors and then
liquidated. Parent will include the income derived from the deemed sale
of assets by Targets (including any deferred income triggered into income
by Reg. ss.1.1502-13 and Reg. ss.1.1502-14) on Parent's consolidated
federal income Tax Returns for all periods through the Closing Date and
pay any federal income Taxes attributable to such transactions. Acquirors
will furnish such Tax information to Parent as may be required for
inclusion in Parent's federal consolidated income Tax Return for the
period that includes the Closing Date in accordance with Targets' past
custom and practice.
(ii) Parent will allow either of Targets and its counsel to
participate in any audits of Parent's consolidated federal income Tax
Returns to the extent that such returns relate to such Target. Parent
will not settle any such audit in a manner which would adversely affect
the Acquirors after the Closing Date unless Parent pays such of
Acquirors' costs (including tax, penalty and interest) associated
therewith.
(iii) Parent will pay any Tax attributable to the treatment of the
Merger as an asset sale, and will indemnify Acquirors, against any
Adverse Consequences arising out of any failure to pay such Tax. Parent
will also pay any state, local, or foreign Tax (and indemnify Acquirors
against any Adverse Consequences arising out of any failure to pay such
Tax) attributable to the treatment of the Merger as an asset sale,
hereunder regardless of the state, local or foreign tax jurisdiction
characterization of the Merger.
7. Conditions to Obligation to Close.
(a) Conditions to Obligation of Acquirors. The obligation of each of
Acquirors to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in ss.4 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) Each of Target 1 and Target 2 shall have performed and
complied with all of its covenants hereunder in all material respects
through the Closing;
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(iii) Target 1 and Target 2 shall have procured all of the
third party consents specified in ss.5(b) above;
(iv) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement,
(B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation, (C) affect adversely the right of
either of Acquirors to own either Target 1 Shares or Target 2 Shares and
to control Targets, or (D) affect adversely the right of either of Target
1 or Target 2 to own its assets and to operate its businesses (and no
such injunction, judgment, order, decree, ruling, or charge shall be in
effect);
(v) Each of Target 1 and Target 2 shall have delivered to
each of Acquirors a certificate to the effect that each of the conditions
specified above in ss.7(a)(i)-(vi) is satisfied in all respects;
(vi) the relevant parties shall have entered into the time
brokerage agreements in form and substance as set forth in Exhibit "C"
attached hereto and the same shall be in full force and effect;
(vii) Each of Acquirors shall have obtained on terms and
conditions reasonably satisfactory to it all of the financing it needs in
order to consummate the transactions contemplated hereby and fund the
working capital requirements of Target 1 and Target 2 after the Closing;
(viii) all actions to be taken by Targets in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to each of Acquirors; and
(ix) Targets shall have delivered to Acquirors a
controlling shareholder agreement substantially in the form of Exhibit
"D" hereto.
Either of Acquirors may waive any condition specified in this ss.7(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of Targets. The obligation of each of
Targets to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
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(i) the representations and warranties set forth in ss.3 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) each of Acquirors shall have performed and complied with all
of its covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement or
(B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment,
order, decree, ruling, or charge shall be in effect);
(iv) each of Acquirors shall have delivered to Targets a
certificate to the effect that each of the conditions specified above in
ss.7(b)(i)-(iv) is satisfied in all respects;
(v) the relevant parties shall have entered into a time
brokerage agreement in form and substance as set forth in Exhibit "C"
attached hereto and the same shall be in full force and effect;
(vi) all actions to be taken by Acquirors in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to both Target 1 and Target 2.
Either of Targets may waive any condition specified in this ss.7(b) if it
executes a writing so stating at or prior to the Closing.
8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties contained in this Agreement shall
survive the Closing hereunder (even if the damaged Party knew or had reason to
know of any misrepresentation or breach of warranty at the time of Closing) and
continue in full force and effect forever thereafter (subject to any applicable
statutes of limitations).
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(b) Indemnification Provisions for Benefit of Acquirors.
(i) In the event either of Target 1 or Target 2 breaches (or in
the event any third party alleges facts that, if true, would mean either
of Target 1 or Target 2 has breached) any of its representations,
warranties, and covenants contained herein, then each of Target 1 and
Target 2 agrees to indemnify Acquirors from and against the entirety of
any Adverse Consequences Acquirors may suffer through and after the date
of the claim for indemnification (including any Adverse Consequences
Acquirors may suffer after the end of any applicable survival period)
resulting from, arising out of, relating to, in the nature of, or caused
by the breach (or the alleged breach.
(ii) Each of Target 1 and Target 2 agrees to indemnify each of
Acquirors from and against the entirety of any Adverse Consequences
Acquirors may suffer resulting from, arising out of, relating to, in the
nature of, or caused by any Liability of either of Target 1 or Target 2
for the unpaid Taxes of any Person (other than either of Target 1 or
Target 2) under Treas. Reg. ss.1.1502-6 (or any similar provision of
state, local, or foreign law), as a transferee or successor, by contract,
or otherwise.
(iii) Each of Target 1 and Target 2 agrees to indemnify each of
Acquirors from and against the entirety of any Adverse Consequences
Acquirors, Target 1 and Target 2 may suffer resulting from, arising out
of, relating to, or connected with the fulfillment of the obligation of
Target 1 and Target 2 under the Hearst Agreement, including any
post-closing obligation or requirement to indemnify any party thereunder
or in connection therewith.
(c) Indemnification Provisions for Benefit of Targets. In the event
either of Acquirors breaches (or in the event any third party alleges facts
that, if true, would mean either of Acquirors has breached) any of its
representations, warranties, and covenants contained herein, then each of
Acquiror 1 and Acquiror 2 agrees to indemnify both Target 1 and Target 2 from
and against the entirety of any Adverse Consequences either Target 1 or Target 2
may suffer through and after the date of the claim for indemnification
(including any Adverse Consequences Target 1 or Target 2 may suffer after the
end of any applicable survival period) resulting from, arising out of, relating
to, in the nature of, or caused by the breach (or the alleged breach).
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") that may give
rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this ss.8, then the Indemnified Party shall
promptly notify each
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Indemnifying Party thereof in writing; provided, however, that no delay
on the part of the Indemnified Party in notifying any Indemnifying Party
shall relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent) the Indemnifying Party thereby is
prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (A)
the Indemnifying Party notifies the Indemnified Party in writing within
30 days after the Indemnified Party has given notice of the Third Party
Claim that the Indemnifying Party will indemnify the Indemnified Party
from and against the entirety of any Adverse Consequences the Indemnified
Party may suffer resulting from, arising out of, relating to, in the
nature of, or caused by the Third Party Claim, (B) the Indemnifying Party
provides the Indemnified Party with evidence reasonably acceptable to the
Indemnified Party that the Indemnifying Party will have the financial
resources to defend against the Third Party Claim and fulfill its
indemnification obligations hereunder, (C) the Third Party Claim involves
only money damages and does not seek an injunction or other equitable
relief, (D) settlement of, or an adverse judgment with respect to, the
Third Party Claim is not, in the good faith judgment of the Indemnified
Party, likely to establish a precedential custom or practice materially
adverse to the continuing business interests of the Indemnified Party,
and (E) the Indemnifying Party conducts the defense of the Third Party
Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting the defense
of the Third Party Claim in accordance with ss.8(d)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the
prior written consent of the Indemnifying Party (not to be withheld
unreasonably), and (C) the Indemnifying Party will not consent to the
entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in ss.8(d)(ii) above is
or becomes unsatisfied, however, (A) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, any Indemnifying Party in
connection therewith), (B) the Indemnifying Parties will reimburse the
Indemnified Party promptly and
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periodically for the costs of defending against the Third Party Claim
(including reasonable attorneys' fees and expenses), and (C) the
Indemnifying Parties will remain responsible for any Adverse Consequences
the Indemnified Party may suffer resulting from, arising out of, relating
to, in the nature of, or caused by the Third Party Claim to the fullest
extent provided in this ss.8.
(e) Determination of Adverse Consequences. The Parties shall take
into account the time cost of money (using the Applicable Rate as the discount
rate) in determining Adverse Consequences for purposes of this ss.8.
(f) Recoupment Under the Acquiror Note. Each of Acquirors shall have
the option of recouping all or any part of any Adverse Consequences it may
suffer (in lieu of seeking any indemnification to which it is entitled under
this ss.8) by notifying both Target 1 and Target 2 that it is reducing the
principal amount outstanding and other amounts payable under the Acquiror Note.
This shall affect the timing and amount of payments required under the Acquiror
Note in the same manner as if Acquirors had made a permitted prepayment (without
premium or penalty) thereunder.
(g) Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any Party may have for breach of representation,
warranty, or covenant.
9. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate
this Agreement as provided below:
(i) Acquirors and Targets may terminate this Agreement with the
prior authorization of their board of directors (whether before or after
shareholder approval) by written consent of all the Parties at any time
prior to the Closing;
(ii) Either of Acquirors may terminate this Agreement by giving
written notice to each of Target 1 or Target 2 at any time prior to the
Closing (A) in the event either of Target 1 and Target 2 has breached any
material representation, warranty, or covenant contained in this
Agreement in any material respect, such Acquiror has notified Target 1
and Target 2, as appropriate, of the breach, and the breach has continued
without cure for a period of 30 days after the notice of breach or (B) if
the Closing shall not have occurred on or before December 31, 1997, by
reason of the failure of any condition precedent under ss.7(a) hereof
(unless the failure results primarily from
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either of Acquirors itself breaching any representation, warranty, or
covenant contained in this Agreement); and
(iii) Either Target 1 or Target 2 may terminate this Agreement
by giving written notice to each of Acquiror 1 and Acquiror 2 at any time
prior to the Closing (A) in the event either of Acquirors has breached
any material representation, warranty, or covenant contained in this
Agreement in any material respect, such Target has notified Acquiror 1 or
Acquiror 2, as appropriate, of the breach, and the breach has continued
without cure for a period of 30 days after the notice of breach or (B) if
the Closing shall not have occurred on or before December 31, 1997, by
reason of the failure of any condition precedent under ss.7(b) hereof
(unless the failure results primarily from either of Targets itself
breaching any representation, warranty, or covenant contained in this
Agreement).
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to ss.9(a) above, all rights and obligations of the Parties hereunder
shall terminate without any Liability of any Party to any other Party (except
for any Liability of any Party then in breach).
10. Miscellaneous.
(a) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or
among the Parties, written or oral, to the extent they related in any way to
the subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior
written approval of each of Acquirors and each of Targets; provided, however,
that either of Acquirors may (i) assign any or all of its rights and interests
hereunder to one or more of its Affiliates and (ii) designate one or more of
its Affiliates to perform its obligations hereunder (in any or all of which
cases such Acquiror shall no longer remain responsible for the performance of
any of its obligations hereunder).
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(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Target 1: Xxxxxx Communications of West Palm Beach-25, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
If to Target 2: Xxxxxx West Palm Beach License, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
If to Acquiror 1: WPBF Merger, Inc.
0000 XXX Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx Xxxxxxx, XX 00000
If to Acquiror 2: WPBF License, Inc.
0000 XXX Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx Xxxxxxx, XX 00000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
facsimile, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
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(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of Florida without giving effect to any
choice or conflict of law provision or rule (whether of Florida or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than Florida.
(h) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by each
of Acquirors and each of Targets. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(i) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(j) Expenses. Targets' Ultimate Shareholder will bear costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
(k) Construction. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The Parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) that the Party
has not breached shall not detract from or mitigate the fact that the Party is
in breach of the first representation, warranty, or covenant.
(l) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
(m) Specific Performance. Each of the Parties acknowledges and agrees
that the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions
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of this Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having jurisdiction over the Parties and the matter (subject
to the provisions set forth in ss.10(n) below), in addition to any other remedy
to which they may be entitled, at law or in equity.
(n) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in Florida, in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each Party also agrees not to bring any action or proceeding arising
out of or relating to this Agreement in any other court. Each of the Parties
waives any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security that might
be required of any other Party with respect thereto. Any Party may make service
on any other Party by sending or delivering a copy of the process to the Party
to be served at the address and in the manner provided for the giving of notices
in ss.10(f) above. Nothing in this ss.10(n), however, shall affect the right of
any Party to serve legal process in any other manner permitted by law or at
equity. Each Party agrees that a final judgment in any action or proceeding so
brought shall be conclusive and may be enforced by suit on the judgment or in
any other manner provided by law or at equity.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective as of the date first above written.
WPBF MERGER, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
------------------------------------
WPBF LICENSE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
------------------------------------
XXXXXX COMMUNICATIONS OF WEST
PALM BEACH-25, INC.
By: /s/ Xxxxxx Tek
--------------------------------------
Title: Vice President
------------------------------------
XXXXXX WEST PALM BEACH LICENSE,
INC.
By: /s/ Xxxxxx Tek
--------------------------------------
Title: Vice President
------------------------------------
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