EHIBIT 10.8
Draft 3/13/98
AGREEMENT AND PLAN OF MERGER
AMONG
XXXXXXXX BROADCASTING COMPANY III, INC.
GLENCAIRN, LTD.,
and
ABRY PARTNERS, INC.
(as Stockholder Representative)
EFFECTIVE AS OF
FEBRUARY 23, 1998
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is entered into on March16, 1998,
but is effective as of February 23, 1998, among Xxxxxxxx Broadcasting Company
III, Inc., a Delaware corporation ("Xxxxxxxx"), Glencairn, Ltd, a Maryland
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corporation ("Glencairn"), on behalf of itself and a subsidiary to be formed by
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it pursuant to Article I below, and ABRY Partners, Inc., a Delaware corporation
("ABRY Partners"), solely in its capacity as the Stockholder Representative
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referred to in this Agreement.
WHEREAS, the parties to this Agreement are among the parties to an
Agreement and Plan of Merger dated as of February 23, 1998 (the "Prior
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Agreement"), and the parties to the Prior Agreement have agreed to restate the
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Prior Agreement by entering into this Agreement and certain other agreements;
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows,
effective as of the date of the Prior Agreement:
ARTICLE I
FORMATION OF SUBSIDIARY
On or prior to March 20, 1998, Glencairn will form a wholly-owned Subsidiary
which will be a Delaware corporation. Such Subsidiary will be the "Merger Sub"
referred to in this Agreement. Glencairn will cause such Subsidiary to become a
party to this Agreement and the Indemnity Escrow Agreement by executing and
delivering to Xxxxxxxx a counterpart thereof.
ARTICLE II
MERGER
2.A General. Upon and subject to the terms and conditions stated in
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this Agreement, on the Closing Date, effective as of the Effective Time, the
Merger Sub will merge with and into Xxxxxxxx in accordance with the terms and
conditions of this Agreement. Xxxxxxxx will be the corporation which survives
such merger (the "Merger") and in such capacity is sometimes referred to in
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this Agreement as "Post-Merger Xxxxxxxx."
2.B Effect on Xxxxxxxx Shares. Immediately after the Closing,
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effective at the Effective Time, subject to the terms and conditions of this
Agreement (1) the Merger will be effected by the filing with the Secretary of
the State of Delaware of a Certificate of Merger; (2) each Xxxxxxxx Share
outstanding at the Effective Time, by said occurrence and with no further action
on the part of the holder thereof, will be canceled without consideration; (3)
each share of common stock of the Merger Sub outstanding immediately prior to
the Effective Time will, by said occurrence and with no further action on the
part of the holder thereof, be transformed and converted into one share of
common stock of Post-Merger Xxxxxxxx, so that immediately thereafter Glencairn
will be the sole and exclusive owner of all equity securities of Post-Merger
Xxxxxxxx; and (4) Post-Merger Xxxxxxxx will be the owner of the business,
assets, rights, privileges, immunities, powers, franchises and other attributes
of Xxxxxxxx and the Merger Sub.
2.C Certificate of Incorporation. Immediately after the Effective
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Time, the certificate of incorporation of Post-Merger Xxxxxxxx will be the
certificate of incorporation of the Merger Sub as in effect immediately prior to
the Effective Time.
2.D Bylaws. Immediately after the Effective Time, the bylaws of Post-
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Merger Xxxxxxxx will be the bylaws of the Merger Sub as in effect immediately
prior to the Effective Time.
2.E Board of Directors and Officers. The board of directors and
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officers of the Merger Sub immediately prior to the Effective Time will be the
board of directors and the officers, respectively, of Post-Merger Xxxxxxxx
immediately after the Effective Time, and such individuals will serve in such
positions for the respective terms provided by applicable Legal Requirements or
in the bylaws of Post-Merger Xxxxxxxx until their respective successors are
elected and qualified.
2.F Name. The name of Post-Merger Xxxxxxxx will be designated by
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Glencairn.
2.G Transfer of Xxxxxxxx Stock. At the Effective Time, the stock
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transfer books of Xxxxxxxx will be closed and no transfer of Xxxxxxxx Shares
will thereafter be made.
ARTICLE III
MERGER CONSIDERATION AND CLOSING
3.A Merger Consideration. No consideration will be payable to the
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holders of Xxxxxxxx Shares by reason of or in connection with the Merger.
3.B Closing Time and Place. Subject to Section 12.A, the
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consummation of the Merger (the "Closing") will be held in the offices of
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Xxxxxxxx & Xxxxx, in New York, New York, at 10:00 a.m., local time, on the date
determined pursuant to the following two sentences, or at such other place
and/or at such other time and date as the Merger Sub and Xxxxxxxx may agree in
writing. The Merger Closing will occur on a date designated by the Merger Sub
by written notice to Xxxxxxxx not less than ten Business Days in advance of such
date (which designated
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date will be not later than the Expiration Date). Notwithstanding the foregoing,
but subject to Section 12.A, if on a date for the Closing described in the
preceding sentence or specified pursuant to this sentence any condition of the
Merger Sub or Xxxxxxxx specified in Article IX or X has not been satisfied (and
will not be satisfied by the delivery of documents at the Closing) or waived in
writing, then the date for the Closing will be extended to any date specified by
the Merger Sub to Xxxxxxxx with not less than 10 Business Days' notice to the
other (subject to the Merger Sub's and Xxxxxxxx'x respective conditions to the
Closing set forth in Articles IX and X being satisfied or waived in writing on
such specified date); provided that any such specified date will be on or prior
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to the Expiration Date.
3.C Deliveries at the Closing. All actions on the Closing Date
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(including those described in Section 11.D) will be deemed to occur
simultaneously, and no document or payment to be delivered or made on the
Closing Date will be deemed to be delivered or made until all such documents and
payments are delivered or made to the reasonable satisfaction of Xxxxxxxx, the
Merger Sub, the Stockholder Representative and their respective legal counsel.
(1) Deliveries by Xxxxxxxx. At the Closing, Xxxxxxxx will
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deliver to the Merger Sub the following:
(a) the minute book, stock transfer book and other records
relating to the internal corporate affairs of Xxxxxxxx which are in
Xxxxxxxx'x possession, and resignations of the officers and directors
of Xxxxxxxx, which resignations will be effective as of the Effective
Time;
(b) all mortgage discharges or releases of Liens, if any,
that will be sufficient to cause the Station Assets held by Xxxxxxxx
to be as described in Section 4.E;
(c) a certificate of the President or Chief Executive
Officer of Xxxxxxxx dated the Closing Date to the effect that, except
as specified in such certificate, to the best of such officer's
knowledge, the conditions set forth in Sections 10.A(1) and 10.A(2)
have been fulfilled;
(d) a certificate of Xxxxxxxx dated the Closing Date to the
effect that, except as specified in such certificate, the conditions
set forth in Sections 10.A(1) and 10.A(2) have been fulfilled;
(e) a certified copy of the resolutions or action by written
consent of the board of directors and stockholders of Xxxxxxxx
authorizing the Merger and Xxxxxxxx'x execution, delivery and
performance of this Agreement;
(f) certificates as to the existence and/or good standing of
Xxxxxxxx, in each case issued by the Secretary of State or a
comparable official of Delaware and each other jurisdiction (if any)
in which it is then required to be qualified to do business,
certifying as to the existence and/or good standing of such
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corporation in such jurisdictions;
(g) one or more opinions of counsel or special counsel to
Xxxxxxxx, each dated the Closing Date, as to the matters set forth in
the attached Exhibit A; and
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(h) such other documents, instruments and receipts as the
Merger Sub may reasonably request in order to effectuate the Merger
and the other transactions contemplated by this Agreement to be
consummated at the Closing.
Each of the foregoing will be reasonably satisfactory in form to the Merger
Sub and its legal counsel.
(2) Deliveries by the Merger Sub. At the Closing, the Merger Sub
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will deliver to the Stockholder Representative the following:
(a) a certificate of an officer or similar official of the
Merger Sub dated the Closing Date to the effect that, except as
specified in such certificate, to the best of such officer's or
official's knowledge, the conditions set forth in Sections 9.A(1) and
9.A(2) have been fulfilled;
(b) a certificate of an officer or similar official of
Glencairn dated the Closing Date to the effect that, except as
specified in such certificate, to the best of such officer's or
official's knowledge, the conditions set forth in Sections 9.A(1) and
9.A(2) have been fulfilled;
(c) a certificate of the Merger Sub dated the Closing Date
to the effect that, except as specified in such certificate, the
conditions set forth in Sections 9.A(1) and 9.A(2) have been
fulfilled;
(d) a certificate of Glencairn dated the Closing Date to the
effect that, except as specified in such certificate, the conditions
set forth in Sections 9.A(1) and 9.A(2) have been fulfilled;
(e) a certified copy of the resolutions or action by written
consent of the board of directors and stockholders of the Merger Sub
authorizing the Merger and the Merger Sub's execution, delivery and
performance of this Agreement;
(f) a certified copy of the resolutions or action by written
consent of the board of directors of Glencairn authorizing Glencairn's
execution, delivery and performance of this Agreement;
(g) certificates as to the existence and/or good standing of
Glencairn and the Merger Sub, in each case issued by the Secretary of
State or a comparable official of such jurisdictions as Xxxxxxxx may
reasonably request and dated on or after the fifth Business Day prior
to the Closing Date, certifying as to the
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existence and/or good standing of such corporation in such
jurisdictions;
(h) one or more opinions of counsel or special counsel to
Glencairn and the Merger Sub, each dated the Closing Date, as to the
matters set forth in the attached Exhibit B; and
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(i) such other documents, instruments and receipts as
Xxxxxxxx may reasonably request in order to effectuate the Merger and
the other transactions contemplated by this Agreement to be
consummated at the Closing.
Each of the foregoing will be reasonably satisfactory in form to Xxxxxxxx
and its legal counsel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF XXXXXXXX
Subject to Section 13.Q, Xxxxxxxx makes the following representations
and warranties:
4.A Organization. Xxxxxxxx is a corporation which is duly organized,
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validly existing and in good standing under the laws of the State of Delaware.
From and after the Spin-Off, Xxxxxxxx will be qualified to do business or have
similar status under the laws of each jurisdiction in which such qualification
is required by applicable Legal Requirements. Xxxxxxxx has the power and
authority to carry on the business being conducted by it, to own and operate the
Station Assets owned and operated by it, and to enter into and consummate the
transactions contemplated to be consummated by it pursuant to this Agreement.
4.B Action. Each action necessary to be taken by or on the part of
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Xxxxxxxx in connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated to be consummated by Xxxxxxxx
pursuant to this Agreement and necessary to make the same effective will be duly
and validly taken by, and be effective at, the time by which such action is
required to be taken. This Agreement has been duly and validly authorized,
executed, and delivered by Xxxxxxxx and constitutes its valid and binding
agreement, enforceable against Xxxxxxxx in accordance with and subject to its
terms, subject to the effect of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, arrangement, moratorium or similar laws
affecting the rights of creditors generally and the availability of equitable
remedies.
4.C FCC Authorizations. As of the time of the Closing, Xxxxxxxx will
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be the holder of the FCC Authorizations. As of the time of the Closing, except
as set forth on the attached Schedule 4C, (i) the Authorizations will constitute
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all of the licenses and authorizations required under the Communications Act, or
the current rules, regulations, and policies of the FCC, for the operation of
the Stations as now conducted; (ii) the FCC Authorizations will be in full force
and effect and are subject to or scheduled for renewal on the respective dates
specified on the attached Schedule 4C (unless theretofore renewed after the date
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of this Agreement); (iii) the FCC
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Authorizations will be valid for the full respective terms thereof; (iv)
Xxxxxxxx will have no reason to believe that the FCC Authorizations will not be
renewed for a full and customary term in the ordinary course with no materially
adverse conditions (except with respect to general rule-making and similar
matters relating generally to television broadcast stations by reason of any
action or omission of Glencairn or any of its Subsidiaries); (v) there will not
be not pending, or, to the knowledge of Xxxxxxxx, threatened, any action by or
before the FCC to revoke, cancel, rescind, modify, or refuse to renew in the
ordinary course any of the FCC Authorizations, and there will not be pending,
or, to the knowledge of any such Person, threatened, issued, or outstanding by
or before the FCC, any investigation, order to show cause, notice of violation,
notice of apparent liability, or notice of forfeiture or complaint against
Xxxxxxxx with respect to any Station, in each case other than by reason of any
actual or alleged action or omission of Glencairn or any of its Subsidiaries;
(vi) Xxxxxxxx will have complied in all material respects with the FCC
Authorizations, the Communications Act, and the current rules, regulations and
policies of the FCC; and (vii) all documents required by 47 C.F.R. Section
73.3526 to be kept in each Station's public inspection file are in such file and
such file will be maintained in proper order and complete up to and through the
Closing Date.
4.D Condition of Assets. Except as set forth on the attached
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Schedule 4D, the material tangible assets of Xxxxxxxx and the improvements on
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any real property which are used by it (a) at the time of the Spin-Off and on
the Closing Date will in all material respects be in good and technically sound
operating condition (ordinary wear and tear excepted) and are not in need of
repair and in a condition which would be sufficient to permit the owner thereof
to operate the Stations (in the manner in which the Stations are operated or
programmed by Xxxxxxxx Holdings and its Subsidiaries as of the date of this
Agreement) in compliance with the terms of the FCC Authorizations, the
Communications Act and current FCC rules and regulations (if such owner had the
right to use the Station Assets not owned by Xxxxxxxx and such Station Assets
were in at least such condition), and (b) have in all material respects been
maintained in a manner consistent with generally accepted standards of good
engineering practice and to the knowledge of Xxxxxxxx, all applicable federal,
state and local statutes, ordinances, rules and regulations, including, without
limitation, all applicable tower painting and lighting requirements.
4.E Title, Etc. Immediately after the Spin-Off, Xxxxxxxx will have
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good title to, or a valid leasehold in, the tangible assets and personal
property included in the Station Assets, and all such assets and personal
property will on the Closing Date (after the repayment in full of the
indebtedness of Xxxxxxxx and all related interest and other obligations and the
release of all related Liens and the Mission Guarantees) be free and clear of
all Liens other than Permitted Encumbrances. Xxxxxxxx possesses (and
immediately after the Merger, will possess) adequate rights, licenses, or other
authority to use the call letters presently used by the Stations, free and clear
of all Liens other than Permitted Encumbrances.
4.F Litigation. Except as set forth on the attached Schedule 4F:
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(1) on the date of this Agreement, Xxxxxxxx is not operating
under or subject to or in default with respect to any order, writ,
injunction, or decree of any court or federal, state, municipal, or other
governmental department, commission, board, agency, or
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instrumentality arising out of a proceeding to which it is or was a party,
and on the Closing Date, no such item will have or reasonably be expected
to result in a Material Adverse Change; and
(2) on the date of this Agreement, there is no litigation pending
by or against, or to the knowledge of Xxxxxxxx threatened against, Xxxxxxxx
which interferes with, or could reasonably be expected to interfere with,
(a) the operations of the Stations as presently conducted or (b) the
ability of Xxxxxxxx to carry out the transactions contemplated to be
carried out by it pursuant to this Agreement, and on the Closing Date, no
such pending or threatened litigation will have or will reasonably be
expected to result in a Material Adverse Change.
There are no attachments, executions, or assignments for the benefit of
creditors or voluntary or involuntary proceedings in bankruptcy initiated or
contemplated by, or, to the knowledge of Xxxxxxxx, threatened or pending
against, Xxxxxxxx.
4.G Compliance with Laws. Other than with respect to matters
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disclosed in the attached Schedule 4C or the attached Schedule 4F, subject to
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obtaining all applicable Consents: (a) Xxxxxxxx, with respect to the Station
Assets, is in compliance in all material respects with all applicable Legal
Requirements, and (b) the present uses by Xxxxxxxx of the Station Assets which
it owns do not in any material respect violate any such Legal Requirements.
4.H No Defaults. Except for (w) any item described on the attached
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Schedule 4H, (x) the requisite approval of the FCC, (y) compliance with the
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requirements of the Xxxx-Xxxxx-Xxxxxx Act, and (z) any Consent which may be
required under any Contract, on the Closing Date (after giving effect to all
Consents which have been obtained) neither the execution and delivery by
Xxxxxxxx of this Agreement, nor the consummation by Xxxxxxxx of the Merger or
the other transactions contemplated by this Agreement to be consummated by
Xxxxxxxx, requires any Consent under, will constitute, or, with the giving of
notice or the passage of time or both, would constitute, a material violation of
or would conflict in any material respect with or result in any material breach
of or any material default under, or will result in the creation of any Lien
(other than any Permitted Encumbrance or any Lien in favor of one or more of the
Acquiring Parties) under, any of the terms, conditions, or provisions of any
Legal Requirement to which Xxxxxxxx is subject, or of the certificate of
incorporation or by-laws of Xxxxxxxx.
4.I Subsidiaries. Xxxxxxxx does not own any shares of stock or other
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equity or debt securities of or any interest in any Person.
4.J Tax Matters.
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(1) Tax Returns. Except as set forth on the attached Schedule 4J
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or as has not caused and is not reasonably expected to cause a Material
Adverse Change: (a) all federal, state, local and foreign tax returns and
tax reports required to be filed by Xxxxxxxx have been timely filed (taking
into account any extensions of which Xxxxxxxx may have availed itself) with
the appropriate governmental agencies in all jurisdictions in which such
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returns and reports are required to be filed, and all of the foregoing
(including any summary balance sheets included therein) are true, correct,
and complete; (b) all federal, state, local and foreign income, profits,
franchise, sales, use, occupation, property, excise, and other taxes
(including interest and penalties) due and payable by Xxxxxxxx have been
fully paid; (c) no issues have been raised in writing (or, to Xxxxxxxx'x
knowledge, orally) and are currently pending by the Internal Revenue
Service or any other taxing authority in connection with any of such
returns and reports; (d) no waivers of statutes of limitations as to tax
matters have been given or requested with respect to Xxxxxxxx; (e) the
federal, state, local, and foreign income tax and franchise tax returns of
or with respect to Xxxxxxxx have not been examined by the Internal Revenue
Service or by appropriate state, provincial, or departmental tax
authorities; (f) no issue has been raised in writing (or, to Xxxxxxxx'x
knowledge, orally) with Xxxxxxxx by any taxing authority which can
reasonably be expected to result in a deficiency for any fiscal year or all
deficiencies asserted or assessments (including interest and penalties)
made as a result of any examinations have been fully paid, and no proposed
(but unassessed) additional taxes, interest, or penalties have been
asserted; (h) Xxxxxxxx is not (and has never been) a party to any Tax
sharing agreement with any Person who was not a member of an Affiliated
Group consisting in whole or in part of the parties to such agreement, and
Xxxxxxxx has no liability for the Taxes of any other Person (other than
Xxxxxxxx Holdings and its Subsidiaries) pursuant to Reg. Section 1.1502-6
under the Tax Code (or any similar provision of state, local or foreign Tax
law) or as a transferee or successor or by contract.
(2) Tax Elections and Special Tax Status. Except as set forth on
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the attached Schedule 4J: (a) Xxxxxxxx is not and has never been a United
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States real property holding corporation within the meaning of Section
897(c)(2) of the Tax Code during the applicable period specified in Section
897(c)(1)(A)(ii) of the Tax Code; (b) Xxxxxxxx has not made any election or
filed any consent pursuant to Section 341(f) of the Tax Code relating to
collapsible corporations; (c) Xxxxxxxx has not entered into any
compensatory agreements with respect to the performance of services which
payment thereunder would result in a nondeductible expense to Xxxxxxxx
pursuant to Section 280G of the Tax Code or an excise tax to the recipient
of such payment pursuant to Section 4999 of the Tax Code; and (d) Xxxxxxxx
has not agreed to make, nor is it required to make, any adjustment under
Section 481(a) of the Tax Code by reason of a change in accounting method
or otherwise.
4.K Capital Stock. As of the date of this Agreement, Xxxxxxxx has
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authorized capital stock consisting of 80,000,000 shares of capital stock, of
which (a) 25,000,000 shares will be designated Class A One Common Stock, par
value $0.001 per share, (b) 25,000,000 shares will be designated Class B-1
Common Stock, par value $0.001 per share, (c) 25,000,000 shares will be
designated Class B-2 Common Stock, par value $0.001 per share, and (d) 5,000,000
shares will be designated Class C Common Stock, par value $0.001 per share. As
of the Closing Date, all of the issued and outstanding capital stock of Xxxxxxxx
will be duly authorized and validly issued, fully paid and nonassessable, and
there will be no preemptive rights in respect thereof in favor of any Person
(other than any Person which holds Xxxxxxxx Shares). There are no outstanding
options, warrants or other rights to subscribe for or purchase from Xxxxxxxx, no
contracts or commitments providing for the issuance of, or the granting of
rights to acquire, and no securities convertible into or
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exchangeable for, any shares of capital stock or any other ownership interest of
Xxxxxxxx.
4.L Books and Records. The minute books of Xxxxxxxx contain records
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which are complete and accurate in all material respects of all meetings and
other corporate actions of its stockholders, its board of directors and all
committees, if any, appointed by its board of directors. The books of accounts,
ledgers, order books, records and documents of Xxxxxxxx, in all material
respects, accurately and completely reflect information relating to its
business, the nature, acquisitions, maintenance and location of its assets and
the transactions giving rise to its obligations and accounts receivable.
4.M Absence of Significant Undisclosed Liabilities. Xxxxxxxx has no
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debt, liability or obligation of any kind, whether accrued, absolute, contingent
or otherwise, including any liability or obligation on account of Taxes or any
governmental charges or penalty, interest or fines, which would be required to
be reflected in its balance sheet prepared in accordance with GAAP and which
would have, or which in the case of contingent or inchoate liabilities, would
have if accrued or absolute, a material adverse effect on the financial
condition of Xxxxxxxx, viewed as a whole with Xxxxxxxx Holdings, its
Subsidiaries and Xxxxxxxx Two as of the Closing Date, other than any liability
or obligation (a) reflected in any Xxxxxxxx Holdings Financial Statement, (b)
identified with particularity in any attached Schedule or arising under any
Contract which is described, or which is not required to be described, on any
attached Schedule or the Contracts Schedule, (c) incurred in the ordinary course
of business since September 30, 1997, (d) incurred in connection with the
transactions contemplated by this Agreement, or (e) pursuant to the promissory
note issued to Xxxxxxxx Holdings and its Subsidiaries in connection with the
Spin-Off.
4.N Employee Benefit Plans. Other than any plan described on the
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attached Schedule 4N, (a) Xxxxxxxx does not maintain, is not a party to and
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make no contributions to any of the following: (i) any "employee pension
benefit plan," (as such term is defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974 ("ERISA")); or (ii) any "employee welfare
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benefit plan" (as such term is defined in Section 3(a) of ERISA), whether
written or oral; and (b) Xxxxxxxx has never sponsored or maintained, had any
obligation to sponsor or maintain, or had any liability (whether actual or
contingent, with respect to any of its assets or otherwise) with respect to any
employee pension benefit plan subject to Section 302 of ERISA or Section 412 of
the Tax Code or Title IV of ERISA (including any multiemployer plan). No
employee or former employee of Xxxxxxxx, and no beneficiary of any such employee
or former employee is, by reason of such employee's or former employee's
employment, entitled to receive any benefits, including death or medical
benefits (whether or not insured) beyond retirement or other termination of
employment as described in Statement of Financial Accounting Standards No. 106,
other than continuation coverage mandated under Section 4980B of the Tax Code or
comparable state law.
4.O Brokers. There is no broker or finder or other Person who would
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have any valid claim against Xxxxxxxx or any Acquiring Party for a commission or
brokerage fee in connection with this Agreement or the transactions contemplated
hereby as a result of any agreement or understanding of or action taken by
Xxxxxxxx or any of its Affiliates.
4.P Disclosure. To the knowledge of Xxxxxxxx, no statement of a
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material fact set
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forth in this Article IV contains any statement of any material fact which is
untrue in any material respect or omits to state a material fact which is
necessary in order to make the statements set forth in this Article IV not
misleading in any material respect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
GLENCAIRN AND THE MERGER SUB
Glencairn and the Merger Sub, jointly and severally, represent and
warrant as follows:
5.A Incorporation. Glencairn is a corporation duly organized,
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validly existing, and in good standing (or has comparable active status) under
the laws of the State of Maryland, and Glencairn has the corporate power and
authority to enter into and consummate the transactions contemplated to be
consummated by it pursuant to this Agreement. From and after the time it is
formed, the Merger Sub will be a corporation duly organized, validly existing,
and in good standing (or has comparable active status) under the laws of the
State of Delaware and will have the corporate power and authority to enter into
and consummate the transactions contemplated to be consummated by it pursuant to
this Agreement.
5.B Corporate Action. Each action necessary to be taken by or on the
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part of either Glencairn or the Merger Sub in connection with the execution and
delivery of this Agreement and the consummation of transactions contemplated
hereby to be consummated by it and necessary to make the same effective duly and
validly taken by, and be effective at, the time by which such action is required
to be taken. This Agreement has been duly and validly authorized, executed, and
delivered by each of Glencairn and the Merger Sub and constitutes a valid and
binding agreement, enforceable against each of them in accordance with and
subject to its terms, subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, arrangement, moratorium or
similar laws affecting the rights of creditors generally and the availability of
equitable remedies.
5.C No Defaults. Except as set forth on the attached Schedule 4H,
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the requisite approval of the FCC and compliance with the requirements of the
Xxxx-Xxxxx-Xxxxxx Act, on the Closing Date (after giving effect to all approvals
and consents which have been obtained), neither the execution and delivery by
Glencairn or the Merger Sub of this Agreement, nor the consummation by Glencairn
or the Merger Sub of the Merger and the other transactions contemplated by this
Agreement to be consummated by it, will constitute, or, with the giving of
notice or the passage of time or both, would constitute, a material violation of
or would conflict in any material respect with or result in any material breach
of or any material default under, any of the terms, conditions, or provisions of
any Legal Requirement to which Glencairn or the Merger Sub is subject, or of
Glencairn's or the Merger Sub's certificate of incorporation or by-laws or
similar organizational documents, or of any material contract, agreement, or
instrument to which Glencairn or the Merger Sub is a party or by which Glencairn
or the Merger Sub is bound.
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5.D Brokers. There is no broker or finder or other Person who would
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have any valid claim against Xxxxxxxx (except after the Effective Time) or any
Old Xxxxxxxx Stockholder for a commission or brokerage fee in connection with
this Agreement or the transactions contemplated hereby as a result of any
agreement or understanding of or action taken by Glencairn, the Merger Sub or
any Affiliate of any of them.
5.E Qualification as a Broadcast Licensee. Glencairn and the Merger
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Sub will, at the time of the filing of the applications for the Required FCC
Consent described in Section 6.A, be legally and financially qualified under the
Communications Act, and the rules and regulations promulgated by the FCC
thereunder, to control Xxxxxxxx (in the case of Glencairn) or be the successor
by merger to Xxxxxxxx and the holder of the FCC Authorizations (in the case of
the Merger Sub). To Glencairn's and the Merger Sub's knowledge, no fact exists
as of the date of this Agreement that would, under the Communications Act, the
existing rules, regulations, policies, and practices of the FCC or any other
Legal Requirement, disqualify either Glencairn or the Merger Sub as the direct
or indirect holder of any FCC Authorization or as owner and operator of the
related Station Assets or any related Station.
5.F Litigation. There is no litigation pending by or against, or to
----------
Glencairn's or the Merger Sub's knowledge (after due inquiry) threatened
against, Glencairn or the Merger Sub related to or affecting Glencairn's or the
Merger Sub's ability fully to carry out the transactions con templated to be
consummated by them pursuant to this Agreement. There are no attachments, execu
tions, or assignments for the benefit of creditors or voluntary or involuntary
proceedings in bankruptcy contemplated by, or, to Glencairn's or the Merger
Sub's knowledge, threatened or pending against, Glencairn or the Merger Sub.
5.G Disclosure. To Glencairn's and the Merger Sub's knowledge, no
----------
statement of a material fact set forth in this Article V contains a statement of
any material fact which is untrue in any material respect or omits to state a
material fact which is necessary in order to make the statements set forth in
this Article V not misleading in any material respect.
ARTICLE VI
APPLICATIONS FOR REQUIRED FCC CONSENT
6.A Preparation and Filing. Within 30 Business Days after
----------- --- ------
Glencairn's or its own written request after the Spin-Off, each of Xxxxxxxx and
Glencairn will, and will cause its Subsidiaries to, complete the portions of the
applications for the Required FCC Consent which pertain to it and jointly file
such applications with the FCC. Each of Xxxxxxxx and Glencairn will, and will
cause its Subsidiaries to, diligently take or cooperate in the taking of all
steps which are reasonably within its ability to take and which are necessary,
proper, or desirable to expedite the prosecution of such applications and to
cause the Required FCC Consent expeditiously to become Granted and expeditiously
to become a Final Order.
6.B Certain Actions. Xxxxxxxx will refrain from making any filing or
------- -------
10
announcement or taking (or causing or assisting any other Person to take) any
other action which reasonably could be expected to delay the Required FCC
Consent being Granted or becoming a Final Order in any respect without
Glencairn's prior written consent. Without limiting Section 6.D, Glencairn
will, and will cause its Subsidiaries to, refrain from making any filing or
announcement or taking (or causing or assisting any other Person to take) any
other action which reasonably could be expected to delay the Required FCC
Consent being Granted or becoming a Final Order in any respect without the prior
written consent of Xxxxxxxx (or, after the Closing, the Stockholder
Representative).
6.C Notice of Objections, etc. Xxxxxxxx will promptly provide
------ -- ----------- ---
Glencairn (or, after the Closing, the Stockholder Representative) with a copy of
any pleading, order, or other document served on Xxxxxxxx relating to such
applications (other than any of the same which is addressed to or states that it
is to be served upon or delivered to the Person to whom such copy is to be
provided or such Person's communications counsel). Glencairn will promptly
provide Xxxxxxxx (or, after the Closing, the Stockholder Representative) with a
copy of any pleading, order, or other document served on Glencairn or any of its
Subsidiaries relating to such applications (other than any of the same which is
addressed to or states that it is to be served upon or delivered to the Person
to whom such copy is to be provided or such Person's communications counsel).
6.D Prohibited Actions. Glencairn will not, and will not cause or
---------- -------
permit any of its Subsidiaries to, make any "major amendment" (as that term is
used in Section 73.3578(b) of the rules of the FCC (Ch. 47 C.F.R.)) in respect
of any such application other than (i) with prior written consent of Xxxxxxxx
(prior to the Closing) or the Stockholder Representative (after the Closing),
(ii) in order to reflect any change in the proposed operating or ownership
structure of the Merger Sub or any Station which the FCC or its staff has
indicated to Glencairn or any Affiliate or agent of Glencairn is a condition to
the Required FCC Consent to be Granted, or (iii) if required by a change in the
rules, regulations or policies of the FCC to disclose any attributable interest
which Glencairn or any of its Subsidiaries may be deemed to have by virtue of
any local marketing, time brokerage or similar arrangement in effect on the date
of this Agreement.
ARTICLE VII
COVENANTS OF XXXXXXXX
7.A Actions after Spin-Off and prior to Merger.
------- ----- -------- --- ----- -- ------
(1) Operation Generally. After the Spin-Off and until the
--------- ---------
Closing, Xxxxxxxx will (a) with respect to Station Assets, keep books of
account, records, and files substantially in accordance with the practices
of Xxxxxxxx Holdings and its Subsidiaries with respect to such assets of
such type prior to the Spin-Off, (b) promptly execute and timely file any
applications reasonably required for renewal of the FCC Authorizations, (c)
timely file (taking into account any extensions of which Xxxxxxxx may avail
itself) true, correct and complete federal, state, local and foreign tax
returns and tax reports required to be filed by Xxxxxxxx, (d) fully pay all
federal, state, local and foreign income, profits, franchise, sales,
11
use, occupation, property, excise and other taxes (including interest and
penalties) due and payable by Xxxxxxxx, (e) to the extent necessary to the
conduct of its business: use reasonable efforts to (i) perform its
obligations under all Station Contracts to which it is a party, (ii)
preserve the Station Assets held by it, and (iii) maintain in full force
and effect the FCC Authorizations, and (f) maintain property damage
insurance in such amounts, and insuring against such risks, as Glencairn
may reasonably request.
(2) Contracts. After the Spin-Off and until to the Closing,
---------
Xxxxxxxx will be entitled to renew or extend the term of any Contract
which, by its terms, has expired at the time of such renewal or extension
or which would expire prior to the sixtieth day after the effective date of
such renewal or extension, and, in connection therewith, to agree to
increase the amounts payable thereunder during any such renewal or extended
term in accordance with Xxxxxxxx Holdings' and its Subsidiaries' past
practice in the operation of the Stations, or enter into any other Contract
which is reasonably required in order to enable it to comply with its
obligations under this Agreement.
(3) Restrictions. After the Spin-Off and until to the Merger
------------
Closing, Xxxxxxxx will not without the prior written consent of Glencairn
(to the extent the following restrictions are permitted by the FCC and all
other applicable Legal Requirements):
(a) other than in the ordinary course of business, sell,
lease (as lessor), transfer, or agree to sell, lease (as lessor), or
transfer any Station Assets which are required for the operation of
any Station without replacement thereof with a functionally equivalent
or superior asset of substantially equal or greater value;
(b) apply to the FCC for any construction permit that would
materially restrict any Station's present operations or make any
material adverse change in the buildings or leasehold improvements
which constitute Station Assets;
(c) merge or consolidate, or agree to merge or consolidate,
with or into any Person;
(d) enter into any Contract with any of its Affiliates which
will not be performed in its entirety or by its terms terminate at or
prior to the time of the Closing;
(e) cause any of its assets or properties to become subject
to any Lien, other than any Permitted Encumbrance;
(f) commit any material breach of any material Contract to
which it is a party; or
(g) change any material tax election if such change could
reasonably be expected to adversely affect Post-Merger Xxxxxxxx,
except to the extent required by any Legal Requirement, any Contract
or GAAP.
12
(4) No Premature Assumption of Control. Nothing contained in
-- --------- ---------- -- -------
this Agreement will give any Acquiring Party any right to control the
programming, operations, or any other matter relating to the Stations prior
to the Closing, and Xxxxxxxx will have complete control of the programming,
operations, and all other matters relating to the Stations up to the time
of the Closing.
7.B Organization/Goodwill. After the Spin-Off and until to the
---------------------
Closing, Xxxxxxxx will use reasonable efforts to preserve the business
organization of Xxxxxxxx with respect to the Stations and preserve the goodwill
of the Stations' suppliers, customers, and others, to the extent such Persons
have business relations with Xxxxxxxx. This Section 7.B will not apply to the
Corporate Personnel, with respect to continued service by them after the Closing
(it being understood that the Corporate Personnel intend to resign their
respective positions with Xxxxxxxx effective as of the Effective Time).
7.C Access to Facilities, Files, and Records. From time to time at
------ -- ----------- ------ --- -------
the request of Glencairn after the Spin-Off and prior to the Closing, Xxxxxxxx
will give or cause to be given to the officers, employees, accountants, counsel,
and representatives of Glencairn and the Merger Sub
(a) access (in the presence of any representative designated
by Xxxxxxxx, at Xxxxxxxx'x option), upon reasonable prior notice,
during normal business hours, to all facilities, property, accounts,
books, deeds, title papers, insurance policies, licenses, agreements,
contracts, commitments, records, equipment, machinery, fixtures,
furniture, vehicles, accounts payable and receivable, and inventories
of Xxxxxxxx (but, in any event, not personnel, unless Xxxxxxxx
otherwise consents) related to the Stations, including for purposes of
permitting Glencairn to perform "Phase One" (and, after consulting
with Xxxxxxxx as to the scope thereof, "Phase Two") environmental
surveys with respect to the Station Assets, and
(b) all such other information in Xxxxxxxx'x possession
concerning the affairs of the Stations as Glencairn may reasonably
request,
in each case at Glencairn's expense; provided that the foregoing does not
--------
disrupt or interfere with the business and operations of Xxxxxxxx or any
Station in any material respect ("materiality," for purposes of this
proviso, being determined by reference to each Station individually, and
not taken as a whole).
7.D Xxxx-Xxxxx-Xxxxxx Matters. Within thirty (30) days after
----------------- -------
Glencairn's or its own request after the Spin-Off, Xxxxxxxx will complete all
documents (if any) required to be filed with the Federal Trade Commission (the
"FTC") and the United States Department of Justice (the "DOJ") with respect to
--- ---
itself and/or its Affiliate(s) and concerning the Merger in order to comply with
the Xxxx-Xxxxx-Xxxxxx Act and together with Glencairn and/or the appropriate
Affiliate(s) of Glencairn who are required to join in such filings, will file
the same with the FTC and the DOJ. Xxxxxxxx will promptly furnish all materials
thereafter required by the FTC, the DOJ or any other governmental entity having
jurisdiction over such filings, and will take all reasonable actions and will
file and use reasonable
13
efforts to have declared effective or approved all documents and notifications
with any such governmental entity, as may be required under the Xxxx-Xxxxx-
Xxxxxx Act or other federal antitrust laws for the consummation of the Merger.
7.E Consents. Except as provided in Article VI and Section 7.D, it
--------
is agreed that (1) as among Xxxxxxxx and the Acquiring Parties, it will be the
sole responsibility of the Acquiring Parties to timely obtain all Acquiring
Party Consents, (2) so long as Xxxxxxxx complies with its obligations pursuant
to the following sentence and Article VI and Section 7.D, Xxxxxxxx, the Old
Xxxxxxxx Stockholders and the Stockholder Representative will not be liable to
any Person for any failure to obtain or other absence of any effective Acquiring
Party Consent, and (3) except as provided in Sections 10.C and 10.D, the absence
of any effective Consent will not excuse any Acquiring Party from consummating
the Merger. Xxxxxxxx will use reasonable efforts (without being required to
make any payment not specifically required by the terms of any licenses, leases,
and other contracts), including executing any related agreement or undertaking
which does not take effect until the Effective Time, to obtain the Xxxxxxxx
Consents and to assist the Acquiring Parties (at the Acquiring Parties' request
and expense) to (a) timely obtain all Acquiring Party Consents or, in the
absence of any Acquiring Party Consent (where applicable), one or more
replacement agreements, and (b) cause each Consent or replacement agreement to
become effective as of the time of the Spin-Off or the Effective Time, as
applicable.
7.F Notice of Proceedings. After the Spin-Off and prior to the
------ -- -----------
Closing, Xxxxxxxx will promptly notify Glencairn in writing upon becoming aware
of any order or decree or any complaint praying for an order or decree
restraining or enjoining the consummation of the Merger or any other transaction
contemplated by this Agreement to be consummated by Xxxxxxxx, or upon receiving
any notice from any governmental department, court, agency, or commission of its
intention to institute an investigation into or institute a suit or proceeding
to restrain or enjoin the consummation of the Merger or any such other
transaction, or to nullify or render ineffective this Agreement, the Merger or
any such other transaction if consummated.
7.G Confidential Information. If for any reason the transactions
------------ -----------
contemplated in this Agreement are not consummated, Xxxxxxxx will not use or
disclose to any Person (except to its agents, representatives and advisors, to
its lenders and securityholders and their respective agents, representatives and
advisors, or as may be required by any Legal Requirement) any confidential
information received from an Acquiring Party or any of their respective agents,
representatives and advisors (each a "disclosing party" for purposes of this
Section 7.G) in the course of investigating, negotiating, and completing the
transactions contemplated by this Agreement. Nothing will be deemed to be
confidential information for purposes of this Section 7.G that: (a) is or was
known to any Xxxxxxxx-Related Entity at the time of its initial disclosure by a
disclosing party to any Xxxxxxxx-Related Entity; (b) has become or becomes
publicly known or available other than through disclosure by any Xxxxxxxx-
Related Entity; (c) is or was rightfully received by any Xxxxxxxx-Related Entity
from any Person unrelated to any Xxxxxxxx-Related Entity (other than any Person
engaged by any Xxxxxxxx-Related Entity in connection with the transactions
contemplated by this Agreement); or (d) is or was independently developed by any
Xxxxxxxx-Related Entity.
14
7.H Efforts to Consummate. Subject to the provisions of Article IX
------- -- ----------
and Section 12.A, Xxxxxxxx will use reasonable efforts to fulfill and perform
all conditions and obligations on its part to be fulfilled and performed under
this Agreement and to cause the conditions set forth in Articles IX and X to be
fulfilled and cause the Merger and the other transactions contemplated by this
Agreement in connection with the Closing to be fully carried out. In addition,
promptly after Xxxxxxxx becomes aware prior to the Closing of a breach of any
fact or circumstance which constitutes or would constitute a breach of any other
Party's representation or warranty set forth in this Agreement, Xxxxxxxx will
give such Party notice thereof so that such Party may attempt to cure the same.
7.I Notice of Certain Developments. Xxxxxxxx will give prompt
------ -- ------- -------------
written notice to Glencairn if, after the Spin-Off and prior to the Closing:
(1) Xxxxxxxx receives notice from any Market Cable System currently carrying a
Station's signal of such Market Cable System's intention to delete such Station
from carriage or change such Station's channel position on such Market Cable
System, or (2) Xxxxxxxx becomes aware of any breach of any representation or
warranty of Xxxxxxxx set forth in Article IV.
7.J Updated Information. Xxxxxxxx agrees to provide to Glencairn and
------- -----------
the Merger Sub at or prior to the Closing, for informational purposes only,
copies of all material Contracts in existence at the time of the Closing and
which are entered into after the Spin-Off and prior to the Closing.
7.K Non-Solicitation. After the Spin-Off and prior to the Closing or
----------------
the earlier termination of this Agreement, each of ABRY Partners and Xxxxxxxx
will not, and each of them will not cause (and will use reasonable efforts not
to permit) any of its Subsidiaries, affiliates, directors, officers, employees,
representatives or agents to, directly or indirectly solicit, or initiate,
entertain or enter into any discussions or transactions with, or encourage or
provide any information to, any Person (other than any Person described in
Section 7.C), concerning any sale of any of the assets of Xxxxxxxx (other than
any sale which is not prohibited by Section 7.A(3)) or any merger, stock
acquisition or similar transaction involving Xxxxxxxx (other than an issuance of
capital stock or capital stock equivalents by Xxxxxxxx); provided that nothing
--------
in this Section 7.K will prohibit ABRY Partners or Xxxxxxxx from furnishing, or
causing or permitting any other Person to furnish, information concerning
Xxxxxxxx to any governmental authority or court of competent jurisdiction or any
other Person as may be required by any Legal Requirement.
ARTICLE VIII
COVENANTS OF GLENCAIRN AND THE MERGER SUB
8.A Xxxx-Xxxxx-Xxxxxx Matters. Within 30 days after Xxxxxxxx'x or its
----------------- -------
own request after the Spin-Off, Glencairn will complete all documents (if any)
required to be filed with the FTC and the DOJ with respect to itself and/or its
Affiliate(s) and concerning Merger in order to comply with the Xxxx-Xxxxx-
Xxxxxx Act and together with Xxxxxxxx and/or the appropriate Affiliate(s) of
Xxxxxxxx who
15
are required to join in such filings, will file the same with the FTC and the
DOJ. Glencairn will pay the filing fees associated with all such filings and the
filings described in Section 6.A. Glencairn and the Merger Sub will promptly
furnish all materials thereafter required by the FTC, the DOJ or any other
governmental entity having jurisdiction over such filings, and will take all
reasonable actions and will file and use reasonable efforts to have declared
effective or approved all documents and notifications with any such governmental
entity, as may be required under the Xxxx-Xxxxx-Xxxxxx Act or other federal
antitrust laws for the consummation of the Merger.
8.B Confidential Information. If for any reason the transactions
------------ -----------
contemplated in this Agreement are not consummated, each of Glencairn and the
Merger Sub will not use or disclose to any Person (except to its agents,
representatives and advisors, to its lenders and their respective agents,
representatives and advisors, or as may be required by any Legal Requirement)
any confidential information received from Xxxxxxxx Holdings, any of its
Subsidiaries, Xxxxxxxx or any of their respective agents, representatives and
advisors (each a "disclosing party" for purposes of this Section 8.B) in the
course of investigating, negotiating, and completing the transactions
contemplated by this Agreement. Nothing will be deemed to be confidential
information for purposes of this Section 8.B that: (a) is or was known to any
Glencairn-Related Entity at the time of its initial disclosure by a disclosing
party to any Glencairn-Related Entity; (b) has become or becomes publicly known
or available other than through disclosure by any Glencairn-Related Entity; (c)
is or was rightfully received by any Glencairn-Related Entity from any Person
unrelated to any Glencairn-Related Entity (other than any Person engaged by any
Glencairn-Related Entity in connection with the transactions contemplated by
this Agreement); or (d) is or was independently developed by any Glencairn-
Related Entity. In addition, the Merger Sub agrees to be bound by the same
obligations as Glencairn is bound pursuant to the confidentiality agreement
dated as of November 20, 1997 between Xxxxxxxx Broadcast Group, Inc. and
Xxxxxxxx Broadcasting, which confidentiality agreement will survive the
execution and delivery of this Agreement and will survive the execution and
termination of this Agreement, and no provision of this Section 8.B will be
deemed to supersede or in any way limit any obligation or right under such
confidentiality agreement.
8.C Efforts to Consummate. Subject to the provisions of Article X
------- -- ----------
and Section 12.A, each of Glencairn and the Merger Sub will use reasonable
efforts to fulfill and perform all conditions and obligations on its part to be
fulfilled and performed under this Agreement and to cause the conditions set
forth in Articles IX and X to be fulfilled and cause the Merger and the
transactions contemplated by this Agreement in connection with the Merger to be
fully carried out. In addition, promptly after Glencairn or the Merger Sub
becomes aware prior to the Closing of a breach of any fact or circumstance which
constitutes or would constitute a breach of any representation or warranty of
Xxxxxxxx set forth in this Agreement, Glencairn will give Xxxxxxxx notice
thereof so that Xxxxxxxx may attempt to cure the same.
8.D Notice of Proceedings. Each of Glencairn and the Merger Sub will
------ -- -----------
promptly notify Xxxxxxxx (prior to the Closing) or the Stockholder
Representative (after the Closing) in writing upon becoming aware of any order
or decree or any complaint praying for an order or decree restraining or
enjoining the consummation of the Merger or any other transaction contemplated
by this Agreement, or upon receiving any notice from any governmental
00
xxxxxxxxxx, xxxxx, xxxxxx, xx commission of its intention to institute an
investigation into or institute a suit or proceeding to restrain or enjoin the
consummation of the Merger or any such other transaction, or to nullify or
render ineffective this Agreement, the Merger or any such other transaction, if
consummated. Glencairn will give the Stockholder Representative prompt written
notice if any Acquiring Party becomes aware of any breach of any representation
or warranty of any Acquiring Party set forth in Article V.
8.E Section 338 Election. Without the Stockholder Representative's
------- --- --------
prior written consent, Glencairn will not, and will not cause or permit any of
its Subsidiaries to, make an election under Section 338 of the Tax Code, or
under any analogous provision of any other Legal Requirements relating to Taxes,
with respect to the Merger.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF XXXXXXXX AT THE CLOSING
The obligation of Xxxxxxxx to consummate the Merger is, at Xxxxxxxx'x
option, subject to the fulfillment of the following conditions at the time of
the Closing (Xxxxxxxx expressly acknowledging that the effectiveness of the
Xxxxxxxx Consents is not a condition to such obligation):
9.A Representations, Warranties, Covenants.
---------------- ----------- ---------
(1) Each of the representations and warranties of Glencairn and
the Merger Sub set forth in Article V, considered without regard to any
materiality qualifiers contained therein, will be deemed to be made again
at and as of the time of the Closing (other than any such representation or
warranty which is expressly made with reference to a time prior to the time
of the Closing, which will be deemed remade as of such time only), and
taken as a whole such representations and warranties, as so remade, will
have been true and accurate in all material respects, except to the extent
of deviations therefrom permitted or contemplated by this Agreement; and
(2) each of Glencairn and the Merger Sub will in all material
respects have performed and complied with the covenants and agreements
required by this Agreement to be performed or complied with by it prior to
or at the time of the Closing, taken as a whole.
9.B Proceedings.
-----------
(1) No action or proceeding will have been instituted and be
pending before any court or governmental body to restrain or prohibit, or
to obtain a material amount of damages in respect of, the consummation of
the transactions contemplated by this Agreement that, in the reasonable
opinion of Xxxxxxxx, may reasonably be expected to result in a preliminary
or permanent injunction against such consummation or, if the transactions
contemplated hereby were consummated, an order to nullify or render
ineffective this
17
Agreement or such transactions or for the recovery against any Xxxxxxxx-
Related Entity or any officer, director or stockholder of any Xxxxxxxx-
Related Entity of a material amount of damages; and
(2) no Party will have received written notice from any
governmental body of (a) such governmental body's intention to institute
any action or proceeding to restrain or enjoin or nullify this Agreement or
the transactions contemplated hereby, or to commence any investigation
(other than a routine letter of inquiry, including, without limitation, a
routine Civil Investigative Demand) into the consummation of the
transactions contemplated by this Agreement, or (b) the actual commencement
of such an investigation, in each case unless the same has been withdrawn,
resolved, concluded or abandoned.
9.C Xxxx-Xxxxx-Xxxxxx and FCC Matters. The Approval Date will have
----------------- --- --- -------
occurred and the Required FCC Consent will be in full force and effect.
9.D Spin-Off. The Spin-Off will have been consummated.
--------
9.E Other Deliveries. The Merger Sub will have delivered, or will
----- ----------
stand ready to deliver, to Xxxxxxxx such instruments, documents, and
certificates as are contemplated by Section 3.B(1).
ARTICLE X
CONDITIONS TO THE OBLIGATIONS OF THE MERGER SUB AT THE CLOSING
The obligations of the Merger Sub to consummate the Merger on the
Closing Date are, at the Merger Sub's option, subject to the fulfillment of the
following conditions at the time of the Closing (Glencairn and the Merger Sub
expressly acknowledging that the effectiveness of the Acquiring Party Consents
is not a condition to such obligations):
10.A Representations, Warranties, Covenants.
---------------- ----------- ---------
(1) Each of the representations and warranties of Xxxxxxxx set
forth in Article IV, considered without regard to any materiality
qualifiers contained therein, will be deemed to be made again at and as of
the time of the Closing (other than any such representation or warranty
which is expressly made with reference to a time prior to the time of the
Closing, which will be deemed remade as of such time only), and taken as a
whole such representations and warranties, as so remade, will have been
true and accurate, except to the extent of deviations therefrom which are
permitted or contemplated by this Agreement or which, in the aggregate, do
not constitute and have not caused a Material Adverse Change; and
(2) Xxxxxxxx will in all material respects have performed and
complied with the covenants agreements required by this Agreement to be
performed or complied with
18
by it prior to or at the time of the Closing, taken as a whole, and
Xxxxxxxx will in all material respects have performed and complied with the
covenants and agreements required by this Agreement to be performed or
complied with by it prior to or at the time of the Closing, taken as a
whole.
10.B Proceedings.
-----------
(1) No action or proceeding will have been instituted and be
pending before any court or governmental body to restrain or prohibit, or
to obtain a material amount of damages in respect of, the consummation of
the transactions contemplated by this Agreement that, in the reasonable
opinion of Glencairn, may reasonably be expected to result in a preliminary
or permanent injunction against such consummation or, if the transactions
contemplated hereby were consummated, an order to nullify or render
ineffective this Agreement or such transactions or for the recovery against
any Glencairn-Related Entity or any officer, director or stockholder of any
Glencairn-Related Entity of a material amount of damages; and
(2) no Party will have received written notice from any
governmental body of (a) such governmental body's intention to institute
any action or proceeding to restrain or enjoin or nullify this Agreement or
the transactions contemplated hereby, or to commence any investigation
(other than a routine letter of inquiry, including, without limitation, a
routine Civil Investigative Demand) into the consummation of the
transactions contemplated by this Agreement, or (b) the actual commencement
of such an investigation, in each case unless the same has been withdrawn,
resolved, concluded or abandoned.
10.C Xxxx-Xxxxx-Xxxxxx and FCC Matters. The Approval Date will have
----------------- --- --- -------
occurred and the Required FCC Consent will be in full force and effect.
10.D Other Instruments. Xxxxxxxx will have delivered, or will stand
----- -----------
ready to deliver, to the Merger Sub such instruments, documents, and
certificates as are contemplated by Section 3.C(1).
ARTICLE XI
POST-CLOSING MATTERS
11.A Survival. The representations, warranties and certifications of
--------
the Parties contained in or made pursuant to this Agreement (including any
certification contained in any certificate to be delivered pursuant to Section
3.C) will survive the execution of this Agreement and the Closing only to the
extent expressly provided in the Indemnity Agreement. The covenants and
agreements of the Parties set forth in this Agreement will survive until
performed and discharged in full.
11.I Limitation of Recourse. Except as provided in the Indemnity
---------- -- --------
Agreement,
19
after the Closing, no claim may be brought or maintained against any Party or
any Old Xxxxxxxx Stockholder or any of their respective present or former
officers, directors, employees or other affiliates by any Party or Old Xxxxxxxx
Stockholder or any of its successors or assigns, and no recourse may be sought
or granted against any Person, by virtue of or based upon any alleged
misstatement, omission, inaccuracy in, or breach of any representation, warranty
or certification of any Party set forth in or made pursuant to this Agreement,
and in no event will Glencairn or Post-Merger Xxxxxxxx be entitled to claim or
seek any rescission of the Merger or any of the other transactions consummated
pursuant to the Transaction Documents, any such right of rescission or rights to
damages which any such Party might otherwise have being hereby expressly waived
and any claims or judgments being limited accordingly.
11.C Acknowledgment by the Acquiring Parties. Each of the Acquiring
-------------- -- --- --------- -------
Parties has conducted, to its satisfaction, an independent investigation and
verification of Xxxxxxxx, its Subsidiaries, the Stations and the Station Assets
and the financial condition, results of operations, assets, liabilities,
properties and projected operations of Xxxxxxxx, its Subsidiaries, the Stations
and the Station Assets. In determining to enter into this Agreement and proceed
with the transactions contemplated by this Agreement, each Acquiring Person has
relied on the covenants of Xxxxxxxx, the results of such independent
investigation and verification and the representations and warranties of
Xxxxxxxx (in conjunction with the Schedules hereto) set forth in this Agreement
(including the certifications to be made in any certificate to be delivered
pursuant to Section 3.C), all of which each Acquiring Party acknowledges and
agrees will survive for a limited duration. SUCH REPRESENTATIONS, WARRANTIES AND
CERTIFICATIONS CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS, WARRANTIES
AND CERTIFICATIONS WITH RESPECT TO XXXXXXXX, ITS SUBSIDIARIES, THE STATIONS AND
THE STATION ASSETS TO THE ACQUIRING PARTIES IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY, AND EACH ACQUIRING PARTY UNDERSTANDS, ACKNOWLEDGES AND
AGREES THAT ALL OTHER REPRESENTATIONS, WARRANTIES AND CERTIFICATIONS OF ANY KIND
OR NATURE AND WHETHER ORAL OR CONTAINED IN ANY WRITING OTHER THAN THIS AGREEMENT
OR ANY SUCH CERTIFICATE (INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION,
WARRANTY OR CERTIFICATION RELATING TO THE PROJECTED, FUTURE OR HISTORICAL
FINANCIAL CONDITION, RESULTS OR OPERATIONS, ASSETS OR LIABILITIES RELATING TO
THE STATIONS) ARE SPECIFICALLY DISCLAIMED BY XXXXXXXX, THE STOCKHOLDER
REPRESENTATIVE, THE OFFICERS OF XXXXXXXX AND ITS SUBSIDIARIES AND THE OLD
XXXXXXXX STOCKHOLDERS.
11.D Corporate Name. After the Merger (but on the Closing Date),
--------- ----
Post-Merger Xxxxxxxx will take and will cause its Subsidiaries to take such
action as is necessary to change its corporate name in its certificate or
articles of incorporation filed with the Secretary of State or similar official
of the jurisdiction of its incorporation to a name which does not include, and
is not confusingly similar to, the name "Xxxxxxxx" and will cease the use of all
Xxxxxxxx Broadcasting logos or any similar xxxx. Notwithstanding anything in
this Agreement to the contrary, Post-Merger Xxxxxxxx will be entitled to
continue to use its present corporate name until such time as such name change
is effective and to the extent necessary to accomplish such name change, and may
endorse
20
checks and other instruments in such name.
ARTICLE XII
TERMINATION
12.A Termination of Agreement Prior to Closing. Subject to Section
----------- -- --------- ----- -- -------
12.A(3), this Agreement may be terminated at any time prior to the Closing as
follows:
(1) By Xxxxxxxx. By Xxxxxxxx, by written notice (a "Xxxxxxxx
-- -------- --------
Termination Notice") to Glencairn:
----------- ------
(a) at any time when any material breach by any Acquiring
Party of its obligations pursuant to this Agreement has occurred and
is continuing, if both
(i) such breach materially and adversely affects the
likelihood that any of the conditions set forth in Article IX or
X which has not been satisfied or waived will be satisfied or
materially and adversely affects any Party's ability to comply
with its obligations pursuant to this Agreement, and
(ii) at least thirty days have elapsed since Xxxxxxxx
gave Glencairn written notice requesting that such Person cure
such breach,
unless prior to the giving of the Xxxxxxxx gave each such breaching
Acquiring Party has cured such breach;
(b) at any time after the Expiration Date, if
(i) as of the Expiration Date, each of Xxxxxxxx'x and
the Merger Sub's conditions to closing set forth in Articles IX
and X was satisfied or waived in writing,
(ii) the absence of satisfaction of each of Xxxxxxxx'x
and the Merger Sub's conditions to closing set forth in Articles
IX and X which was not waived in writing or satisfied as of the
Expiration Date was caused by a breach by one or more of the
Acquiring Parties of any of its or their representations,
warranties and/or obligations under this Agreement and/or the
failure of any Acquiring Party Consent to have been obtained,
(iii) the Approval Date had not occurred on or prior
to the Expiration Date as a result of any breach by one or more
of the Acquiring Parties of any provision of this Agreement, or
21
(iv) one or more of the Acquiring Parties and the
Affiliates thereof refused, failed or declined to take any action
(other than divesting itself of an broadcast television or radio
station of which it or one of its Subsidiaries is the licensee or
terminating any time brokerage or similar arrangement) which the
FCC, the FTC, the DOJ or the staff of any of them indicates to
any Acquiring Party or agent thereof is a condition to the grant
of the Required FCC Consent or the expiration or termination of
the requisite waiting period under the Xxxx-Xxxxx-Xxxxxx Act for
the Merger; or
(c) at any time after the Expiration Date, in any
circumstance which is not described in Section 12.A(1)(b), unless the
absence of satisfaction of each of Xxxxxxxx'x and the Merger Sub's
closing conditions set forth in Articles IX and X which has not been
satisfied or waived in writing has been caused by a breach by Xxxxxxxx
of its obligations under this Agreement.
(2) By Glencairn. By Glencairn, by written notice (a "Glencairn
-- --------- ---------
Termination Notice") to Xxxxxxxx:
----------- ------
(a) at any time when any material breach by Xxxxxxxx of its
obligations pursuant to this Agreement has occurred and is continuing,
if both
(i) such breach materially and adversely affects the
likelihood that any of the conditions set forth in Article IX or
X will be satisfied or materially and adversely affects any
Party's ability to comply with its obligations pursuant to this
Agreement and
(ii) at least thirty days have elapsed since Glencairn
gave Xxxxxxxx written notice requesting that Xxxxxxxx cure such
breach,
unless prior to the giving of such Glencairn Termination Notice
Xxxxxxxx has cured such breach; or
(b) at any time after the Expiration Date, under any
circumstances described in Section 12.A(1)(b) or Section 12.A(1)(c).
(3) When Termination Not Permitted. Xxxxxxxx may not terminate
---- ----------- --- ---------
this Agreement pursuant to Section 12.A(1) at any time when Xxxxxxxx is in
material breach of a material obligation under this Agreement. Glencairn
may not terminate this Agreement pursuant to Section 12.A(2) at any time
when any Acquiring Party is in material breach of a material obligation
under this Agreement.
12.B Survival of Certain Provisions; Remedies.
-------- -- ------- ----------- ---------
22
(1) General. No Party will have any liability to any other Party
-------
for costs, expenses, damages (consequential or otherwise), loss of
anticipated profits, or otherwise as a result of a termination pursuant to
Section 12.A except as provided in Section 12.B(2) or 12.B(3). The Parties
agree that time is of the essence with respect to the provisions of
Sections 3.B and 12.A. Sections 7.G and 8.G, this Article XII and Article
XIII will survive the termination of this Agreement pursuant to Section
12.A.
(2) For Xxxxxxxx. Xxxxxxxx will have such remedies as it may
--- --------
have at law or in equity in the event of a termination of this Agreement
pursuant to Section 12.A.
(3) For the Acquiring Parties. The Acquiring Parties' sole and
--- --- --------- -------
exclusive remedies for the termination of this Agreement or any failure of
performance or compliance by Xxxxxxxx with any covenant or agreement
contained in this Agreement prior to the Closing, or by Xxxxxxxx with any
covenant or agreement contained in this Agreement prior to the Closing,
will be
(a) their respective rights (if any) under applicable law or
equitable principles to seek damages in respect of their direct out-
of-pocket losses or expenses (but not any damages in respect of lost
profits or other similar or consequential or incidental damages)
occasioned by and as a consequence of such breach;
(b) their respective rights (if any) under applicable law or
equitable principles to seek specific enforcement of this Agreement
against Xxxxxxxx, including specific enforcement of Xxxxxxxx'x
obligation to consummate the Merger (subject to FCC approval and other
required Consents being obtained), it being acknowledged by Xxxxxxxx
that the Acquiring Parties would not have an adequate remedy at law in
the event of any such failure, provided that no Acquiring Party will
--------
be entitled to such specific performance unless (i) each Acquiring
Party has complied in all material respects with its material
obligations under this Agreement and (ii) either (A) each condition to
closing of Xxxxxxxx set forth in Article IX has been satisfied or
waived in writing or (B) the absence of satisfaction of each such
condition to closing which has not been satisfied or waived in writing
is caused solely by a breach by Xxxxxxxx of its obligations under this
Agreement.
ARTICLE XIII
MISCELLANEOUS
13.A Expenses. Except as otherwise expressly provided in this
--------
Agreement, Xxxxxxxx will bear all of the expenses incurred prior to the Closing
by Xxxxxxxx and the Stockholder Representative in connection with the
transactions contemplated by this Agreement, and each of the Acquiring Parties
will bear all of its expenses incurred in connection with the transactions
contemplated by this Agreement, in each case including, without limitation,
accounting
23
and legal fees incurred in connection herewith.
13.B Assignments.
-----------
(1) By Xxxxxxxx. This Agreement may not be assigned by Xxxxxxxx
-- --------
without the prior written consent of the Acquiring Parties.
Notwithstanding the foregoing, Xxxxxxxx may assign its rights under this
Agreement for collateral purposes only to any lender to it, or any agent
for any such lender(s), without the consent of any other Party, and any
such lender or agent may transfer such rights pursuant to the exercise of
remedies with respect to such collateral security to any other Person (it
being understood that any such lender or agent will be a third-party
beneficiary of the agreement constituted by this Section 13.B(1)).
(2) By Glencairn. Glencairn or the Merger Sub may assign its
-- ---------
rights under this Agreement without the consent of Xxxxxxxx or the
Stockholder Representative.
(3) General Rules. Any attempt to assign this Agreement or any
------- -----
rights or obligations hereunder without first obtaining any consent which
is required by this Section 13.B will be void. This Agreement will be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Each Old Xxxxxxxx Stockholder
is an express third-party beneficiary of this Agreement.
13.C Further Assurances. From time to time prior to, at, and after
------- ----------
the Closing, each Party will execute all such instruments and take all such
actions as any other of them, being advised by counsel, may reasonably request
in connection with carrying out and effectuating the intent and purpose hereof,
and all transactions and things contemplated by this Agreement, including the
execution and delivery of any and all consents, confirmatory and other
instruments, in addition to those to be delivered at the Closing, and any and
all actions which may reasonably be necessary to complete the transactions
contemplated hereby.
13.D Notices. All notices, demands, and other communications which
-------
may or are required to be given under or with respect to this Agreement will be
in writing, will be delivered personally or sent by nationally recognized
overnight delivery service, charges prepaid, or by registered or certified mail,
return-receipt requested, and will be deemed to have been given or made when
personally delivered, or on the next Business Day after delivery to such
overnight delivery service, or on the fifth day after it is deposited in the
mail, registered or certified, first class postage prepaid, as the case may be,
if addressed as follows:
(1) If to Xxxxxxxx (prior to the Closing) or the Stockholder
-- -- -------- ------ -- --- -------- -- --- -----------
Representative:
--------------
c/o ABRY Partners, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, President
24
with a copy (which will not constitute notice to Xxxxxxxx or the
Stockholder Representative) to:
Xxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxx
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address and/or with such other copies as the Person
to whom such notice is to be given may from time to time designate by
notice to the Acquiring Parties given in accordance with this Section
13.D.
(2) If to Glencairn, the Merger Sub or Post-Merger Xxxxxxxx:
-- -- ---------- ---------- ------ --------------------
Glencairn, Ltd.
0000 Xxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Xx.
with a copy (which will not constitute notice to Glencairn,
the Merger Sub or Post-Merger Xxxxxxxx) to:
Xxxxxx Xxxxxx, Esq.
Xxxxxx, Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
or to such other address and/or with such other copies as the Person
to whom such notice is to be given may from time to time designate by
notice to Xxxxxxxx (if prior to the Closing) and the Stockholder
Representative given in accordance with this Section 13.D.
13.E Captions. The captions of Articles and Sections of this
--------
Agreement are for convenience only, and will not control or affect the meaning
or construction of any of the provisions of this Agreement.
13.F Law Governing. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED,
--- ---------
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCES TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE FEDERAL LAW OF THE UNITED STATES GOVERNS THE
TRANSACTIONS CONTEMPLATED HEREBY.
13.G Waiver of Provisions. The terms, covenants, representations,
------ -- ----------
warranties, and conditions of this Agreement may be waived as to any Party only
by a written instrument executed by such Party. The terms, covenants,
representations, warranties, and conditions of this Agreement
25
may be waived as to any Old Xxxxxxxx Stockholder only by a written instrument
executed by Xxxxxxxx, prior to the Closing, or the Stockholder Representative,
after the Closing. The failure of any Party or any Old Xxxxxxxx Stockholder at
any time or times to require performance of any provision of this Agreement will
in no manner affect the right at a later date to enforce the same. No waiver by
or on behalf of any Party to this Agreement or any Old Xxxxxxxx Stockholder of
any condition or the breach of any provision, term, covenant, representation, or
warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, will be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other provision,
term, covenant, representation, or warranty of this Agreement.
13.H Counterparts. This Agreement may be executed in two (2) or more
------------
counterparts, and all counterparts so executed will constitute one (1) agreement
binding on all of the parties hereto, notwithstanding that all the parties
hereto are not signatory to the same counterpart.
13.I Entire Agreement. This Agreement (including the Schedules and
------ ---------
Exhibits hereto) and the confidentiality agreement referred to in Section 8.C
(including the Acquiring Parties' obligations with respect thereto, as provided
in Section 8.C), constitute the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersede any and all prior
agreements, understandings, negotiations, and discussions, whether oral or
written, between them relating to the subject matter hereof.
13.J Access to Books and Records.
------ -- ----- --- -------
(1) Post-Merger Xxxxxxxx will, and will cause its Subsidiaries
to, preserve for not less than five (5) years after the Closing Date all
books and records included in the Station Assets. After such five-year
period, Post-Merger Xxxxxxxx will not, and will not cause or permit its
Subsidiaries to, destroy any books or records relating to the conduct of
business of the Stations prior to the Effective Time unless Post-Merger
Xxxxxxxx first offers to transfer such books and records to the Stockholder
Representative at no cost to the Stockholder Representative, and if Post-
Merger Xxxxxxxx is requested to do so, Post-Merger Xxxxxxxx will transfer,
or cause a Subsidiary of Post-Merger Xxxxxxxx to transfer, such books or
records to the Stockholder Representative.
(2) At the request of the Stockholder Representative, Post-Merger
Xxxxxxxx will, and will cause each of its Subsidiaries to, permit the
Stockholder Representative (including its officers, employees, accountants,
and counsel) any access, upon reasonable prior written notice during normal
business hours, to all of its property, accounts, books, contracts,
records, accounts payable and receivable, records of employees, FCC logs
and other information concerning the affairs or operation of the Stations
as the Stockholder Representative may reasonably request for any reasonable
purpose relating to the transactions contemplated by this Agreement or the
ownership or operation of any Station prior to the Effective Time, and to
make extracts or copies from the foregoing at the Stockholder
Representative's expense. At Post-Merger Xxxxxxxx'x request, prior to
receiving any such requested information, the Stockholder Representative
will execute a confidentiality agreement with respect thereto which is
reasonably acceptable to Post-Merger
26
Xxxxxxxx.
13.K Public Announcements. Prior to the Closing, no Party will,
------ -------------
except by mutual agreement of Xxxxxxxx and Glencairn (including agreement as to
content, text and method of distribution or release), make any press release or
other public announcement or disclosure concerning the transactions
contemplated by this Agreement, except as may be required by any Legal
Requirement (including filings and reports required to be made with or pursuant
to the rules of the Securities and Exchange Commission); provided that, prior to
--------
making any such announcement or disclosure required by any Legal Requirement, to
the extent practicable, the disclosing Party gives each Person named above prior
written notice of the context, text and content of, the method of distribution
or release of, and all other material facts concerning, such disclosure.
13.L Disclosure. If and to the extent that any information required
----------
to be furnished by Xxxxxxxx in any attached Schedule is contained in this
Agreement or in any attached Schedule, such information will be deemed to have
been included in each other attached Schedule in which such information is
required to be included to the extent its relevance to such latter Schedule is
reasonably apparent. By including any information in any attached Schedule,
Xxxxxxxx will not be deemed to have admitted or acknowledged that such
information is material to or outside the ordinary course of the business of
Xxxxxxxx or any Station.
13.M Definitional Provisions.
------------ ----------
(1) Terms Defined in Appendix. Each capitalized term which is
----- ------- -- --------
used and not otherwise defined in this Agreement or any attached Schedule
has the meaning which is specified for such term in the Appendix which is
attached to this Agreement.
(2) Knowledge. As used in this Agreement, the term "knowledge"
---------
of Xxxxxxxx will refer only to the actual knowledge, without any particular
inquiry (except as specified in this Agreement), of the Corporate
Personnel, Xxxxxx Xxxxx and Xxxxx Xxxxxxx, after inquiry of the general
managers of the Stations; and the "knowledge" of Glencairn or the Merger
Sub will refer only to the actual knowledge, without any particular inquiry
(except as specified in this Agreement) of Xxxxx X. Xxxxxxx, Xx.
(3) Interpretation. Words used in this Agreement, regardless of
--------------
the gender and number specifically used, will be deemed and construed to
include any other gender, masculine, feminine or neuter, and any other
number, singular or plural, as the context requires. Whether or not used
in conjunction with the words "without limitation" or words of similar
import, the term "including" as used in this Agreement imports that the
items referred to are illustrative only and do not purport to be a complete
listing of the items of the type in question. The wording of the
provisions of this Agreement is the result of arms-length negotiations
among the parties to this Agreement and was selected by them to reflect
their mutual intentions; therefore, no party will be deemed the "drafter"
of this Agreement and no rule of strict construction will be applied
against or in favor of any party to this Agreement.
27
13.N Arbitration.
-----------
(1) Generally. Except as expressly provided in the Indemnity
---------
Escrow Agreement or for purposes of pursuing any remedy pursuant to Section
12.B(3)(b), the arbitration procedures described in this Section 13.N will
be the sole and exclusive method of resolving and remedying claims arising
under this Agreement and the other Transaction Documents ("Disputes");
--------
provided that nothing in this Section 13.N will prohibit a Party from
--------
instituting litigation to enforce any Final Arbitration Award. Except as
otherwise provided in the Commercial Arbitration Rules of the American
Arbitration Association as in effect from time to time (the "AAA Rules"),
--- -----
the arbitration procedures described in this Section 13.N and any Final
Arbitration Award will be governed by, and will be enforceable pursuant to,
the Uniform Arbitration Act as in effect in the State of New York from time
to time. No Person will be entitled to claim or recover punitive damages
in any such proceeding.
(2) Notice of Arbitration. If a Party asserts that there exists
------ -- -----------
a Dispute, then such Person (the "Disputing Person") will give each other
--------- ------
Person involved in such Dispute a written notice setting forth the nature
of the asserted Dispute. If all such Persons do not resolve any such
asserted Dispute prior to the tenth Business Day after such notice is
given, then the Disputing Person may commence arbitration pursuant to this
Section 13.N by giving each other Person involved in such Dispute a written
notice to that effect (an "Arbitration Notice"), setting forth any matters
----------- ------
which are required to be set forth therein in accordance with the AAA
Rules. Unless otherwise notified, the Acquiring Parties are entitled to
assume that the Stockholder Representative is authorized to act on behalf
of each Old Xxxxxxxx Stockholder with respect to any Dispute.
(3) Selection of Arbitrator. The Persons involved in such
--------- -- ----------
Dispute will attempt to select a single arbitrator by mutual agreement. If
no such arbitrator is selected prior to the twentieth Business Day after
the related Arbitration Notice is given, then an arbitrator which is
experienced in matters of the type which are the subject matter of the
Dispute will be selected in accordance with the AAA Rules.
(4) Conduct of Arbitration. The arbitration will be conducted
------- -- -----------
under the AAA Rules, as modified by any written agreement among the Persons
involved in such Dispute. The arbitrator will conduct the arbitration in a
manner so that the final result, determination, finding, judgment or award
determined by the arbitrator (the "Final Arbitration Award") is made or
----- ----------- -----
rendered as soon as practicable, and the Persons involved in such Dispute
will use reasonable efforts to cause a Final Arbitration Award to occur not
later than the sixtieth day after the arbitrator is selected. Any Final
Arbitration Award will be final and binding upon the Persons involved in
such Dispute, and there will be no appeal from or reexamination of any
Final Arbitration Award, except as provided in the Uniform Arbitration Act,
as in effect in the State of New York from time to time.
(5) Enforcement. A Final Arbitration Award may be enforced in
-----------
any state or federal court having jurisdiction over the subject matter of
the related Dispute.
28
(6) Expenses. The prevailing Person(s) in any arbitration
--------
proceeding in connection with this Agreement will be entitled to recover
from the non-prevailing Person(s) their reasonable attorneys' fees and
disbursements in addition to any damages or other remedies awarded to such
prevailing Person(s), and the non-prevailing Person(s) will be required to
pay all other costs and expenses associated with the arbitration; provided
--------
that (i) if an arbitrator is unable to determine that a Person is a
prevailing Person in any such arbitration proceeding, then such costs and
expenses will be equitably allocated by such arbitrator upon the basis of
the outcome of such arbitration proceeding, and (ii) if such arbitrator is
unable to allocate such costs and expenses in such a manner, then the costs
and expenses of such arbitration will be paid one-half by Xxxxxxxx and one-
half by Glencairn, and each Party will pay the out-of-pocket expenses
incurred by it. As part of any Final Arbitration Award, the arbitrator may
designate the prevailing Person(s) for purposes of this Section 13.N(6).
Except as provided in the preceding sentences, each Person involved in a
Dispute will bear its own costs and expenses (including legal fees and
disbursements) in connection with any such proceeding or submission.
13.O Stockholder Representative.
----------- --------------
(1) Appointment; Authority Generally. On behalf of the Old
------------ --------- ---------
Xxxxxxxx Stockholders, Xxxxxxxx hereby appoints ABRY Partners as the
initial Stockholder Representative under this Agreement, to serve in
accordance with the terms, conditions and provisions of this Agreement, and
ABRY Partners, by its execution of this Agreement, hereby agrees to act as
such, upon the terms, conditions and provisions of this Agreement. From and
after the Closing, the Stockholder Representative will be authorized to act
on behalf of the Old Xxxxxxxx Stockholders in accordance with this
Agreement.
(2) Authorization. The Stockholder Representative, in such
-------------
capacity, will be entitled to take all actions on behalf of the holders of
Xxxxxxxx Shares or the Old Xxxxxxxx Stockholders, as the case may be, with
respect to this Agreement and the other agreements contemplated hereby, and
omit to take any action, each as directed by
(a) prior to the Effective Time, the holders of capital
stock of Xxxxxxxx having a majority of the voting power represented by
the outstanding capital stock of Xxxxxxxx at the time in question, and
(b) after the Effective Time, Persons who immediately prior
to the Effective Time held Xxxxxxxx Shares which represented a
majority of the voting power of the Xxxxxxxx Shares,
(in either case, the "Majority Xxxxxxxx Stockholders"). The Stockholder
-------- -------- ------------
Representative may be removed and replaced from time to time as the
representative of the holders of the Xxxxxxxx Shares or the Old Xxxxxxxx
Stockholders by written notice given by the Majority Xxxxxxxx Stockholders
to Xxxxxxxx (prior to the Effective Time) and the Acquiring Parties.
(3) Responsibility. The Stockholder Representative will have no
--------------
duties
29
or responsibilities except those expressly set forth in this Agreement or
any other agreement which may be entered into by it hereunder. The
Stockholder Representative will have no responsibility for the validity of
this Agreement or any agreement referred to in this Agreement or for the
performance of any such agreements by any party thereto or for the
interpretation of any of the provisions of any such agreements. The
Stockholder Representative's liability in fulfilling its duties will be
limited to bad faith, willful misconduct or gross negligence on its part.
The Stockholder Representative will be protected in acting upon any
certificate, notice or other instrument whatsoever received by the
Stockholder Representative as to its due execution, the validity and
effectiveness of its provisions, and the truth and accuracy of any
information therein contained that the Stockholder Representative in good
faith believes to be genuine and to have been signed or presented by a
proper Person or Persons. The Stockholder Representative may, in its sole
discretion, consult with and obtain advice from legal counsel and any other
Person in the event of any question as to any of the provisions of this
Agreement, any other agreement entered into in connection herewith or its
duties hereunder or thereunder. The reasonable cost of such services, to
the extent not borne by Xxxxxxxx, xxxx be borne among the Old Xxxxxxxx
Stockholders who held Xxxxxxxx Shares immediately prior to the Effective
Time, pro rata in accordance with the respective amounts of the Merger
Consideration to be received by them in respect of the Xxxxxxxx Shares.
(4) Resignation; Replacement. The Stockholder Representative
------------ -----------
will have the right, in its sole discretion, to resign as the Stockholder
Representative (in its capacity as the representative of the holders of
Xxxxxxxx Shares or the Old Xxxxxxxx Stockholders) at any time by giving at
least 30 days prior written notice to Xxxxxxxx (prior to the Effective
Time) and the Acquiring Parties. In such event, Xxxxxxxx (prior to the
Effective Time) or the Majority Xxxxxxxx Stockholders (after the Effective
Time) will promptly appoint another Stockholder Representative to represent
the holders of Xxxxxxxx Shares and the Old Xxxxxxxx Stockholders and give
notice of such selection to the Acquiring Parties and the Old Xxxxxxxx
Stockholders (after the Effective Time). Such resignation of the
Stockholder Representative will be effective upon such notice being given
and such new Stockholder Representative's acceptance of such appointment
and will relieve the resigning Stockholder Representative of all duties and
responsibilities of the Stockholder Representative in such capacity
thereafter arising.
13.P Completion of Xxxxxxxx'x Schedules. The Acquiring Parties
---------- -- ---------- ---------
acknowledge that Xxxxxxxx has executed this Agreement without having the
opportunity to request of personnel of the Stations information which may be
material to the preparation of the attached Schedules referred to in Article IV
(and that, therefore, some or all of such attached Schedules may not be correct
and complete and, as a result, some or all of the representations and warranties
set forth in Article IV which refer to such attached Schedules may not be true
and correct). On or prior to Xxxxx 0, 0000, Xxxxxxxx may deliver to Glencairn
an amendment and restatement of any such attached Schedule, or any portion
thereof, or a supplement to any such attached Schedule or any portion thereof,
which may be required in order to accurately depict facts and circumstances
which exist on the date of this Agreement (or any other applicable date referred
to in any such representation or warranty), and the attached Schedule or portion
thereof in question will be deemed
30
to have been so amended and restated or modified, as the case may be, as of the
time of the execution and delivery of this Agreement.
13.Q Treatment of Station KOKH. Each Acquiring Party acknowledges
--------- -- ------- ----
that, notwithstanding any language to the contrary in this Agreement, Xxxxxxxx
has made and will make no representation, warranty or certification of any kind
with respect to Station KOKH (including with respect to the assets, liabilities
and operations related to Station KOKH), and no representation or warranty set
forth in Article IV, and no certification relating thereto delivered pursuant to
Section 3.C, will be deemed to apply to Station KOKH (including to any related
asset, liability or operations).
[SIGNATURE PAGES TO FOLLOW
-- REST OF PAGE LEFT INTENTIONALLY BLANK]
31
IN WITNESS WHEREOF, the parties have caused this Agreement and Plan of
Merger to be duly executed by their duly authorized officers, all as of the day
and year first above written.
XXXXXXXX BROADCASTING COMPANY II, INC.
By:
-----------------------------------
Its:
----------------------------------
GLENCAIRN, LTD., in its own right and
on behalf of a Subsidiary to be formed by it
By:
----------------------------------
Its:
---------------------------------
ABRY PARTNERS, INC.
By:
----------------------------------
Its:
---------------------------------
32
APPENDIX
Additional Defined Terms. The following capitalized terms have the
---------- ------- -----
following meanings when used in this Agreement and the Schedules attached to
this Agreement:
"ABRY Fund" means ABRY Broadcast Partners II, L.P., a Delaware limited
---- ----
partnership.
"Acquiring Parties" means Glencairn, the Merger Sub and Post-Merger
--------- -------
Xxxxxxxx.
"Acquiring Party Consents" means all Consents other than the Required
--------- ----- --------
FCC Consent, any Consent required under the Xxxx-Xxxxx-Xxxxxx Act, or any
Xxxxxxxx Consent.
"Affiliate" of any Person means any other Person which is controlled
---------
by, controls, or is under common control with, such first Person.
"Affiliated Group" means an affiliated group of corporations, as that
---------- -----
term is defined in Section 1504(a) of the Tax Code (or in any analogous
combined, consolidated or unitary group defined under state, local or
foreign income Tax law).
"Approval Date" means the first day upon which the Required FCC
-------- ----
Consent has been Granted and the requisite waiting period under the Xxxx-
Xxxxx-Xxxxxx Act for the consummation of the Merger has expired or been
terminated.
A "Business Day" means any day other than a Saturday, a Sunday or
-------- ---
another day upon which banks in New York, New York generally are not open
for business.
"Closing Date" means the date upon which the Closing occurs.
------- ----
"Communications Act" means the Communications Act of 1934, as amended
-------------- ---
and as in effect from time to time.
"Consent" means any consent, order, approval, authorization or other
-------
action of, or any filing with or notice to or other action by or with
respect to, any Person which is required for any of the execution, delivery
or performance of this Agreement, the consummation of the Spin-Off, the
Merger, or the conduct of the business of Xxxxxxxx or Post-Merger Xxxxxxxx
or the holding or utilization of any Station Asset thereafter, whether such
requirement arises pursuant to any Legal Requirement, Contract, a Person's
organizational documents or otherwise, including any of the foregoing which
is required in order to prevent a breach of or a default under or a
termination or modification of any Contract.
"Contract" means any agreement, lease, arrangement, commitment, or
--------
understanding to which Xxxxxxxx, with respect to the Stations, is a party.
33
"Contracts Schedule" means the attached Exhibit C.
--------- -------- ---------
"Corporate Personnel" means J. Xxxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx
--------- ---------
Xxxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxxxxx and any successor to any of
them in his capacity as an employee and/or officer of Xxxxxxxx.
"Effective Time" means the time of the filing of the Certificate of
--------- ----
Merger described in Article II.
"Expiration Date" means the earlier of (a) the last to occur of the
---------- ----
15th day after the date upon which the Required FCC Consent is Granted and
the last day of the calendar month during which the Required FCC Consent is
Granted, and (b) December 31, 2008.
"FCC" means the Federal Communications Commission or any successor
---
thereto.
"FCC Authorizations" means the authorizations issued by the FCC and
--- --------------
described on the attached Schedule 4C.
-------- --
A "Final Order" means the Required FCC Consent if (a) the Required FCC
----- -----
Consent has been Granted and has not been reversed, stayed, set aside,
enjoined, annulled or suspended (whether under Section 402 or 405 of the
Communications Act or otherwise) and (b) (i) no request has been filed for
administrative or judicial review, reconsideration, appeal, certiorari or
stay and the time for filing any such request and for the FCC to review the
Required FCC Consent on its own motion has expired, or (2) if such a
review, reconsideration or appeal has occurred, such review,
reconsideration or appeal has been denied and the time for further review,
reconsideration or appeal has expired.
"GAAP" means United States generally accepted accounting principles,
----
as in effect from time to time, as applied by Xxxxxxxx and its Subsidiaries
from time to time.
"Glencairn-Related Entity" means Glencairn, the Merger Sub, any direct
----------------- ------
or indirect assignee or proposed assignee (by operation of law or
otherwise) of any of the rights of any of them pursuant to this Agreement
or any other agreement contemplated hereby, any direct or indirect
successor or proposed successor to Post-Merger Xxxxxxxx'x business or
operation with respect to any Station, or any Affiliate or any of them.
The Required FCC Consent is "Granted" on the effective date, as
-------
determined under the FCC's rules, regulations and policies, of the grant
thereof by the FCC or its staff.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
----------------- ---
Improvements Act of 1976, as in effect from time to time.
"Headquarters Assets" means the assets of Xxxxxxxx Holdings and its
------------ ------
Subsidiaries located in the offices of Xxxxxxxx Holdings and its
Subsidiaries located in Franklin,
34
Tennessee, and Boston, Massachusetts, and any so-called "personal seat
license" or other right of Xxxxxxxx Holdings or any of its Subsidiaries to
subscribe for tickets to events at the stadium presently being constructed
or proposed to be constructed in the Nashville, Tennessee, metropolitan
area.
"Indemnity Agreement" means the Indemnity Agreement entered into among
--------- ---------
Xxxxxxxx, Glencairn and certain other Persons dated as of the date of this
Agreement, as such agreement is in effect from time to time.
"Indemnity Escrow Agreement" means the Indemnity Escrow Agreement
--------- ------ ---------
entered into among the Stockholder Representative, Glencairn and certain
other Persons dated as of the date of this Agreement, as such agreement is
in effect from time to time.
"Legal Requirements" means the Communications Act, the rules,
----- ------------
regulations and published policies of the FCC, and all other federal, state
and local laws, rules, regulations, ordinances, judgments, orders and
decrees.
"Lien" means any mortgage, pledge, hypothecation, encumbrance, lien
----
(statutory or otherwise), preference, priority or other security agreement
of any kind or nature whatsoever (including any conditional sale or other
title retention agreement and any lease having substantially the same
effect as any of the foregoing and any assignment or deposit arrangement in
the nature of a security device).
"Market Cable System" means, with respect to any Station, any cable
------ ----- ------
television system located within such Station's television market, as that
term is defined in Section 76.55(e) of the rules of the FCC.
"Mission Guarantees" means the (i) Guaranty of Xxxxxxxx Broadcasting
------- ----------
dated as of July 11, 1996 in favor of NationsBank of Texas, N.A., and any
other lenders referred to therein relating to certain indebtedness of
Mission Broadcasting I, Inc., a Delaware corporation, and (ii) the Guaranty
of Xxxxxxxx Broadcasting dated as of July 29, 1996 in favor of NationsBank
of Texas, N.A., and any other lenders referred to therein relating to
certain indebtedness of Mission Broadcasting II, Inc., a Delaware
corporation, in each case as in effect from time to time.
"Old Xxxxxxxx Stockholder" means any holder of record of any Xxxxxxxx
--- -------- -----------
Share immediately prior to the Effective Time.
"ordinary course of business" means the ordinary course of the conduct
-------- ------ -- --------
of business by Xxxxxxxx Holdings and is Subsidiaries, substantially
consistent with their respective past practices.
"Parties" means the parties to this Agreement.
-------
"Permitted Encumbrances" means (i) Liens arising by operation of law
--------- ------------
and
35
securing the payment of Taxes which are not yet due and payable, (ii)
with respect to any property leased by Xxxxxxxx as lessee, the interest of
the lessor in such property, (iii) easements, rights-of-way, reservations
of rights, conditions or covenants, zoning, building or similar
restrictions or other non-monetary Liens or defects that do not,
individually or in the aggregate, materially interfere with the use of the
affected property in the operation of the Stations as currently conducted
or as presently proposed by Xxxxxxxx Holdings and its Subsidiaries to be
conducted, (iv) restrictions on transfer imposed under state or federal
securities laws or pursuant to the Communications Act or the FCC
Regulations, and (v) Liens securing indebtedness under the Xxxxxxxx Senior
Debt Arrangements, other indebtedness and the Mission Guarantees.
A "Person" means any individual, partnership, limited liability
------
company, joint venture, corporation, trust, unincorporated association or
government or department thereof.
"Required FCC Consent" means the action(s) or order(s) by the FCC
-------- --- -------
granting its Consent to the transfer of control of Xxxxxxxx by reason of
the Merger, without any condition which in the reasonable judgment of the
Xxxxxxxx and the Acquiring Parties is adverse to such Person (or, in
Xxxxxxxx'x or the Stockholder Representative's reasonable judgment, adverse
to any of the Old Xxxxxxxx Stockholders), as the case may be, in any
material respect.
"Spin-Off" means the transfer of the assets described on the attached
--------
Exhibit D to Xxxxxxxx by Xxxxxxxx Holdings and its Subsidiaries.
------- -
"Station Assets" means all of Xxxxxxxx'x rights in, to and under the
------- ------
assets and properties of the Stations, real and personal, tangible and
intangible, of every kind and description which are owned and used by
Xxxxxxxx in connection with the business and operations of the Stations,
including rights under contracts and leases, real and personal property,
plant and equipment, inventories, intangibles, licenses and goodwill, and
all other assets and properties of Xxxxxxxx used solely in connection with
the operation of any Station; provided that the Station Assets will not
include the Headquarters Assets.
"Station KOKH" means broadcast television station KOKH-TV, Oklahoma
------- ----
City, Oklahoma, together with all related translator stations (if any)
owned by Xxxxxxxx.
"Stations" means broadcast television station WRGT-TV, Dayton, Ohio;
--------
broadcast television station WVAH-TV, Charleston, West Virginia; broadcast
television station WTAT-TV, Charleston, South Carolina; broadcast
television station
00
XXXX-XX, Xxxxx, Xxx Xxxx; low-power television station WPNY-LP, Rome, New
York; and Station KOKH; in each case together with all associated
translator stations (if any) owned by Xxxxxxxx Holdings or any of its
Subsidiaries immediately prior to the Spin-Off.
"Stockholder Representative" means ABRY Partners, Inc., a Delaware
----------- --------------
corporation, or any successor thereto as the Stockholder Representative
designated pursuant to Section 13.O.
With respect to any Person, a "Subsidiary" means any corporation,
----------
partnership, limited liability company, association or other business
entity of which, at the time of such reference, (i) if a corporation, a
majority of the total voting power of shares of stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof, or a majority economic interest,
is at the time owned or con trolled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (ii) if a partnership, limited liability company,
association or other business entity, a majority of the partnership or
other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons will be deemed to have a majority ownership interest in
a partnership, limited liability company, association or other business
entity if such Person or Persons will be allocated a majority of
partnership, company, association or other business entity gains or losses
or will be or control the managing director or general partner of such
partnership, company, association or other business entity.
"Xxxxxxxx Broadcasting" means Xxxxxxxx Broadcasting Company, Inc., a
-------- ------------
Delaware corporation.
"Xxxxxxxx Common Stock" means Xxxxxxxx Shares which are common stock.
-------- ------ -----
"Xxxxxxxx Consents" means all Consents of the board of directors or
-------- --------
stockholders of Xxxxxxxx.
"Xxxxxxxx Holdings" means Xxxxxxxx Broadcast Holdings, Inc., a
-------- --------
Delaware corporation.
"Xxxxxxxx Holdings Financial Statements" means the Financial
-------- -------- --------- ----------
Statements attached to this Agreement as Exhibit E.
---------
"Xxxxxxxx-Related Entity" means any Affiliate of ABRY Partners Inc. or
---------------- ------
ABRY Broadcast Partners II, L.P., including Xxxxxxxx, prior to the
Effective Time.
"Xxxxxxxx Senior Debt Arrangements" means the Credit Agreement dated
-------- ------ ---- ------------
as of January 4, 1996 among Xxxxxxxx Holdings, Xxxxxxxx Broadcasting, the
various Agents and co-Agents referred to therein, and the several Lenders
from time to time parties thereto,
37
together with all "Loan Documents" and other documents and instruments
relating to the "Obligations" referred to therein, in each case as in
effect from time to time.
"Xxxxxxxx Share" means any share of capital stock of Xxxxxxxx which is
-------- -----
outstanding immediately prior to the Effective Time.
"Xxxxxxxx Station Assets" means all of Xxxxxxxx Holdings', its
-------- ------- ------
Subsidiaries, Xxxxxxxx'x and Xxxxxxxx Two's rights in, to and under the
assets and properties of the Xxxxxxxx Stations, real and personal, tangible
and intangible, of every kind and description which are owned and used by
Xxxxxxxx Holdings, its Subsidiaries, Xxxxxxxx or Xxxxxxxx Two in connection
with the business and operations of the Xxxxxxxx Stations, including rights
under contracts and leases, real and personal property, plant and
equipment, inventories, intangibles, licenses and goodwill, and all other
assets and properties of Xxxxxxxx, its Subsidiaries, Xxxxxxxx and Xxxxxxxx
Two used solely in connection with the operation of any Xxxxxxxx Station;
provided that the Xxxxxxxx Station Assets will not include the Headquarters
--------
Assets.
"Xxxxxxxx Stations" means broadcast television station WZTV,
-------- --------
Nashville, TN; broadcast television station WUTV, Buffalo, New York;
broadcast television station WXLV-TV, Winston-Salem, North Carolina;
broadcast television station WRGT-TV, Dayton, Ohio; broadcast television
station WRLH-TV, Richmond, Virginia; broadcast television station WVAH-TV,
Charleston, West Virginia; broadcast television station WUHF, Rochester,
New York; broadcast television station WTAT-TV, Charleston, South Carolina;
broadcast television station WFXV, Utica, New York; low-power television
station WPNY-LP, Rome, New York; broadcast television station WMSN-TV,
Madison, Wisconsin; Station KOKH; broadcast television station WUXP,
Nashville, Tennessee; and broadcast television station WUPN-TV, Greensboro,
North Carolina; in each case together with all associated translator
stations (if any).
"Xxxxxxxx Two" means Xxxxxxxx Broadcasting Company II, Inc., a
-------- ---
Delaware corporation.
"Tax" (and, with correlative meaning, "Taxes", "Taxable" and "Taxing")
---
means any (A) federal, state, local or foreign income, gross receipts,
franchise, estimated, alternative minimum, add-on minimum, sales, use,
transfer, registration, value added, excise, natural resources, severance,
stamp, occupation, premium, windfall profits, environmental (including
under Section 59A of the Tax Code), customs, duties, real property, real
property gains, personal property, capital stock, social security,
unemployment, disability, payroll, license, employee or other withholding,
or other tax of any kind whatsoever, including any interest, penalties or
additions to tax or additional amounts in respect of the foregoing; (B)
liability of any corporation for the payment of any amounts of the type
described in clause (A) arising as a result of being (or ceasing to be) a
member of any Affiliated Group (or being included in any Tax Return
relating thereto); and (C) liability for the payment of any amounts of the
type described in clause (A) or (B) as a result of any express or implied
obligation to indemnify or otherwise assume or succeed to the liability of
any other Person.
38
"Tax Code" means the Internal Revenue Code of 1986, as amended
--- ----
(including, where applicable, the Internal Revenue Code of 1954, as
amended).
"Transaction Documents" means this Agreement and all agreements
----------- ---------
between or among any or all of the Xxxxxxxx-Related Entities and the
Glencairn-Related Entities relating thereto, in each case as in effect from
time to time.
39
LIST OF SCHEDULES
Schedule 4C FCC Matters
Schedule 4D Certain Asset-Related Matters
Schedule 4F Litigation
Schedule 4H Conflicts
Schedule 4J Tax Matters
Schedule 4N Employee Benefit Matters
LIST OF EXHIBITS
Exhibit A Opinions of Xxxxxxxx'x Counsel
Exhibit B Opinions of Glencairn's and the Merger Sub's Counsel
Exhibit C Contracts Schedule
Exhibit D Spin-Off Assets
Exhibit E Xxxxxxxx Holdings Financial Statements
40
