Exhibit 10.45
OPTION AGREEMENT
AMONG
BASTET BROADCASTING, INC.,
XXXXX XXXXX,
and
NEXSTAR BROADCASTING OF
NORTHEASTERN PENNSYLVANIA, L.P.
DATED AS OF
May 19, 1998
TABLE OF CONTENTS
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ARTICLE I
GRANT OF OPTIONS;
GENERAL TERMS OF SALE....................................................2
1.1 Asset Option Grant; Assets Covered..................................2
(a) FCC Authorizations.............................................2
(b) Tangible Personal Property.....................................2
(c) Real Property..................................................2
(d) Agreements for Sale of Time....................................2
(e) Program Contracts..............................................3
(f) Other Contracts................................................3
(g) Trademarks, etc................................................3
(h) Programming Copyrights.........................................3
(i) FCC Records....................................................3
(j) Files and Records..............................................3
(k) Goodwill.......................................................3
(l) Prepaid Items..................................................3
(m) Cash...........................................................3
(n) Receivables and Other Claims...................................3
1.2 Excluded Assets.....................................................4
(a) Insurance......................................................4
(b) Name...........................................................4
(c) Certain Contracts..............................................4
(d) Corporate Books and Records....................................4
(e) Transaction Documents..........................................4
1.3 Stock Option Grant..................................................4
1.4 Option Exercise.....................................................5
1.5 Liabilities.........................................................5
(a) Permitted Encumbrances.........................................5
(b) Assumption of Liabilities Generally upon Asset Sale............5
ARTICLE II
CLOSING..................................................................6
2.1 Exercise Price......................................................6
(a) Payment...................................................6
(b) Definition of Cash Purchase Price.........................6
(c) Determination of Cash Purchase Price......................6
(d) Allocation of Cash Purchase Price after Asset Sale........6
2.2 The Closing.........................................................6
2.3 Deliveries at Closing...............................................7
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(a) Deliveries by Seller..................................7
(b) Deliveries by Buyer...................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BASTET.................................8
3.1 Incorporation; Power................................................8
3.2 Corporate Action....................................................8
3.3 No Defaults.........................................................9
3.4 Brokers.............................................................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER ...........................9
4.1 Capacity............................................................9
4.2 Action..............................................................9
4.3 No Defaults.........................................................9
4.4 Brokers............................................................10
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER.................................10
5.1 Incorporation......................................................10
5.2 Action.............................................................10
5.3 No Defaults........................................................10
5.4 Brokers............................................................10
ARTICLE VI
COVENANTS OF BASTET AND STOCKHOLDER.....................................11
6.1 Covenants of Bastet and Stockholder Generally......................11
(a) FCC Authorizations and Other Matters..........................11
(b) Restrictions..................................................11
(c) ..............................................................12
Reports; Access to Facilities, Files, and Records..................12
(d) Notice of Proceedings.........................................12
(e) Notice of Certain Developments................................12
(f) Issuance or other Transfer of Stock or Equivalents............12
(g) No Premature Assumption of Control............................13
6.2 Covenants of Bastet and Stockholder Exercise Period................13
(a) Application for Commission Consent........................13
(b) Consents..................................................13
(c) Consummation of Sale......................................13
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(d) Xxxx-Xxxxx-Xxxxxx.........................................14
ARTICLE VII
COVENANTS OF BUYER......................................................14
7.1 Covenants of Buyer Generally.......................................14
7.2 Covenants of Buyer during Exercise Period..........................14
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS ON THE CLOSING DATE..................14
8.1 Representations, Warranties, Covenants.............................15
8.2 Proceedings........................................................15
8.3 FCC Authorization..................................................15
8.4 Xxxx-Xxxxx-Xxxxxx..................................................15
8.5 Purchase Price.....................................................15
8.6 Other Instruments..................................................15
ARTICLE IX
REMEDIES................................................................16
9.1 Bulk Sales Indemnity...............................................16
9.2 Acknowledgment by Buyer............................................16
ARTICLE X
TERMINATION/MISCELLANEOUS...............................................16
10.1 Termination of Agreement Prior to the Closing Date...............16
(a) By Bastet or Stockholder....................................16
(b) By Buyer....................................................17
10.2 Remedies.........................................................17
10.3 Expenses.........................................................17
10.4 Assignments; Exercise in Part....................................17
10.5 Further Assurances...............................................18
10.6 Notices..........................................................18
10.7 Captions.........................................................19
10.8 Law Governing....................................................20
10.9 Consent to Jurisdiction, Etc.....................................20
10.10 Waiver of Provisions.............................................20
10.11 Counterparts.....................................................20
10.12 Entire Agreement/Amendments......................................20
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10.13 Access to Books and Records......................................21
10.14 Public Announcements.............................................21
10.15 Definitional Provisions..........................................22
(a) Terms Defined in Appendix...................................22
(b) Gender and Number...........................................22
10.16 Arbitration......................................................22
(a) Generally...................................................22
(b) Notice of Arbitration.......................................22
(c) Selection of Arbitrator.....................................22
(d) Conduct of Arbitration......................................22
(e) Enforcement.................................................23
(f) Expenses....................................................23
10.17 Termination of Transfer Restrictions in the Shared
Services Agreement...............................................23
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OPTION AGREEMENT
----------------
THIS OPTION AGREEMENT is dated as of May 19, 1998, and is entered into
among Bastet Broadcasting, Inc., a Delaware corporation ("Bastet"), Xxxxx Xxxxx
("Stockholder"), and Nexstar Broadcasting of Northeastern Pennsylvania, L.P., a
Delaware limited partnership ("Buyer"). Other capitalized terms are defined in
the Appendix to this Agreement.
RECITALS
--------
WHEREAS, Bastet is the licensee of broadcast television station
WYOU(TV), Scranton, Pennsylvania (the "Main Station"), together with broadcast
translator station W19AR (Channel 19), Clarks Summit, Pennsylvania (the "Clarks
Summit Translator"), broadcast translator station W54AV (Channel 54), Mansfield,
Pennsylvania (the "Mansfield Translator"), broadcast translator station W66AI
(Channel 66), Minersville, Pennsylvania (the "Minersville Translator"),
broadcast translator station W60AH (Channel 60), Stroudsburg, Pennsylvania (the
"Stroudsburg Translator"), and broadcast translator stations W26AT and W55AG
(Channels 26 and 55, respectively), Williamsport, Pennsylvania (the
"Williamsport Translators" and, together with the Clarks Summit Translator, the
Mansfield Translator, the Minersville Translator and the Stroudsburg Translator,
the "Translator Stations"). The Main Station and the Translator Stations are
sometimes collectively referred to as the "Stations";
WHEREAS, Stockholder is the sole stockholder of Bastet;
WHEREAS, Buyer and Bastet are parties to a Shared Services Agreement
dated as of January 5, 1998 (the "Shared Services Agreement") wherein Bastet and
Stockholder agreed to certain restrictions on the transfer of the Stations; and
WHEREAS, Buyer, Bastet and Stockholder wish to terminate the transfer
restrictions under the Shared Services Agreement, in consideration for which
Bastet and Stockholder desire to grant to Buyer an option to acquire the Station
Assets described in more detail below, or (at Buyer's election) any or all of
the issued and outstanding capital stock of Bastet, and Buyer desires to be
granted such option, all on the terms described below and consistent with the
rules and regulations of the FCC;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
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ARTICLE I
GRANT OF OPTIONS;
-----------------
GENERAL TERMS OF SALE
---------------------
1.1 Asset Option Grant; Assets Covered. Bastet hereby grants to
Buyer, and Buyer hereby accepts Bastet's grant of, an option (the "Asset
Option") to acquire the Station Assets, upon the terms and conditions set forth
in this Agreement. Upon and subject to the terms and conditions stated in this
Agreement, if Buyer has exercised the Asset Option, then on the Closing Date,
Bastet, as its interests may appear, shall convey, transfer, and deliver to
Buyer, and Buyer shall acquire from Bastet, all of Bastet's rights in, to and
under the assets and properties of Bastet, real and personal, tangible and
intangible, of every kind and description which are used or useful in connection
with the business and operations of the Station, as a going concern, including,
without limitation, rights under contracts and leases, real and personal
property, plant and equipment, inventories, intangibles, licenses and goodwill,
but excluding all such assets and properties which constitute Excluded Assets.
The rights, assets, property, and business of Bastet with respect to the Station
to be transferred to Buyer pursuant to this Section 1.1 in connection with the
exercise of the Asset Option are referred to as the "Station Assets," and the
purchase and sale of the Station Assets pursuant to this Agreement in connection
with the exercise of the Asset Option is referred to as the "Asset Sale."
Subject to Section 1.2, the Station Assets include, without limitation, Bastet's
rights in, to and under the following, in each case if and to the extent in
existence and held by Bastet immediately prior to the Closing:
(a) FCC Authorizations. All licenses, construction permits and
authorizations issued by the FCC to Bastet with respect to the Station (the
"FCC Authorizations"), and all applications therefor, together with any
renewals, extensions, or modifications thereof and additions thereto.
(b) Tangible Personal Property. All equipment, vehicles,
furniture, fixtures, transmitting towers, antennas, transmitters, satellite
earth stations, office materials and supplies, spare parts and other
tangible personal property of every kind and description used in connection
with the business and operations of the Station.
(c) Real Property . All real property interests held by Bastet
and all buildings, structures, towers, and improvements thereon used in the
business and operations of the Station, and all other rights under any
Contracts relating to real property (the "Realty Contracts"); provided
that, in the event of destruction of or damage to any such real property
interest or any improvement thereon which is not repaired or restored prior
to the Closing Date, then at the Closing (if Buyer and Bastet are
consummating the Asset Sale, as distinct from the Stock Sale) Bastet shall
assign to Buyer all of Bastet's interest, if any, in the proceeds (the
"Proceeds") of any insurance covering such damage or destruction.
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(d) Agreements for Sale of Time. All orders, agreements and
other Contracts for the sale of advertising time (including Trades) on the
Station (collectively, the "Time Sales Contracts"), to the extent
unperformed as of the Closing Date.
(e) Program Contracts. All program licenses and other Contracts
under which Bastet is authorized to broadcast film product or programs on
the Station (collectively, the "Program Contracts").
(f) Other Contracts. The Time Brokerage Agreement, all
affiliation agreements and other Contracts relating to the Station to which
Bastet is a party with respect to the Station (other than any Contract
described in Section 1.1(c), 1.1(d) or 1.1(e) hereof) (collectively, the
"Other Assumed Contracts").
(g) Trademarks, etc. All trademarks, service marks, trade names,
jingles, slogans, logotypes, the goodwill associated with the foregoing,
and patents, owned and used by Bastet in connection with the business and
operations of the Station, including, without limitation, all Bastet's
rights to use the call letters "WYOU" and any related or other call
letters, names and phrases used in connection with the Station.
(h) Programming Copyrights. All program and programming
materials and elements of whatever form or nature owned by Bastet and used
solely in connection with the business and operations of the Station,
whether recorded on tape or any other substance or intended for live
performance, and whether completed or in production, and all related common
law and statutory copyrights owned by or licensed to Bastet and used in
connection with the business and operations of the Station.
(i) FCC Records. Subject to Section 10.13, all FCC logs and
other compliance records of Bastet that relate to the operations of the
Station.
(j) Files and Records. Subject to Section 10.13, all files and
other records of Bastet relating to the business and operations of the
Station prior to the Closing Date, including, without limitation, all
books, records, accounts, checks, payment records, tax records (including,
without limitation, payroll, unemployment, real estate, and other tax
records), and other such similar books and records of Bastet, for five (5)
fiscal years immediately preceding the Closing Date (collectively, the
"Bastet's Recent Station Records").
(k) Goodwill. All of Bastet's goodwill in, and going concern
value of, the Station.
(l) Prepaid Items. All prepaid expenses relating to the Station.
(m) Cash. All cash, cash equivalents, and cash items of any kind
whatsoever, certificates of deposit, money market instruments, bank
balances, and rights in and to bank accounts, marketable and other
securities held by Bastet.
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(n) Receivables and Other Claims. All notes and accounts
receivable and other receivables of Bastet relating to or arising out of
the operation of the Station prior to the Closing, all security, insurance,
and similar deposits, and all other claims of Bastet with respect to
transactions or other conduct of the business of the Station prior to the
Closing, including, without limitation, claims for tax refunds and claims
of Bastet under all Contracts with respect to events or the period prior to
the Closing.
1.2 Excluded Assets. There shall be excluded from the Station Assets
and, to the extent in existence on the Closing Date (if Buyer and Bastet are
consummating the Asset Sale, as distinct form the Stock Sale), retained by
Bastet, the following assets (the "Excluded Assets"):
(a) Insurance. Subject to Section 1.1(c), all contracts of
insurance and all insurance plans and the assets thereof, together
with all rights and claims thereunder.
(b) Name. All of Bastet's rights to use the name "Bastet,"
any variation thereof, or any related logo, name or phrase.
(c) Certain Contracts. All Realty Contracts, Time Sales
Contracts, Program Contracts and Other Assumed Contracts which expire
and are not renewed, or which otherwise terminate, on or prior to the
Closing Date.
(d) Corporate Books and Records. Subject to Section 10.13,
all account books of original entry and other than duplicate copies of
such files and records, if any, that are maintained at any executive
office of Bastet or the offices of Bastet's direct or indirect equity
owners, and all materials of Bastet which constitute attorney work
product or contain information which is protected by attorney-client
privilege, wherever located, relating to matters at or prior to the
Closing; provided that Bastet will provide Buyer access to such work
product or privileged information to the extent necessary for Buyer to
defend any claim brought against Buyer by a Person which is not, or is
not an Affiliate of, a party to this Agreement.
(e) Transaction Documents. All rights of Bastet, or any
successor to Bastet, pursuant to any Transaction Document.
1.3 Stock Option Grant. Stockholder hereby grants to Buyer, and Buyer
hereby accepts Stockholder's grant of, an option (the "Stock Option") to
acquire, on one or more occasions, any or all of the issued and outstanding
capital stock of Bastet which is held by Stockholder, upon the terms and
conditions set forth in this Agreement. Upon and subject to the terms and
conditions stated in this Agreement, if Buyer has exercised the Stock Option,
then on the Closing Date, Stockholder shall convey, transfer, and deliver to
Buyer, and Buyer shall acquire from Stockholder, all of the capital stock of
Bastet ("Bastet Stock") held by Stockholder (or, if less, the Bastet Stock as to
which Buyer has exercised the Stock Option). The purchase and sale of Bastet
Stock pursuant to this Agreement in connection with the exercise of the Stock
Option is referred to as the "Stock Sale."
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1.4 Option Exercise. In order to exercise either the Asset Option or
the Stock Option (collectively, the "Options"), Buyer must deliver to Bastet and
Stockholder (prior to the Option Expiration Date) written notice (an "Exercise
Notice") of Buyer's intention to do so. Buyer may withdraw any Exercise Notice
prior to the Closing by written notice to that effect to Bastet and Stockholder.
No such withdrawal (and no withdrawal of any subsequent Exercise Notice) will
affect Buyer's right subsequently to exercise either Option by delivering to
Bastet and Stockholder (prior to the Option Expiration Date) one or more other
Exercise Notices. Upon the withdrawal of any Exercise Notice, Buyer shall
reimburse Seller for all reasonable out-of-pocket expenses incurred by Seller in
connection with its compliance with Section 6.2 with respect to such Exercise
Notice. In the context of any exercise of the Asset Option or the consummation
of the Asset Sale, the term "Seller" refers to Bastet. In the context of any
exercise of the Stock Option or the consummation of the Stock Sale, the term
"Seller" refers to Stockholder.
1.5 Liabilities.
(a) Permitted Encumbrances. At the Closing, the Station Assets
or the Bastet Stock, as the case may be, shall be sold and conveyed to
Buyer free and clear of all Liens, (including all Liens which secure the
repayment of Existing Station Indebtedness), other than (i) Liens for
current taxes in respect of the Station and the Station Assets (but not the
Bastet Stock) and other amounts which are not then due and payable and
which arise by operation of law, (ii) Liens on the Station Assets which are
in existence on the date of this Agreement and which do not secure
indebtedness or borrowed money, (iii) Liens on the Station's assets arising
by operation of law or in the ordinary course of Bastet's business after
the date of this Agreement and not securing indebtedness for borrowed
money, (iv) Liens on the Bastet Stock which arise by virtue of the Stock
Option, and (v) Liens on the Station Assets which, in the aggregate, would
not be expected to have a material effect on the Station Assets after the
Asset Sale.
(b) Assumption of Liabilities Generally upon Asset Sale. In the
case of the Asset Sale, the "Assumed Liabilities" will be all liabilities
and obligations of Bastet relating to the operation of the Station or the
ownership or operation of the Station Assets, in each case as of the
Closing Date, whether contingent or absolute, known or unknown, accrued or
not accrued, or matured or unmatured, including all liabilities and
obligations pursuant to any Realty Contract, Time Sales Contract, Program
Contract or Other Assumed Contract (collectively, the "Assumed Contracts")
in effect on the Closing Date, including the Time Brokerage Agreement. On
the Closing Date (if Buyer and Bastet are consummating the Asset Sale),
Buyer will assume and agree to pay, satisfy, perform and discharge all
Assumed Liabilities. From and after the Closing (if Buyer and Bastet have
consummated the Asset Sale), Buyer will discharge and reimburse and hold
harmless Bastet against, and Bastet will not be responsible or otherwise
liable for, any Assumed Liability. Without limiting the foregoing, except
as otherwise provided in this Agreement, the "Assumed Liabilities" will not
include, and on the Closing Date Buyer shall not assume or thereafter be
liable for, any liability or obligation of Bastet relating to any Existing
Station Indebtedness (it being understood that all Existing Station
Indebtedness will be satisfied prior to, or
5
contemporaneously with, the consummation of the Asset Sale). The revenues,
expenses and liabilities of Bastet or attributable to the Station and the
Station Assets will not be prorated between Buyer and Bastet in connection
with the Asset Sale.
ARTICLE II
CLOSING
-------
2.1 Exercise Price.
(a) Payment. In consideration of the transfer and delivery of
the Station Assets or the Bastet Stock (as the case may be) to Buyer at the
Closing, (i) Buyer will pay to Seller an amount which is equal to the Cash
Purchase Price, and (ii) if Buyer and Bastet are consummating the Asset
Sale, then Buyer will assume the Assumed Liabilities. The Cash Purchase
Price shall be paid by Buyer to Seller on the Closing Date by wire transfer
of immediately available funds to such bank account(s) as Seller may
designate on or prior to the Closing Date.
(b) Definition of Cash Purchase Price. The "Cash Purchase Price"
shall be equal to the Existing Station Indebtedness as of the date of the
Closing.
(c) Determination of Cash Purchase Price. Each of Buyer, Bastet
and Stockholder will use reasonable efforts to assist in the determination
of the Existing Station Indebtedness. Notwithstanding Section 10.1(a) of
this Agreement, neither Bastet nor Stockholder may terminate this Agreement
at any time at which an Exercise Notice has been given (and not withdrawn)
and the related Existing Station Indebtedness has not been determined, or
during the twenty business days after any such determination.
(d) Allocation of Cash Purchase Price after Asset Sale. If Buyer
and Bastet consummate the Asset Sale, then Buyer and Bastet will allocate
the Cash Purchase Price among the Station Assets in accordance with a
report of such allocation prepared in good faith by Buyer based upon the
valuation report of an independent appraiser retained by Buyer and in
accordance with all applicable provisions of the Internal Revenue Code of
1986, as in effect from time to time. Buyer will submit such reports of
Buyer and such independent appraiser to Bastet prior to the Closing of the
Asset Sale. Buyer and Bastet agree to file (at such times and in such
manner as may be required by applicable Legal Requirements) all relevant
returns and reports (including, without limitation, Forms 8594, Asset
Acquisition Statements, and all income and other tax returns) on the basis
of such allocations.
2.2 The Closing. Subject to Section 10.1, the closing of the Asset
Sale or the Stock Sale (in either case, a "Sale"), and, in the case of the Asset
Sale, the assumption of the Assumed Liabilities (the "Assumption"), and the
consummation of all related transactions to be
6
consummated contemporaneously therewith pursuant to this Agreement (the
"Closing"), shall be held after the satisfaction or Seller's waiver in writing
of each of the conditions set forth in Article VIII and at the time and location
and on the date specified by Buyer in writing to Seller delivered not less than
fifteen business days prior to such date, or at such other place and/or at such
other time and day as Seller and Buyer may agree in writing.
2.3 Deliveries at Closing. All actions at the Closing shall be deemed
to occur simultaneously, and no document or payment to be delivered or made at
the Closing shall be deemed to be delivered or made until all such documents and
payments are delivered or made to the reasonable satisfaction of Buyer, Seller
and their respective counsel.
(a) Deliveries by Seller. At the Closing, Seller shall deliver to
Buyer such instruments of conveyance and other customary documentation as
shall in form and substance be reasonably satisfactory to Buyer and its
counsel in order to effect the Sale in question, including, without
limitation, the following:
(1) in the case of the Asset Sale, one or more bills of sale
conveying the Station Assets, and in the case of the Stock Sale,
each certificate representing the Bastet Stock, duly endorsed for
transfer or accompanied by an appropriate stock power;
(2) any releases of Liens that are necessary in order to transfer the
Station Assets or the Bastet Stock in the manner contemplated by
Section 1.5(a);
(3) if Seller is not a natural person, a certified copy of the
resolutions or proceedings of Seller's board of directors and
stockholders (or similar Persons) authorizing Seller's
consummation of the Sale;
(4) if Seller is not a natural person, then a certificate as to the
existence and/or good standing of Seller issued by the Secretary
of State or Secretary of the Commonwealth, as the case may be, of
the state under the laws of which Seller is incorporated,
organized or formed (and in any event, in the case of the Asset
Sale, of the Secretary of the Commonwealth of the Commonwealth of
Pennsylvania), in each case dated on or after the fifth Business
Day prior to the Closing Date, certifying as to the good standing
and/or qualification of Seller in such jurisdiction;
(5) a receipt for the Cash Purchase Price;
(6) all Consents received by Seller through the Closing Date; and
(7) such other documents as Buyer may reasonably request.
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(b) Deliveries by Buyer. At the Closing, Buyer shall deliver to
Seller the Cash Purchase Price as provided in Section 2.1 and such
instruments of assumption and other customary documentation as shall in
form and substance be reasonably satisfactory to Seller and its counsel in
order to effect the Sale (and, in the case of the Asset Sale, the
Assumption), including, without limitation, the following:
(1) a certificate of Buyer dated the Closing Date to the effect that,
except as specified in such certificate, the conditions set forth
in Article VIII have been fulfilled;
(2) if Buyer is not a natural person, then a certified copy of the
resolutions or proceedings of Buyer authorizing the consummation
of the Sale (and, in the case of the Asset Sale, the Assumption);
(3) if Buyer is not a natural person, then a certificate issued by
the Secretary of State of the state under the laws of which Buyer
is incorporated, organized or formed (and in any event, if
qualification of Buyer to conduct business in the Commonwealth of
Pennsylvania is required in order for Buyer to hold the Station
Assets or the Bastet Stock, as the case may be, after the Sale,
then of the Secretary of Pennsylvania of the Commonwealth of
Pennsylvania), in each case dated on or after the fifth Business
Day prior to the Closing Date, certifying as to the organization
and/or qualification of Buyer in each such jurisdiction; and
(4) such other documents as Seller may reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BASTET
----------------------------------------
Bastet represents and warrants to Buyer as follows:
3.1 Incorporation; Power. Bastet is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and in good standing under the laws of the Commonwealth of Pennsylvania. Bastet
has the corporate power to enter into and consummate the transactions
contemplated by this Agreement. Xxxxx Xxxxx is the beneficial and record owner
of all issued and outstanding capital stock of Bastet, and there are not
outstanding any warrants, options or other securities or rights (collectively,
"Bastet Stock Equivalents") which directly or indirectly are exercisable or
exchangeable for, or convertible into, any capital stock of Bastet or any Bastet
Stock Equivalent.
3.2 Corporate Action. All actions necessary to be taken by or on the
part of Bastet in connection with the execution and delivery of this Agreement
and the consummation of
8
transactions contemplated hereby to be consummated and presently necessary to
make the same effective have been duly and validly taken. This Agreement has
been duly and validly authorized, executed, and delivered by Bastet and
constitutes a valid and binding agreement, enforceable against Bastet in
accordance with and subject to its terms.
3.3 No Defaults. On the Closing Date (after giving effect to all
approvals and consents which have been obtained), neither the execution and
delivery by Bastet of this Agreement, nor the consummation by Bastet of the
transactions contemplated by this Agreement to be consummated on or prior to the
Closing Date, 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 Bastet is subject, or of Bastet's certificate of
incorporation or by-laws or similar organizational documents, or of any material
contract, agreement, or instrument to which Bastet is a party or by which Bastet
is bound.
3.4 Brokers. There is no broker or finder or other Person who would
have any valid claim against Bastet 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 Bastet or any
Affiliate of Bastet.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
---------------------------------------------
Stockholder represents and warrants to Buyer as follows:
4.1 Capacity. If Stockholder is not a natural person, then Stockholder
is a corporation, partnership, limited liability company or other entity duly
organized or constituted, validly existing, and in good standing under the laws
of the state under whose laws Stockholder is purported to have been organized or
constituted, and Buyer has the corporate or other power (or, if Stockholder is a
natural person, then Stockholder has the legal capacity) to enter into and
consummate the transactions contemplated by this Agreement.
4.2 Action. All actions necessary to be taken by or on the part of
Stockholder in connection with the execution and delivery of this Agreement and
the consummation of transactions contemplated hereby to be consummated and
presently necessary to make the same effective have been duly and validly taken.
This Agreement has been duly and validly authorized (if Stockholder is not a
natural person), executed, and delivered by Stockholder and constitutes a valid
and binding agreement, enforceable against Stockholder in accordance with and
subject to its terms.
4.3 No Defaults. On the Closing Date (after giving effect to all
approvals and consents which have been obtained), neither the execution and
delivery by Stockholder of this
9
Agreement, nor the consummation by Stockholder of the transactions contemplated
by this Agreement to be consummated on or prior to the Closing Date, 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
Stockholder is subject, or (if Stockholder is not a natural person) of
Stockholder's certificate of incorporation or by-laws or similar organizational
documents, or of any material contract, agreement, or instrument to which
Stockholder is a party or by which Stockholder is bound.
4.4 Brokers. There is no broker or finder or other Person who would
have any valid claim against 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 Stockholder or
any Affiliate of Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer represents and warrants to Bastet and Stockholder as follows:
5.1 Incorporation. If Buyer is not a natural person, then Buyer is a
corporation, partnership, limited liability company or other entity duly
organized or constituted, validly existing, and in good standing under the laws
of the state under whose laws Buyer is purported to have been organized or
constituted, and Buyer has the corporate or other power (or, if Buyer is a
natural person, then Buyer has the legal capacity) to enter into and consummate
the transactions contemplated by this Agreement.
5.2 Action. All actions necessary to be taken by or on the part of
Buyer in connection with the execution and delivery of this Agreement and the
consummation of transactions contemplated hereby to be consummated and presently
necessary to make the same effective have been duly and validly taken. This
Agreement has been duly and validly authorized (if Buyer is not a natural
person), executed and delivered by Buyer and constitutes a valid and binding
agreement, enforceable against Buyer in accordance with and subject to its
terms.
5.3 No Defaults. On the Closing Date (after giving effect to all
approvals and consents which have been obtained), neither the execution and
delivery by Buyer of this Agreement, nor the consummation by Buyer of the
transactions contemplated by this Agreement to be consummated on or prior to the
Closing Date, 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 Buyer is subject, or of Buyer's certificate of
incorporation or by-laws or similar organizational documents, if any, or of any
material contract, agreement, or instrument to which Buyer is a party or by
which Buyer is bound.
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5.4 Brokers. There is no broker or finder or other Person who would
have any valid claim against Seller 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 Buyer or any
Affiliate of Buyer.
ARTICLE VI
COVENANTS OF BASTET AND STOCKHOLDER
-------------------------------------------
6.1 Covenants of Bastet and Stockholder Generally. Bastet covenants
and agrees that, from the date of this Agreement until the Closing, except as
(i) Buyer may otherwise consent (which consent (other than in the case of
Section 6.1(f)) Buyer will not unreasonably withhold or delay upon Bastet's
request) or (ii) Bastet may otherwise be requested by Buyer to act or refrain
from acting:
(a) FCC Authorizations and Other Matters. Bastet and Stockholder will
promptly execute any necessary applications for renewal of FCC
Authorizations necessary for the operation of the Station as presently
conducted and will use reasonable efforts to cooperate with Buyer in any
other respect in which Buyer may reasonably request in order to enhance,
protect, preserve or maintain the Station Assets and/or the business and
operation of the Station.
(b) Restrictions. Bastet will not (to the extent the following
restrictions are permitted by the FCC and all other applicable Legal
Requirements):
(1) other than in the ordinary course of business, sell, lease (as
lessor), transfer, or agree to sell, lease (as lessor), or
transfer any material Station Assets (other than in the ordinary
course of its business) without replacement thereof with
functionally equivalent or superior assets;
(2) enter into any amendment or other modification of any agreement,
instrument or other document governing or relating to Existing
Station Indebtedness;
(3) apply to the FCC for any construction permit that would
materially restrict the Station's present operations or make any
material adverse change in the buildings or leasehold
improvements owned by Bastet;
(4) (i) authorize, declare or pay any dividend or return any equity
capital to its stockholders, (ii) redeem, retire, purchase or
otherwise acquire, directly or indirectly, for consideration any
of its shares of any class of its capital stock or other Equity
Securities outstanding, or (iii) make any other form of cash
distributions; or
11
(5) enter into any arrangement or contract with Stockholder, any
affiliate of Stockholder or any of Stockholder's parents, spouse,
descendants (whether natural, step or adopted) or other family
member of Stockholder.
(c) Reports; Access to Facilities, Files, and Records. Buyers' Access
Generally. From time to time, at the request of Buyer, Bastet shall give or
cause to be given to the officers, employees, accountants, counsel, and
representatives of Buyer
(1) access, 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 Bastet
related to the Station, and
(2) all such other information in Bastet's possession concerning
the affairs of the Station as Buyer may reasonably request,
provided that the foregoing does not disrupt or interfere with the business and
operations of Bastet or the Station.
(d) Notice of Proceedings. Bastet and Stockholder will promptly
notify Buyer 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 Asset Sale or the Stock Sale, 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 Asset Sale or the
Stock Sale, or to nullify or render ineffective this Agreement (or the
Asset Sale or the Stock Sale, if consummated).
(e) Notice of Certain Developments. Bastet shall give prompt written
notice to Buyer, promptly after Bastet becomes aware of the same, (1) if
the Station Assets shall have suffered damage on account of fire,
explosion, or other cause of any nature which is sufficient to prevent
operation of the Station in any material respect for more than ten (10)
consecutive days, or (2) if the regular broadcast transmission of the
Station in the normal and usual manner in which it heretofore has been
operating is interrupted in a material manner for a period of more than ten
(10) consecutive days.
(f) Issuance or other Transfer of Stock or Equivalents. Bastet will
not issue any shares of its capital stock or any Bastet Stock Equivalent to
any Person unless (i) such Person thereupon becomes a party to this
Agreement with respect to all Bastet Stock which such Person holds by
executing and delivering to Buyer a counterpart of this Agreement by which
such Person agrees to be treated as an additional "Stockholder" hereunder
and (ii) each representation or warranty set forth in Article IV is true
and correct in all respects with respect to such Person. The execution of
any such counterpart of this Agreement by any such Person will be deemed to
constitute a representation and warranty of such Person to the
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effect that all representations and warranties set forth in Article IV are
true and correct with respect to such Person in all respects. Stockholder
will not sell, convey or otherwise transfer or dispose of any Bastet Stock
or Bastet Stock Equivalent other than (A) to a Person who executes and
delivers to Buyer such a counterpart of this Agreement and with respect to
whom all representations and warranties set forth in Article IV are true
and correct in all respects or (B) upon his death or incapacity, in which
event this Agreement will be binding upon Stockholder's estate, personal or
legal representatives, heirs and other successors; provided that this
sentence shall not apply to any transfer or disposal pursuant to the Xxxxx
Pledge Agreement dated as of the date of January 5, 1998 made by Xxxxx
Xxxxx in favor of Bank of America National Trust and Savings Association
(the "Pledge Agreement").
(g) No Premature Assumption of Control. Nothing contained in this
Section 6.1 shall give Buyer any right to control the programming,
operations, or any other matter relating to the Station prior to the
Closing Date, and Bastet shall have complete control of the programming,
operations, and all other matters relating to the Station up to the time of
the Closing.
6.2 Covenants of Bastet and Stockholder Exercise Period. Each of
Bastet and Stockholder covenants and agrees that, after its receipt of each and
every Exercise Notice and until either the Closing occurs or such Exercise
Notice is withdrawn pursuant to Section 1.3:
(a) Application for Commission Consent. As promptly as practicable,
Bastet or Stockholder, as appropriate, will complete the seller's or
transferee's portion of all necessary applications to the FCC requesting
the Required FCC Consents (if any), and upon receipt of Buyer's portion of
such applications, will promptly file such applications with the FCC
jointly with Buyer. Each of Bastet and Stockholder will diligently take or
cooperate in the taking of all reasonable steps that are necessary, proper,
or desirable to expedite the preparation of such applications (including
withdrawal and/or re-filing, or any amendment or supplement thereto, which
Buyer may request) and their prosecution to a final grant. Each of Bastet
and Stockholder will promptly provide Buyer with a copy of any pleading,
order, or other document served on Bastet or Stockholder relating to such
applications.
(b) Consents. Bastet and Stockholder will use reasonable efforts
(without being required to make any payment not specifically required by
the terms of any licenses, leases, and other contracts) to assist Buyer to
(1) obtain or cause to be obtained prior to the Closing Date all Consents
or, in the absence of any Consent, one or more replacement agreements which
would be effective on or prior to the Closing and would grant Buyer (after
the Closing) substantially the same benefits with respect to the Station as
Bastet or Stockholder, as the case may be, enjoys with respect to the
Station immediately prior to the Closing under the replaced Contract(s),
and (2) cause each Consent or replacement agreement to become effective as
of the Closing Date (whether it is granted or entered into prior to or
after the Closing).
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(c) Consummation of Sale. Subject to the provisions of Article VIII
and Section 10.1, Bastet and Stockholder shall 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 Article VIII to be fulfilled and cause the Sale (and, in the
case of the Asset Sale, the Assumption) to be consummated.
(d) Xxxx-Xxxxx-Xxxxxx. As promptly as practicable, Bastet and
Stockholder shall prepare and file all documents with the Federal Trade
Commission and the United States Department of Justice which may be
required to comply with the Xxxx-Xxxxx-Xxxxxx Act in connection with the
Sale (and, in the case of the Asset Sale, the Assumption), and shall
promptly furnish all materials thereafter requested by any of the
regulatory agencies having jurisdiction over such filings, in connection
with the Sale (and, in the case of the Asset Sale, the Assumption). Bastet
and Stockholder will take all reasonable actions, and will file and use
reasonable efforts to have declared effective or approved all documents and
notifications with any governmental or regulatory bodies, as may be
necessary or may reasonably be requested under federal antitrust laws for
the consummation of the Sale (and, in the case of the Asset Sale, the
Assumption).
ARTICLE VII
COVENANTS OF BUYER
------------------
7.1 Covenants of Buyer Generally. Buyer covenants and agrees that
Buyer will promptly notify Seller 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 Sale (or, in the case of the Asset Sale, the
Assumption), 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
Sale (or, in the case of the Asset Sale, the Assumption), or to nullify or
render ineffective this Agreement or the Sale (or, in the case of the Asset
Sale, the Assumption) if consummated.
7.2 Covenants of Buyer during Exercise Period. Buyer covenants and
agrees that, after it gives any Exercise Notice and unless and until such
Exercise Notice is withdrawn pursuant to Section 1.3, Buyer will use reasonable
efforts (both prior to and after the Closing Date) jointly with Seller to obtain
or cause to be obtained prior to the Closing Date all Consents and to execute
such assumption instruments as may be required or requested in connection with
obtaining any Consent (or, in the alternative, enter into one or more
replacement agreements which would be effective on or prior to the Closing and
would grant Buyer substantially the same benefits with respect to the Station as
Bastet or Stockholder, as the case may be, enjoys with respect to the Station
under the replaced Contract(s) immediately prior to the Closing).
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ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS
ON THE CLOSING DATE
-------------------
The obligation of Seller to consummate the Sale on the Closing Date
is, at Seller's option, subject to the fulfillment of the following conditions
at or prior to the time of the Closing:
8.1 Representations, Warranties, Covenants.
(a) Each of the representations and warranties of Buyer contained
in this Agreement shall be true and accurate in all material respects
(except to the extent changes are permitted or contemplated pursuant to
this Agreement) both on the date of this Agreement and as if made on and as
of the Closing Date; and
(b) Buyer shall have performed and complied in all material
respects with each and every covenant and agreement required by this
Agreement to be performed or complied with by it prior to or at the Closing
(including the delivery of the Cash Purchase Price).
8.2 Proceedings.
(a) No action or proceeding shall 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 Sale (or, in the case of the Asset Sale, the Assumption) that, in the
reasonable opinion of Seller, may reasonably be expected to result in a
preliminary or permanent injunction against such consummation or, if the
Sale (or, in the case of the Asset Sale, the Assumption) were consummated,
an order to nullify or render ineffective this Agreement or the Sale (or,
in the case of the Asset Sale, the Assumption) or for the recovery against
Seller of a material amount of damages; and
(b) none of the parties to this Agreement shall have received
written notice from any governmental body of (i) such governmental body's
intention to institute any action or proceeding to restrain or enjoin or
nullify this Agreement or the Sale (or, in the case of the Asset Sale, the
Assumption), 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 Sale (or, in the case of the Asset
Sale, the Assumption), or (ii) the actual commencement of such an
investigation, in each case which remains pending or open.
8.3 FCC Authorization. If there is any Required FCC Consent with
respect to the Sale, then the FCC Approval Date shall have occurred with respect
to all such Consents and all Required FCC Consents shall be in full force and
effect.
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8.4 Xxxx-Xxxxx-Xxxxxx. Any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated.
8.5 Purchase Price. The Existing Station Indebtedness will have been
determined as provided in Section 2.1.
8.6 Other Instruments. Buyer shall have delivered, or shall stand
ready to deliver, to Seller such instruments, documents, and certificates as are
contemplated by Section 2.3(b).
ARTICLE IX
REMEDIES
--------
9.1 Bulk Sales Indemnity. In the case of the Asset Sale, Buyer and
Bastet have jointly determined that there will be no attempt to comply with the
notice provisions of any bulk sales law which may apply to the purchase and sale
of the Station Assets pursuant to this Agreement. Buyer will indemnify and hold
Bastet harmless from and against any and all damages, claims, losses, expenses,
costs, obligations, and liabilities, including, without limiting the generality
of the foregoing, liabilities for reasonable attorneys' fees and expenses,
suffered directly or indirectly by Bastet by reason of or arising out of
non-compliance with any such bulk sales law.
9.2 Acknowledgment by Buyer. Buyer has conducted, to its
satisfaction, an independent investigation and verification of the financial
condition, results of operations, assets, liabilities, properties and projected
operations of the Station and the Station Assets. In determining to proceed with
the transactions contemplated by this Agreement, Buyer has relied, and will
rely, on the representations, warranties and covenants of Bastet and Stockholder
set forth in this Agreement and the results of such independent investigation
and verification. BUYER ACKNOWLEDGES THAT BASTET AND STOCKHOLDER MAKE NO
REPRESENTATION OR WARRANTY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. BUYER FURTHER
UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND
WARRANTIES OF ANY KIND OR NATURE (INCLUDING, WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY RELATING TO THE PROJECTED, FUTURE OR HISTORICAL
FINANCIAL CONDITION, RESULTS OR OPERATIONS, ASSETS OR LIABILITIES RELATING TO
THE STATION), EXPRESS OR IMPLIED, ARE SPECIFICALLY DISCLAIMED BY BASTET AND
STOCKHOLDER.
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ARTICLE X
TERMINATION/MISCELLANEOUS
-------------------------
10.1 Termination of Agreement Prior to the Closing Date. This
Agreement may be terminated at any time on or prior to the Closing as follows:
(a) By Bastet or Stockholder. By Bastet or Stockholder, by
written notice (a "Termination Notice") to Buyer at any time after the
seventh anniversary of the date of this Agreement, if (I) the Closing with
respect to the Station Assets or Bastet Stock held by such Person has not
occurred on or prior to the date upon which such Person's Termination
Notice is given, and (II) any of such Person's conditions to closing set
forth in Article VIII has not been either satisfied or waived by such
Person and the absence of satisfaction of any such condition to closing is
not caused solely by a breach by any Person other than Buyer of its
obligations under this Agreement.
(b) By Buyer. By Buyer, by written notice to Bastet and
Stockholder, at any time.
Neither Buyer, Bastet nor Stockholder shall have any liability to any of the
other of them for costs, expenses, damages (consequential or otherwise), loss of
anticipated profits, or otherwise as a result of a termination pursuant to this
Section 10.1. This Article X will survive the termination of this Agreement
pursuant to this Section 10.1.
10.2 Remedies. In the event of a breach of any of Bastet's or
Stockholder's obligations under this Agreement, Buyer, in addition to being
entitled to exercise all rights provided herein or granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The parties hereto agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach of any such
obligations of Bastet or Stockholder.
10.3 Expenses. Except as otherwise expressly provided in this
Agreement, each of Bastet, Stockholder and Buyer shall bear all of its expenses
incurred in connection with the transactions contemplated by this Agreement,
including, without limitation, accounting and legal fees incurred in connection
herewith; provided that Buyer will reimburse Seller for all reasonable
out-of-pocket expenses incurred by Seller in connection with the Closing.
10.4 Assignments; Exercise in Part. This Agreement shall not be
assigned by Bastet or Stockholder without the prior written consent of Buyer;
provided that after the Closing (in the case of the Asset Sale), Bastet may
assign its rights pursuant to this Agreement to any other Person in connection
with the dissolution, liquidation or winding up or administration of the affairs
of Bastet; and further provided that, whether or not any requisite consent of
Buyer has been obtained,
17
this Agreement will be binding upon all successors of Bastet and Stockholder,
whether by operation of law or otherwise, including any Person who acquires
Bastet Stock pursuant to any exercise of the Stock Option (except that this
proviso shall not apply to any transfer or disposal pursuant to the Pledge
Agreement). Any attempt by Bastet or Stockholder to assign this Agreement
without first obtaining the consent of Buyer shall be void. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement may be assigned in
whole or in part by Buyer without the prior written consent of Bastet or
Stockholder to any Person (provided that no such assignment shall relieve the
assigning Person of any of its obligations or liabilities hereunder), and at
Buyer's election the Stock Option may be exercised, and the Stock Sale may be
consummated, from time to time as to less than all of the Bastet Stock without
any adverse impact on Buyer's right subsequently to exercise the Stock Option
and consummate the Stock Sale as to any or all of the Bastet Stock. Without
limiting the foregoing, Buyer may exercise the Stock Option and consummate the
Stock Sale as to less than all of the Bastet Stock (including with respect to
less than all of the Bastet Stock held by any particular Person who is a
Stockholder), in which event for purposes of such Sale the provisions of this
Agreement relating to the consummation of such Stock Sale will apply only to the
Bastet Stock as to which the Stock Option is exercised, and Buyer may thereafter
exercise the Stock Option and consummate the Stock Sale on one or more occasions
as to all or any portion of the Bastet Stock.
10.5 Further Assurances. From time to time prior to, at, and after
the Closing Date, each party hereto will execute all such instruments and take
all such actions as another party hereto, being advised by counsel, shall
reasonably request in connection with carrying out and effectuating the intent
and purpose hereof, and all transactions and things contemplated by this
Agreement, including, without limitation, the execution and delivery of any and
all confirmatory and other instruments, in addition to those to be delivered on
the Closing Date, as the case may be, and any and all actions which may
reasonably be necessary to complete the transactions contemplated hereby.
10.5 Notices. All notices, demands, and other communications which may
or are required to be given hereunder or with respect hereto shall be in
writing, shall be delivered personally or sent by nationally recognized
overnight delivery service, charges prepaid, or by registered or certified mail,
return-receipt requested, and shall be deemed to have been given or made when
personally delivered, the next business day after delivery to such overnight
delivery service, three (3) days after deposited in the mail, first class
postage prepaid, as the case may be, addressed as follows:
18
(a) If to Bastet:
Bastet Broadcasting, Inc.
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Mr. Xxxxx Xxxxx, President
with a copy (which will not constitute
notice to Bastet) to:
Piliero Xxxxxxxxx Xxxxxxx & Xxxx, X.X.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx Xxxxxxxxx, Esq.
or to such other address and/or with such other copies as Bastet may from time
to time designate by notice to Buyer and Stockholder given in accordance with
this Section 10.6;
(b) If to Stockholder:
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
with a copy (which will not constitute
notice to Stockholder) to:
Piliero Xxxxxxxxx Xxxxxxx & Xxxx, X.X.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx Xxxxxxxxx, Esq.
or to such other address and/or with such other copies as Stockholder may from
time to time designate by notice to Buyer and Bastet given in accordance with
this Section 10.6;
(c) If to Buyer:
000 Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Chief Executive Officer
19
with copies (which will not constitute
notice to Buyer) to:
ABRY Partners
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
and
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
or to such other address and/or with such other copies as Buyer may from time to
time designate by notice to Bastet and Stockholder given in accordance with this
Section 10.6.
10.7 Captions. The captions of Articles and Sections of this Agreement
are for convenience only, and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
10.8 Law Governing. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT REFERENCES TO ITS PRINCIPLES OF CONFLICT OF LAWS, EXCEPT TO THE EXTENT
THAT THE FEDERAL LAW OF THE UNITED STATES GOVERNS THE TRANSACTIONS CONTEMPLATED
HEREBY.
10.9 Consent to Jurisdiction, Etc. SUBJECT TO SECTION 10.16, IN THE
EVENT OF ANY ACTION OF PROCEEDING WITH RESPECT TO ANY MATTER PERTAINING TO THIS
AGREEMENT, THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY CONSENT TO THE
NON-EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF THE COMMONWEALTH OF
PENNSYLVANIA AND OF ANY FEDERAL COURT LOCATED IN THE COMMONWEALTH OF
PENNSYLVANIA IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THE TRANSACTION DOCUMENTS. THE PARTIES HERETO HEREBY WAIVE PERSONAL
SERVICE OF ANY PROCESS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING AND
AGREE THAT THE SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL
ADDRESSED TO OR BY PERSONAL DELIVERY IN ACCORDANCE WITH SECTION 10.6. IN THE
ALTERNATIVE, IN ITS DISCRETION, ANY OF THE PARTIES HERETO MAY EFFECT SERVICE
UPON ANY OTHER PARTY IN ANY OTHER FORM OR MANNER PERMITTED BY LAW.
20
10.10 Waiver of Provisions. The terms, covenants, representations,
warranties, and conditions of this Agreement may be waived only by a written
instrument executed by the Person waiving compliance. The failure of Buyer,
Bastet or Stockholder at any time or times to require performance of any
provision of this Agreement shall in no manner affect the right at a later date
to enforce the same. No waiver by Buyer, Bastet or 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, shall 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.
10.11 Counterparts. This Agreement may be executed in two (2) or more
counterparts, and all counterparts so executed shall constitute one (1)
agreement binding on all of the parties hereto, notwithstanding that all the
parties hereto are not signatory to the same counterpart.
10.12 Entire Agreement/Amendments. This Agreement (including the
Schedules hereto) constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes any and all prior and
contemporaneous agreements, understandings, negotiations, and discussions,
whether oral or written, between them relating to the subject matter hereof. No
amendment or waiver of any provision of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. The parties intend that
this Agreement be in full compliance with all published rules, policies and
orders of the FCC. If the FCC orders that the parties change any term of this
Agreement, then the parties will attempt to do so, consistent with said FCC
order and the overall intent of this Agreement.
10.13 Access to Books and Records.
(a) Buyer shall 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, Buyer will not destroy any books or records
relating to the conduct of business of the Station prior to the Closing
unless Buyer first offers to transfer such books and records to Seller at
no cost to Seller, and if Buyer is requested to do so, Buyer will transfer
such books or records to Seller.
(b) After the Closing, Seller will not destroy any books or
records relating to the conduct of business of the Station prior to the
Closing Date unless Seller first offers to transfer such books and records
to Buyer, and if Seller is requested to do so, Seller will transfer such
books or records to Buyer.
(c) At the request of any other party to this Agreement, Buyer,
Bastet and Stockholder will permit each other (including such other party's
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
21
or operation of the Station as such other party to this Agreement may
reasonably request for any reasonable purpose, and to make extracts or
copies from the foregoing at the requesting party's expense.
10.14 Public Announcements. Prior to the Closing, no party to this
Agreement shall, except by mutual agreement with all other parties to this
Agreement (including agreement as to content, text and method or 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, without limitation, 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 Person gives each other party to this Agreement 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. After the Closing,
neither Bastet nor Stockholder will, except with Buyer's prior written consent
(including agreement as to content, text and method or 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, without limitation, 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, Bastet or
Stockholder (as the case may be) gives Buyer 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.
10.15 Definitional Provisions.
(a) Terms Defined in Appendix. Each capitalized term which is
used and not otherwise defined in this Agreement or any Schedule to this
Agreement has the meaning which is specified for such term in the Appendix
which is attached to this Agreement.
(b) Gender and Number. 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.
10.16 Arbitration.
(a) Generally. Buyer, Bastet and Stockholder agree that the
arbitration procedures described in this Section 10.16 will be the sole and
exclusive method of resolving and remedying any claim for indemnification
or other remedy arising under this Agreement (collectively, "Disputes");
provided that nothing in this Section 10.16 will prohibit a party from
instituting litigation to enforce any Final Arbitration Award. Buyer,
Bastet and Stockholder agree that, except as otherwise provided in the
Commercial Arbitration Rules of the American Arbitration Association as in
effect from time to time (the
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"AAA Rules"), the arbitration procedures described in this Section 10.16
and any Final Arbitration Award will be governed by, and will be
enforceable pursuant to, the Uniform Arbitration Act as in effect in the
Commonwealth of Massachusetts from time to time. No Person will be entitled
to claim or recover punitive damages in any such proceeding.
(b) Notice of Arbitration. If Buyer, Bastet or Stockholder
asserts that there exists a Dispute, then such Person (the "Disputing
Person") will give the other party involved in such Dispute a written
notice setting forth the nature of the asserted Dispute. If the Persons
giving and receiving such notice (the "Disputing Parties") do not resolve
any such asserted Dispute prior to the tenth Business Day after such notice
is given, then either Disputing Party may commence arbitration pursuant to
this Section 10.16 by giving the other Disputing Party 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.
(c) Selection of Arbitrator. The Disputing Parties 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.
(d) Conduct of Arbitration. The arbitration will be conducted
under the AAA Rules, as modified by any written agreement between the
Disputing Parties. 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 parties 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 Disputing Parties, and there will be no
appeal from or reexamination of any Final Arbitration Award, except in the
case of fraud, perjury or evident partiality or misconduct by the
arbitrator prejudicing the rights of a Disputing Party or to correct
manifest clerical errors.
(e) Enforcement. Buyer, Bastet and Stockholder agree that a
Final Arbitration Award may be enforced in any state or federal court
having jurisdiction over the subject matter of the related Dispute.
(f) Expenses. A prevailing party in any arbitration proceeding
in connection with this Agreement shall be entitled to recover from the
non-prevailing party its reasonable attorneys' fees and disbursements in
addition to any damages or other remedies awarded to such prevailing party,
and the non-prevailing party also will be required to pay all other costs
and expenses associated with the arbitration; provided that (1) if an
arbitrator is unable to determine that a party is a prevailing party 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 (2) if such arbitrator is unable to allocate
such costs and expenses and expenses in such a manner, then the costs and
expenses of such
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arbitration will be paid in equal amounts by the Disputing parties, and
each Disputing Party will pay the out-of-pocket expenses incurred by it. As
part of any Final Arbitration Award, the arbitrator may designate the
prevailing party for purposes of this Section 10.16. Except as provided in
the preceding sentences, each party to this Agreement will bear its own
costs and expenses (including legal fees and disbursements) in connection
with any such proceeding or submission.
10.17 Termination of Transfer Restrictions in the Shared Services
Agreement. The parties hereto agree that Section 7 of the Shared Services
Agreement is hereby terminated and that the Shared Services Agreement is hereby
amended and Section 7 thereof is deemed deleted.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their duly authorized officers, all as of the day and year first
above written.
WITNESS: BASTET BROADCASTING, INC.
[illegible signature] By: /s/ Xxxxx Xxxxx
-------------------------------- -----------------------------------
Name: Name: Xxxxx Xxxxx
Title: President
WITNESS:
/S/ Xxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxx
[illegible signature]
--------------------------------
Name:
WITNESS: NEXSTAR BROADCASTING OF
NORTHEASTERN PENNSYLVANIA, L.P.
/s/ Xxxxxxx Xxxxx
-------------------------------- By: Nexstar Broadcasting of
Name: Xxxxxxx Xxxxx Northeastern Pennsylvania GP, Inc.
Its: General Partner
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: President & CEO
APPENDIX
The following capitalized terms have the following meaning
when used in this Agreement and the Schedules attached to this Agreement:
A "Business Day" means any day other than a Saturday, Sunday or other
day upon which banks in Boston, Massachusetts are not open for business.
"Closing Date" means the date upon which the Closing occurs.
"Communications Act" means the Communications Act of 1934, as in
effect from time to time.
With respect to any Contract, a "Consent" means any consent or
approval of any Person other than any party to this Agreement which, in
accordance with the terms of such Contract, is required to be obtained in order
to permit the consummation of the Sale (or, in the case of the Asset Sale, the
Assumption).
"Contract" means any agreement, lease, arrangement, commitment, or
understanding to which Bastet with respect to the Station is a party.
"Equity Securities" means (i) any of Bastet's capital stock,
partnership, members, joint venture or other ownership or equity interest,
participation or securities (whether voting or non-voting, whether preferred,
common or otherwise, and including any stock appreciation, contingent interest
or similar right) and (ii) any option, warrant, security or other right
(including debt securities) directly or indirectly convertible into or
exercisable or exchangeable for, or otherwise to acquire directly or indirectly,
any stock, interest, participation or security described in clause (i) above.
"Existing Station Indebtedness" means the indebtedness (including
interest) of Bastet pursuant to the Credit Agreement dated as of January 5, 1998
among Bastet, various banks, Bank of America National Trust and Savings
Association and BancAmerica Xxxxxxxxx Xxxxxxxx, as the same may be amended or
modified and as in effect from time to time.
"FCC" means the Federal Communications Commission or any successor
thereto.
"FCC Approval Date" means the first day upon which each Required FCC
Consent is effective.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as 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.
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"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).
"Option Expiration Date" means the tenth anniversary of the date of
this Agreement.
A "Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated association or government or department
thereof.
A "Required FCC Consent" means any action or order by the FCC granting
its consent to the consummation of a Sale pursuant to this Agreement without any
condition which in the reasonable judgment of Buyer or Seller is adverse to
Buyer or Seller, as the case may be, in any material respect.
"Transaction Documents" means this Agreement and all other documents
executed and delivered in connection therewith, in each case as in effect from
time to time.
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