EXHIBIT 10.2
EXECUTION COPY
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of October 5, 2004, among SPANISH
BROADCASTING SYSTEM, INC., a Delaware corporation (together with its successors,
the "Company"), INFINITY MEDIA CORPORATION, a Delaware corporation (together
with its successors, "Infinity") and RAUL ALARCON, JR. ("Alarcon").
WITNESSETH:
WHEREAS, the Company, SBS Bay Area, LLC, a limited liability company ("SBS
Bay Area"), Infinity Broadcasting Corporation of San Francisco, a Delaware
corporation ("Target") and Infinity have entered into a Merger Agreement of even
date herewith (the "Merger Agreement"), pursuant to which Target will merge with
and into SBS Bay Area with the result that SBS Bay Area will be the surviving
company (the "Merger");
WHEREAS, upon consummation of the transactions contemplated by the Merger
Agreement and of certain related transactions consummated concurrently
therewith, Infinity will own certain shares of Series C Convertible preferred
stock, par value $0.002 per share, of the Company (the "Series C Preferred
Stock"), which are convertible into shares of the Class A common stock, par
value $0.0001 per share, of the Company (the "Class A Common Stock") as set
forth in the certificate of designation for the Series C Preferred Stock filed
with the Secretary of State of the State of Delaware;
WHEREAS, upon consummation of the transactions contemplated by the Merger
Agreement and of certain related transactions consummated concurrently
therewith, Infinity will own a warrant (the "Warrant") to purchase shares of
Series C Preferred Stock at an exercise price of $300.00 per share as set forth
in the form of Warrant attached as Exhibit A to the Merger Agreement; and
WHEREAS, as an integral part of the transactions contemplated by the
Merger Agreement, the parties hereto deem it in their best interests and in the
best interests of the Company to provide for certain matters with respect to the
governance of the Company and desire to enter into this Agreement in order to
effectuate that purpose.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Affiliate" shall mean, with respect to any specified Person, any other
Person which directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. For
the purposes of this definition, "control"
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(including, with correlative meanings, the terms "controlling," "controlled by,"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that for
purposes of transactions with Affiliates, for so long as Pablo Raul Alarcon, Sr.
or Raul Alarcon, Jr. are directors, officers or stockholders of the Company,
they, their respective spouses, lineal descendants and any Person controlled by
any of them shall be Affiliates of the Company and its Subsidiaries.
"Affiliate Transaction" has the meaning set forth in Section 3.3.
"Agreement" shall mean this Agreement, as from time to time amended,
modified or supplemented.
"Alarcon" shall have the meaning set forth in the preamble hereto.
"Alarcon Offer Price" shall have the meaning set forth in Section 4.2(a).
"Alarcon Participation Notice" shall have the meaning set forth in Section
4.2(a).
"Alarcon Sale" shall have the meaning set forth in Section 4.2(a).
"Alarcon Transfer" shall have the meaning set forth in Section 4.2(a).
"Ancillary Documents" shall mean this Agreement, the Certificate of
Designation, the Warrant and the Registration Rights Agreement.
"Beneficially Own" shall have the meaning set forth in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person," as such term is used in Section 13(d)(3)
of the Exchange Act, such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.
"Board" or "Board of Directors" shall mean the Board of Directors of the
Company as from time to time constituted.
"Business Days" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in the City of New York or at a place of
payment are authorized by law, regulation or executive order to remain closed.
If any action shall be required by the terms hereof to be made on a day that is
not a Business Day, such action shall be made on the immediately succeeding
Business Day.
"Certificate of Designation" shall mean the Certificate of Designation of
the Series C Preferred Stock of the Company, to be filed with the Secretary of
State of the State of Delaware pursuant to the Merger Agreement.
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"Change of Control" shall mean the sale, transfer, conveyance or other
disposition, including dispositions by merger or consolidation (a "Transfer"),
in one or a series of related transactions pursuant to which Alarcon (or, in the
event of Alarcon's death, any lineal descendant thereof) would cease to
beneficially own and vote securities of the Company representing more than fifty
percent (50%) of the total voting power represented by the Company's then
outstanding voting securities or would otherwise result in Alarcon no longer
having control of the Company.
"Change of Control Shares" shall have the meaning set forth in Section
4.1(a).
"Class A Common Stock" shall have the meaning set forth in the recitals
hereto.
"Class B Common Stock" shall mean the shares of Class B Common Stock, par
value $0.001 per share, of the Company.
"Common Stock" shall mean the Class A Common Stock and Class B Common
Stock and any other class of common stock of the Company hereafter created and
any securities of the Company into which such Common Stock may be reclassified,
exchanged or converted.
"Communications Act" shall mean the Communications Act of 1934, as
amended.
"Company" shall have the meaning set forth in the preamble hereto.
"Equity Securities" shall mean shares of Common Stock and all other
securities of the Company which may be convertible into, exchangeable for,
exercisable for or issued in exchange for or in respect of, shares of Common
Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Excluded Group" has the meaning set forth in Section 2.3(f).
"Excluded Issuances" shall mean (i) issuances of options, warrants,
subscription rights or other rights to acquire Equity Securities granted to the
Company's employees, officers, directors, consultants or advisors under bona
fide employee benefit plans or stock option plans adopted by the Board of
Directors; (ii) issuances of up to 250,000 shares of Class A Common Stock upon
the exercise of options previously granted to Arnold Sheiffer; (iii) issuances
of up to 2,700,000 shares of Class A Common Stock upon the exercise of warrants
previously granted to the International Church of the FourSquare Gospel; (iv)
shares of Class A Common Stock issued upon conversion of the Series C Preferred
Stock or the exercise of the Warrant; (v) Equity Securities or other capital
stock issued as consideration for any acquisition of an entity, a business, line
of business or significant asset; (vii) Common Stock or other Equity Securities
issued pursuant to any public offering approved by a majority of the Board of
Directors; or (vii) shares of Common Stock, preferred stock or other Equity
Securities issued as a stock dividend or upon a subdivision of Equity
Securities.
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"FCC" shall mean the Federal Communications Commission and any successor
governmental entity performing functions similar to those performed by the
Federal Communications Commission on the date hereof.
"Governmental Entity" shall have the meaning set forth in the Merger
Agreement.
"HRSA" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Infinity" shall have the meaning set forth in the preamble hereto.
"Infinity Nominee" shall mean any individual nominated by Infinity to the
Board of Directors pursuant to subsection 2.1(a).
"Infinity Participant" shall have the meaning set forth in Section 4.2(a).
"Infinity Rights" shall mean the specified rights of Infinity set forth
herein.
"Issuance Date" shall mean the date on which the Merger occurs.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other) or security agreement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement or any financing lease having substantially the same
effect as any of the foregoing).
"Material Adverse Effect" shall mean a material adverse effect on (i) with
respect to the Company, the business, assets, operations or financial or other
condition of the Company and the Company Subsidiaries taken as a whole or (ii)
with respect to any party to this Agreement or any Ancillary Document, the
ability of such party to perform its obligations under this Agreement or any
Ancillary Document to which it is a party.
"Merger" shall have the meaning set forth in the recitals hereto.
"Merger Agreement" shall have the meaning set forth in the recitals
hereto, as such agreement may from time to time be amended, modified or
supplemented.
"Minimum Investment" shall have the meaning set forth in Section 6.9.
"Negotiation Period" shall have the meaning set forth in Section 2.2.
"Observer" shall have the meaning set forth in Section 2.1(b).
"Options" shall mean stock options to purchase Common Stock.
"Parent" shall mean Viacom, Inc., a Delaware corporation.
"Permitted Businesses" shall mean the broadcast radio and television
business, including cable television and any activity reasonably incidental
thereto.
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"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or any agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of such entity, subdivision or business).
"Preemptive Offer" has the meaning set forth in Section 2.3(a).
"Preemptive Offer Acceptance Notice" has the meaning set forth in Section
2.3(c).
"Preemptive Offer Period" has the meaning set forth in Section 2.3(b).
"Refused Equity Securities" has the meaning set forth in Section 2.3(d).
"Registration Rights Agreement" shall have the meaning set forth in the
Merger Agreement.
"Registration Rights Negotiation Period" shall have the meaning set forth
in Section 4.4(a).
"SBS Bay Area" shall have the meaning set forth in the recitals hereto.
"SEC" shall mean the United States Securities and Exchange Commission.
"Series C Preferred Stock" shall have the meaning set forth in the
recitals hereto.
"Subject Securities" shall mean the Series C Preferred Stock, the Warrant
and the Underlying Shares.
"Subsidiary" shall mean, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the Total Voting
Power of shares of capital 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 that Person (or a combination
thereof).
"Target" shall have the meaning set forth in the recitals hereto.
"Total Voting Power" shall mean, with respect to any corporation, the
total number of votes which may be cast in the election of directors of such
corporation if all securities entitled to vote in the election of such directors
(excluding shares of preferred stock that are entitled to elect directors only
upon the occurrence of customary events of default) are present and voted.
"Transfer" shall have the meaning set forth in the definition of Change of
Control.
"Underlying Shares" shall mean the shares of Common Stock into which the
shares of Series C Preferred Stock are convertible, including shares of Series C
Preferred Stock issuable upon exercise of the Warrant, as such shares may be
subject to adjustment from time to time and any securities into which such
shares may be reclassified, exchanged or converted.
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"Voting Stock" shall mean shares of the capital stock and any other
securities of the Company having the ordinary power to vote in the election of
directors of the Company.
"Warrant" shall have the meaning set forth in the recitals hereto.
ARTICLE II
CERTAIN INFINITY RIGHTS
SECTION 2.1 BOARD OF DIRECTORS.
(a) If, at any time following the Issuance Date, in Infinity's reasonable
determination, the Communications Act and the rules and regulations promulgated
by the FCC permit Infinity to have board nomination or similar rights, then the
Company agrees to discuss the election or appointment of Infinity's nominee to
the Board of Directors.
(b) If, at any time following the Issuance Date, in Infinity's reasonable
determination, the Communications Act and the rules and regulations promulgated
by the FCC permit Infinity to have board observer or similar rights, and if at
such time no Infinity Nominee serves as a member of the Board of Directors, by
notice to such effect to the Company, Infinity may appoint one representative
("Observer") to receive notice of and have the right to attend all meetings of
the Board of Directors and any of its committees and receive copies of all
materials distributed to members of the Board of Directors at the same time such
materials are distributed to members of the Board of Directors. Such Observer
shall have no right to vote on any matters presented to the Board of Directors.
SECTION 2.2 RIGHT OF FIRST NEGOTIATION/LAST LOOK RIGHT ON CERTAIN COMPANY
STATIONS.
(a) The Company agrees that in the event the Company or any Subsidiary of
the Company intends to Transfer to a third party any radio stations that the
Company controls in the New York City or Miami markets after the date hereof,
the Company shall notify Infinity of such intention and thereafter permit
Infinity to negotiate with the Company in good faith for a period of at least
ten (10) Business Days following the notice described above (the "Negotiation
Period"). During the Negotiation Period, the Company shall not Transfer or
negotiate with any Person for the Transfer of such station(s). Upon the
expiration of the Negotiation Period, but subject to Section 2.2(b) below, the
Company shall be free to Transfer and negotiate to Transfer such stations for a
period of one year from the first date following the expiration of the
Negotiation Period to any Person at a price and upon terms and conditions
mutually agreeable to the Company and such Person. Such one-year period shall be
extended until the consummation of the sale transaction if the documentation
governing such sale transaction is entered into during the one-year period but
the consummation of such sale transaction occurs after the termination of the
one-year period.
(b) During the period beginning on the date hereof ending one year after
the date hereof, the Company agrees to give Infinity the absolute and
unequivocal last look by which to match and/or exceed the business terms of any
offer to acquire any radio station in the Miami market by any third party prior
to the Company or any subsidiary of the Company entering into any definitive
Transfer agreement with respect to such station. If the Company receives an
offer
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that it is willing to accept, it will provide Infinity with a copy of such
offer. Infinity shall have five (5) Business Days to agree in writing to acquire
the station on terms and conditions equal or superior to those offered to the
Company. If Infinity does not agree within the five (5) Business Day period, the
Company will be free to accept such offer.
SECTION 2.3 PREEMPTIVE RIGHT ON ISSUANCES OF COMPANY EQUITY SECURITIES.
(a) Preemptive Right. From and after the Issuance Date, Infinity shall
have the right to purchase its pro rata share (as set forth below) of Equity
Securities (the "Preemptive Offer") which the Company may, from time to time,
propose to sell and issue (subject to such requirements and restrictions imposed
by the Securities Act of 1933, as amended, and state securities laws and to the
actual issuance of the Equity Securities) after the Issue Date, other than
Excluded Issuances. For purposes of this Section 2.3(a), Infinity's pro rata
share shall be the amount of such Equity Securities obtained by applying the
following ratio against the total number of such Equity Securities to be offered
by the Company: (i) the number of shares of the Common Stock (including all
shares of Common Stock issued or issuable upon conversion of the Series C
Preferred Stock or the exercise of outstanding Equity Securities held by
Infinity and its Affiliates, including the Series C Preferred Stock issued
pursuant to the Warrant) of which Infinity and its Affiliates is deemed to be a
holder immediately prior to the issuance of such Equity Securities, to (ii) the
total number of shares of Common Stock issued and outstanding (including all
shares of Common Stock issued or issuable upon conversion of the Series C
Preferred Stock or the exercise of outstanding Equity Securities held by
Infinity and its Affiliates, including the Series C Preferred Stock issued
pursuant to the Warrant) immediately prior to the issuance of the Equity
Securities, determined on a fully diluted basis after giving effect to the
exercise in full of then outstanding options and warrants and the conversion of
all securities convertible into shares of Common Stock.
(b) Notice of Preemptive Offer. In the event the Company proposes to
undertake an issuance of Equity Securities after the Issuance Date, it shall
give Infinity written notice of its intention, describing the type of Equity
Securities and the price and the terms upon which the Company proposes to issue
the same. The Preemptive Offer shall by its terms remain open and irrevocable
for a period of five Business Days from the date it is received from the Company
(the "Preemptive Offer Period").
(c) Preemptive Offer Acceptance. Infinity shall have the option,
exercisable at any time during the Preemptive Offer Period by delivering written
notice to the Company (a "Preemptive Offer Acceptance Notice"), to purchase its
pro rata share of Equity Securities. The Company shall notify Infinity within
five days following the expiration of the Preemptive Offer Period of the number
or amount of Infinity's pro rata share of Equity Securities it has subscribed to
purchase.
(d) Offer of Refused Equity Securities. If the Preemptive Offer Acceptance
Notice is not given by Infinity for all of its pro rata share of Equity
Securities, the Company shall have 180 days from the expiration of the
Preemptive Offer Period to sell all or any part of Infinity's pro rata share of
Equity Securities as to which the Preemptive Offer Acceptances Notice has not
been given by Infinity (the "Refused Equity Securities") to any other Persons
upon the terms and
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conditions including price, which are no more favorable, in the aggregate, to
such other Persons or less favorable to the Company than those set forth in the
Preemptive Offer.
(e) Closing. Upon the closing of the sale to such other Persons of all the
Equity Securities, Infinity shall purchase from the Company, and the Company
shall sell to Infinity, the pro rata share of Equity Securities with respect to
which the Preemptive Offer Acceptance Notice was delivered by Infinity, at the
same terms specified in the Preemptive Offer.
(f) Emergency Funding. If the Company determines in good faith that the
delay occasioned by complying with the procedures contemplated by this Section
2.3 would be prejudicial to the Company or its financial condition or business
and operations, then the Company may before delivering the Preemptive Offer or
after delivering the Preemptive Offer (but before observing the time periods and
other procedures set forth in this Section 2.3), issue or sell all of the Equity
Securities. If the Company elects to issue Equity Securities under this Section
2.3 before it delivers a Preemptive Offer, then the Company shall deliver the
Preemptive Offer to Infinity to which it has not so issued or sold Equity
Securities (the "Excluded Group") no later than five Business Days after the
date on which such Equity Securities are issued or sold to Infinity. If the
Excluded Group delivers a Preemptive Offer Acceptance Notice within 10 Business
Days and the Company has issued or sold the Equity Securities to a Person but
not to Infinity, then the Company shall issue or sell such number of pro rata
shares of Equity Securities as the participating members of the Excluded Group
would have been entitled had the Preemptive Offer been made and accepted by such
member of the Excluded Group in accordance with Sections 2.3(a) through (d) as
promptly as practicable, but in no event later than five Business Days following
the date of delivery of the Preemptive Offer Acceptance Notice, at the same
price, and on the same terms and conditions as the issuance and sale occurred.
(f) Preemptive Rights Not Cumulative. The preemptive rights of Infinity
under this Section 2.3 and the rights of the Holder under Section 8 of the
Certificate of Designation are not cumulative. Infinity and its Affiliates shall
only have the right to exercise the Preemptive Offer under either this Agreement
or the Certificate of Designation but not under both.
ARTICLE III
CERTAIN OTHER AGREEMENTS BETWEEN INFINITY AND THE COMPANY
SECTION 3.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
(a) Reports and Filings. From and after the date hereof, whether or not
required by the rules and regulations of the SEC, the Company shall make
available to Infinity, upon request, (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its consolidated Subsidiaries (showing in reasonable detail,
either on the face of the financial statements or in the footnotes thereto and
in Management's Discussion and Analysis of Financial Condition and Results of
Operations, the financial condition and results of operations of the Company and
its Subsidiaries separate from the financial information and results of
operations of the Subsidiaries of the Company) and, with respect to the annual
information only, a report
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thereon by the Company certified independent accountants and (ii) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company was required to file such reports, in each case within the time periods
set forth in the SEC's rules and regulations. For purpose of this provision,
posting such reports on EDGAR or on the Company's website shall constitute
making such reports available to Infinity. The Company also agrees to provide
Infinity with such additional information as Infinity may from time to time
reasonably request.
(b) Events of Default etc. From and after the date hereof, the Company
shall furnish to Infinity, as soon as possible and in any event within five
Business Days of obtaining knowledge thereof, an officer's certificate
specifying the nature and period of existence of such condition or event, or
specifying the notice given or action taken by such holder or Person and the
nature of such claimed violation, default, event or condition, and what action
the Company has taken, is taking and proposes to take with respect to notice:
(i) of any condition or event that constitutes an event of default
under the instruments governing the Company's outstanding debt
with a principal amount in excess of $50,000,000;
(ii) that any Person has given any notice to the Company or any of
its Subsidiaries or taken any other action with respect to a
claimed default or event or condition that would be required
to be disclosed in a current report filed by the Company with
the SEC on Form 8-K (Items 1, 2, 4 and 5 of such Form as in
effect on the date hereof); or
(iii) of any condition or event which constitutes a Material Adverse
Effect.
SECTION 3.2 CERTAIN OTHER MATTERS. Without the prior written consent of
Infinity, the Company shall not:
(a) amend Section 5.4 of the Company's certificate of incorporation; or
(b) enter into or conduct any business, either directly or through any
Subsidiary, except for Permitted Businesses.
SECTION 3.3 TRANSACTIONS WITH AFFILIATES. From and after the Issuance
Date, without the prior approval of Infinity, the Company shall not, and shall
not permit any of its Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or such Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Subsidiary with an unrelated
Person (ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $2.5
million, such Affiliate Transaction or series of Affiliated Transactions has
been approved by a majority of the members of the Board of Directors that are
disinterested as to such Affiliate Transaction or series of Affiliated
Transactions and (iii) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$10.0 million, an opinion
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as to the fairness to the Company of such Affiliate Transaction or series of
Affiliated Transactions from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing; provided that (1) any
transaction approved by the Board of Directors, with an officer or director of
the Company or of any of its Subsidiaries in his or her capacity as an officer
or director entered into in the ordinary course of business; (2) transactions
between or among the Company and/or its Subsidiaries; (3) payment of reasonable
directors fees to the Board of Directors and of its Subsidiaries; (4) fees and
compensation paid to, and indemnity provided on behalf of, officers, directors
or employees of the Company or any of its Subsidiaries, as determined in good
faith by the Board of Directors of the Company or of any such Subsidiary, to the
extent the same are reasonable and customary; and (5) agreements in effect on
the date of this Agreement and any modification thereto or any transaction
contemplated thereby (including pursuant to any modification thereto) in any
replacement agreement therefor so long as such modification or replacement is
not more disadvantageous to the Company in any material respect than the
original agreement as in effect on the date of this Agreement, in each case,
shall not be deemed to be Affiliate Transactions.
3.4 NO POISON PILLS. Without the prior approval of Infinity, the Company
shall not create or adopt any shareholders rights plan or "poison pill", amend
any of its organizational documents, or take any similar action that would
prohibit or materially impede or materially delay the ability of Infinity and
their Affiliates to acquire additional Equity Securities, or to dispose of or
sell any Equity Securities, in any manner permitted by the Certificate of
Designation, the Warrant and this Agreement; provided that, for avoidance of
doubt, the foregoing shall not restrict the Company from (a) entering into loan
agreements that contain customary covenants, including provisions permitting
acceleration of the related indebtedness upon a change of control and (b)
issuing debt securities or preferred stock that contain customary covenants,
including change of control provisions.
ARTICLE IV
AGREEMENTS REGARDING TRANSFERS OF COMMON STOCK
BETWEEN ALARCON AND INFINITY
SECTION 4.1 INFINITY RIGHT OF FIRST NEGOTIATION.
(a) If Alarcon desires to Transfer a number of shares of Common Stock
beneficially owned by Alarcon that in the aggregate would result in a Change of
Control (the "Change of Control Shares"), whether following a Person's offer to
acquire such Change of Control Shares or at his own volition, then Alarcon shall
notify Infinity of his desire to Transfer such shares and thereafter permit
Infinity to negotiate with him in good faith for a period of at least 45 days
following the notice described above (the "Negotiation Period"). During the
Negotiation Period, Alarcon shall not Transfer or negotiate with any Person for
the Transfer of the Change of Control Shares.
(b) Upon the expiration of the Negotiation Period, Alarcon shall be free
to sell, negotiate to sell and otherwise Transfer his shares for a period of one
year from the first date following the expiration of the Negotiation Period to
any Person at a price and upon terms and conditions mutually agreeable to
Alarcon and such Person. Such one-year period shall be extended until the
consummation of the sale transaction if the documentation governing such
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sale transaction is entered into during the one-year period but the consummation
of such sale transaction occurs after the termination of the one-year period.
(c) The foregoing provisions shall not (i) obligate Alarcon to sell the
Change of Control Shares or any other securities to Infinity, regardless of the
terms and conditions offered by Infinity, (ii) apply to any pledge of shares in
a bona fide lending transaction or similar transaction (such as a pre-paid
forward agreement), (iii) prohibit Alarcon from responding to a public tender
offer, (iv) prohibit Alarcon from participating in discussions among the Board
of Directors concerning proposals that may result in a Change in Control; or (v)
apply to any sale or negotiations for sale of securities held by Alarcon if such
transaction would not constitute a Change of Control upon its consummation, or
(vi) any Transfer to any revocable or irrevocable inter vivos trust or trusts
for the principal benefit of any of Alarcon's lineal descendants, so long as
Alarcon retains the right to vote the shares held by such trust or trusts.
SECTION 4.2 INFINITY TAG-ALONG RIGHTS. (a) Subject to Section 4.1, if
Alarcon proposes to Transfer the Change of Control Shares (the "Alarcon
Transfer") to any Person other than Infinity and its Affiliates, whether
pursuant to a stock sale or any other transaction (any such transaction, an
"Alarcon Sale"), Alarcon shall deliver to Infinity and the Company a written
notice 30 days prior to the effectiveness of such Transfer ("Alarcon
Participation Notice"). Such Alarcon Participation Notice shall set forth the
general terms and conditions of such proposed Alarcon Sale, including (each to
the extent known by Alarcon) the name of the prospective transferee, the number
of Change of Control Shares proposed to be Transferred, the purchase price per
share to be paid and the payment terms and type of Transfer to be effectuated.
Infinity and its Affiliates may elect to participate in such Alarcon Sale by
giving written notice of its election to Alarcon and to the Company within 15
days of Infinity's receipt of the applicable Alarcon Participation Notice (each
Person electing to participate, an "Infinity Participant"). Infinity shall be
entitled to sell in the proposed Alarcon Sale (upon the same terms and
conditions as Alarcon), up to a number of Subject Securities owned by Infinity
equal to the product of (I) the aggregate number of shares of Common Stock then
owned by Infinity and its Affiliates (which shall be calculated on an
as-converted and as-exercised basis and shall include all Underlying Shares then
owned by Infinity) multiplied by (II) the quotient of (A) the Alarcon Transfer
divided by (B) the total number of shares and Equity Securities then owned by
Alarcon (calculated on an as-converted and as-exercised basis). The purchase
price per share to be paid for any Subject Securities that Infinity elects to
sell shall be calculated as follows: (x) in the case of shares of Common Stock,
the price per share of Common Stock paid to Alarcon (the "Alarcon Offer Price"),
(y) in the case the shares of Common Stock issuable upon exercise of the Warrant
and conversion of the Series C Preferred Stock, the price per share of Common
Stock paid to Alarcon minus the applicable exercise price for an underlying
share of Common Stock (on an as-converted basis), and (z) in the case a share of
Series C Preferred Stock, the price per share of Common Stock paid to Alarcon
multiplied by the number of shares of Common Stock issuable upon the conversion
of a share of Series C Preferred Stock. Each Infinity Participant shall be
obligated to pay its pro rata portion of the transaction costs associated with
any Transfer. If the aggregate number of securities proposed to be sold by
Alarcon and Infinity Participants is greater than the number of securities that
the proposed transferee agrees to purchase, then the number of securities
proposed to be sold by Alarcon and each of Infinity Participants shall be
decreased pro rata.
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(b) Closing of Tag-Along Sale. At the closing of any proposed Alarcon
Transfer in respect of which an Alarcon Participation Notice has been delivered,
Alarcon together with all Infinity Participants that have timely and properly
elected to sell Subject Securities pursuant to Section 4.2(a), shall execute and
deliver to the proposed transferee certificates and/or other instruments
representing the Subject Securities to be sold, free and clear of all Liens,
together with stock or other appropriate powers duly endorsed therefor, and
shall receive in exchange therefor the consideration to be paid or delivered by
the proposed transferee in respect of such Subject Securities as described in
the Alarcon Participation Notice. The Infinity Participants shall not be
required to make any representations, warranties, covenants or agreements with
the proposed transferee, other than with respect to good title, valid existence,
non-contravention, no legal proceedings, and other representations, warranties,
covenants and agreements related to the sale, free and clear of all liens, by
the Infinity Participants. The Infinity Participants shall not be required to
assume any contractual obligations of other sellers or the Company under the
Agreement negotiated between Alarcon and/or the Company and the purchaser of the
Change of Control Shares.
(c) Exclusion for Compliance with Other Provisions. The provisions of this
Section 4.2 shall not apply to any Transfer that (i) obligates Alarcon to sell
the Change of Control Shares or any other securities to Infinity or its
Affiliates, (ii) applies to any pledge of shares in a bona fide lending
transaction or similar transaction (such as a pre-paid forward agreement), (iii)
prohibits Alarcon from responding to a public tender offer, (iv) applies to any
sale or negotiations for sale of securities held by Alarcon if such transaction
would not constitute a Change of Control upon its consummation, or (v) any
Transfer to any revocable or irrevocable inter vivos trust or trusts for the
principal benefit of any of Alarcon's lineal descendants, so long as Alarcon
retains the right to vote the shares held by such trust or trusts.
SECTION 4.3 FCC ATTRIBUTION. Until the occurrence of a Change of Control
in accordance with Section 4.1, Alarcon shall hold or have the right to vote
shares of the capital stock and other securities of the Company having more than
50% of the Total Voting Power of all outstanding shares and other securities of
the Company, and the Subject Securities shall have less than 5% of the Total
Voting Power of all outstanding shares and other securities of the Company.
SECTION 4.4 ALARCON RIGHT OF FIRST NEGOTIATION.
(a) If Infinity makes a Shareholder Request (as defined in the
Registration Rights Agreement), then Infinity shall notify Alarcon of Infinity's
desire to sell Subject Securities and thereafter permit Alarcon to negotiate
with Infinity in good faith for the purchase of the number of Subject Securities
that Infinity desires to sell for a period of at least ten (10) days following
the notice described above (the "Registration Rights Negotiation Period"). In
the event the trading policies of the Company or applicable securities laws
prohibit Alarcon from negotiating for or purchasing securities during such
10-day period, then such period shall be extended until such time as Alarcon is
permitted to negotiate and purchase such securities (such extension not to
exceed 90 days); provided that the 90-day period shall not excuse the Company
from fulfilling its obligations in a timely manner under Section 3.1 of the
Registration Rights Agreement. During the Registration Negotiation Rights
Negotiation Period, Infinity shall not Transfer or negotiate with any Person for
the Transfer of Subject Securities.
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(b) Upon the expiration of the Registration Rights Negotiation Period,
Infinity shall be free to proceed with the Transfer of Subject Securities
pursuant to the Shareholder Request.
(c) The foregoing provisions shall apply only to a Transfer of Subject
Securities pursuant to a Shareholder Request under the Registration Rights
Agreement and shall not obligate (i) Infinity to sell Subject Securities to
Alarcon, regardless of the terms and conditions offered by Alarcon or (ii) apply
to any other Transfer by Infinity of Subject Securities.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 REPRESENTATIONS OF THE COMPANY. The Company represents and
warrants to Infinity as follows:
(a) CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) is duly qualified to conduct business
and is in good standing in each jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified, individually or in the aggregate, would
not have a Material Adverse Effect; and (iii) has the requisite corporate power
and authority and the legal right to own, pledge, mortgage or otherwise encumber
and operate its properties, to lease the property it operates under lease and to
conduct its business as now, heretofore and proposed to be conducted.
(b) CORPORATE POWER, AUTHORIZATION, ENFORCEABLE OBLIGATIONS. The
execution, delivery and performance by the Company of this Agreement and its
obligations hereunder: (i) are within the Company's corporate power; (ii) have
been duly authorized by all necessary or proper corporate and shareholder
action; (iii) do not contravene any provision of the Company's charter or
bylaws; (iv) do not violate any law or regulation, or any order or decree of any
court or Governmental Entity applicable to it; (v) do not conflict with or
result in the breach or termination of, constitute a default under or accelerate
or permit the acceleration of any performance required by any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease,
contract, agreement, obligation, understanding, commitment or other legally
binding arrangement or of any license applicable to the Company or its
respective properties or assets, except any such items that, individually or in
the aggregate, would not have a SBS Material Adverse Effect (as defined in the
Merger Agreement); and (vi) do not require the consent or approval of any
Governmental Entity or any other Person, except the filing of all notices,
reports and other documents required by, and the expiration of all waiting
periods under, the HSRA and the rules and regulations promulgated by the FCC.
This Agreement is duly executed and delivered by the Company and this Agreement
constitutes a legal, valid and binding obligation of the Company enforceable
against it in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditor's rights generally and subject to the availability of equitable
remedies.
SECTION 5.2 REPRESENTATIONS OF INFINITY. Infinity represents and warrants
to the Company as follows:
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(a) CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Infinity (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) is duly qualified to conduct business
and is in good standing in each other jurisdiction where its ownership or lease
of property or the conduct of its business requires such qualification, except
where the failure to be so qualified, individually or in the aggregate would not
have a Material Adverse Effect; and (iii) has the requisite corporate power and
authority and the legal right to own, pledge, mortgage or otherwise encumber and
operate its properties, to lease the property it operates under lease and to
conduct its business as now, heretofore and proposed to be conducted.
(b) CORPORATE POWER, AUTHORIZATION, ENFORCEABLE OBLIGATIONS. The
execution, delivery and performance by Infinity of this Agreement and its
obligations hereunder: (i) are within its corporate power; (ii) have been duly
authorized by all necessary or proper corporate and shareholder action; (iii) do
not contravene any provision of its charter or bylaws; (iv) do not violate any
law or regulation, or any order or decree of any court or Governmental Entity
applicable to it; (v) do not conflict with or result in the breach or
termination of, constitute a default under or accelerate or permit the
acceleration of any performance required by any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, contract, agreement,
obligation, understanding, commitment or other legally binding arrangement or of
any license applicable to Infinity or its respective properties or assets,
except any such items that, individually or in the aggregate, would not have an
Infinity Material Adverse Effect (as defined in the Merger Agreement); and (vi)
do not require the consent or approval of any Governmental Entity or any other
Person, except the filing of all notices, reports and other documents required
by, and the expiration of all waiting periods under, the HSRA and the rules and
regulations promulgated by the FCC. This Agreement is duly executed and
delivered by Infinity and this Agreement shall constitute a legal, valid and
binding obligation of Infinity enforceable against it in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditor's rights generally
and subject to the availability of equitable remedies.
SECTION 5.3 REPRESENTATIONS OF ALARCON. Alarcon represents and warrants to
Infinity and the Company as follows:
(a) POWER, AUTHORIZATION, ENFORCEABLE OBLIGATIONS. The execution, delivery
and performance by Alarcon of this Agreement, and his obligations hereunder: (i)
are within Alarcon's power; (ii) do not violate any law or regulation, or any
order or decree of any court or Governmental Entity applicable to Alarcon; (iii)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate or permit the acceleration of any performance
required by any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, contract, agreement, obligation, understanding,
commitment or other legally binding arrangement or of any license applicable to
Alarcon or his respective properties or assets, except any such items that,
individually or in the aggregate, would not have a Material Adverse Effect; and
(iv) do not require the consent or approval of any Governmental Entity or any
other Person, except the filing of all notices, reports and other documents
required by, and the expiration of all waiting periods under, the HSRA and the
rules and regulations promulgated by the FCC. This Agreement is duly executed
and delivered by Alarcon and this Agreement constitutes a legal, valid and
binding obligation of Alarcon enforceable against him in
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accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditor's
rights generally and subject to the availability of equitable remedies.
(b) CAPITALIZATION; OWNERSHIP. Schedule 5.3(b) sets forth all of the
shares of Common Stock, Options and other Equity Securities of the Company that
Alarcon Beneficially Owns as of the date hereof (the "Alarcon Shares").
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given, if delivered
personally, by telecopier or sent by overnight courier as follows:
If to Infinity:
Infinity Media Corporation
1515 Broadway, 46th Floor
New York, NY 10036
Attention: Jacques Tortoroli
Facsimile: (212) 846-3999
With copies, which shall not constitute notice, to:
General Counsel
Viacom, Inc.
1515 Broadway
New York, New York 10036
Facsimile: (212) 846-1994
Leventhal Senter & Lerman, P.L.L.C.
2000 K Street, N.W.
Suite 600
Washington, DC 20006-1809
Attention: Steven A. Lerman, Esq.
Facsimile: (202) 293-7783
If to the Company:
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Spanish Broadcasting System, Inc.
2601 South Bayshore Drive, PH II
Coconut Grove, Florida 33133
Telephone: (305) 441-6901
With copies, which shall not constitute notice, to:
Jason L. Shrinsky, Esq.
Kaye Scholer LLP
901 15th Street, N.W.
Suite 1100
Washington, D.C. 20005
Telephone: 202-682-3500
If to Alarcon:
Mr. Raul Alarcon, Jr.
President/CEO
Spanish Broadcasting System, Inc.
2601 South Bayshore Drive, PH II
Coconut Grove, Florida 33133
Telephone: (305) 441-6901
or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
SECTION 6.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Merger
Agreement and the other Ancillary Documents and the documents described herein
and therein or attached or delivered pursuant hereto or thereto set forth the
entire agreement between the parties hereto with respect to the transactions
contemplated by this Agreement. Any provision of this Agreement may be amended
or modified in whole or in part at any time by an agreement in writing between
the parties hereto executed in the same manner as this Agreement. No failure on
the part of any party to exercise, and no delay in exercising, any right shall
operate as a waiver thereof nor shall any single or partial exercise by any
party of any right preclude any other or future exercise thereof or the exercise
of any other right.
SECTION 6.3 SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any other such instrument.
SECTION 6.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same document.
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SECTION 6.5 GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. The
construction and performance of this Agreement shall be governed by the laws of
the State of New York without regard to its principles of conflict of law. All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined in a New York state or federal court sitting in the City of
New York, and the parties hereto irrevocably submit to the exclusive
jurisdiction of such courts in any such action or proceeding and irrevocably
waive the defense of an inconvenient forum to the maintenance of any such action
or proceeding. Each party agrees not to bring any action or proceeding arising
out of or relating to this Agreement in any other court. THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING WITH RESPECT TO
ANY COUNTERCLAIM MADE IN SUCH ACTION OR PROCEEDING, AND AGREE THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE DECIDED SOLELY BY A JUDGE. The parties hereto
hereby acknowledge that they have each been represented by counsel in the
negotiation, execution and delivery of this Agreement and that their lawyers
have fully explained the meaning of the Agreement, including in particular the
jury-trial waiver.
SECTION 6.6 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. None of
Alarcon, the Company or Infinity may assign any of its rights or delegate any of
its duties under this Agreement without the prior written consent of the other
parties; provided Infinity may assign any or all of the Infinity Rights to any
Affiliate of Infinity to which the Subject Securities have been Transferred, but
such assignment shall not relieve Infinity from its duties, liabilities and
obligations hereunder. Any purported assignment in violation of this Agreement
shall be void. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any Person other than the parties hereto and their
respective successors, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and for
the benefit of no other Person.
SECTION 6.7 REMEDIES. No right, power or remedy conferred upon any party
in this Agreement shall be exclusive, and each such right, power or remedy shall
be cumulative and in addition to every other right, power or remedy whether
conferred in this Agreement or now or hereafter available at law or in equity or
by statute or otherwise. No course of dealing between Infinity, the Company and
Alarcon and no delay in exercising any right, power or remedy conferred in this
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall operate as a waiver or otherwise prejudice any such right, power
or remedy. The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in addition to any other remedy to
which they are entitled at law or in equity.
SECTION 6.8 HEADINGS, CAPTIONS AND TABLE OF CONTENTS. The section
headings, captions and table of contents contained in this Agreement are for
reference purposes only, are not part of this Agreement and shall not affect the
meaning or interpretation of this Agreement.
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SECTION 6.9 TERMINATION. Articles II, III and IV of this Agreement shall
terminate if neither (i) Infinity (together with its Affiliates) owns at least
5,700,000 shares of Class A Common Stock or Series C Preferred Stock currently
convertible into 5,700,000 shares of Class A Common Stock (the "Minimum
Investment") nor (ii) a transferee of Infinity, to whom Infinity Rights were
transferred in accordance with the Stockholder Agreement, owns at least the
Minimum Investment. This Agreement shall terminate in its entirety upon Infinity
acquiring Voting Stock that provides it with the unfettered right to elect a
majority of the members of the Board of Directors. This Agreement (other than
Article VI hereof) shall terminate automatically without any further action upon
termination of the Merger Agreement without the occurrence of the closing
thereof.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
or by their respective duly authorized representatives, all as of the date first
above written.
SPANISH BROADCASTING SYSTEMS, INC.
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: Chief Executive Officer and
President
INFINITY MEDIA CORPORATION
By: /s/ Robert G. Freedline
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Name: Robert G. Freedline
Title: Vice President and Treasurer
RAUL ALARCON, JR.
/s/ Raul Alarcon, Jr.
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