EXHIBIT 10.12
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INVESTOR SECURITIES PURCHASE AGREEMENT
by and among
ACN HOLDINGS, LLC
and
THE INVESTORS NAMED ON SCHEDULE I HERETO
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October 6, 1998
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TABLE OF CONTENTS
Page
1. Purchase and Sale of Class A Units................................... 1
2. Representations and Warranties of the Company........................ 1
2.1 Organization, Good Standing and Qualification.................. 1
2.2 Capitalization................................................. 2
2.3 Authorization.................................................. 2
2.4 No Violation; Consents......................................... 3
2.5 Permits and Licenses........................................... 3
2.6 Litigation..................................................... 3
2.7 Proprietary Information and Confidentiality Agreements......... 4
2.8 Intellectual Property.......................................... 4
2.9 Contracts, Leases, Etc......................................... 5
2.10 Compliance with Laws........................................... 5
2.11 Agreements; Restrictions....................................... 5
2.12 Brokers or Finders............................................. 6
2.13 Disclosure..................................................... 6
2.14 Title to Personal Property..................................... 6
2.15 Title to Real Property......................................... 6
2.16 Employee Benefit Plans......................................... 6
2.17 Tax Matters.................................................... 7
2.18 Environmental and Safety Laws.................................. 7
2.19 No Other Agreements to Sell Units.............................. 7
2.20 Representations and Warranties from Asset Purchase Agreement... 8
2.21 Conduct of Business; Liabilities............................... 8
3. Representations and Warranties of the Investors...................... 8
3.1 Authorization.................................................. 8
3.2 Purchase for Own Account....................................... 8
3.3 Investment Experience; Economic Risk........................... 8
4. Covenants of the Company............................................. 9
5. Conditions of the Investors' Obligations at the Closing..............11
5.1 Representations and Warranties.................................11
5.2 Performance....................................................11
5.3 Compliance Certificate.........................................11
5.4 Qualifications.................................................11
5.5 No Litigation Threatened.......................................11
5.6 Proceedings and Documents......................................11
5.7 Ancillary Agreements...........................................12
6. Conditions of the Company's Obligations at the Closing...............12
6.1 Representations and Warranties.................................12
6.2 Performances...................................................12
7. Items to be Delivered by the Company to the Investors................12
8. Indemnification......................................................12
8.1 Indemnification................................................12
8.2 Indemnification Procedures.....................................13
9. Miscellaneous........................................................14
9.1 Survival.......................................................14
9.2 Transfer; Successors and Assigns...............................14
9.3 Governing Law..................................................14
9.4 Definitions....................................................14
9.5 Notices........................................................18
9.6 Expenses.......................................................18
9.7 Attorneys' Fees................................................18
9.8 Amendments and Waivers.........................................18
9.9 Severability...................................................19
9.10 Waiver of Jury Trial...........................................19
9.11 No Strict Construction.........................................19
9.12 Headings and Sections..........................................19
9.13 Number and Gender..............................................19
9.14 Binding Effect.................................................19
9.15 Counterparts...................................................19
9.16 Remedies.......................................................19
9.17 Business Days..................................................20
9.18 Entire Agreement...............................................20
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INVESTOR SECURITIES PURCHASE AGREEMENT
THIS INVESTOR SECURITIES PURCHASE AGREEMENT (this "Agreement") is made
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as of October 6, 1998 by and among ACN Holdings, LLC, a Delaware limited
liability company (the "Company"), Joseph Koff ("Koff"), David Unger ("Unger"
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and, together with Koff, the "Executive Investors"), and ABRY Broadcast Partners
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III, L.P. ("ABRY" and, together with the Executive Investors, the "Investors").
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The Company and the Investors are referred collectively herein as the "Parties."
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Capitalized items used but not otherwise defined herein are defined in Section
9.4.
The Company has agreed to issue and sell to the Investors, and the
Investors have agreed to purchase from the Company (and thereby become members
of the Company), certain Class A Units of the Company in accordance with the
terms and conditions set forth in this Agreement.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Purchase and Sale of Class A Units. Subject to the applicable
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conditions set forth in Section 5 and the other terms and conditions of this
Agreement, at a closing being held concurrently with the execution of this
Agreement, each Investor hereby agrees to purchase, and the Company hereby
agrees to sell and issue to such Investor, the quantity of Class A Units set
forth opposite such Investor's name on the attached Schedule I, in each case at
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a purchase price of $1,000 per Unit (the "Purchase Price"), in cash. The
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issuance, sale and purchase of Class A Units pursuant to this Section 1 is
referred to as the "Closing" and the date thereof is the "Closing Date".
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2. Representations and Warranties of the Company. As a material
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inducement to the Investors to enter into this Agreement and purchase the
Purchased Units, the Company hereby represents and warrants to the Investors
after giving effect to the transactions to be consummated in connection with the
Closing, as follows:
2.1 Organization, Good Standing and Qualification. Each of the
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Company and the Subsidiaries is a limited liability company, corporation or
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company and each Subsidiary has all requisite
corporate, partnership or limited liability company power and authority to own,
lease and operate its respective assets and properties and to conduct the
Business in the manner and in the locations where the Business is to be owned
and conducted by it and is duly qualified to conduct business as a foreign
Person in each jurisdiction in which such qualification is necessary under
applicable Legal Requirements and where the failure to be so qualified could,
individually or in the aggregate, have a material adverse effect on the
Business, or the properties, assets, condition (financial or other), prospects,
results of operations or general affairs of the Company and the Subsidiaries.
2.2 Capitalization.
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(a) The outstanding Equity Securities of the Company consist of
26,000 Class A Units (plus the aggregate number of Class A Units, if any issued
at all Subsequent Closings), 804 Class B-1 Units, 806 Class B-2 Units, and 804
Class B-3 Units. The rights, privileges and preferences of the Units are as
stated in the LLC Agreement.
(b) An accurate list of the outstanding Equity Securities of
each of the Company and the Subsidiaries and the holders thereof is set forth on
the attached Schedule 2.2. All of the outstanding Equity Securities of each of
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the Company and the Subsidiaries have been duly authorized, validly issued,
fully paid and non-assessable and have been issued in compliance with all
applicable securities laws.
(c) Other than this Agreement and the Ancillary Agreements,
neither the Company nor any Subsidiary has any agreement with any holder(s) of
any Equity Securities of the Company relating to Equity Securities of the
Company. Except as otherwise provided in the Ancillary Agreements, there are no
holders of Equity Securities of the Company or any of its Subsidiaries with any
preemptive rights, registration rights, voting rights or any other rights with
respect to any such securities.
(d) The Company has no subsidiary and owns no Equity Security of
any other Person other than as set forth on the attached Schedule 2.2.
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2.3 Authorization. (i) All action on the part of each of the
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Company and the Subsidiaries and its respective officers, stockholders,
directors, managers, partners and/or members necessary for the authorization,
execution and delivery of each of this Agreement and the Ancillary Agreements to
which it is a party, (ii) the performance of all obligations of each of the
Company and the Subsidiaries hereunder and under each of the Ancillary
Agreements to which it is party; (iii) the authorization, sale, issuance and
delivery of the Purchased Units; and (iv) the vesting in the Investor(s) on the
Closing Date of good and marketable title in the Purchased Units, free and clear
of any Encumbrances; have been duly taken. Each of this Agreement and the
Ancillary Agreements to which the Company is a party has been duly authorized,
executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors' rights generally, and as limited
by laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies. Each of the Ancillary Agreements to which any
Subsidiary is a party has been duly authorized, executed and delivered by such
Subsidiary and constitutes a legal, valid and binding obligation of such
Subsidiary, enforceable against such Subsidiary in accordance with its terms
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and other laws of general application
affecting enforcement of creditors' rights generally, and as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies. The Purchased Units, when issued in compliance with
the provisions of this Agreement, will be validly issued and will be fully paid
and nonassessable and will have been issued in
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compliance with all applicable securities laws. The Purchased Units will be free
of any (i) Encumbrances other than those created by or imposed upon the holders
thereof through no action of the Company or any Subsidiary and (ii) restrictions
on transfer, other than the restrictions on transfer under this Agreement and
the Ancillary Agreements and under applicable state and federal securities laws.
2.4 No Violation; Consents. The execution, delivery and performance
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of each of this Agreement, the Ancillary Agreements or any document related
hereto or thereto by the Company or any Subsidiary, the offering, sale and
issuance of the Purchased Units, and the consummation by the Company or any
Subsidiary of all of the transactions contemplated hereby and thereby do not and
will not (with or without the giving of notice or the lapse of time or both):
(i) violate or require any consent, notice, filing, registration or approval
under any applicable provision of any Legal Requirement other than such as could
not, individually or in the aggregate, have a material adverse effect on the
Business, or the properties, assets, condition (financial or other), prospects,
results of operations or general affairs of the Company or any Subsidiary; (ii)
require any consent or approval under, conflict with, result in termination of,
accelerate the performance required by, result in a breach of, create any
Encumbrance upon, constitute a default under, require any filing with or notice
to any other Person pursuant to, or otherwise violate the terms of, any
agreement, instrument or obligation to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary or any of their respective
properties or assets may be bound or affected, except as set forth on Schedule
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2.3(e) to Asset Purchase Agreement dated as of October 6, 1998 (the "Asset
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Purchase Agreement") by and among ACN Operating, LLC and DMA Holdings Statutory
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Trust; (iii) require any consent or approval by, notice to or registration with,
any governmental authority or any other Person; or (iv) violate any provision of
the Certificate of Formation or the LLC Agreement or the organizational
documents of the any Subsidiary.
2.5 Permits and Licenses. The Company and each Subsidiary (i)
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possesses all approvals, authorizations, certificates, permits, licenses and the
like (collectively, the "Licenses") issued by appropriate governmental or
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regulatory agencies or bodies as are necessary to own, lease and operate its
assets and properties and to conduct the Business, and all such Licenses are in
full force and effect, (ii) is in compliance with its obligations under such
Licenses, and (iii) has not received notice of any proceedings, investigations
or inquiries, or, to the knowledge of each of the Company and the Subsidiaries,
are any proceedings, investigations or inquiries threatened, relating to the
revocation, modification, termination or suspension of any such License, except
where any such failure to possess such Licenses or the failure of such Licenses
to be in full force and effect or such noncompliance, revocation, modification,
termination or suspension could not, individually or in the aggregate, have a
material adverse effect on the Business, or the properties, assets, condition
(financial or other), prospects, results of operations or general affairs of the
Company or any Subsidiary.
2.6 Litigation. Neither the Company nor any Subsidiary is subject to
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any order, writ, injunction, judgment or decree of any court or governmental or
regulatory authority or body of any jurisdiction which relates to the Business
or the assets or properties of the Company or any Subsidiary. There is no
pending or, to the knowledge of each of the Company and the Subsidiaries,
threatened, action, dispute, claim, litigation, arbitration, investigation or
other judicial or
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administrative proceeding before any governmental or other administrative agency
which could, individually or in the aggregate, materially adversely affect the
Business, or the properties, assets, condition (financial or other), prospects,
results of operations or general affairs of the Company or any Subsidiary,
including, without limitation, (i) the properties of others used or leased by
the Company or any Subsidiary, (ii) any employee plan or any fiduciary or
administrator thereof, (iii) the transactions contemplated by this Agreement or
any Ancillary Agreement, or (iv) any employee or consultant of the Company or
any Subsidiary ("Company Personnel"), in reference to actions taken by them in
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such capacities, and to the knowledge of each of the Company and the
Subsidiaries there is no valid basis therefor. There is no legal or equitable
claim, action, suit, arbitration or other legal, administrative or governmental
proceeding against any other Person or the property or rights of any other
Person by the Company or any Subsidiary currently pending, and neither the
Company nor any Subsidiary has any present intention to bring any such legal
claim, action, suit, arbitration or other legal, administrative or governmental
proceeding.
2.7 Proprietary Information and Confidentiality Agreements. Neither
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the Company nor any Subsidiary is, and to the knowledge of each of the Company
and its Subsidiaries no third party is, in violation of the proprietary rights
(including rights to proprietary or confidential information or trade secrets)
of any other Person. No third party has claimed or, to the knowledge of the
Company or any Subsidiary, has reason to claim that the Company or any
Subsidiary or any Person employed by, consultant to, agent of, or affiliated
with, the Company or any Subsidiary has (i) violated or may be violating any of
the terms or conditions of his employment, non-competition or non-disclosure
agreement with such third party, (ii) disclosed or may be disclosing or utilized
or may be utilizing any trade secret or proprietary information or documentation
of such third party or (iii) interfered or may be interfering in the employment,
consulting or agency relationship between such third party and any of its
present or former employees, consultants or agents. No third party has
requested information from the Company or any Subsidiary which suggests that
such a claim might be contemplated. To the knowledge of each of the Company and
the Subsidiaries, no Person employed by, consultant to, agent of, or affiliated
with, the Company or any Subsidiary has used or proposes any unauthorized use of
any trade secret or any information or documentation proprietary to any former
employer, and no Person employed by, consultant to or agent of, or affiliated
with, the Company or any Subsidiary has violated any confidential relationship
which such Person may have had with any third party, and neither the Company nor
any Subsidiary has reason to believe that there will be any such use or
violation. None of the execution and delivery of this Agreement and the
Ancillary Agreements, the carrying on of the Business by any officer, manager,
director or key employee of the Company or any Subsidiary, or the conduct or
proposed conduct of the Business, will conflict with or result in a breach of
the terms, conditions or provisions of or constitute a default under any
contract, covenant or instrument under which any such Person is obligated.
2.8 Intellectual Property. The Company and the Subsidiaries owns or
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is the licensee of sufficient legal rights to all patents, trademarks, service
marks, tradenames, copyrights, trade secrets, licenses, information and
proprietary rights and processes (collectively, the "Intellectual Property")
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necessary for the conduct of the Business without any conflict with, or
infringement with the rights of, others. Neither the Company nor any Subsidiary
has received any communication alleging that the Company or any Subsidiary has
violated or, by conducting the Business, would violate any of the Intellectual
Property of any other Person, and there is no basis
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for any such claim. Neither the Company nor any Subsidiary has knowledge that
any of its respective employees is obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of such employees' best efforts to promote the
interest of the Company and the Subsidiaries or that would conflict with the
Business.
2.9 Contracts, Leases, Etc. All material contracts, agreements,
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leases, licenses and other commitments to which the Company or any Subsidiary is
a party, or by which the Company or any Subsidiary or any of their respective
properties or assets may be bound, are valid and in full force and effect. No
material breach or default, or event which, with notice or lapse of time or
both, would constitute a material breach or default, by the Company or any
Subsidiary (or, to the knowledge of the Company or any Subsidiary by any other
party thereto) exists with respect to any material contract, agreement, lease,
license or other commitment to which the Company or any Subsidiary is a party or
by which the Company or any Subsidiary or any of their respective properties or
assets may be bound. Neither the Company nor any Subsidiary has received any
notice of cancellation or non-renewal of any material lease, contract or
agreement. The Company is in compliance with its Certificate of Formation, this
Agreement and the Ancillary Agreements to which it is a party. Each Subsidiary
is in compliance with its organizational documents and the Ancillary Agreements
to which it is a party.
2.10 Compliance with Laws. The Company and the Subsidiaries are in
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material compliance in all respects with all material applicable foreign or
domestic federal, state and local laws, statutes, codes, ordinances, rules,
directives, binding policies, governmental permits and authorizations,
regulations, orders, judgments, writs and decrees applicable to the Business or
the properties or assets of the Company or any Subsidiary including, without
limitation, matters relating to the environment, zoning, antitrust and anti-
competitive practices, discrimination and employment and health and safety
(collectively, "Legal Requirements"). Neither of the Company nor any Subsidiary
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has received any notice of any material, unremedied violation of any applicable
Legal Requirement, nor does the Company or any Subsidiary have any reason to
anticipate that any existing circumstances are likely to result in any violation
of any such Legal Requirements. There is no existing Legal Requirement, and
neither the Company nor any Subsidiary is aware of any proposed Legal
Requirement, which individually or in the aggregate with one or more existing or
proposed Legal Requirement(s), could prohibit or restrict the Company or any
Subsidiary from conducting the Business, or otherwise materially adversely
affect the Business, or the properties, assets, condition (financial or other),
prospects, results of operations or general affairs of the Company or any
Subsidiary.
2.11 Agreements; Restrictions. Except for this Agreement and the
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Ancillary Agreements, (a) there are no agreements, understandings or proposed
transactions between the Company or any Subsidiary and any of their respective
officers, managers, directors, employees, affiliates, or any affiliate or
relative thereof, and (b) neither the Company nor any Subsidiary is a party to
or is bound by any contract, agreement or instrument, and is not subject to any
restriction under its organizational documents, that materially and adversely
affects or could reasonably be anticipated to materially and adversely affect
the Business, or the properties, assets, condition
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(financial or other), prospects, results of operations or general affairs of the
Company or any Subsidiary.
2.12 Brokers or Finders. Neither the Company nor any Subsidiary has
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incurred or will incur, directly or indirectly, as a result of any action taken
by the Company or any Subsidiary, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with the
transactions contemplated by this Agreement or any Ancillary Agreement.
2.13 Disclosure. No representation or warranty made by the Company
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in this Agreement, and no statement made by the Company in any schedule, exhibit
or certificate or other writing delivered or to be delivered in connection with
the transactions contemplated hereby, contains or will contain any untrue
statement of material fact, or omits or will omit any statement of a material
fact necessary to make the statements contained herein or therein, in light of
the circumstances under which they were made, not misleading. There is no fact
or facts which the Company or any Subsidiary has not disclosed to the Investors
and of which the Company or any Subsidiary is aware which, individually or in
the aggregate, materially and adversely affects or could reasonably be
anticipated to materially and adversely affect the Business, or the properties,
assets, condition (financial or other), prospects, results of operations or
general affairs of the Company or any Subsidiary.
2.14 Title to Personal Property. The Company and the Subsidiaries,
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taken as a whole, have good and valid title to all assets (other than real
property or interests in real property) used by it in the operation and conduct
of the Business, in each case free and clear of all mortgages, easements,
imperfections of title or Encumbrances of any nature whatsoever except Permitted
Liens. As used in this Agreement, "Permitted Liens" will mean any Encumbrances
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disclosed or described on Schedule 5.4(f) to the Asset Purchase Agreement or
permitted under the Company's senior credit facility.
2.15 Title to Real Property. The Company and each Subsidiary has (i)
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fee title to all real property purported to be owned by it, capable of being
insured by a title insurance company licensed to do business in the jurisdiction
in which such owned property is located, and (ii) valid title to the leasehold
estates in all real property purported to be leased by it, in each case, free
and clear of Encumbrances other than Permitted Liens. Each related lease or
agreement is a valid and subsisting agreement without any default of the Company
or any Subsidiary, as applicable, thereunder, and to the knowledge of the
Company and each Subsidiary, without any material default thereunder of any
other party thereto. No event has occurred and is continuing which, with due
notice or lapse of time or both, would constitute a material default or event of
default by the Company or any Subsidiary, as applicable, under any such lease or
agreement or, to the knowledge of each of the Company and its Subsidiaries, by
any other party thereto.
2.16 Employee Benefit Plans. Neither the Company nor any Subsidiary
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currently sponsors, maintains, contributes to or has any liability with respect
to, or has at any time sponsored, maintained or contributed to, any employee
benefit plan which is or was subject to any of the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), in
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which any of their employees are or were participants (whether or not on an
active or frozen basis).
2.17 Tax Matters. Except with respect to matters that the Company is
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contesting in good faith and which have been disclosed to the Investors: (a)
the Company and each Subsidiary has duly filed all required Tax Returns; (b) all
Tax Returns filed by the Company or any Subsidiary are accurate and complete in
all material respects and were prepared in conformity with all applicable Legal
Requirements; (c) the Company and each Subsidiary has paid in full all Taxes
required to be paid by it with respect to any taxable year or portion thereof
ending on or before each Closing Date, and has adequate reserves for all Taxes
due and not yet payable; (d) the Company and each Subsidiary has complied (and
will comply) in all respects with applicable provisions of Legal Requirements
relating to the payment and withholding of Taxes; (e) neither the Company nor
any Subsidiaries is a party to any pending action or proceeding by any
governmental entity or Taxing authority for the assessment of any Tax, and no
claim for assessment or collection of any Tax has been asserted against the
Company or any Subsidiary; (f) to the knowledge of the Company and each
Subsidiary, there is no valid basis for any assessment, deficiency notice,
thirty (30) day letter or similar intention to assess any Tax to be issued to
the Company or any Subsidiary by any governmental authority having jurisdiction
with respect to any taxable period ending on or before any Closing Date; and (g)
there is not pending or in effect (i) any extension or request for extension
with respect to the filing of any Tax Return of the Company or any Subsidiary,
or (ii) any extension or waiver of any statute of limitations on the assessment
or collection of any Tax.
2.18 Environmental and Safety Laws. Neither the Company nor any
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Subsidiary has undertaken, or contracted with any Person to undertake on its
behalf, the generation, transportation, treatment, recycling, storage or
disposal of any Hazardous Substance in connection with the operations of its
Business or otherwise, except for such Hazardous Substances of the character and
quantity as are ordinarily present in typical office trash or household waste.
The Company and the Subsidiaries, their respective operations, and any real
property that the Company or any Subsidiary owns, leases, occupies or otherwise
uses (the "Premises") are in compliance with all applicable Environmental Laws
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including, without limitation, Environmental Laws relating to any cleanup or
remediation of any Release or threat of Release of Hazardous Substances, except
to the extent that the failure of such compliance could not reasonably be
expected to be materially adverse to the Company and its Subsidiaries, taken as
a whole. Neither the Company nor any Subsidiary has received any citation,
directive, letter or other communication, written or oral, or any notice of any
proceedings, claims or lawsuits, from any Person (including any governmental
authority) alleging that the Company or any Subsidiary has any liability or
potential liability of any kind under any Environmental Law, nor is the Company
or any Subsidiary aware of any basis therefor. The Company and each Subsidiary
has obtained and is maintaining in full force and effect all permits, licenses
and approvals required under any Environmental Laws for their operations at the
Premises and the Business, and is in compliance with all such permits, licenses,
and approvals, other than such permits, licenses and approvals the absence of
which could not reasonably be expected to be materially adverse to the Company
and its Subsidiaries, taken as a whole. The Company nor any Subsidiary has
caused or contributed to any Release or threatened Release of any Hazardous
Substance at any location. To the best knowledge of the Company and the
Subsidiaries, there has been no Release or threatened Release of any Hazardous
Substance at, to, or from the Premises or any property located within a one-half
mile radius of any of the Premises.
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2.19 No Other Agreements to Sell Units. Other than pursuant to this
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Agreement or any Ancillary Agreement, neither the Company nor any Subsidiary has
any legal obligation, absolute or contingent, to any other third party to sell
any of its Equity Securities or to enter into any agreement with respect
thereto.
2.20 Representations and Warranties from Asset Purchase Agreement.
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Each of the representations and warranties made in the Asset Purchase Agreement
is true, complete and correct in all material respects as of the Closing Date.
2.21 Conduct of Business; Liabilities. Prior to the date of this
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Agreement, neither the Company nor any Subsidiary has conducted any business,
incurred any expenses, obligations or liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise, whether or not known to the Company and
whether or not known to the Company and whether due or to become due and
regardless of when asserted) or entered into any contracts or agreements, other
than in connection with the entry by the Company or its Subsidiaries into the
Asset Purchase Agreement, this Agreement and the other Ancillary Agreements.
3. Representations and Warranties of the Investors. The Investors hereby
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severally, and not jointly, represent and warrant to the Company as to itself or
himself that, as of the Closing Date:
3.1 Authorization. This Agreement and the Ancillary Agreements to
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which such Investor is a party constitutes a valid and legally binding
obligation of such Investor, enforceable against such Investor in accordance
with its terms, except as may limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors rights generally, and as limited
by laws relating to the availability of a specific performance, injunctive
relief or other equitable remedies. Such Investor has full power, capacity
and/or authority to enter into this Agreement and the Ancillary Agreements to
which it or he is a party.
3.2 Purchase for Own Account. Such Investor is acquiring the
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Purchased Units to be acquired by it or him hereunder for its or his own
account, for the purposes of investment only, and not with a present view to the
resale or distribution thereof within the meaning of the Securities Act.
3.3 Investment Experience; Economic Risk. Such Investor has such
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knowledge and experience in financial and business matters that it or he is
capable of evaluating the merits and risks of an investment in the Purchased
Units to be acquired by it or him. Such Investor understands that it or he must
bear the economic risk of an investment in the Purchased Units to be acquired by
it or him for an indefinite length of time because the Purchased Units have not
been registered under the Securities Act or any applicable state securities laws
and, therefore, the Purchased Units cannot be transferred, sold, pledged or
otherwise disposed of, and such Person will not transfer, sell, pledge or
otherwise dispose of the Purchased Units, except pursuant to (i) an effective
registration statement under the Securities Act and qualification under
applicable state securities laws, or (ii) an exemption from such registration.
Such Investor understands that the purchase of Purchased Units involves a
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high degree of risk, and that such a purchase is suitable only for a Person who
can afford the loss of its entire investment. Such Investor has been given the
opportunity to ask questions of and receive answers from the Company regarding
the Purchased Units and the Company.
4. Covenants of the Company. The Company hereby covenants with the
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Investors as follows:
(a) Financial Statements and Other Information. The Company will
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deliver to ABRY, so long as ABRY is a member of the Company:
(i) as soon as practicable (but in any event within thirty (30)
days) after the end of each month, as soon as practicable (but in any event
within thirty (30) days) after the end of each fiscal quarter, and as soon
as practicable (but in any event within sixty (60) days) after the end of
each fiscal year, unaudited summary financial statements, including balance
sheets of the Company and the related statements of income, members' equity
and cash flows and including comparisons with the applicable budget and
with the corresponding period during the preceding fiscal year (all of
which will be prepared on consolidated and consolidating bases for the
Company and the Subsidiaries, if the Company has any Subsidiary during all
or part of the period covered thereby), prepared in accordance with GAAP on
a consistent basis (except that the unaudited financial statements may not
contain all footnotes required by GAAP and will be subject to normal year
end adjustments) and accompanied by a report showing indicators of the
Company's and the Subsidiaries' operations and performance (including
information reasonably requested by ABRY);
(ii) as soon as practicable (but in any event within 105 days) after
the end of each fiscal year, audited statements of income, members' equity
and cash flows of the Company for such fiscal year, and balance sheets of
the Company as of the end of such fiscal year, setting forth in each case
comparisons to the annual budget and to the preceding fiscal year (all of
which will be prepared on consolidated and consolidating bases for the
Company and the Subsidiaries, if the Company has any Subsidiary during all
or part of the period covered thereby), all of which will be prepared in
accordance with GAAP on a consistent basis and accompanied by (A) an
opinion of an independent accounting firm of recognized national standing
and (B) a certificate from such accounting firm, addressed to the Company's
Managers, stating that in the course of its examination, nothing came to
its attention that caused it to believe that there was any default in any
material respect by the Company or any Subsidiary in the fulfillment of or
compliance with any of the terms, covenants, provisions or conditions of
any material agreement to which the Company or any Subsidiary is a party or
by which it or any Subsidiary may be bound or, if such accountants have
reason to believe any such default by the Company or any Subsidiary exists,
a certificate specifying the nature and period of existence thereof;
(iii) promptly upon receipt thereof, a copy of such accounting firm's
annual management letter to the Managers of the Company and any additional
reports, management letters or other detailed information concerning
significant aspects of the operations and financial affairs of the Company
or any Subsidiary given to the Company or any Subsidiary
-9-
by its independent accountants (and not otherwise contained in other
materials provided hereunder);
(iv) as soon as practicable (but in any event within thirty (30)
days) prior to the end of each fiscal year, an annual budget prepared on a
monthly basis for the Company and the Subsidiaries (if any) for the
succeeding fiscal year (reflecting anticipated statements of income,
members' equity and cash flows and balance sheets) together with a summary
of the assumptions underlying such budget (including information reasonably
requested by ABRY), and promptly upon preparation thereof any other
significant budgets which the Company or any Subsidiary prepares and any
revisions of such annual or other budgets, and within thirty (30) days
after any monthly period in which there is a material adverse deviation
from the annual budget, an officer's certificate explaining the deviation
and what actions the Company or any Subsidiary has taken or propose to take
with respect thereto;
(v) promptly (but in any event within five (5) business days) after
the discovery or receipt of a notice of any breach or default under any
material agreement to which it or any Subsidiary is a party or any other
material adverse event or circumstance affecting the Company or any
Subsidiary (including the filing of any material litigation against the
Company or any Subsidiary or the existence of any dispute with any Person
which involves a reasonable likelihood of such litigation being commenced),
an officer's certificate specifying the nature and period of existence
thereof and what actions the Company or any Subsidiary has taken and
propose to take with respect thereto;
(vi) as soon as practicable (but in any event within ten (10) days)
after transmission thereof, copies of registration statements and all
regular, special or periodic reports which it files, or any of its officers
or managers file with respect to the Company or any Subsidiary, with the
Securities and Exchange Commission or with any securities exchange on which
any of its securities are then listed, copies of all press releases and
other statements made available generally by the Company or any Subsidiary
to the public concerning material developments in the Business and any
information which the Company supplies or is required to supply to its
lenders;
(vii) with reasonable promptness, such other information and
financial data concerning the Company or any Subsidiary as ABRY may
reasonably request.
(b) Inspection of Property. The Company will permit any
----------------------
representatives designated by ABRY, upon reasonable notice and during normal
business hours, and at the Company's expense, to (i) visit and inspect any of
the properties of the Company or any Subsidiary, (ii) examine the corporate and
financial records of the Company or any Subsidiary and make copies thereof or
extracts therefrom and (iii) discuss the affairs, finances and accounts of the
Company and the Subsidiaries with the managers, directors, officers, key
employees and independent accountants of the Company.
(c) Compliance with Law. The Company and each Subsidiary will duly
-------------------
observe and comply with all Legal Requirements applicable to the Business
including, but not limited to,
-10-
those Legal Requirements relating to the preservation and maintenance of the
Licenses, and will maintain in full force and effect and take all actions
necessary or appropriate to comply with their respective obligations under all
licenses as are necessary to own, lease and operate their respective assets and
properties and to conduct the Business, in each case, except to the extent that
the failure to do so could not reasonably be expected to have a material adverse
effect on the Company and its Subsidiaries, taken as a whole.
5. Conditions of the Investors' Obligations at the Closing. The
-------------------------------------------------------
obligation of any Investor to purchase Class A Units at the Closing is subject
to the fulfillment, on the Closing Date (except as otherwise indicated), of each
of the following conditions, unless such condition is not applicable to the
Closing by its terms or unless such condition is otherwise waived in writing by
such Investor.
5.1 Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in this Agreement, and all representations
and warranties of the Company or any Subsidiary set forth in any Ancillary
Agreement, will be true, complete and correct as of the date of the Closing,
without the necessity of any amendment or modification, with the same force and
effect as though such representations and warranties had been made on and as of
the date of the Closing (except as disclosed in writing to and accepted by
ABRY).
5.2 Performance. Each of the covenants, agreements, obligations and
-----------
conditions contained in this Agreement or in any Ancillary Agreement that is
required to be performed or complied with by the Company or any Subsidiary and
all other Persons (other than such Investor) on or before the Closing pursuant
to the terms hereof and thereof will have been duly performed or complied with
in all material respects on or before the Closing.
5.3 Compliance Certificate. The Chief Executive Officer of the
----------------------
Company will deliver to such Investor a certificate dated as of the Closing Date
signed on behalf of the Company certifying that the conditions specified in
Sections 5.1, 5.2, 5.4 and 5.5 have been fulfilled.
5.4 Qualifications. All authorizations, filings, registrations,
--------------
approvals or permits, if any, of or with any governmental authority or
regulatory body that are required in connection with the lawful issuance and
sale of Class A Units at the Closing pursuant to this Agreement will be obtained
and effective as of the Closing.
5.5 No Litigation Threatened. No action, suit or other proceeding
------------------------
will be pending before any court, tribunal or governmental authority seeking or
threatening to restrain or prohibit the consummation of the transactions
contemplated by this Agreement or any Ancillary Agreement, or seeking to obtain
substantial damages in respect thereof, or involving a claim that consummation
thereof would result in the violation of any Legal Requirement.
5.6 Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing and all
documents incident thereto will be reasonably satisfactory in form and substance
to such Investor's counsel, and such counsel will
-11-
have received all such counterpart original and certified or other copies of
such documents as it may reasonably request.
5.7 Ancillary Agreements. The Company, each Subsidiary and each
--------------------
Investor will have executed and delivered the respective Ancillary Agreements to
which it is a party and each Ancillary Agreement will be in full force and
effect.
6. Conditions of the Company's Obligations at the Closing. The
------------------------------------------------------
obligation of the Company to sell Class A Units to an Investor at the Closing is
subject to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived in writing:
6.1 Representations and Warranties. The representations and
------------------------------
warranties of such Investor contained in this Agreement will be true, complete
and correct with respect to the Investor as of the Closing, without the
necessity of any amendment or modification, with the same force and effect as
though such representations and warranties had been made on and as of the date
of the Closing.
6.2 Performances. Each of the covenants, agreements, obligations and
------------
conditions contained in this Agreement or in the Ancillary Agreements that are
required to be performed or complied with by the Investor on or before the
Closing pursuant to the terms hereof and thereof will have been duly performed
or complied with on or before the Closing.
7. Items to be Delivered by the Company to the Investors. On the Closing
-----------------------------------------------------
Date, the Company will furnish to the Investor(s):
(a) the Certificate of Formation and the Ancillary Agreements,
with all amendments to date;
(b) the officer's certificate required by Section 5.3; and
(c) such other documents or instruments as such Investor
reasonably requests in order to consummate the transaction contemplated
hereby.
8. Indemnification.
---------------
8.1 Indemnification.
---------------
(a) In consideration of the Investors' execution and delivery of this
Agreement and acquiring Purchased Units hereunder and in addition to all of the
Company's other obligations under this Agreement and the Ancillary Agreements,
the Company will defend, protect, indemnify and hold harmless each Investor and
all of its officers, directors, employees, agents and affiliates (including,
without limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the "Indemnified Persons") from
-------------------
and against any and all actions, causes of action, suits, claims, losses, costs,
penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnified Person is a party to the action
-12-
for which indemnification hereunder is sought), and including reasonable
attorneys' fees and disbursements (the "Indemnified Liabilities"), incurred by
-----------------------
the Indemnified Persons or any of them as a result of, or arising out of, or
relating to, any misrepresentation or any breach by the Company or any
Subsidiary of any warranty, certification or other agreement of the Company or
any Subsidiary forth in this Agreement or any Ancillary Agreements or any other
instrument, document or agreement executed pursuant hereto by any of the
Indemnified Persons; provided, that the Company will not be liable for
--------
Indemnified Liabilities unless and until the aggregate amount of all such
Indemnified Liabilities exceeds five percent (5%) of the aggregate purchase
price theretofore paid for Units under this Agreement (the "Threshold Amount"),
----------------
in which event, the Company will be liable for all such Indemnified Liabilities
in excess of the Threshold Amount.
(b) Notwithstanding any examination made by or on behalf of any
Party, the knowledge of any Party or the acceptance by any Party of any
certificate or opinion, each representation and warranty contained herein will
survive the Closing. The indemnification and contribution provided for in this
Section 8.1 will remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Persons or any officer, director,
employee, agent of the Indemnified Persons, except that there will be no
indemnity in respect of any fact or circumstance which the Company establishes
was known to the person seeking indemnity on the date of this Agreement.
8.2 Indemnification Procedures. Promptly after the receipt by the
--------------------------
Indemnified Person in question of a notice of any claim, action, suit or
proceeding of any third party which is subject to indemnification hereunder,
such Person (the "Indemnified Party") will give written notice of such claim to
-----------------
the party obligated to provide indemnification hereunder (the "Indemnifying
------------
Party"), stating the nature and basis of such claim and the amount thereof, to
- -----
the extent known. Failure of the Indemnified Party to give such notice promptly
will not relieve the Indemnifying Party from any liability which it may have on
account of this indemnification or otherwise, except to the extent that the
Indemnifying Party is materially prejudiced thereby. The Indemnifying Party
will be entitled to participate in the defense of and, if it so chooses, to
assume the defense of, or otherwise contest, such claim, action, suit or
proceeding with counsel selected by the Indemnifying Party and reasonably
satisfactory to the Indemnified Party; provided, that, the Indemnified Party
--------
will be entitled, to the extent it so elects and at its sole cost and expense,
to assume and control the defense of any claim involving any equitable claim,
including, but not limited to, injunctive relief. Upon the election by the
Indemnifying Party to assume the defense of, or otherwise contest, such claim,
action, suit or proceeding, the Indemnifying Party will not be liable for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof, although the Indemnified Party will have
the right to participate in the defense thereof and to employ counsel, at its
own expense. Notwithstanding the foregoing, the Indemnifying Party will be
liable for the reasonable fees and expenses of counsel employed by the
Indemnified Party, if, and only to the extent that (i) the Indemnifying Party
has not employed counsel or counsel reasonably acceptable to the Indemnified
Party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, (ii) the employment of
counsel and the amount reimbursable therefor by the Indemnified Party has been
authorized in writing by the Indemnifying Party or (iii) representation of the
Indemnifying Party and the Indemnified Party by the same counsel would, in the
reasonable determination of such Indemnified Party, constitute a conflict of
interest
-13-
(in which case the Indemnifying Party will not have the right to direct the
defense of such action on behalf of the Indemnified Party). The parties will use
commercially reasonable efforts to mitigate Indemnified Liabilities from claims
by third parties and will act in good faith in responding to, defending against,
settling or otherwise dealing with such claims, notwithstanding any dispute as
to liability as between the parties under this Section 8. The parties will also
cooperate in any such defense, give each other reasonable access to all
information relevant thereto and make employees and other representatives
available on a mutually convenient basis to provide additional information and
explanation of any material provided in connection therewith.
9. Miscellaneous.
-------------
9.1 Survival. The warranties, representations and covenants of the
--------
Company and the Investors contained in or made pursuant to this Agreement will
survive the execution and delivery of this Agreement and the Closing.
9.2 Transfer; Successors and Assigns. The provisions of this
--------------------------------
Agreement will inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any Person other than the parties hereto and
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. Notwithstanding any other provision of this Agreement to the
contrary, the rights and obligations of this Agreement may be expressly
transferred to any Person which acquires Purchased Units from any Investor (so
long as such transfer is made in compliance with all applicable Ancillary
Agreements) or direct or indirect transferee thereof (so long as such transfer
is made in compliance with all applicable Ancillary Agreements) and which will
agree to be subject to all limitations set forth herein.
9.3 Governing Law. All issues and questions concerning the
-------------
application, construction, validity, interpretation and enforcement of this
Agreement and the exhibits and schedules hereto will be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
9.4 Definitions. The following terms will have the following
-----------
meanings for all purposes of this Agreement and such meanings are equally
applicable both to the singular and plural forms of the terms defined.
"ABRY" has the meaning set forth in the Preamble.
----
"Ancillary Agreements" the Consulting Agreement, the Employment
--------------------
Agreements, the Asset Purchase Agreements, the LLC Agreement, the Management
Securities Repurchase Agreements, the Members Agreement and the Registration
Rights Agreement.
-14-
"Asset Purchase Agreement" means the Agreement to Purchase Assets by
------------------------
and between ACN Operating, LLC and DMA Holdings, Inc. dated October 6, 1998 and
all agreements and other documents entered into or delivered in connection
therewith, each as in effect from time to time.
"Business" means the business providing business music programming and
--------
ancillary communications products and services including broadcast data
delivery, satellite delivered cable television channels, audio marketing and in-
store advertising services to a diverse customer base that includes, among
others, restaurants, retailers, supermarkets and business offices.
"Certificate of Formation" means the Company's Certificate of
------------------------
Formation as filed with the Secretary of State of Delaware, as in effect from
time to time.
"Class A Units," "Class B Units," "Class B-1 Units," "Class B-2
------------- ------------- --------------- ---------
Units," and "Class B-3 Units" have the respective meanings set forth in the LLC
---------------
Agreement.
"Closing" has the meaning set forth in Section 1.
-------
"Closing Date" has the meaning set forth in Section 1.
------------
"Company" has the meaning set forth in the Preamble.
-------
"Company Personnel" has the meaning set forth in Section 2.6.
-----------------
"Consulting Agreement" means the Management and Consulting Services
--------------------
Agreement dated as of the date of this Agreement between ACN Operating, LLC and
ABRY Partners, Inc., as in effect from time to time.
"Employment Agreements" means the Koff Employment Agreement and the
---------------------
Unger Employment Agreement.
"Encumbrance" means any lien, security interest, claim, pledge,
-----------
option, judgment, charge or encumbrance of any nature whatsoever.
"Environmental Law" means any Legal Requirement (including any foreign
-----------------
Legal Requirement) pertaining to the protection of human health or the
environment including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S. Sections 9601, et seq.,
Emergency Planning and Community Right to Know Act, 42 U.S. Sections 11001, et
seq., and the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901,
et seq.
"Equity Securities" of any Person means (i) any capital stock,
-----------------
partnership, membership, 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,
-15-
or otherwise to acquire directly or indirectly, any stock, interest,
participation or security described in clause (i) above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Executive Investors" has the meaning set forth in the Preamble.
-------------------
"GAAP" means United States generally accepted accounting principles.
----
"Hazardous Substance" includes oil and petroleum products, asbestos,
-------------------
polychlorinated biphenyls and urea formaldehyde, and any other material of any
nature regulated pursuant to any Environmental Laws.
"Intellectual Property" has the meaning set forth in Section 2.8.
---------------------
"Investor" has the meaning set forth in the Preamble.
--------
"Koff" has the meaning set forth in the Preamble.
----
"Koff Employment Agreement" means the Executive Employment Agreement
-------------------------
dated as of the date hereof between ACN Operating, LLC and Koff, as in effect
from time to time.
"Koff Repurchase Agreement" means the Management Securities Repurchase
-------------------------
Agreement dated as of the date hereof among the Company, Koff and ABRY, as in
effect from time to time.
"Knowledge" refers to all information actually known after due inquiry
---------
to (a) the person in question, in the case of an individual or (b) in the case
of a corporation or other Person, an officer or employee of the Person in
question or any subsidiary thereof.
"Legal Requirements" has the meaning set forth in Section 2.10.
------------------
"Licenses" has the meaning set forth in Section 2.5.
--------
"LLC Agreement" means the Limited Liability Company Agreement of the
-------------
Company dated as of the date hereof among the Investors, as in effect from time
to time.
"Managers" means, at any time, the managers of the Company.
--------
"Management Securities Repurchase Agreements" means the Koff
-------------------------------------------
Repurchase Agreement and the Unger Repurchase Agreement.
"Members Agreement" means the Members Agreement dated as of the date
-----------------
hereof among the Company and the Investors, as in effect from time to time.
-16-
"Permitted Liens" has the meaning set forth in Section 2.14.
---------------
"Person" means any individual, corporation, partnership, limited
------
liability company, trust, joint venture, governmental entity or other
unincorporated entity, association or group.
"Public Sale" means any sale to the public pursuant to an offering
-----------
registered under the Securities Act or to the public through a broker, dealer or
market maker pursuant to the provisions of Rule 144.
"Purchase Price" has the meaning set forth in Section 1.
--------------
"Purchased Units" means the Class A Units purchased and sold at the
---------------
Closings pursuant to this Agreement.
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated as of the date hereof among the Company, and the Investors, as
in effect from time to time.
"Release" means release, spill, emission, leaking, pumping, injection,
-------
deposit, disposal, discharge, dispersal, leaching or migrating.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Subsidiary" means, with respect to any Person, any corporation,
----------
limited liability company, partnership, association or other business entity of
which (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 is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person or a combination thereof, or (ii) if a limited
liability company, partnership, 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 such Person or entity or a combination thereof. For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director, managing member,
or general partner of such limited liability company, partnership, association
or other business entity. The capitalized term "Subsidiary" refers to a
----------
subsidiary of the Company.
"Tax" means any federal, state, local or foreign gross income, net
---
income, sales, use, transfer, payroll, employment, personal property, real
property, occupancy, unincorporated business, ad valorem, franchise, profits,
license, withholding, excise, severance, stamp, occupation, premium, property or
windfall profits tax, alternative or add-on minimum tax, customs duty, tariff or
other tax, levy, impost, fee, imposition, assessment or similar charge together
with any related addition to tax, interest or penalty thereon.
-17-
"Tax Return" means all returns, reports and information statements
----------
with respect to Taxes required to be filed with the Internal Revenue Service or
any other governmental entity or Taxing authority, whether domestic or foreign,
including, without limitation, consolidated, combined or unitary tax returns.
"Threshold Amount" has the meaning set forth in Section 8.1.
----------------
"Unger" has the meaning set forth in Preamble.
-----
"Unger Employment Agreement" means the Executive Employment Agreement
--------------------------
dated as of the date hereof between ACN Operating, LLC and Unger, as in effect
from time to time.
"Unger Repurchase Agreement" means the Management Securities
--------------------------
Repurchase Agreement dated as of the date hereof among the Company, Unger and
ABRY, as in effect from time to time.
9.5 Notices.
-------
(a) All notices, requests, demands and other communications
under this Agreement or in connection herewith will be given to or made upon (i)
the Company, at 3 Nashua Court, Suite B, Baltimore, Maryland 21221, Attention:
Joseph Koff, President, with a copy to ABRY Partners, Inc., 18 Newbury Street,
Boston, MA 02116, Attention: Royce Yudkoff and (ii) to any Investor, at such
Investor's address set forth on the attached Schedule I (or in any case to such
other address as the addressee may from time to time designate in writing to the
sender).
(b) All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement will be in
writing, and will be deemed effectively given upon personal delivery or delivery
by courier to the party to be notified or three (3) business days after deposit
with the United States Post Office, by registered or certified mail, return
receipt requested, postage prepaid and addressed as provided in Section 9.5(a).
9.6 Expenses. The Company will pay the fees, expenses and
--------
disbursements of (x) ABRY (including, but not limited to, the fees, expenses and
disbursements of Kirkland & Ellis, counsel to ABRY), and (y) the Executive
Investors (including, but not limited to, the fees, expenses and disbursements
of Baer Marks & Upham LLP, counsel to the Company and the Executive Investors),
incurred in connection with the negotiation, preparation and entry into this
Agreement and the Ancillary Agreements and the transactions contemplated hereby
and thereby. The Company shall also reimburse the Executive Investors for any
reasonable expenses incurred on behalf of the Company prior to the date hereof.
9.7 Attorneys' Fees. If any action at law or in equity (including
---------------
arbitration) is necessary to enforce or interpret the terms of this Agreement or
the Ancillary Agreements, the prevailing party will be entitled to reasonable
attorneys' fees and expenses in addition to any other relief to which such party
may be entitled.
-18-
9.8 Amendments and Waivers. Except as otherwise expressly set forth
----------------------
in this Agreement, any provision of this Agreement may be amended, and the
observance of any provision of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), with the
written consent of the Company and Investors which have purchased a majority of
the Purchased Units theretofore issued hereunder; provided that no such
--------
amendment or waiver shall materially and adversely affect the rights hereunder
of any of the parties hereto when compared with its effect on the other parties
hereto without the prior written approval of such party. Any amendment or waiver
effected in accordance with this Section 9.8 will be binding upon the Investors,
each holder of any Purchased Units issued pursuant to this Agreement, and each
future holder of such securities and the Company. No waivers of or exceptions
to any provision of this Agreement, in any one or more instances, will be deemed
to be, or construed as, a further or continuing waiver of any such provision.
9.9 Severability. Whenever possible, each provision of this
------------
Agreement will be interpreted in such manner as to be effective and valid under
any applicable Legal Requirement, but if any provision of this Agreement is held
to be prohibited by or invalid under any applicable Legal Requirement, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
9.10 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
--------------------
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, TRIAL BY JURY
IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING
OUT OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR THE VALIDITY, PROTECTION,
INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF.
9.11 No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement will be
construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof will arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
9.12 Headings and Sections. The headings in this Agreement are
---------------------
inserted for convenience only and are in no way intended to describe, interpret,
define, or limit the scope, extent or intent of this Agreement or any provision
hereof. Unless the context requires otherwise, all references in this Agreement
to Sections, Articles, Exhibits or Schedules will be deemed to mean and refer to
Sections, exhibits or schedules of or to this Agreement.
9.13 Number and Gender. Where the context so indicates, the
-----------------
masculine will include the feminine, the neuter will include the masculine and
feminine, the singular will include the plural and any reference to a "person"
will mean a natural person or a corporation, limited liability company,
association, partnership, joint venture, estate, trust or any other entity.
-19-
9.14 Binding Effect. Except as herein otherwise provided to the
--------------
contrary, this Agreement will be binding upon and inure to the benefit of the
parties, their distributees, heirs, legal representatives, executors,
administrators, successors and permitted assigns.
9.15 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which will be deemed to be an original and will be binding
upon the parties who executed the same, but all of such counterparts will
constitute the same Agreement.
9.16 Remedies. Each of the parties to this Agreement will be
--------
entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorney's fees) caused by any breach of
any provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
9.17 Business Days. If any time period for giving notice or taking
-------------
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's chief executive office is located, the time period
will be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
9.18 Entire Agreement. Except as otherwise expressly set forth
----------------
herein, this agreement and the other agreements referred to herein embodies the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
* * * * *
-20-
IN WITNESS WHEREOF, the parties hereto have executed this Investor
Securities Purchase Agreement as of the date first above written.
ACN HOLDINGS, LLC
By: /s/ PENI GARBER
----------------------------------
Name: Peni Garber
Title: Vice President
ABRY BROADCAST PARTNERS III, L.P.
By: ABRY Equity Investors, L.P.
Its: General Partner
By: ABRY Holdings III, Inc.
Its: General Partner
By: /s/ ROYCE YUDKOFF
-----------------------------
Name: Royce Yudkoff
Title: President
/s/ JOSEPH KOFF
---------------------------------------
JOSEPH KOFF
/s/ DAVID UNGER
---------------------------------------
DAVID UNGER
Schedule I
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Quantity of Class of
Investor Name and Units Units
Notice Address Purchased/1/ Purchased
------------------------------ ------------ ---------
Koff 500 A
5 Old Crown Court
Baltimore, MD 21208
with a copy (which will not constitute notice) to:
-------------------------------------------------
Blum, Yumkas, Mailman, Gutman
& Denick, P.A.
2 Hopkins Plaza, Suite 1200
Baltimore, MD 21201
Attention: Charles Yumkas, Esq.
Unger 1,000 A
The Excelsior
303 East 57th Street, Apt. 30G
New York, NY 10022
with a copy (which will not constitute notice) to:
-------------------------------------------------
Baer Marks & Upham LLP
805 Third Avenue
New York, NY 10022
Attention: Anne Pitter, Esq.
ABRY 24,500 A
18 Newbury Street
Boston, MA 02116
Attention: Royce Yudkoff
with a copy (which will not constitute notice) to:
-------------------------------------------------
Kirkland & Ellis
153 East 53rd Street
New York, NY 10022
Attention: John Kuehn, Esq.
- --------------------
/1/ Purchase Price: $1,000/Unit.
Schedule 2.2
to
Investor Securities Purchase Agreement
dated October 6, 1998 re:
ACN Holdings, LLC
Subsidiaries and Outstanding Equity Securities
- ----------------------------------------------
. ACN Holdings, Inc. 100% owned by the Company
. ACN Operating, Inc. 100% owned by ACN Holdings, Inc.
Company Outstanding Equity Securities
- -------------------------------------
None -- other than those being issued pursuant to this Agreement and those
to be issues pursuant to the Management Securities Repurchase Agreement.