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STOCK PURCHASE AGREEMENT
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by and among
THE SHAREHOLDERS OF BELL BROADCASTING COMPANY
and
RADIO ONE, INC.
Dated as of December 23, 1997
TABLE OF CONTENTS
1. RULES OF CONSTRUCTION......................................................1
1.1. DEFINED TERMS..................................................1
1.2. OTHER DEFINITIONS..............................................7
1.3. NUMBER AND GENDER..............................................7
1.4. HEADINGS AND CROSS-REFERENCES..................................7
1.5. COMPUTATION OF TIME............................................8
2. FCC APPLICATION AND CLOSING................................................8
2.1. FCC APPLICATION................................................8
2.2. FINAL CLOSING DATE.............................................8
3. INITIAL ESCROW DEPOSIT. ...................................................9
4. PURCHASE PRICE AND METHOD OF PAYMENT.......................................9
4.1. CONSIDERATION..................................................9
4.2. PAYMENT AT CLOSING.............................................9
4.3. POST CLOSING ESCROW FUND......................................11
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDERS
REGARDING THE COMPANY.....................................................12
5.1. EXISTENCE, POWER AND IDENTITY.................................12
5.2. BINDING EFFECT................................................12
5.3. NO VIOLATION..................................................13
5.4. GOVERNMENTAL AUTHORIZATIONS...................................13
5.5. MATERIAL CONTRACTS............................................14
5.6. INSURANCE.....................................................14
5.7. FINANCIAL STATEMENTS..........................................14
5.8. EMPLOYEES.....................................................15
5.9. EMPLOYEE BENEFIT PLANS........................................16
5.10. COMPANY REAL PROPERTY.........................................18
5.11. SHAREHOLDER REAL PROPERTY.....................................20
5.12. ENVIRONMENTAL PROTECTION......................................21
5.13. COMPLIANCE WITH LAW...........................................23
5.14. LITIGATION....................................................24
5.15. INSOLVENCY PROCEEDINGS........................................25
5.16. SALES AGREEMENTS. ............................................25
5.17. LIABILITIES. .................................................25
5.18. SUFFICIENCY OF ASSETS.........................................25
5.19. CERTAIN INTERESTS AND RELATED PARTIES.........................25
5.20. TAXES.........................................................26
5.21. BROKER........................................................26
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5.22. SUBSIDIARIES..................................................26
5.23. STOCK.........................................................26
5.24. PROPERTY......................................................27
5.25. CORPORATE RECORDS.............................................27
5.26. DIVIDENDS AND OTHER DISTRIBUTIONS.............................27
5.27. PROMOTIONAL RIGHTS............................................27
5.28. INDEBTEDNESS..................................................28
5.29. TRADE BALANCE.................................................28
5.30. NO MISLEADING STATEMENTS......................................28
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDERS
REGARDING THE SHARES......................................................28
6.1. BINDING EFFECT................................................28
6.2. NO VIOLATION..................................................29
6.3. OWNERSHIP OF STOCK............................................29
6.4. COOPERATION...................................................29
7. BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.........................30
7.1. EXISTENCE AND POWER...........................................30
7.2. BINDING EFFECT................................................30
7.3. NO VIOLATION..................................................30
7.4. LITIGATION....................................................30
7.5. LICENSEE QUALIFICATIONS.......................................31
7.6. HART-SCOTT-RODINO FILING......................................31
7.7. SUFFICIENT INFORMATION........................................31
7.8. SECTION 338 ELECTION..........................................31
8. COVENANTS WITH RESPECT TO CONDUCT OF THE COMPANY AND
SHAREHOLDERS..............................................................31
8.1. ACCESS........................................................31
8.2. MATERIAL ADVERSE CHANGES; FINANCIAL STATEMENTS................32
8.3. CONDUCT OF BUSINESS...........................................32
8.4. DAMAGE........................................................35
(A) RISK OF LOSS........................................35
(B) FAILURE OF BROADCAST TRANSMISSIONS..................36
(C) RESOLUTION OF DISAGREEMENTS.........................37
8.5. ADMINISTRATIVE VIOLATIONS.....................................37
8.6. CONTROL OF STATION. ..........................................37
8.7. COOPERATION WITH RESPECT TO FINANCIAL AND TAX MATTERS.........37
8.8. CLOSING OBLIGATIONS...........................................38
8.9. ENVIRONMENTAL ASSESSMENT......................................38
8.10. CONSTRUCTION OF NEW FACILITIES................................38
8.11. PIRATE RADIO STATION. .......................................39
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9. CONDITIONS PRECEDENT......................................................39
9.1. MUTUAL CONDITIONS. ...........................................39
(A) APPROVAL OF TRANSFER OF CONTROL APPLICATION. .......39
(B) ABSENCE OF LITIGATION. .............................39
9.2. ADDITIONAL CONDITIONS TO BUYER'S OBLIGATION...................39
(A) REPRESENTATIONS AND WARRANTIES. ....................35
(B) COMPLIANCE WITH CONDITIONS. ........................35
(C) DISCHARGE OF LIENS. ................................35
(D) THIRD-PARTY CONSENTS. ..............................36
(E) ESTOPPEL CERTIFICATES. .............................36
(F) NO MATERIAL ADVERSE CHANGE..........................36
(G) FINANCIAL STATEMENTS. ..............................36
(H) CASH AND ACCOUNTS RECEIVABLE MINIMUMS...............37
(I) SALES AND CUSTOMER INFORMATION. ....................37
(J) OPINION OF COMPANY'S COUNSEL. ......................37
(K) FINAL ORDER.........................................37
(L) CLOSING DOCUMENTS. .................................37
(M) RESIGNATION OF DIRECTORS AND OFFICERS...............37
(N) STOCK CERTIFICATES..................................37
(O) CORPORATE RECORDS...................................37
(P) BANK ACCOUNTS/INSURANCE POLICIES....................38
(Q) ENVIRONMENTAL REMEDIATION...........................38
(R) TITLE INSURANCE.....................................38
(S) ACCOUNTS PAYABLE....................................38
(T) CONSTRUCTION PERMIT.................................38
(U) ZONING APPROVAL.....................................38
(V) AUDIT...............................................39
(W) ACCOUNTS RECEIVABLE.................................39
(X) TRADE BALANCE.......................................39
(Y) RADIOFREQUENCY RADIATION............................39
(Z) WJZZ (AM) LICENSE...................................39
(AA) KINGSFIELD PROPERTY.................................39
(BB) TAXES...............................................39
(CC) COMPENSATION........................................39
(DD) CERTIFICATES OF ARNOLD AND HALL.....................39
(EE) CONFIDENTIAL INFORMATION............................39
(FF) FM STUDIO LEASE.....................................40
(GG) CERTIFICATE RE MARY L. BELL SHAREHOLDER AGREEMENT...40
9.3. ADDITIONAL CONDITIONS TO SHAREHOLDERS' OBLIGATION.............40
(A) REPRESENTATIONS AND WARRANTIES. ....................40
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(B) COMPLIANCE WITH CONDITIONS. ........................40
(C) PAYMENT.............................................40
(D) CLOSING DOCUMENTS. .................................40
10. INDEMNIFICATION/POST-CLOSING OBLIGATIONS..................................41
10.1. OBLIGATIONS OF SHAREHOLDERS...................................41
10.2. OBLIGATIONS OF BUYER..........................................42
10.3. PROCEDURE FOR INDEMNIFICATION.................................42
10.4. REMEDIES CUMULATIVE...........................................43
10.5. NOTICE........................................................43
10.6. THRESHOLD CONCERNING SECTIONS 10.1 AND 10.2...................43
10.7. SURVIVAL OF REPRESENTATIONS...................................44
10.8. TAX RETURNS...................................................44
(A) PREPARATION AND FILING OF RETURNS FOR PRE-CLOSING
PERIODS.............................................44
(B) PREPARATION AND FILING OF RETURNS FOR
POST-CLOSING PERIODS................................44
10.9. ALLOCATION OF TAX LIABILITY...................................44
10.10.COOPERATION WITH RESPECT TO FINANCIAL AND TAX
MATTERS.......................................................45
10.11.NONDISCLOSURE AND CONFIDENTIALITY.............................46
11. DEFAULT AND REMEDIES......................................................46
11.1. OPPORTUNITY TO CURE...........................................46
11.2. SHAREHOLDERS' REMEDIES. ......................................46
11.3. BUYER'S REMEDIES. ............................................46
12. TERMINATION OF AGREEMENT..................................................47
12.1. TERMINATION OF AGREEMENT......................................47
(A) MUTUAL CONSENT......................................47
(B) CONDITIONS TO BUYER'S PERFORMANCE NOT MET..........47
(C) CONDITIONS TO SELLERS' PERFORMANCE NOT MET..........47
(D) MATERIAL BREACH.....................................47
(E) BANKRUPTCY; RECEIVERSHIP............................47
(F) FCC APPROVAL........................................48
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TABLE OF EXHIBITS
EXHIBIT 1 INITIAL ESCROW AGREEMENT
EXHIBIT 2 POST CLOSING ESCROW AGREEMENT
EXHIBIT 3 OPINION OF COUNSEL TO SELLER
EXHIBIT 4 OPINION OF COUNSEL TO BUYER
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TABLE OF SCHEDULES
SCHEDULE 4.2 OWNERSHIP OF SHARES
SCHEDULE 5.1 COMPANY DOCUMENTS
SCHEDULE 5.3 NO VIOLATION
SCHEDULE 5.4 GOVERNMENTAL AUTHORIZATIONS
SCHEDULE 5.5 MATERIAL CONTRACTS
SCHEDULE 5.6 INSURANCE
SCHEDULE 5.7(a) FINANCIAL STATEMENTS
SCHEDULE 5.7(b) BALANCE SHEET - June 30, 1997
SCHEDULE 5.7(c) BANK ACCOUNTS
SCHEDULE 5.8 EMPLOYEES
SCHEDULE 5.9 EMPLOYEE BENEFIT PLANS
SCHEDULE 5.10(a) REAL PROPERTY OWNED BY COMPANY
SCHEDULE 5.10(b) REAL PROPERTY LEASED BY COMPANY
SCHEDULE 5.11(a) COX/BELL REAL PROPERTY
SCHEDULE 5.11(b) COX/BASS REAL PROPERTY
SCHEDULE 5.12 ENVIRONMENTAL MATTERS
SCHEDULE 5.13 COMPLIANCE WITH LAWS
SCHEDULE 5.14 LITIGATION
SCHEDULE 5.16 SALES AGREEMENTS
SCHEDULE 5.18 CERTAIN INTERESTS AND RELATED PARTIES
SCHEDULE 5.23(a) TANGIBLE PERSONAL PROPERTY
SCHEDULE 5.23(b) SHAREHOLDER PROPERTY
SCHEDULE 5.25 INTELLECTUAL PROPERTY
SCHEDULE 5.26 PERMITTED ENCUMBRANCES AND INDEBTEDNESS
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is entered into as of this 23rd day of
December, 1997, by and among E. Harold Munn, Jr., NBD Bank, N.A., Janice L.
Hall, Arthur Middlebrooks all as Trustees of the Mary L. Bell Trust Agreement;
Janice L. Hall; Dr. Wendell F. Cox; Estate of Iris Bell Cox; Wendell H. Cox;
William E. Fisher, Trustee for Mariel Cox; William E. Fisher, Trustee for
Benjamin Cox; William E. Fisher, Trustee for Sonam Bass; William E. Fisher,
Trustee for Julian Bass; Eric Bell Bass; Treva Bell Bass; Robert Bell Bass; Mary
L. Bell, Trust; Wendell T. Arnold; William E. Fisher, Trustee for Brianna Bass
(hereinafter referred to as the "Sellers" or the "Shareholders"); and Radio One,
Inc., a Delaware corporation (the "Buyer").
RECITALS
WHEREAS, Sellers are all of the shareholders of Bell Broadcasting Company,
a Michigan Corporation ("Company").
WHEREAS, Company is the licensee of Station WCHB(AM), Taylor, Michigan
operating on a frequency of 1200 kHz, Station WCHB-FM, Detroit, Michigan
operating on a frequency of 105.9 MHz and Station WJZZ(AM), Frankenmuth,
Michigan, which is licensed to operate on the frequency 1210 kHz but is
presently silent and for which the Commission has issued a construction permit
to change station location from Frankenmuth to Kingsley, Michigan, which
construction permit also contemplates operation on the frequency 1210 kHz (the
"Stations").
WHEREAS, Buyer desires to obtain, and the Sellers desire to sell to Buyer
all of the issued and outstanding shares of the capital stock of the Company.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and, intending to be legally bound hereby, the parties agree as
follows:
1. RULES OF CONSTRUCTION.
1.1. DEFINED TERMS. As used in this Agreement, the following terms shall
have the following meanings:
1
"ACCOUNTS RECEIVABLE" means the cash accounts receivable of Company arising
from Company's operation of the Stations prior to Closing.
"ACCOUNTS PAYABLE" means the liabilities of the Company for services
received or goods acquired arising from the Company?s operation of the Stations
in the normal course of business prior to Closing for which the Company has
received a bill, which is not yet thirty (30) days past due. For purposes of
this definition, a bill becomes due when it is actually received by the Company.
"ADMINISTRATIVE VIOLATION" means those violations described in Section 8.5
hereof.
"BUSINESS" means the business of Company consisting primarily of the
operation of the Stations.
"BUYER" means Radio One, Inc., a Delaware corporation.
"BUYER DOCUMENTS" means those documents, agreements and instruments to
be executed and delivered by Buyer in connection with this Agreement as
described in Section 7.2.
"CLOSING" means the consummation of the Transaction (as hereinafter
defined).
"CLOSING DATE" means the date on which the Closing takes place, as
determined pursuant to Section 2.2.
"CODE" means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder.
"COMMISSION" means the Federal Communications Commission.
"COMMUNICATIONS ACT" shall mean the Communications Act of 1934, as amended.
"COMPANY" means Bell Broadcasting Company, a Michigan corporation.
"COMPANY DOCUMENTS" means those documents, agreements and instruments to be
executed and delivered by Company in connection with this Agreement as described
in Section 5.2.
2
"COMPANY REAL PROPERTY" means that certain real property owned or leased by
the Company and used in the operation of the Stations as described in Section
5.10.
"DEED" means the deed(s) delivered by the Company or Dr. Wendell F. Cox and
the Estate of Mary L. Bell or Dr. Wendell F. Cox and Eric Bass to Buyer at the
Closing which shall be sufficient to transfer to Buyer title to the Shareholder
Real Property and Improvements thereon, and used in the operations of the
Stations.
"ENCUMBRANCE" means any claim, charge, easement, encumbrance, security
interest, lien, option or pledge imposed by agreement or law, except for any
restrictions on transfer generally arising under any applicable federal or state
securities law.
"ENVIRONMENTAL LAW" means any law, rule, order, decree or regulation of any
Governmental Authority relating to pollution or protection of human health and
the environment, including any law or regulation relating to emissions,
discharges, releases or threatened releases of Hazardous Substances (as
hereinafter defined) into ambient air, surface water, groundwater, land or other
environmental media, and including without limitation all laws, regulations,
orders, and rules pertaining to occupational health and safety.
"ERISA" means the Employee Retirement Income Security Act of 1974 as
amended.
"EXCESS TRADE BALANCE" means that amount which exceeds a $30,000 negative
Trade Balance.
"FCC LICENSES" means all licenses, pending applications, permits and other
authorizations issued by the Commission for the operation of the Stations listed
on Schedule 5.4.
"FINAL ORDER" means any action that shall have been taken by the Commission
(including action duly taken by the Commission's staff, pursuant to delegated
authority) which shall not have been reversed, stayed, enjoined, set aside,
annulled or suspended; with respect to which no timely request for stay,
petition for rehearing, appeal or certiorari or sua sponte action of the
Commission with comparable effect shall be pending; and as to which the time for
filing any such request, petition, appeal, certiorari or for the taking of any
such sua sponte action by the Commission shall have expired or otherwise
terminated.
3
"FINANCIAL STATEMENTS" means Company's audited and unaudited financial
statements, income statements, and balance sheets as described in Section 5.7.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof, and any agency, court or other entity that
exercises executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"HAZARDOUS SUBSTANCES" means any hazardous, dangerous or toxic waste,
substance or material, as those or similar terms are defined in or for purposes
of any applicable federal, state or local Environmental Law, and including
without limitation any asbestos or asbestos-related products, petroleum, oils or
petroleum-derived compounds, CFCS, or PCBs.
"IMPROVEMENTS" means all buildings, structures, fixtures, and other
improvements now or hereafter actually or constructively attached to the Company
Real Property and the Shareholder Real Property, and all modifications,
additions, restorations, or replacements of the whole or any part thereof.
"INDEBTEDNESS" means any debt or indebtedness, whether evidenced by a note
or otherwise, whether secured or unsecured, in each case for borrowed money.
"INDEMNIFICATION BASKET" means the amount described in Section 10.6.
"INITIAL ESCROW AGENT" means the Wilmington Trust Company.
"INITIAL ESCROW AGREEMENT" means the escrow agreement described in Section
3, the form of which is attached as Exhibit 1.
"INITIAL ESCROW DEPOSIT" means the monies deposited with the Initial Escrow
Agent described in Section 3.
"KNOWLEDGE OF BUYER" means the actual knowledge, after reasonable inquiry
of Buyer's President.
"KNOWLEDGE OF COMPANY" means the actual knowledge, after reasonable inquiry
of the President of the Company, and the actual knowledge without inquiry of the
Shareholders.
4
"LAW" means any constitutional provision, statute or other law, rule,
regulation, or interpretation thereof by any Governmental Authority and any
order, including any order of any Governmental Authority.
"LOSS" means any action, cost, damage, disbursement, expense,
liability, loss, deficiency, diminution in value, obligation, penalty or
settlement of any kind or nature, whether foreseeable or unforeseeable,
including but not limited to, interest or other carrying costs, penalties,
reasonable legal, accounting and other professional fees and expenses incurred
in the investigation, collection, prosecution and defense of claims and amounts
paid in settlement, that may be imposed on or otherwise incurred or suffered by
the specified person.
"MATERIAL CONTRACTS" means those leases, contracts and agreements
specifically described in Schedule 5.5 as being "Material Contracts," which are
material to the operation of the Station in the manner in which it is currently
operating.
"PERMITTED ENCUMBRANCES" means those liens or encumbrances of Company set
forth on Schedule 5.26, which Buyer has agreed to assume.
"PERMITTED INDEBTEDNESS" means those obligations shown on Schedule 5.26,
which Buyer has agreed to assume.
"POST CLOSING ESCROW ACCOUNT" shall mean the account specified in Section
4.3 created pursuant to the Post Closing Escrow Agreement.
"POST CLOSING ESCROW AGENT" means Wilmington Trust Company.
"POST CLOSING ESCROW AGREEMENT" shall mean the agreement specified in
Section 4.3 by and among Shareholders, Buyer and the Post Closing Escrow Agent,
dated as of the Closing Date, substantially in the form of Exhibit 2 hereto.
"POST CLOSING ESCROW FUND" shall mean $1,500,000, which will be deposited
in the Post Closing Escrow Account by Buyer from the Purchase Price in
accordance with the Post Closing Escrow Agreement and the terms hereof.
"POST CLOSING ESCROW TERMINATION DATE" shall have the meaning specified in
Section 4.3.
5
"PURCHASE PRICE" shall mean the total consideration for the Shares, as
described in Section 4.1.
"SALES AGREEMENTS" means agreements entered into by Company for the sale of
time on the Stations for cash, as described in Section 5.16.
"SHAREHOLDERS" means these individuals named in the preamble to this
Agreement and also referred to herein as Sellers.
"SHAREHOLDER REAL PROPERTY" means that certain real property owned by Dr.
Wendell F. Cox and the Estate of Mary L. Bell or owned by Dr. Wendell F. Cox and
Eric Bass as described in Section 5.11.
"SHARES" means all the issued Class A Common and Class B Common shares of
capital stock of Company.
"SPECIFIED EVENT" means those broadcast transmission failures described in
Section 8.4(b).
"STUDIO SITE" means the real estate located at 2994 East Grand Boulevard,
Detroit, Michigan that is currently used as Station WCHB-FM's studio and office
facilities.
"TANGIBLE PERSONAL PROPERTY" means all tangible personal property and
fixtures owned or leased by the Company and used or useful in the operation of
the Business, including the property and assets listed or described in Schedule
5.23(a), together with supplies, inventory, spare parts and replacements thereof
and improvements and additions thereto made between the date hereof and the
Closing Date.
"TRADE AGREEMENTS" means agreements entered into by Company for the sale of
time on the Stations in exchange for merchandise or services.
"TRADE BALANCE" means the difference between the aggregate value of time
owed pursuant to the Trade Agreements and the aggregate value of goods and
services to be received pursuant to the Trade Agreements, as computed in
accordance with the Stations' customary bookkeeping practices. The Trade Balance
is "negative" if the value of time owed exceeds the value of goods and services
to be received. The Trade Balance is "positive" if the value of time owed is
less than the value of goods and services to be received.
6
"TRANSACTION" means the sale and purchase and assignments and assumptions
contemplated by this Agreement and the respective obligations of Shareholders
and Buyer set forth herein.
"TRANSFER OF CONTROL APPLICATION" means the application on FCC Form 315
that Shareholders, Company and Buyer shall join in and file with the Commission
requesting its consent to the transfer of control of Company to Buyer.
"WCHB(AM) TRANSMITTER SITE" means the real estate located at King Road,
Huron Township, Michigan, that is currently used as Station WCHB(AM)'s
transmitter site.
"WCHB-FM TRANSMITTER SITE" means the real estate located at Greenfield
Road, Oak Park, Michigan that is currently used as Station WCHB-FM?s transmitter
site.
"WJZZ(AM) TRANSMITTER SITE" means the real estate located in Mayfield
Township, Michigan, that is the transmitter site specified in the construction
permit held by the Company which authorizes a change in location of Station
WJZZ(AM), from Frankenmuth to Kingsley, Michigan.
1.2. OTHER DEFINITIONS. Other capitalized terms used in this Agreement
shall have the meanings ascribed to them herein.
1.3. NUMBER AND GENDER. Whenever the context so requires, words used in the
singular shall be construed to mean or include the plural and vice versa, and
pronouns of any gender shall be construed to mean or include any other gender or
genders.
1.4. HEADINGS AND CROSS-REFERENCES. The headings of the Sections and
Paragraphs hereof, the Table of Contents, the Table of Exhibits, and the Table
of Schedules have been included for convenience of reference only, and shall in
no way limit or affect the meaning or interpretation of the specific provisions
of this Agreement. All cross-references to Sections or Paragraphs herein shall
mean the Sections or Paragraphs of this Agreement unless otherwise stated or
clearly required by the context. All references to Schedules herein shall mean
the Schedules to this Agreement. Words such as "herein" and "hereof" shall be
deemed to refer to this Agreement as a whole and not to any particular provision
of this Agreement unless otherwise stated or clearly required by the context.
The term "including" means "including without limitation."
7
1.5. COMPUTATION OF TIME. Whenever any time period provided for in this
Agreement is measured in "business days" there shall be excluded from such time
period each day that is a Saturday, Sunday, recognized federal legal holiday, or
other day on which the Commission's offices are closed and are not reopened
prior to 5:30 p.m. Washington, D.C. time. In all other cases all days shall be
counted.
2. FCC APPLICATION AND CLOSING.
2.1. FCC APPLICATION. Within ten (10) business days after execution of this
Agreement, Shareholders and Buyer will join in filing the Transfer of Control
Application and Shareholders will cause the Company to join such application.
Each of the parties diligently shall take or cooperate in the taking of all
steps which are reasonably necessary or appropriate to expedite the prosecution
and grant of the Application. No party by commission or omission shall put in
jeopardy its qualifications as a Commission licensee, or impair the routine
processing of the Transfer of Control Application. Shareholders will cause the
Company to use its best efforts and otherwise cooperate with Buyer, and
Shareholders shall likewise use their best efforts and otherwise cooperate with
Buyer in responding to any information requested by the FCC related to the
Transfer of Control Application and in defending against any petition, complaint
or objection which may be filed against the Transfer of Control Application,
provided, however, that neither the Shareholders nor the Company on the one hand
or the Buyer on the other hand shall be required to expend on their own behalf a
sum of more than One Hundred Thousand Dollars ($100,000) in the aggregate in
defending against any such petition, complaint or objection. Notwithstanding the
foregoing, Buyer shall be permitted, at its option, to expend such funds on
behalf of Shareholders in excess of $100,000 in order to defend a petition,
complaint or objection. In the event the Transfer of Control Application as
tendered is rejected for any reason, the party liable for the rejection shall
take all reasonable steps to cure the basis for rejection and Shareholders and
Buyer shall jointly resubmit and Shareholders will cause the Company to resubmit
the Transfer of Control Application. Shareholders will cause the Company to
share equally with Buyer in the amount of any Commission filing fees.
2.2. FINAL CLOSING DATE. Closing of the purchase of the Shares under this
Agreement shall take place at the offices of Davis Wright Tremaine LLP,
Washington, D.C. on a mutually agreeable date and time which is no more than
thirty (30) days after the FCC's approval of the Transfer of Control Application
becomes a
8
Final Order. Buyer, however at its sole option, may purchase up to four (4)
additional thirty (30) day extensions of time in which to close by paying the
sum of One Hundred Fifty Thousand Dollars ($150,000) in advance for each such
extension, such monies to be deducted from the Initial Escrow Deposit and paid
directly to the Company, but not to be credited against the Purchase Price to be
paid Shareholders at the Closing.
3. INITIAL ESCROW DEPOSIT. Buyer deposited the sum of Thirty Five Thousand
Dollars ($35,000) with Sellers when it executed a letter of intent. Upon
execution of this Agreement, Sellers shall return the $35,000 deposit and Buyer
shall deposit with Wilmington Trust Company ("Initial Escrow Agent"), a cash
deposit of Two Million Dollars ($2,000,000) (the "Initial Escrow Deposit"). The
Initial Escrow Deposit shall be held in an interest-bearing account with a
federally insured financial institution and disbursed by Initial Escrow Agent
pursuant to the terms of an escrow agreement in the form attached hereto as
Exhibit 1 (the "Initial Escrow Agreement"), which Initial Escrow Agreement has
been entered into by Shareholders, Buyer and Initial Escrow Agent simultaneously
herewith. The fees, if any, of the Initial Escrow Agent shall be borne equally
between the Shareholders on the one hand, and the Buyer on the other hand,
except that in the event of a dispute involving any part or all of the Initial
Escrow Deposit the fees of the Initial Escrow Agent and the costs, including
reasonable attorney's fees of the prevailing party, shall be borne by the
non-prevailing party.
4. PURCHASE PRICE AND METHOD OF PAYMENT.
4.1. CONSIDERATION. The total consideration for the Shares shall be Thirty
Four Million Dollars ($34,000,000) (the "Purchase Price"), payable as set forth
in this Section 4.
4.2. PAYMENT AT CLOSING. At Closing, in consideration for exchange of
the Shares held by the Shareholders which are fully paid for and nonassessable
and for which each certificate representing such Shares will be duly endorsed to
Buyer by the respective Shareholder holding those shares, Buyer shall pay:
(a) Thirty Two Million Five Hundred Thousand Dollars ($32,500,000) to
Shareholders by check or wire transfer of same day funds pursuant to wire
transfer instructions which shall be delivered by Shareholders to Buyer at least
five (5) business days prior to Closing, of which Two Million Dollars
($2,000,000) shall come from the Initial Escrow Deposit. The Purchase Price
shall be distributed to each Shareholder in an amount equal to the
9
percentage assigned to each Shareholder as set forth on Schedule 4.2., which
shall be revised as of the Closing Date to account for any shares issued to
Wendell T. Arnold and Janice Hall between now and Closing.
(b) One Million Five Hundred Thousand Dollars ($1,500,000) to the Post
Closing Escrow Fund described in Section 4.3.
(c) The parties acknowledge that the Purchase Price has been
calculated on the basis of the Company having at Closing (i) bona fide Accounts
Receivable on its books in the amount of at least Five Hundred Thousand Dollars
($500,000); and (ii) a cash balance of at least Three Hundred Thousand Dollars
($300,000) in cash in U.S. Dollars. The parties agree to proceed to Closing
based on an estimate of Accounts Receivable and cash balance contained in the
pre-closing balance sheet prepared by Company and delivered to Buyer pursuant to
Section 9.2(h); provided, however, that the parties recognize that no such
determination shall constitute a waiver of any rights of Buyer under this
Agreement, including without limitation, the representations and warranties set
forth in Section 5.7. Within thirty (30) days of Closing, Buyer will deliver a
post-closing balance sheet as of the Closing Date. If Shareholders do not
contest the calculations contained in the post-closing balance sheet, then the
post-closing balance sheet shall be considered final. Shareholders shall notify
Buyer in writing within thirty (30) days of receiving the post-closing balance
sheet if they contest the calculations contained in the post-closing balance
sheet. If Shareholders and Buyer cannot reach an agreement within twenty (20)
days of receiving Shareholders? notice, the parties agree to retain the
independent accounting firm of Coopers & Lybrand, or its successor, within
twenty (20) days thereafter or in the event that Coopers & Lybrand, or its
successor, is unavailable to serve as such then to retain the accounting firm of
Ernst & Young LLP, or its successor (whichever of such accounting firms is
applicable, the ("Accountants")). Buyer and Shareholders shall each assist and
cooperate fully in the prompt determination of the correct values and
Shareholders shall promptly provide the Accountants and the Buyer with full
access to such books and records as Buyer or the Accountants may request to make
such determination. All fees of the Accountants under this Agreement shall be
paid equally by the Buyer and the Shareholders and any determination of the
Accountants provided by this Agreement shall be binding and conclusive on the
parties. The Accountants shall make all determinations under this Agreement as
promptly as practicable and in any event within 20 days following receipt by the
Accountants of all relevant work
10
papers. The Sellers' obligation is limited to the requirement that there be at
least Five Hundred Thousand Dollars ($500,000) in bona fide Accounts Receivable
and Three Hundred Thousand Dollars ($300,000) in cash in U.S. Dollars on hand at
the Closing. Sellers do not warrant the collectibility of the Accounts
Receivable.
4.3. POST CLOSING ESCROW FUND.
(a) At the Closing, Buyer, Shareholders and Post Closing Escrow Agent
shall enter into the Post Closing Escrow Agreement in substantially the form of
Exhibit 2 into which Buyer shall deposit One Million Five Hundred Thousand
Dollars ($1,500,000) of the Purchase Price (the "Post Closing Escrow Fund") in
an account (the "Post Closing Escrow Account") constituting a portion of the
Purchase Price being reserved to meet certain obligations of Shareholders. The
Post Closing Escrow Fund shall be held and invested in accordance with the terms
of the Post Closing Escrow Agreement which provides for One Million Dollars
($1,000,000), less any claims which have been paid or are still in dispute, to
be released twelve (12) months after Closing and Five Hundred Thousand Dollars
($500,000), less any claims which have been paid or are still in dispute, to be
released eighteen (18) months after Closing (the "Post Closing Escrow
Termination Date").
(b) Disbursements from the Post Closing Escrow Account may be made
from time to time pursuant to the terms of the Post Closing Escrow Agreement
with respect to indemnification obligations pursuant to Section 10.1 and amounts
due pursuant to Section 4.2 after submission to the Post Closing Escrow Agent by
Buyer of a payment notice (the "Buyer's Notice") substantially in the form
attached to the Post Closing Escrow Agreement.
(c) All interest earned on the Post Closing Escrow Fund and any
principal amount remaining in the Post Closing Escrow Account following the Post
Closing Escrow Termination Date shall be paid to Shareholders according to the
percentages set forth on Schedule 4.2, as revised in accordance with Section
4.2(a).
(d) The fees, if any, of the Post Closing Escrow Agent shall be borne
equally between the Shareholders on the one hand, and the Buyer on the other
hand, except that in the event of a dispute involving any part or all of the
Post Closing Escrow Deposit the fees of the Post Closing Escrow Agent and the
costs, including reasonable attorney's fees of the prevailing party, shall be
borne by the non-prevailing party.
11
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDERS REGARDING THE
COMPANY.
The Shareholders hereby jointly and severally make to and for the benefit
of Buyer, the following representations, warranties and covenants:
5.1. EXISTENCE, POWER AND IDENTITY. The Company is a corporation duly
organized and validly existing under the laws of the State of Michigan with full
corporate power and authority (a) to own, lease and use its properties and
assets, (b) to conduct the business and operation of the Stations as currently
conducted and (c) to execute and deliver this Agreement and each other document,
agreement and instrument to be executed and delivered by Company in connection
with this Agreement (collectively, the "Company Documents"), and to perform and
comply with all of the terms, obligations and covenants to be performed and
complied with by Company hereunder and thereunder. True and correct copies of
the Company?s Articles of Incorporation and Bylaws are attached to Schedule 5.1.
The addresses of Company's operating locations and all of Company's additional
places of business, and of all places where any of the tangible personal
property of Company is now located, or has been located during the past 180
days, are correctly listed in Schedule 5.1. Except as set forth in Schedule 5.1,
during the past five years, Company has not been known by or used, nor, to the
best of the Knowledge of Company has any prior owner of the Stations been known
by or used, any corporate, partnership, fictitious or other name in the conduct
of the Stations' business or in connection with the ownership, use or operation
of the Stations.
5.2. BINDING EFFECT. The execution, delivery and performance by Company of
the Company Documents will be duly authorized by all necessary corporate action,
and copies of those authorizing resolutions, certified by Company's Secretary
shall be delivered to Buyer at Closing. No other corporate action by Company is
required for Company's execution, delivery and performance of this Agreement or
any of Company Documents. The Company Documents will be duly and validly
executed and delivered by Company to Buyer and will constitute a legal, valid
and binding obligation of Company, enforceable against Company in accordance
with its terms, subject to bankruptcy, reorganization, fraudulent conveyance,
insolvency, moratorium and similar laws relating to or affecting creditors, and
other obligees' rights generally and the exercise of judicial discretion in
accordance with general equitable principles.
12
5.3. NO VIOLATION. Except as set forth on Schedule 5.3, none of (i) the
execution, delivery and performance by Company of the Company's Documents or;
(ii) the consummation of the Transaction will, with or without the giving of
notice or the lapse of time or both, conflict with, breach the terms or
conditions of, constitute a default under, or violate (a) Company's articles of
incorporation or bylaws, (b) any judgment, decree, order, consent, agreement,
lease or other instrument (including any Material Contract, Sales Agreement or
Trade Agreement) to which Company is a party or by which Company or its Business
may be legally bound or affected, or (c) any law, rule, regulation or ordinance
of any Governmental Authority applicable to Company or its Business or the
operation of the Stations.
5.4. GOVERNMENTAL AUTHORIZATIONS. Except for the FCC Licenses listed on
Schedule 5.4, no licenses, permits, or authorizations from any Governmental
Authority are required to own, use or operate the Stations or to conduct the
Business as currently operated and conducted by Company. The FCC Licenses are
all the Commission authorizations held by Company with respect to the Stations,
and are all the Commission authorizations used in or necessary for the lawful
operation of the Stations as currently operated by Company. The FCC Licenses are
in full force and effect, are subject to no conditions or restrictions other
than those which appear on their face and are unimpaired by any acts or
omissions of Company, Company's officers, employees or agents. Company has
delivered true and complete copies of all FCC Licenses to Buyer. There is not
pending or, to the Knowledge of Company, threatened, any action by or before the
Commission or any other Governmental Authority to revoke, cancel, rescind or
modify any of the FCC Licenses (other than proceedings to amend Commission rules
of general applicability or otherwise affecting the broadcast industry
generally), and there is not now issued, outstanding or pending or, to the
Knowledge of Company, threatened, by or before the Commission or any other
Governmental Authority, any order to show cause, notice of violation, notice of
apparent liability, or notice of forfeiture or complaint against Company or
otherwise with respect to the Stations. The Stations are operating in material
compliance with all FCC Licenses, the Communications Act of 1934, as amended
(the "Communications Act"), and the current rules, regulations, policies and
practices of the Commission. The Commission's most recent renewals of the FCC
Licenses were not challenged by any petition to deny or any competing
application. To the Knowledge of Company there are no facts relating to it that,
under the Communications Act or the current rules, regulations, policies and
practices of the Commission may
13
cause the Commission to deny Commission renewal of the FCC Licenses or deny
Commission consent to the Transaction.
5.5. MATERIAL CONTRACTS. Schedule 5.5 lists all Material Contracts on
behalf of Company. Shareholders have provided Buyer access to all such Material
Contracts. The Material Contracts so furnished to Buyer have not been amended or
terminated and are in full force and effect. Except for the Material Contracts
listed on Schedule 5.5, as of the date hereof, Company is not a party to nor
bound by any Material Contract.
5.6. INSURANCE. Schedule 5.6 lists all insurance policies held by Company
with respect to the Business and operation of the Stations. Such insurance
policies are in full force and effect, all premiums with respect thereto are
currently paid and Company is in compliance with the terms thereof. Company has
not received any notice from any issuer of any such policies of its intention to
cancel, terminate, or refuse to renew any policy issued by it. Company will
maintain the insurance policies listed on Schedule 5.6 in full force and effect
through the Closing Date.
5.7 FINANCIAL STATEMENTS.
(a) Shareholders have furnished Buyer with the audited Financial
Statements for the calendar years 1993, 1994, 1995 and 1996, copies of which are
attached to Schedule 5.7(a). The Financial Statements: (i) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods involved and as compared with prior periods; and
(ii) fairly present in all material respects Company's financial position,
income, expenses, assets, liabilities, Shareholders' equity and the results of
operations of the Company as of the dates and for the periods indicated. Since
June 30, 1997, there has been no material adverse change in the business,
assets, properties or condition (financial or otherwise) of the Stations since
the preparation of the most recent annual Financial Statement. No event has
occurred that would make such Financial Statements misleading in any material
respect.
(b) Except as reflected in the balance sheets as of June 30, 1997, a
copy of which is attached to Schedule 5.7(b), including the notes thereto or
otherwise disclosed in this Agreement or the Schedules hereto, and except for
the current liabilities and obligations incurred in the ordinary course of
business of the Stations (not including for this purpose any tort-like
liabilities or breach of contract), and except for attorneys' and other fees and
expenses incurred in connection with the negotiation and
14
consummation of the transactions contemplated hereby, since June 30, 1997, there
exist no liabilities or obligations of Company, contingent or absolute, matured
or unmatured, known or unknown, other than possible liability for Taxes due.
Since June 30, 1997, (i) Company has not made any contract, agreement or
commitment or incurred any obligation or liability (contingent or otherwise),
except in the ordinary course of business and consistent with past business
practices; (ii) there has not been any discharge or satisfaction of any
obligation or liability owed by Company, which is not in the ordinary course of
business or which is inconsistent with past business practices; (iii) there has
not occurred any sale of or loss or material injury to the Business, or any
adverse material change in the Business or in the condition (financial or
otherwise) of the Stations; and (iv) Company has operated the Business in the
ordinary course of business, except (w) as contemplated by the Letter of Intent,
including negotiations and actions relative to this Agreement and the
Transaction, (x) negotiations relative to certain potential business
combinations with Salem Communications and Crawford Broadcasting Company which
occurred prior to the execution and delivery of the Letter of Intent, (y) the
sale of certain assets relative to WKOX-AM, Frankenmuth, Michigan, and (z)
Company Real Property described as Item 3 on Schedule 5.10(a). The monthly
balance sheets (i) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved and as compared with prior periods; and (ii) fairly present Company's
financial position, income, expenses, assets, liabilities, Shareholders' equity
and the results of operations of the Stations as of the dates and for the
periods indicated, subject to year end adjustments which do not materially
affect the operations of the Company.
(c) Company maintains only the bank accounts as shown in Schedule 5.7
(c) and no other bank accounts of any kind. Buyer has been provided with bank
statements, dated as indicated on Schedule 5.7(c), related to such accounts (the
?Bank Statements?). Except as shown on such Bank Statements or on Schedule
5.7(c), and, with respect to items which have not cleared as of the last Bank
Statements, as shown on the Company?s cash receipts and disbursements journal,
there have been no material receipts or disbursements, whether by cash or check,
by the Company of any kind. Since the date of the last of the Bank Statements
furnished to Buyer by the Company, no checks have been issued for any purpose
other than in the ordinary course of business.
5.8. EMPLOYEES. Except as otherwise listed in Schedule 5.8, (i) no employee
of Company is represented by a union or other
15
collective bargaining unit, no application for recognition as a collective
bargaining unit has been filed with the National Labor Relations Board, and, to
the Knowledge of Company, there has been no concerted effort to unionize any of
Company's employees; and (ii) Company has no other written or oral employment
agreement or arrangement, plan or policy with any Company employee, and no
written or oral agreement concerning bonus, sick pay, termination,
hospitalization, vacation pay, severance pay, or retiree medical coverage. As of
this date there is not and at the time of Closing there will not be any
consideration of whatever nature due and owing by Company or the Shareholders to
any employee or former employee of the Company, except as otherwise listed in
Schedule 5.8 and except for salaries, benefits and other compensation payable in
the ordinary course of business consistent with past practices. Included in
Schedule 5.8 is a list of all persons currently employed at Company together
with an accurate description of the terms and conditions of their respective
employment as of the date of this Agreement. Shareholders will cause the Company
to promptly advise Buyer of any significant changes that occur prior to Closing
with respect to such information.
5.9. EMPLOYEE BENEFIT PLANS.
(a) Except as described in Schedule 5.9, neither Company nor any
Affiliates (as defined below) have at any time established, sponsored,
maintained, or made any contributions to, or been parties to any contract or
other arrangement or been subject to any statute or rule requiring them to
establish, maintain, sponsor, or make any contribution to, (i) any "employee
pension benefit plan" (as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended, and regulations thereunder ("ERISA"))
("Pension Plan"); (ii) any "employee welfare benefit plan" (as defined in
Section 3(1) of ERISA) ("Welfare Plan"); or (iii) any deferred compensation,
severance pay, fringe benefit, retiree medical, bonus, stock option, stock
purchase, or other "employee benefit plan" within the meaning of ERISA Section
3(3), agreement, commitment, policy or arrangement whether oral or written, and
whether provided through the purchase of insurance or otherwise ("Other Plan")
for the benefit of any present or former officers, employees, agents, directors,
or independent contractors of Company. Shareholders have delivered to Buyer true
and complete copies of (1) each Pension Plan, Welfare Plan, and Other Plan (or,
in the case of unwritten Other Plans, descriptions thereof), (2) the most recent
annual report on Form 5500 filed with the Internal Revenue Service with respect
to each Pension Plan, Welfare Plan, and Other Plan, including all schedules
thereto and financial statements with attached opinions of independent
accountants (if
16
required by applicable law), (3) summary plan descriptions with respect to such
plans, (4) each trust agreement and insurance or annuity contract relating to
any Pension Plan, Welfare Plan, or Other Plan, (5) the most recent determination
letter applicable to any such plan (if applicable). Except as set forth in
Schedule 5.9, there are no negotiations, demands, or proposals that are pending
or have been made which concern matters now covered, or that would be covered by
plans, agreements, or agreements of the type discussed in this Section. Company
and the Affiliates have no obligations or liabilities (whether accrued,
absolute, contingent, or unliquidated, whether or not known, and whether due or
to become due) with respect to any Pension Plan, Welfare Plan or Other Plan that
is not listed in Schedule 5.9. There are no actions (other than routine claims
for benefits) pending or, to the best of the Knowledge of Company, threatened
against such plans or their assets, or arising out of such plans, agreements or
arrangements, and to the best of the Knowledge of Company, no facts exist which
could give rise to any such actions. There are no investigations or audits by
any Governmental Authority (including, but not limited to, the Internal Revenue
Service or the Department of Labor) involving any Pension Plan, Benefit Plan, or
Other Plan. No employee, officer or director of Company shall be entitled to any
additional benefits (under a Pension Plan, Welfare Plan, or Other Plan) or any
acceleration of the time of the payment or vesting of any Pension Plan as a
result of the transactions contemplated by this Agreement. For purposes of this
Section 5.9, the term "Affiliate" shall include all persons under common control
with Company within the meaning of Sections 4001(a)(14) or (b)(1) of ERISA or
any regulations promulgated thereunder, or Sections 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended (the "Code").
(b) Each plan or arrangement listed in Schedule 5.9 (and any related
trust or insurance contract pursuant to which benefits under such plans or
arrangements are funded or paid) has been administered in all respects in
compliance with its terms and in both form and operation is in compliance with
applicable provisions of ERISA, the Code, the Consolidated Omnibus Budget
Reconciliation Act of 1986 and regulations thereunder, and other applicable law.
Each Pension Plan listed in Schedule 5.9 intended to be a tax-qualified plan has
been determined by the Internal Revenue Service to be qualified under Section
401(a) and Section 501(a) of the Code, and nothing has occurred or been omitted
since the date of the last such determination that resulted or could result in
the revocation of such determination, and nothing has occurred that resulted or
could result in such Pension Plan's being subject to the tax under Section 511
of the Code. Company and the Affiliates
17
have made all required contributions or payments to or under each plan or
arrangement listed in Schedule 5.9 on a timely basis and have made adequate
provision for reserves to meet contributions and payments under such plans or
arrangements that have not been made because they are not yet due.
(c) The consummation of this Agreement (and the employment by Buyer of
former employees of Company or any employees of an Affiliate) will not result in
any carryover liability to Buyer for taxes, penalties, interest or any other
claims resulting from any employee benefit plan (as defined in Section 3(3) of
ERISA) or Other Plan. With respect to any Pension Plan, Welfare Plan, or Other
Plan that is a "plan" within the meaning of Section 4975(e)(1) of the Code or an
"employee benefit plan" within the meaning of Section 3(3) of ERISA, no
"prohibited transaction" (within the meaning of Section 4975(c)(1) of the Code
or Section 406 of ERISA) has occurred. In addition, Company and each Affiliate
make the following representations as to all of their Pension Plans: (A) neither
Company nor any Affiliate has become liable to the PBGC under ERISA under which
a lien could attach to the assets of Company or an Affiliate; (B) Company and
each Affiliate has not ceased operations at a facility so as to become subject
to the provisions of Section 4062(e) of ERISA; (C) neither Company nor any
Affiliate has made or will make prior to Closing a complete or partial
withdrawal from a multiemployer plan (as defined in Section 3(37) of ERISA) so
as to incur withdrawal liability as defined in Section 4201, of ERISA, and (D)
no Pension Plan of Company constitutes a "multiemployer plan," as defined in
Section 3(37) of ERISA, and (E) no Pension Plan is subject to Title IV of ERISA,
Section 302 of the ERISA, or Section 412 of the Code. All group health plans
maintained by Company and each Affiliate have been operated in compliance with
Section 4980B(f) of the Code. As of the Closing, no employee or qualified
beneficiary of Company or Affiliate is receiving or is eligible to receive COBRA
group health plan coverage under Section 4980B of the Code. Except to the extent
required under Section 4980B of the Code and, pursuant to collective bargaining
agreements, with respect to employees subject thereto who have retired, Company
has no written health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employees of Company. Company has made no
written agreements, covenants or commitments to provide retiree medical
benefits, other than pursuant to collective bargaining agreement, that cannot be
terminated at the discretion of the employer. To the best of the Knowledge of
Company, there has been no act or omission by Company that has given rise to or
may give rise to fines, penalties, taxes, or related charges under
18
Section 502(c),(i), or (1) or Section 4071 of ERISA or Chapter 43 of the
Code.
5.10. COMPANY REAL PROPERTY.
(a) Company has good, valid and marketable fee simple title to the
Company real property as described in Schedule 5.10(a) and all Improvements on
the real property free and clear of all mortgages, liens, claims, encumbrances,
leases, title exceptions and rights of others, except as set forth in Schedule
5.10(a). Except as listed on Schedule 5.10(a), to the Knowledge of Company all
of the Improvements, and all heating and air conditioning equipment, plumbing,
electrical and other mechanical facilities, and the roof, walls and other
structural components which are part of, or located in, such Improvements, are
in good operating condition and repair, comply in all material respects with
applicable zoning laws and do not require any repairs other than normal routine
maintenance to maintain them in good condition and repair. To the Knowledge of
Company, none of the Improvements have any structural defects. No portion of the
real property is the subject of any condemnation or eminent domain proceedings
currently instituted or pending, and, to the Knowledge of Company, no such
proceedings are threatened. Except as set forth in Schedule 5.10(a), the real
property is not subject to any covenant or other restriction preventing or
limiting the Company?s right to convey the Company?s right, title and interest
in the owned real property or to use the real property for any lawful purpose.
To the Knowledge of the Company, there are no condemnation, zoning or other land
use regulations proceedings instituted or, to the Knowledge of Company, planned
to be instituted, which would materially affect the use and operations of the
real property for its intended purpose, and Company has not received notice of
any special assessment proceedings materially affecting the real property. To
the Knowledge of the Company, the real property has direct and unobstructed
access to all public utilities necessary for the uses to which the real property
is currently devoted by Company. The boundaries of the building which houses the
studio for WCHB(AM) is located on the real property described on Schedule
5.10(a) and to the Knowledge of the Company does not encroach upon any real
property not owned by the Company.
(b) Company, as tenant, leases the real property described in Schedule
5.10(b). Except as listed on Schedule 5.10(b), all of the Improvements, and all
heating and air conditioning equipment, plumbing, electrical and other
mechanical facilities, and the roof, walls and other structural components which
are part of, or located in, such Improvements, are in good
19
operating condition and repair, comply in all material respects with applicable
zoning laws and do not require any repairs other than normal routine maintenance
to maintain them in good condition and repair. To the Knowledge of Company, none
of the Improvements have any structural defects. To the Knowledge of the
Company, no portion of the real property described in Schedule 5.10(b) is the
subject of any condemnation or eminent domain proceedings currently instituted
or pending, and, to the Knowledge of Company, no such proceedings are
threatened. To the Knowledge of the Company, there are no condemnation, zoning
or other land use regulations proceedings instituted or, to the Knowledge of
Company, planned to be instituted, which would materially affect the use and
operations of the real property for any lawful purpose, and Company has not
received notice of any special assessment proceedings materially affecting the
real property. To the Knowledge of the Company, the real property has direct and
unobstructed access to all public utilities necessary for the uses to which the
real property is currently devoted by Company.
5.11. SHAREHOLDER REAL PROPERTY.
(a) Dr. Wendell F. Cox and the Estate of Mary L. Bell (?Cox/Bell?)
have good, valid and marketable fee simple title to the real property and all
Improvements described in Schedule 5.11(a) free and clear of all mortgages,
liens, claims encumbrances, leases, title exceptions and rights of others,
except as set forth in Schedule 5.11(a). Except as listed on Schedule 5.11(a),
to the Knowledge of Company, all of the Improvements, and all heating and air
conditioning equipment, plumbing, electrical and other mechanical facilities,
and the roof, walls and other structural components which are part of, or
located in, such Improvements, are in good operating condition and repair,
comply in all material respects with applicable zoning laws and do not require
any repairs other than normal routine maintenance to maintain them in good
condition and repair. None of the Improvements have any structural defects. To
the Knowledge of the Company, no portion of the real property described in
Schedule 5.11(a) is the subject of any condemnation or eminent domain
proceedings currently instituted or pending, and, to the Knowledge of Company,
no such proceedings are threatened. Except as set forth in Schedule 5.11(a), the
real property is not subject to any covenant or other restriction preventing or
limiting Cox/Bell right to convey its right, title and interest in the owned
real property or to use the real property for any lawful purpose. There are no
condemnation, zoning or other land use regulations proceedings instituted or, to
the Knowledge of Company, planned to be instituted, which would materially
affect the use and operations of
20
the real property for its intended purpose, and Company has not received notice
of any special assessment proceedings materially affecting the real property. To
the Knowledge of the Company, the real property has direct and unobstructed
access to all public utilities necessary for the uses to which the real property
is currently devoted by Cox/Bell.
(b) Studio Site (i) Dr. Wendell F. Cox and Eric Bass (?Cox/Bass?) have
good, valid and marketable fee simple title to the real property and all
Improvements described in Schedule 5.11(b), which is used as the Studio Site,
free and clear of all mortgages, liens, claims encumbrances, leases, title
exceptions and rights of others, except as set forth in Schedule 5.11(b). Except
as listed on Schedule 5.11(b), to the Knowledge of Company all of the
Improvements, and all heating and air conditioning equipment, plumbing,
electrical and other mechanical facilities, and the roof, walls and other
structural components which are part of, or located in, such Improvements, are
in good operating condition and repair, comply in all material respects with
applicable zoning laws and do not require any repairs other than normal routine
maintenance to maintain them in good condition and repair. To the Knowledge of
Company none of the Improvements have any structural defects. To the Knowledge
of the Company, no portion of the real property described in Schedule 5.11(b) is
the subject of any condemnation or eminent domain proceedings currently
instituted or pending, and, to the Knowledge of Company, no such proceedings are
threatened. Except as set forth in Schedule 5.11(b), the real property is not
subject to any covenant or other restriction preventing or limiting Cox/Bass
right to convey its right, title and interest in the owned real property or to
use the real property for any lawful purpose. To the Knowledge of the Company,
there are no condemnation, zoning or other land use regulations proceedings
instituted or, to the Knowledge of Company, planned to be instituted, which
would materially affect the use and operations of the real property for its
intended purpose, and Company has not received notice of any special assessment
proceedings materially affecting the real property. To the Knowledge of the
Company, the real property has direct and unobstructed access to all public
utilities necessary for the uses to which the real property is currently devoted
by Cox/Bass.
(ii) Cox/Bass hereby grant an option to Buyer to purchase the real
property described in Schedule 5.11 (b) for Two Hundred Thousand Dollars
($200,000). The option is exercisable on or before the Closing Date and the
closing on the acquisition of the real property shall occur simultaneously with
the closing of the Transaction contemplated by this Agreement. In the event that
the
21
Buyer does not exercise its option to purchase the aforesaid real estate,
Cox/Bass will lease the aforesaid real property to the Buyer at a monthly rental
of $1,500.00. The lease will be executed at the Closing and will be binding upon
the parties thereto for a period of one year. The lease will be a so-called
"net, net, net lease", and the tenant will be responsible for taxes, utilities,
insurance and maintenance.
5.12. ENVIRONMENTAL PROTECTION. Except as disclosed in Schedule 5.12:
(a) There are no pending or, to the Knowledge of Company, threatened
actions, suits, claims, legal proceedings or any other proceedings, arising from
Company?s or Shareholders' activities at or operation, occupation or ownership
of the Company Real Property or Shareholder Real Property, based on or relating
to Hazardous Substances or Environmental Law, or asserting any liabilities under
Environmental Law against Company or the Stations.
(b) All of the current operations and activities at the Stations and
at or from the Company Real Property and Shareholder Real Property ("Real
Property") comply with all applicable Environmental Law, and to the Knowledge of
Company, there are no conditions which could reasonably give rise to claims,
expenses, losses, liabilities, or governmental action against Buyer in
connection with any Hazardous Substances present at or disposed of at or from
the Real Property, including without limitation the following conditions arising
out of, relating to, resulting from, or attributable to, the assets, business,
or operations of Company at the Real Property: (i) the presence of any Hazardous
Substances on the Real Property, the release or threatened release of any
Hazardous Substances into the environment at or from the Real Property; (ii) the
off-site disposal of Hazardous Substances originating on or from the Real
Property in connection with the Business or operations of Company; (iii) the
release or threatened release of any Hazardous Substances into any storm drain,
sewer, septic system or publicly owned treatment works from the Real Property;
or (iv) any noncompliance by the Company with federal, state or local
requirements governing occupational safety and health, or presence or release in
the air and water supply systems of the Real Property of any substances that
pose a hazard to human health or an impediment to working conditions.
(c) To the Knowledge of the Company, neither polychlorinated biphenyls
nor asbestos-containing material are present on or in the Real Property.
22
(d) The Real Property (exclusive of the Shareholder Real Property
described in Section 5.11(b)) contains no aboveground or underground storage
tanks, or aboveground or underground piping associated with tanks.
(e) The Real Property does not contain any Hazardous Substances in,
on, over, under or at it at levels that would give rise to liability under
Environmental Law as they apply to the present use of the Real Property. The
Company is not under any obligation, is not liable for, and, to the Knowledge of
Company, has not been threatened with any obligation or liability under
Environmental Law for any investigation, corrective action, remediation or
monitoring of Hazardous Substances in, on, over under or at the Real Property.
None of the Real Property is listed or proposed for listing on the National
Priorities List pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act (?CERCLA?), 42 U.S.C.?9601 et seq., or any
similar inventory of sites requiring investigation or remediation maintained by
any state. Company has not received any notice, whether oral or written, from
any Governmental Authority or third party of any actual or threatened
liabilities under Environmental Law with respect to the Real Property, the
Stations, or the conduct of Company?s business.
(f) To the Knowledge of the Company, there are no conditions existing
at the Real Property that require remedial or corrective action, removal or
closure pursuant to Environmental Law.
(g) Company has all the material permits, authorizations and approvals
necessary for the conduct of its Business and for the operations on, in or at
the Real Property which are required under applicable Environmental Law and is
in compliance in all material respects with the terms and conditions of all such
permits, authorizations and approvals, and to the Knowledge of Company, Company
is capable of continued operation in compliance with Environmental Law.
(h) Company has provided to Buyer all environmental reports,
assessments, audits, studies, investigations, data and other written
environmental information in its custody, possession or control concerning the
Real Property.
(i) The operation of the Stations does not cause or result in exposure
of workers or the general public to levels of
23
radio frequency radiation in excess of the standards adopted by the FCC in 1996
and explained in OET Bulletin 65, Edition 97-01.
5.13. COMPLIANCE WITH LAW. Except as disclosed in Schedule 5.13 and except
for matters pertaining to Environmental Law, which are addressed in Section
5.12, there is no outstanding complaint, citation, or notice issued by any
Governmental Authority asserting that Company is in violation of any law,
regulation, rule, ordinance, order, decree or other material requirement of any
Governmental Authority (including any applicable statutes, ordinances or codes
relating to zoning and land use, occupational safety and the use of electric
power) affecting the Business or operations of the Stations, and Company is in
material compliance with all such laws, regulations, rules, ordinances, decrees,
orders and requirements. Without limiting the foregoing:
(a) The Stations' transmitting and studio equipment is in material
respects operating in accordance with the terms and conditions of the FCC
Licenses, all underlying construction permits, and the rules, regulations,
practices and policies of the Commission, including all requirements concerning
equipment authorization and human exposure to radio frequency radiation.
(b) Company has, in the conduct of the Business, materially complied
with all applicable laws, rules and regulations relating to the employment of
labor, including those concerning wages, hours, equal employment opportunity,
collective bargaining, pension and welfare benefit plans, and the payment of
social security and similar taxes, and Company is not liable for any arrears of
wages or any tax penalties due to any failure to comply with any of the
foregoing.
(c) All ownership reports, employment reports, and other material
documents required to be filed by Company with the Commission or other
Governmental Authority have been filed; such reports and filings are accurate
and complete in all material respects; such items as are required to be placed
in the Stations' local public inspection files have been placed in such files;
all proofs of performance and measurements that are required to be made by
Company with respect to the Stations' transmission facilities have been
completed and filed at the Stations; and all information contained in the
foregoing documents is true, complete and accurate.
(d) Company has paid to the Commission the regulatory fees due for the
Stations for the years 1994-97.
24
5.14. LITIGATION. Except for proceedings affecting radio broadcasters
generally and except as set forth on Schedule 5.14, there is no litigation,
complaint, investigation, suit, claim, action or proceeding pending, or to the
Knowledge of Company, threatened before or by the Commission, any other
Governmental Authority, or any arbitrator or other person or entity relating to
the Business or the operations of the Stations. Except as set forth on Schedule
5.14, there is no other litigation, action, suit, complaint, claim,
investigation or proceeding pending, or to the Knowledge of Company, threatened
that may give rise to any claim against the Business or Shares or adversely
affect Shareholder's ability to consummate the Transaction as provided herein.
Company is not aware of any facts that could reasonably result in any such
proceedings.
5.15. INSOLVENCY PROCEEDINGS. No insolvency proceedings of any character,
including bankruptcy, receivership, reorganization, composition or arrangement
with creditors, voluntary or involuntary, are pending or, to the Knowledge of
Company, threatened against the Company. Company has not made an assignment for
the benefit of creditors.
5.16. SALES AGREEMENTS. Except as set forth in Schedule 5.16, the Sales
Agreements in existence on the date hereof have been entered into in the
ordinary course of the Business, at rates consistent with Company's usual past
practices and each Sales Agreement is for a term no longer than 10 weeks or, if
longer, is terminable by the Company upon not more than 15 days notice.
5.17. SUFFICIENCY OF ASSETS. The assets of the Business are and, on the
Closing Date will be, sufficient to conduct the operation and business of the
Stations in the manner in which they have been conducted and are being conducted
as of the date of this Agreement.
5.18. CERTAIN INTERESTS AND RELATED PARTIES. Except as set forth in
Schedule 5.18, (i) no Shareholder has any material interest in any assets used
in or pertaining to the Business, nor is indebted or otherwise obligated to
Company; (ii) Company is not indebted or otherwise obligated to any Shareholder
or others except for amounts due under normal arrangements as to salary or
reimbursement of ordinary business expenses not unusual in amount or
significance; (iii) neither Company nor any Shareholder, officer or director of
Company has any interest whatsoever in any corporation, firm, partnership or
other business enterprise which has had any business transactions with Company
relating to the Business or the Stations; and (iv) no Shareholder of Company has
25
entered into any transaction with Company relating to the Business or the
Stations. The consummation of the transactions contemplated by this Agreement
will not (either alone, or with the occurrence of any termination or
constructive termination of any arrangement, or with the lapse of time, or both)
result in any benefit or payment (severance or other) arising or becoming due
from Company to Shareholders.
5.19. TAXES. Except as disclosed on Schedule 5.19, Company is not a party
to any pending action or proceeding and, to the Knowledge of Company, there is
no action or proceeding threatened by any Governmental Authority against Company
for assessment or collection of any Taxes, and no unresolved claim for
assessment or collection of any Taxes has been asserted against Company.
5.20. BROKER. There is no broker or finder or other person other than John
Pierce of Force Communications, Inc. who would have any valid claim against the
Company or the Shareholders for a commission or brokerage fee or payment in
connection with this Agreement or the transactions contemplated hereby as a
result of any agreement of or action taken by Company. Sellers will pay Pierce's
fees from the Purchase Price.
5.21. SUBSIDIARIES. The Company does not have any subsidiaries, does not
hold title to the stock of any other corporation, is not a party to any joint
venture agreement and does not have an interest in any general or limited
partnership or any other entity.
5.22. STOCK. The authorized capital stock of Company consists of 800 shares
of Class A Common Stock and 24,000 shares of Class B Common Stock. There are 800
shares of issued and outstanding Class A Common Stock and 20,070.55 shares of
issued and outstanding Class B Common Stock of the Company, all of which are
owned by Shareholders. And, except as described herein, there are no other
shares of capital stock of the Company either authorized or issued. Each
Shareholder has good and marketable title to and complete ownership of the
Shares as set forth in Schedule 4.2, free and clear of any Encumbrance. Except
with respect to this Agreement among Company, Shareholders and Buyer and except
for certain shares which may be issued to Wendell T. Arnold and certain shares
which may be issued to Janice Hall between now and Closing, there are no
outstanding stock options or stock appreciation rights granted by Company
exercisable now or in the future. The Company has no outstanding subscriptions,
warrants, calls, commitments or agreements to issue or to repurchase any shares
of its stock or other securities, including any right of conversion or exchange
26
under any outstanding security or other instrument. There are no unsatisfied
preemptive rights in respect of the Shares.
5.23. PROPERTY. Schedule 5.23(a) lists the material tangible personal
property of the Company. The Company has and will have at the Closing good,
marketable and indefeasible title to all such property, free and clear of all
Encumbrances of any nature, whatsoever, except for (i) Encumbrances disclosed on
Schedule 5.23(a) which will be discharged on or before the Closing Date, (ii)
Permitted Encumbrances, and (iii) those permitted by agreement between the
parties. Shareholders make no representations concerning the condition of the
property, except that with the exception of normal wear and tear the property
will be in as good condition on the Closing Date as of the date of this
Agreement. Certain personal items may be withdrawn from the Company by the
Shareholders prior to the Closing. These items are fully described in Schedule
5.23(b), attached.
5.24. CORPORATE RECORDS. The corporate records of Company have been made
available to Buyer, and so far as such materials are material and relevant to
Buyer, accurately represent the status of Company.
5.25. PROMOTIONAL RIGHTS. The Intellectual Property set forth on Schedule
5.25 includes all call signs and trademarks that Company holds title to and that
are used to promote or identify the Stations. Except as set forth on Schedule
5.25, to the Knowledge of Company there is no infringement or unlawful or
unauthorized use of those promotional rights, including the use of any call
sign, slogan or logo by any broadcast or cable stations in the metropolitan
Detroit area that may be confusingly similar to those currently used by the
Stations. Except as set forth on Schedule 5.25, to the Knowledge of Company, the
operations of the Stations do not infringe, and no one has asserted to Company
that such operations infringe, any copyright, trademark, trade name, service
mark or other similar right of any other party.
5.26. INDEBTEDNESS. Subject to using a portion of the Purchase Price to
satisfy Indebtedness of the Company, as of Closing, and except as disclosed in
Schedule 5.26, the Company will have no Indebtedness and there will be no
Encumbrances on its assets, except for Permitted Encumbrances and except for
Encumbrances caused by the Buyer.
5.27. TRADE BALANCE. The Trade Balance, if negative, will not exceed Thirty
Thousand Dollars ($30,000), at Closing.
27
5.28. NO MISLEADING STATEMENTS. No provision of this Agreement (including
the Schedules, Exhibits and Company Documents) contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact required to be stated in order to make the statement, in light of the
circumstances in which it is made, not misleading. All Exhibits and Schedules
attached hereto which have been prepared and delivered by the Shareholders are
materially accurate and complete as of the date hereof. No person has been
authorized by the Shareholders or Company to make any representation or warranty
relating to the Shareholders, Company, the Business, the Stations or otherwise
in connection with this Agreement or the Transaction except as set forth in this
Section 5 and, if made, any such representation or warranty must not be relied
upon as having been authorized by the Shareholders or Company. Notwithstanding
anything to the contrary contained in this Agreement or in any of the Exhibits,
or Schedules, any information disclosed in one Exhibit or Schedule shall be
deemed to be disclosed in this Agreement and in all Exhibits and Schedules.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDERS REGARDING THE
SHARES. Shareholders hereby jointly and severally make to and for the benefit of
Buyer, the following representations, warranties and covenants:
6.1. BINDING EFFECT. This Agreement has been duly and validly executed and
delivered by each Shareholder to Buyer, each Shareholder has the authority to
enter into and to execute this Agreement without further action or approval of
any party or Governmental Authority and it constitutes a legal, valid and
binding obligation of each Shareholder, enforceable against each of them in
accordance with its terms, subject to bankruptcy, reorganization, fraudulent
conveyance, insolvency, moratorium and similar laws relating to or affecting
creditors, and other obligees' rights generally and the exercise of judicial
discretion in accordance with general equitable principles. Each trustee and
executor representing a Shareholder is duly and lawfully appointed to act on
behalf of the Shareholder and to execute and perform this Agreement.
6.2. NO VIOLATION. None of (i) the execution, delivery and performance by
any Shareholder of this Agreement or any of Company Documents; (ii) the
consummation of the Transaction; or (iii) Shareholder's compliance with the
terms or conditions hereof will, with or without the giving of notice or the
lapse of time or both, conflict with, breach the terms or conditions of,
constitute a default under, or violate (a) organizational documents governing
28
any Shareholder, (b) any judgment, decree, order, consent, agreement, lease or
other instrument to which any Shareholder is a party or by which any Shareholder
may be legally bound or affected, or (c) any law, rule, regulation or ordinance
of any Governmental Authority applicable to any Shareholder.
6.3. OWNERSHIP OF STOCK. Shareholders hold title to 800 shares of Class A
Common Stock and 20,070.55 shares of Class B Common Stock as set forth on
Schedule 4.2. Such Shares, which represent all issued and outstanding shares,
are owned free and clear of any Encumbrances. The Shares are validly issued,
fully paid and nonassessable. There are no outstanding stock options or stock
appreciation rights granted by any Shareholder to any person or entity
exercisable now or in the future except for certain shares which may be issued
to Wendell T. Arnold and certain shares which may be issued to Janice Hall
between now and Closing. All shares owned by Shareholders, including those to be
issued to Wendell T. Arnold and Janice Hall, shall be delivered to Buyer at
Closing duly endorsed in blank. No Shareholder has any outstanding
subscriptions, warrants, calls, commitments or agreements to issue or to
repurchase any shares of his stock or other securities, including any right of
conversion or exchange under any outstanding security or other instrument. There
are no unsatisfied preemptive rights to which any Shareholder is entitled and
any preemptive rights accorded any Shareholder pursuant to the Articles of
Incorporation or any other corporate document is hereby forever waived by
Shareholders for purposes of this Agreement.
6.4. COOPERATION. Shareholders acknowledge that this Agreement requires
that the Company take or refrain from taking certain actions. Shareholders agree
to take those steps which are necessary to cause the Company to take or refrain
from taking those actions.
7. BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Buyer hereby makes to and
for the benefit of Company and Shareholders, the following representations,
warranties and covenants:
7.1. EXISTENCE AND POWER. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with full
corporate power and authority (a) to own, lease and use its properties and
assets, (b) to conduct its business and operations as currently conducted, and
(c) to execute and deliver this Agreement and each other document, agreement and
instrument to be executed and delivered by Buyer in connection with this
Agreement (collectively, the "Buyer Documents"), and to perform and comply with
all of the terms and obligations hereunder
29
and thereunder. There is no pending or, to the Knowledge of Buyer, threatened
proceeding for the dissolution, liquidation, insolvency of Buyer.
7.2. BINDING EFFECT. The execution, delivery and performance by Buyer of
this Agreement, and each other document, agreement and instrument to be executed
and delivered by Buyer in connection with this Agreement (collectively, the
"Buyer Documents") has been or will be duly authorized by all necessary
corporate action, and copies of those authorizing resolutions, certified by
Buyer's Secretary shall be delivered to Shareholders at Closing and no other
corporate action by Buyer is required for Buyer's execution, delivery and
performance of this Agreement or any of the Buyer Documents. This Agreement has
been, and each of the Buyer Documents will be, duly and validly executed and
delivered by Buyer to Shareholders and constitute a legal, valid and binding
obligation of Buyer, enforceable in accordance with its terms, subject to
bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium and
similar laws relating to or affecting creditors' and other obligees' rights
generally and the exercise of judicial discretion in accordance with general
equitable principles.
7.3. NO VIOLATION. None of (i) the execution, delivery and performance by
Buyer of this Agreement or any of the Buyer Documents; (ii) the consummation of
the Transaction; or (iii) Buyer's compliance with the terms and conditions
hereof or of the Buyer Documents will, (a) contravene any provision of the
Certificate or Articles of Incorporation or Bylaws of Buyer, (b) violate or
conflict with any law, statute, ordinance, rule, regulation, decree, writ,
injunction, judgment, ruling or order of any Governmental Authority or of any
arbitration award which is either applicable to, binding upon, or enforceable
against Buyer, (c) conflict with, result in any breach of, or constitute a
default (or an event which would, with the passage of time or the giving of
notice or both, constitute a default) under, or give rise to a right to
terminate, amend, modify, abandon or accelerate, any material contract which is
applicable to, binding upon or enforceable against Buyer, or (d) to the
Knowledge of Buyer require consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority, any court or
tribunal or any other person, except pursuant to the Communications Act and the
Hart-Scott-Rodino Act.
7.4. LITIGATION. There is no litigation, action, suit, complaint,
proceeding or investigation, pending or, to the Knowledge of Buyer, threatened
that may adversely affect Buyer's
30
ability to consummate the Transaction as provided herein. Buyer is not aware of
any facts that could reasonably result in any such proceedings.
7.5. LICENSEE QUALIFICATIONS. To the Knowledge of Buyer there is no fact
that would, under the rules and regulations of the Commission, disqualify Buyer
from being the transferee of the Shares or the owner and operator of the
Stations. Should Buyer become aware of any such fact, it will so inform Company,
and Buyer will use commercially reasonable efforts to remove any such
disqualification. Buyer will not take any action that Buyer knows, or has reason
to believe, would result in such disqualification.
7.6. HART-SCOTT-RODINO FILING. Buyer is solely responsible for all costs of
any kind, whatsoever, related to any filing which may be required under the
Hart-Scott-Rodino Act.
7.7. SUFFICIENT INFORMATION. Buyer has received sufficient information to
assess the merits and risks of the Transaction. However, no such receipt of
information or assessment shall relieve Shareholders of any obligation with
respect to any representation, warranty or covenant in this Agreement or waive
any condition to Buyer's obligations under this Agreement.
7.8. SECTION 338 ELECTION. Buyer agrees that on and after the Closing Date
it shall not make any election under Section 338 of the Code with respect to the
transactions contemplated hereby.
7.9 NO COMMISSIONS. Buyer has not incurred any obligation for any finder's
or broker's or agent's fees or commissions or similar compensation in connection
with the Transaction contemplated hereby for which Company or the Shareholders
may have any liability or obligation.
7.10 FINANCIAL INFORMATION. Buyer has delivered to Sellers the financial
statements of Buyer as of and for the periods ended December 31, 1996 and
September 30, 1997 (collectively, the "Buyer's Financial Statements"). The
Buyer's Financial Statements fairly present in all material respects the
financial position of Buyer at each of the balance sheet dates and the results
of operations for the periods covered thereby, and have been prepared in
accordance with GAAP (except, as noted therein) consistently applied throughout
the periods indicated (subject, in the case of unaudited statements, to normal
audit adjustments and lack of footnotes and other presentation items).
7.11 NO MISLEADING STATEMENTS. No provision of this Agreement relating to
Buyer or Buyer Documents contains or will contain any
31
untrue statement of a material fact or omits or will omit to state a material
fact required to be stated in order to make the statement, in light of the
circumstances in which it is made, not misleading.
8. COVENANTS WITH RESPECT TO CONDUCT OF THE COMPANY AND SHAREHOLDERS.
8.1. ACCESS. Between the date hereof and the Closing Date, Company shall
give Buyer and representatives of Buyer reasonable access to the Business, the
Stations, the employees of Company and the books and records of Company relating
to the Business and the operation of the Stations. It is expressly understood
that, pursuant to this Section, Buyer, at its expense, shall be entitled to
conduct such engineering inspections of the Stations, surveys of the Studio Site
and the WCHB(AM), WCHB-FM and WJZZ(AM) Transmitter Sites and such reviews of
Company's financial records as Buyer may desire, so long as the same do not
unreasonably interfere with Company's operation of the Business. No inspection
or investigation made by or on behalf of Buyer, or Buyer's failure to make any
inspection or investigation, shall affect Shareholders' representations,
warranties and covenants hereunder or be deemed to constitute a waiver of any of
those representations, warranties and covenants. Notwithstanding anything in the
foregoing which may appear to the contrary, no inspection shall take place,
except with the prior consent of the President of the Company and on the
reasonable terms and conditions set by the President of the Company.
8.2. MATERIAL ADVERSE CHANGES; FINANCIAL STATEMENTS. Through the Closing
Date:
(a) Shareholders or Company shall promptly notify Buyer of any event
of which they obtain knowledge which has caused or is likely to cause a material
adverse change to the Business.
(b) Shareholders or Company shall furnish to Buyer (i) within 30 days
of the end of each month, such income statements and balance sheets routinely
prepared for Company each month; and (ii) such other reports that may be
prepared for and relating to the Company as Buyer may reasonably request. Each
of the financial statements delivered pursuant to this Section 8.2(b) shall be
prepared in accordance with GAAP consistently applied during the periods covered
(except as disclosed therein).
(c) Shareholders or Company shall promptly furnish to Buyer all Tax
Returns or excerpts thereof filed with any Governmental Authority relating to
Company.
32
8.3. CONDUCT OF BUSINESS. Between the date that this Agreement is
executed and the Closing Date, Shareholders and Company covenant and agree that
neither Company nor Shareholders shall without the prior written consent of
Buyer, such consent not to be unreasonably withheld:
(a) conduct the Business in any manner except in the ordinary course
consistent with past practices;
(b) issue, sell, assign, deliver, transfer, split, reclassify, combine
or otherwise adjust, or pledge any stock, bonds or other securities of which
Company is the issuer (whether authorized and unissued or held in treasury), or
grant or issue any options, warrants or other rights (including convertible
securities) calling for the issue thereof, except for (i) those shares to be
issued to Wendell T. Arnold and Janice Hall between now and the Closing, or (ii)
shares to be assigned or transferred by Dr. Wendell F. Cox solely for estate
planning purposes or for the purpose of making charitable gifts provided that:
(w) such assignment or transfer does not cause any tax liability to Buyer and
(x) such assignment or transfer does not impair Buyer's right pursuant to the
terms of this Agreement to acquire 100% of the outstanding and issued Shares of
the Company free and clear of all Encumbrances at Closing for the Purchase Price
and (y) no such assignment or transfer releases Dr. Cox of responsibility for
the representations, warranties and covenants contained in this Agreement and
(z) contemporaneous with such assignment or transfer the assignee or transferee
executes an agreement making representations contained in Sections 6.1, 6.3 and
6.4 of this Agreement and agreeing to be bound by this Agreement as a
Shareholder (hereinafter a "Joinder Agreement").
(c) borrow any funds or incur, assume or become subject to, whether
directly or by way of guarantee or otherwise, any obligation or liability
(absolute or contingent), except with respect to trade payables arising in the
ordinary course of business and consistent with past amounts and practice and to
amounts permitted by the construction described in Sections 8.10(b) and (c) as
further described in Schedule 5.26 and to Indebtedness incurred in the ordinary
course of business and paid in full at Closing pursuant to Section 9.2(c);
(d) except for Permitted Encumbrances mortgage or pledge any of
Company?s assets, tangible or intangible unless such mortgage or pledge is
discharged in full at Closing pursuant to Section 9.2(c);
33
(e) except in the ordinary course of business, sell, lease, exchange
or otherwise transfer, or agree to sell, lease, exchange or otherwise transfer,
any of Company?s assets, property or rights or cancel any debts or claims;
(f) grant any right of first refusal, option or similar contract to
purchase any of the assets, property or rights used in the Business or held by
Company;
(g) except in the ordinary course of business or as required by Law,
make or agree to any material amendment to or termination of any FCC License
relating to the Business or to which Company is a party;
(h) except as required by Law, adopt any profit-sharing, bonus,
deferred compensation, insurance, pension, retirement, severance or other
employee benefit plan, payment or arrangement or enter into any employment,
consulting or management contract inconsistent with Section 8.3(p)(iii);
(i) grant any increase in salary, compensation or bonuses to any
employees of the Stations other than (a) salary, compensation, payments or
bonuses to Wendell T. Arnold and/or Janice Hall under the Arnold Employment
Agreement and the Arnold and Hall Incentive Stock Agreements previously
disclosed to Buyer or (b) salary, bonuses or other compensation which are
payable on or prior to the Closing Date and which do not include any contractual
obligations of the Company after the Closing Date (except as otherwise disclosed
in Schedule 5.8 with respect to existing employment agreements).
(j) merge or consolidate with any other corporation, acquire control
of any other corporation or business entity, or take any steps incident to, or
in furtherance of, any of such actions, whether by entering into an agreement
providing therefore or otherwise;
(k) make any tax election inconsistent with past practice or Buyer's
interests, or except as required by Law or GAAP, make any material alteration in
the manner of keeping its books, accounts or records, or in the accounting
practices therein reflected;
(l) solicit, either directly or indirectly, initiate, encourage or
accept any offer for the purchase or acquisition of the Business, Company or any
of their respective assets by any party other than Buyer;
34
(m) set aside or pay any dividend which would impair the Seller's
obligation to have at least Three Hundred Thousand Dollars ($300,000) in cash in
the Company's accounts on the day of Closing or purchase or otherwise acquire
any of Company?s capital stock or otherwise acquire any rights or options to
acquire the capital stock;
(n) amend or alter the Certificate of Incorporation or Bylaws or other
charter documents of Company;
(o) enter into, extend (except as required by the terms thereof) or
amend any Material Contract, other than with respect to contracts for the
purchase, production, distribution or licensing of programming in the ordinary
course of business and consistent with prior practice;
(p) enter into any other transactions involving liabilities or
obligations of more than $17,500.00 on the part of Company other than
obligations arising in connection with: (i) construction of Station WJZZ (AM) at
Kingsley or (ii) construction of the improvements at WCHB (AM) consistent with
budgets reviewed and approved by Buyer or (iii) the employment of an employee
whose annual salary does not exceed $50,000, except that the Company shall be
permitted to enter into a transaction involving employment of an employee whose
annual salary exceeds $50,000 if the Shareholders agree to be responsible for
all amounts due the employee after the Closing Date.
(q) terminate without comparable replacement or fail to renew any
insurance coverage applicable to the assets or properties of Company where such
failure could have a material adverse effect on the Business;
(r) compromise or settle any claims or rights for or having a value,
in excess of $50,000.00 without the written consent of Buyer, such consent not
to be unreasonably withheld;
(s) take any action or fail to take any action that would cause the
Shareholders to breach the representations, warranties and covenants contained
in this Agreement;
(t) disburse in any manner any of the proceeds of the sale of the
Company's assets including, but not limited to, the sale of real property at
Inkster, Michigan or the sale of Station WJZZ (AM), or count any of the proceeds
of the sale of the Company's assets toward the $300,000 in cash that the
Company's accounts must contain at Closing pursuant to Section 9.2(h);
35
(u) with respect to WJZZ (AM): (i) enter into an agreement with any
party for the sale of the station without the written consent of Buyer, such
consent not to be unreasonably withheld or (ii) commence construction of the
modified facility of the station at Kingsley in a manner inconsistent with
Section 8.10(c);
(v) create any Accounts Receivable that are not bona fide or settle or
compromise any Accounts Receivable except in the ordinary course of business and
consistent with past practice;
(w) enter into any transaction which would constitute an Accounts
Payable except in the ordinary course of business and consistent with past
practice; or
(x) dismiss or modify in a material adverse manner the construction
permit for Station WCHB(AM) which authorizes nighttime facilities operating at
15 kw.
8.4. DAMAGE.
(a) RISK OF LOSS. The risk of loss or damage, confiscation or
condemnation of the Business, the Stations and all associated assets shall be
borne by Shareholders at all times prior to Closing. In the event of material
loss or damage, Shareholders shall promptly notify Buyer thereof and
Shareholders will cause the Company to use its best efforts to repair, replace
or restore the lost or damaged property to its former condition as soon as
possible. If the cost of repairing, replacing or restoring any lost or damaged
property is Ten Thousand Dollars ($10,000) or less, and Company has not
repaired, replaced or restored such property prior to the Closing Date, Closing
shall occur as scheduled and Buyer may deduct from the Purchase Price paid at
Closing the amount necessary to restore the lost or damaged property to its
former condition. If the cost to repair, replace, or restore the lost or damaged
property exceeds Ten Thousand Dollars ($10,000), and Company has not repaired,
replaced or restored such property prior to the Closing Date to the reasonable
satisfaction of Buyer, Buyer may, at its option:
(1) elect to consummate the Closing in which event Buyer may deduct
from the Purchase Price paid at Closing the amount necessary to restore the lost
or damaged property to its former condition in which event Shareholders shall be
entitled to all proceeds under any applicable insurance policies with respect to
such claim; or
36
(2) elect to postpone the Closing, with prior consent of the
Commission if necessary, for such reasonable period of time (not to exceed
ninety (90) days) as is necessary for Company to repair, replace or restore the
lost or damaged property to its former condition.
If, after the expiration of such extension period the lost or
damaged property has not been fully repaired, replaced or restored to Buyer's
satisfaction, Buyer may terminate this Agreement, in which event the Initial
Escrow Deposit and all interest earned thereon shall be returned to Buyer and
the parties shall be released and discharged from any further obligation
hereunder.
(b) FAILURE OF BROADCAST TRANSMISSIONS. Shareholders shall give prompt
written notice to Buyer if any of the following (a "Specified Event") shall
occur and continue for a period of more than eight (8) hours: (i) the
transmission of the regular broadcast programming of any Station other than WJZZ
(AM) in the normal and usual manner is interrupted or discontinued; or (ii) any
Station is operated at less than its licensed antenna height above average
terrain or at less than eighty percent (80%) of its licensed effective radiated
power. If, prior to Closing, any Station has not operated at its licensed power
and or height (other than pursuant to variances allowed by the FCC's rules,
authorizations for use of auxiliary transmitting facilities and/or
authorizations connected with the construction of WJZZ (AM) and the improvements
at WCHB (AM)) for more than thirty-six (36) hours (or, in the event of force
majeure or utility failure affecting generally the market served by the Station,
ninety-six (96) hours), whether or not consecutive, during any period of thirty
(30) consecutive days, or if there are three (3) or more Specified Events each
lasting more than eight (8) consecutive hours, then Buyer may, at its option:
(i) terminate this Agreement; or (ii) proceed in the manner set forth in Section
8.4(a)(1) or 8.4(a)(2). In the event of termination of this Agreement by Buyer
pursuant to this Section, the Initial Escrow Deposit together with all interest
accrued thereon shall be returned to Buyer and the parties shall be released and
discharged from any further obligation hereunder.
(c) RESOLUTION OF DISAGREEMENTS. If the parties are unable to agree
upon the extent of any loss or damage, the cost to repair, replace or restore
any lost or damaged property, the adequacy of any repair, replacement, or
restoration of any lost or damaged property, or any other matter arising under
this Section, the disagreement shall be referred promptly to a qualified
consulting communications engineer mutually acceptable to Shareholders and
Buyer, whose decision shall be final, and whose
38
fees and expenses shall be paid one-half each by Company, or by Shareholders if
such resolution is initiated after the Closing, and Buyer.
8.5. ADMINISTRATIVE VIOLATIONS. If Company receives any finding, order,
complaint, citation or notice prior to Closing which states that any aspect of
the Business' operation violates or may violate any rule, regulation or order of
the Commission or of any other Governmental Authority (an "Administrative
Violation"), including, any rule, regulation or order concerning environmental
protection, the employment of labor or equal employment opportunity,
Shareholders will cause the Company to promptly notify Buyer of the
Administrative Violation and to use its best efforts to remove or correct the
Administrative Violation, and be responsible prior to Closing for the payment of
all costs associated therewith, including any fines or back pay that may be
assessed.
8.6. CONTROL OF STATION. The Transaction shall not be consummated until
after the Commission has given its written consent thereto and between the date
of this Agreement and the Closing Date, Shareholders shall control, supervise
and direct the operation of the Stations.
8.7. COOPERATION WITH RESPECT TO FINANCIAL AND TAX MATTERS. Between the
date hereof and the Closing Date, Sellers shall cause the Company, at its own
expense, to cause Deloitte & Touche to prepare the audited Financial Statement
for 1997. Buyer shall be permitted to disclose the audited Financial Statements
for 1994, 1995, 1996 and 1997, including disclosure in any reports filed by the
Buyer with any Governmental Authority, but only for the purpose of obtaining
financing for this Transaction, receiving approval from the FCC or approval
under the Hart-Scott-Rodino Act, or satisfying any reporting requirements to
comply with Federal or State securities' laws. Buyer shall use commercially
reasonable efforts not to otherwise make public disclosures of the Financial
Statements.
8.8. CLOSING OBLIGATIONS. Company, Shareholders and Buyer shall make
commercially reasonable efforts to satisfy the conditions precedent to Closing.
8.9. ENVIRONMENTAL ASSESSMENT. Within sixty (60) days after filing the
Transfer of Control Application, Buyer may engage, at its expense, an
environmental assessment firm to perform a Phase I and Phase II Environmental
Assessment of the Company Real Property and Shareholder Real Property. Company
and Shareholders agree to cooperate and Company agrees to cooperate with Buyer
and
38
such firm in performing such Environmental Assessment. Buyer shall provide a
copy of such Environmental Assessment to Company and Shareholders but such
delivery shall not relieve Shareholders of any obligation with respect to any
representation, warranty or covenant in this Agreement or waive any condition to
Buyer?s obligations under this Agreement.
8.10. CONSTRUCTION OF NEW FACILITIES.
(a) Company and Shareholders shall cooperate in permitting Buyer, its
representatives and agents, access to the facilities being constructed to
operate Station WCHB(AM) at 50 kw daytime and 15 kw nighttime, and to operate
Station WJZZ(AM) at Kingsley, including but not limited to, information
concerning the proposed construction equipment, cost estimates and timetable
consistent with Schedule 5.26.
(b) All costs associated with the construction of modified facilities
for Station WCHB(AM) will be paid for by Buyer and, to that end, the Company
will pay all such costs and the Purchase Price will be increased dollar for
dollar to take into account such payments. During the first one hundred thirty
five days (135) following the date of this Agreement, Shareholders and Buyer
will consult with each other and reach mutual agreement before incurring costs
related to the construction of the aforesaid facilities. If, however, the
transactions contemplated by this Agreement are not consummated within one
hundred thirty five (135) days after the date of this Agreement, the Company
shall be free to go forward with construction in a reasonable and prudent
manner, using its own best judgment. Buyer and Sellers agree that E. Harold
Munn, Jr. & Associates, Inc. (an entity with which Mr. Munn is no longer
affiliated), will be the contractor for the construction of the facilities
described in this Section.
(c) All costs associated with the construction of the facilities for
Station WJZZ(AM) at Kingsley will be paid for by Buyer and, to that end, the
Company will pay all such costs and the Purchase Price will be increased dollar
for dollar to take into account such payments. During the first one hundred
thirty five days (135) following the date of this Agreement, Shareholders and
Buyer will consult with each other and reach mutual agreement before incurring
costs related to the construction of the aforesaid facilities. If, however, the
transactions contemplated by this Agreement are not consummated within one
hundred thirty five (135) days after the date of this Agreement, the Company
shall be free to go forward with construction in a reasonable and prudent
manner, using its own best judgment. Buyer and Sellers agree that E. Harold
Munn, Jr. & Associates, Inc. (an entity with which Mr. Munn
39
is no longer affiliated), will be the contractor for the construction of the
facilities described in this Section.
8.11. PIRATE RADIO STATION. Shareholders shall cause Company to use its
best commercially reasonable efforts to cause the pirate radio station
broadcasting on 106.3 MHz, which is causing interference to Station WCHB-FM, to
cease operations or reduce power sufficiently to eliminate the interference.
9. CONDITIONS PRECEDENT.
9.1. MUTUAL CONDITIONS. The respective obligations of Buyer, Shareholders
and Company to consummate the Transaction are subject to the satisfaction of
each of the following conditions:
(a) APPROVAL OF TRANSFER OF CONTROL APPLICATION. The Commission shall
have granted the Transfer of Control Application, and such grant shall be in
full force and effect on the Closing Date.
(b) ABSENCE OF LITIGATION. As of the Closing Date, no litigation,
action, suit or proceeding enjoining, restraining or prohibiting the
consummation of the Transaction shall be pending before any court, the
Commission or any other Governmental Authority or arbitrator; provided, however,
that this Paragraph may not be invoked by a party if any such litigation,
action, suit or proceeding was solicited or encouraged by, or instituted as a
result of any act or omission of, such party.
9.2. ADDITIONAL CONDITIONS TO BUYER'S OBLIGATION.
In addition to the satisfaction of the mutual conditions contained in
Section 9.1, the obligation of Buyer to consummate the Transaction is subject,
at Buyer's option, to the satisfaction or waiver by Buyer of each of the
following conditions:
(A) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Shareholders to Buyer shall be true, complete, and correct in all material
respects as of the Closing Date with the same force and effect as if then made,
except to the extent that any representation or warranty is made as of a
specified date, in which case, such representation and warranty shall be true in
all material respects as of such date; provided that breach of the
representation and warranties set forth in Section 5.27 shall not constitute a
failure to satisfy the conditions of this Section 9.2, but rather shall result
in a reduction of the Purchase Price on a dollar-for-dollar basis as provided
for in Section 9.2(w) and provided further that a breach of any representation
or warranty
40
shall not constitute a failure of the condition contained in this Section 9.2(a)
if such breach, either alone, or in conjunction with all other breaches, has not
had, and would not reasonably be expected to have, a material adverse effect
and, to the extent there is no material adverse effect, the Shareholders shall
indemnify the Buyer for any such breach pursuant to Section 10.1(a).
(B) COMPLIANCE WITH CONDITIONS. Except for any breach of the
obligations regarding cash and Accounts Receivable under Section 4.2(c), which
is addressed in Section 9.2(h), all of the material terms, conditions and
covenants to be complied with or performed by Shareholders or performed by the
Company at the request of the Shareholders on or before the Closing Date under
this Agreement and Company Documents shall have been duly complied with and
performed in all material respects.
(C) DISCHARGE OF LIENS.
(1) Company shall have obtained and delivered to Buyer, at Company's
expense, at least 10 days prior to Closing, a report prepared by C.T.
Corporation System (or similar firm reasonably acceptable to Buyer) showing the
results of searches of lien, tax, judgment and litigation records in the State
of Michigan and Bay, Oakland, Saginaw, Traverse and Wayne Counties,
demonstrating that the Company, Real Property, Shares and Business are free and
clear of all liens, security interests and encumbrances except for Permitted
Encumbrances and except for liens and Indebtedness which shall be discharged at
Closing by Shareholders using the proceeds from the Purchase Price and that
there are no judgments or pending litigation. The record searches described in
the report shall have taken place no more than 15 days prior to the Closing
Date.
(2) Subject to using a portion of the Purchase Price for payment of
all Indebtedness of the Company, Company shall have no Indebtedness except for
the Permitted Encumbrances and Permitted Indebtedness and shall have received a
certificate, dated the Closing Date, and signed by the President of Company to
the effect that Company has no such Indebtedness. Buyer shall also have received
such releases and UCC termination statements as it may reasonably request in
connection with the discharge of any such Indebtedness.
(D) THIRD-PARTY CONSENTS. Shareholders shall have obtained any
requisite third-party consents and approvals which may be necessary for
Shareholders to consummate the Transaction.
41
(E) ESTOPPEL CERTIFICATES. At Closing, Company shall deliver to Buyer
a certificate executed by the other party to each Material Contract, including
the landlord under the leases of the Studio Site and WCHB-FM Transmitter Site
dated no more than 15 days prior to the Closing Date, stating (i) that such
Material Contract is in full force and effect and has not been amended or
modified; (ii) the date to which all rent and/or other payments due thereunder
have been paid; (iii) that Company is not in breach or default under such
Material Contract, and that no event has occurred that, with notice or the
passage of time or both, would constitute a breach or default thereunder by
Company.
(F) NO MATERIAL ADVERSE CHANGE. Neither the Stations nor the Business
shall have suffered a material adverse change since the date of this Agreement,
and there shall have been no changes since the date of this Agreement in the
business, operations, condition (financial or otherwise), properties, assets or
liabilities of Company, except changes specifically required by this Agreement
and changes which are not (either individually or in the aggregate) materially
adverse to Company, the Business or the Stations.
(G) FINANCIAL STATEMENTS. The financial information set forth in the
Station's Financial Statements for the year ending December 31, 1997, and for
the period ending thirty (30) days prior to the Closing Date fairly and
accurately reflect the financial performance and results of operation of the
Business and the Stations for those periods.
(H) CASH AND ACCOUNTS RECEIVABLE MINIMUMS. Company shall have
delivered to Buyer at least five (5) days prior to Closing, (i) a pre-closing
balance sheet as of the date which is five (5) days before the Closing Date and
(ii) a good faith estimate calculated in accordance with the Company?s normal
and customary practice of the Company?s Accounts Receivable and cash balance as
of the Closing Date. In the event that the Company fails to have bona fide
Accounts Receivable in the sum of at least Five Hundred Thousand Dollars
($500,000.00) and a cash balance in U.S. Dollars of at least Three Hundred
Thousand Dollars ($300,000.00), as required by Section 4.2(c), Buyer shall still
be required to close, but the Purchase Price will be reduced dollar for dollar
by the amount of the deficiency.
42
(I) OPINION OF COMPANY'S COUNSEL. At Closing, Shareholders shall
deliver to Buyer the written opinion or opinions of Company's FCC and corporate
counsel dated the Closing Date, substantially in the form attached hereto as
Exhibit 3.
(J) FINAL ORDER. The Commission's action granting the Transfer of
Control Application shall have become a Final Order.
(K) CLOSING DOCUMENTS. At the Closing, Company and each Shareholder
shall deliver to Buyer (i) such instruments of conveyance as are reasonably
necessary pursuant to law to vest in Buyer title to the Shares, all of which
documents shall be dated as of the Closing Date, duly executed by Company and/or
Shareholders and in form acceptable to Buyer; (ii) such Deeds and other
instruments of conveyance as are reasonably necessary pursuant to law to vest in
Buyer title to the Shareholder Real Property; (iii) a certificate, dated the
Closing Date, executed by Company's President certifying as to those matters set
forth in Section 9.2(a).
(L) RESIGNATION OF DIRECTORS AND OFFICERS. All the directors and
officers of Company identified in an Incumbency Certificate executed by the
President shall have submitted their resignations in writing to Company. Such
resignations shall be effective as of the Closing Date.
(M) STOCK CERTIFICATES. Buyer shall receive at Closing duly executed
stock certificates duly endorsed in blank documenting transfer of the Shares to
Buyer, including stock certificates evidencing the shares to be issued to
Wendell T. Arnold and Janice Hall between now and the Closing, free of any
Encumbrances.
(N) CORPORATE RECORDS. Buyer shall receive at Closing the original
corporate records of Company, original copies of the Stations' Records, and
original documents evidencing the security interest held by Company in assets
acquired by Frankenmuth Broadcasting and used in the operation of Station
WKNX(AM), Bay City, Michigan.
(O) CASH. The Company shall have at Closing the cash received by the
Company from the sale of assets, including cash received from the sale of assets
described in Section 8.3(t) and cash received by Dr. Wendell F. Cox and the
Estate of Mary L. Bell for the sale to Great Lakes Radio, Inc. of portions of
the real property described in Section 5.11(a), such cash to be in addition to
the $300,000 in cash described in Section 4.2(c).
43
(P) ENVIRONMENTAL REMEDIATION.Company shall have cured, to Buyer's
satisfaction, any deficiency identified in the Environmental Assessment,
provided that in no event shall Company or Shareholders be required to affect
any cure except to the extent any Hazardous Substances would give rise to
liability under Environmental Law as they apply to the present use of the Real
Property, and provided further that Shareholders shall not be required to expend
more than One Hundred Thousand Dollars ($100,000) to cure such deficiency.
(Q) TITLE INSURANCE. Buyer shall have obtained, at Sellers' expense,
ALTA extended form title insurance policies insuring Buyer's fee simple absolute
interest in the Company Real Property and Shareholder Real Property, excluding
the real property owned by Cox/Bass and described in Schedule 5.11(b), subject
only to: (i) those exceptions expressly accepted by Buyer in writing within
thirty (30) days of its receipt of a preliminary commitment of title insurance
therefor and (ii) the exception disclosed in Schedule 5.26. Subject to the
exceptions described in the preceding sentence, such Title Insurance shall not
reveal any defects in title or any encroachments upon the real property by any
buildings, structures, or Improvements located on adjoining real estate or any
encroachments by the Improvements (including without limitation any guy wires or
guy anchors) constructed on the real property onto property not owned by the
Company or Shareholders which would have a material adverse effect on Buyer?s
use, occupancy and ownership of such real property and shall show that such
buildings, structures and Improvements are constructed in conformity with all
?setback? lines, easements, and other restrictions, or rights of record, or that
have been established by any applicable building or safety code or zoning
ordinance.
(R) ACCOUNTS PAYABLE. Shareholders shall deliver a document stating
that there are no amounts to be paid to vendors whether or not within the normal
course of business other than the Accounts Payable, and shall list each amount
to be paid, to whom it shall be paid and the date due.
(S) CONSTRUCTION PERMIT. The construction permit authorizing Station
WCHB(AM) to operate at 50 kw daytime and 15 kw nighttime shall be in full force.
(T) ZONING APPROVAL. Company will have obtained all zoning approvals
necessary to construct in accordance with the construction permit described in
Section 9.2(s) on the Real Property described in Section 5.10(a).
44
(U) AUDIT. Company shall have delivered an audited Financial
Statement, balance sheets and income statements for the fiscal year ending
December 31, 1997 prepared by an independent accounting firm.
(V) ACCOUNTS RECEIVABLE. As of the Closing Date, Company shall have
mailed in the ordinary of business and consistent with past practice all bills,
statements or invoices for the Accounts Receivable.
(W) TRADE BALANCE. In the event that the negative Trade Balance
exceeds $30,000 ("Excess Trade Balance"), Buyer shall still be required to
close, but the Purchase Price will be reduced dollar for dollar by the amount to
which the negative Trade Balance exceeds the Excess Trade Balance.
(X) RADIOFREQUENCY RADIATION. The operation of the Stations does not
cause or result in exposure of workers or the general public to levels of radio
frequency radiation in excess of the standards adopted by the FCC in 1996 and
explained in OET Bulletin 65, Edition 97-01.
(Y) WJZZ (AM) LICENSE. Shareholders shall use their best efforts to
preserve the license for Station WJZZ(AM) and shall similarly use their best
efforts to see to it that construction of Station WJZZ (AM) is complete and that
the Station resumes operations or shall cause the Company to request authority
from the FCC either in accordance with the outstanding construction permit or
under temporary authority in an effort to resume operations on or before
February 3, 1998.
(Z) KINGSLEY PROPERTY. Company shall own the real property described
in Section 5.10(c).
(AA) TAXES. Company shall have delivered to Buyer ten (10) days prior
to Closing a certificate signed by the President of the Company stating that to
the Knowledge of the Company, except as disclosed in the certificate, all Tax
Returns for the Company that would be due before the Closing Date without filing
for an extension have been filed and all Taxes due (except for Taxes being
contested in good faith and by appropriate proceedings and for which adequate
reserves have been established and are being maintained), plus any interest and
penalties that have been assessed, have been paid in full.
(BB) COMPENSATION. Company shall have satisfied all amounts due
employees for compensation, other than payroll that has accrued but is not yet
due to be paid at the time of Closing,
45
whether pursuant to the terms of a written agreement or otherwise, including
bonuses and reimbursement of expenses, that have accrued as of the Closing.
(CC) CERTIFICATES OF ARNOLD AND HALL. A certificate executed by
Wendell T. Arnold and Janice Hall acknowledging that, (i) the Company has
satisfied all amounts due under any Employment Agreement between Mr. Arnold and
the Company and Ms. Hall and the Company; and (ii) all obligations under the
Incentive Stock Agreements between Mr. Arnold and the Company and Ms. Hall and
the Company to purchase or receive shares in the Company have been satisfied,
and (iii) the Shareholder Agreements between Mr. Arnold and the Company and Ms.
Hall and the Company have been terminated.
(DD) CONFIDENTIAL INFORMATION. Shareholders will deliver to Buyer all
documents or papers (including diskettes or other medium for electronic storage
of information) relating to trade secrets or other confidential information
relative to the business or any proprietary rights of the Company that are in
their possession or under their control without making copies or summaries of
any such material.
(EE) FM STUDIO LEASE. The then owners of the Cox/Bass Real Property
shall have entered into a written lease for one year for the real property
described in Section 5.11(b) for a monthly rental rate of $1,500 if Buyer does
not exercise its option to purchase the real property pursuant to Section
5.11(b)(ii).
(FF) CERTIFICATE RE MARY L. BELL SHAREHOLDER AGREEMENT. A certificate
executed by E. Harold Munn, Jr., acknowledging that the Shareholder Agreement
between the Company and Mary L. Bell has been terminated.
(GG) RELEASE. Each Shareholder shall deliver a release executed by
such shareholder stating that he or she has no claims against the Company except
for any claims for compensation as an employee accrued by the Company prior to
the Closing Date pursuant to Section 9.2(bb) and which is not otherwise
expressly prohibited by this Agreement.
9.3. ADDITIONAL CONDITIONS TO SHAREHOLDERS' OBLIGATION. In addition to
satisfaction of the mutual conditions contained in Section 9.1 the obligation of
Shareholders to consummate the Transaction is subject, at Shareholders' option,
to the satisfaction or waiver by Shareholders of each of the following
conditions:
(A) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Buyer to Shareholders shall be true, complete and
46
correct in all material respects as of the Closing Date with the same force and
effect as if then made, except to the extent that any representation or warranty
is made as of a specified date, in which case, such representation and warranty
shall be true in all material respects as of such date; provided that a breach
of any representation or warranty shall not constitute a failure of the
condition contained in this Section 9.3(a) if such breach, either alone, or in
conjunction with all other breaches, has not had, and would not reasonably be
expected to have a material adverse effect and, to the extent there is no
material adverse effect, the Buyer shall indemnify the Shareholders for any such
breach pursuant to Section 10.2(a).
(B) COMPLIANCE WITH CONDITIONS. All of the material terms, conditions
and covenants to be complied with or performed by Buyer on or before the Closing
Date under this Agreement shall have been duly complied with and performed in
all material respects.
(C) PAYMENT. Buyer shall pay (i) Shareholders the Purchase Price due
at Closing, as provided in Section 4.2, minus (x) any deficiency in the cash and
Accounts Receivable as described in Section 9.2(h) and (y) the Excess Trade
Balance; (ii) the sum of Two Hundred Thousand Dollars ($200,000) to Dr. Wendell
F. Cox and the Estate of Mary L. Bell in exchange for title to the real property
described in Section 5.11(a), (iii) the sum of Two Hundred Thousand Dollars
($200,000) to the then owners of the Cox/Bass Real Property in exchange for the
real property described in Section 5.11 (b), but only if Buyer exercises its
option to purchase said property, and (iv) that amount to Shareholders as
reimbursement for the costs incurred consistent with Section 8.10 in
constructing the facilities described in Sections 9.2(s) and 9.2(y) less any
indebtedness incurred consistent with Schedule 5.26.
(D) CLOSING DOCUMENTS. Buyer shall deliver to Shareholders at the
Closing (i) copies of Buyer's corporate resolutions authorizing the Transaction
certified as to accuracy and completeness by Buyer's Secretary; and (ii) a
certificate, dated the Closing Date, executed by Buyer's President certifying as
to those matters set forth in Section 9.3(a) and (b).
(E) OPINION OF BUYER'S COUNSEL. At Closing, Buyer shall deliver to
Shareholders the written opinion of Buyer's counsel dated the Closing Date,
substantially in the form attached hereto as Exhibit 4.
(F) FINAL ORDER. The Commission's action granting the Transfer of
Control Application shall have become a Final Order.
47
10. INDEMNIFICATION/POST-CLOSING OBLIGATIONS.
10.1. OBLIGATIONS OF SHAREHOLDERS. Subject to the limitations of this
Section 10, Shareholders agree to and shall jointly and severally indemnify and
hold harmless (after the Closing) Buyer, and its respective directors, officers,
employees, affiliates, agents and assigns from and against any and all Loss of
Buyer or Company including, without limitation, all reasonable costs associated
with investigating, removing, disposing of or remediating Hazardous Substances),
directly or indirectly, resulting from, based upon or arising out of:
(a) any inaccuracy in or breach of any of the representations or
warranties, as such representations or warranties are qualified by matters
specifically disclosed in the Schedules hereto, made by Company or Shareholders
in or pursuant to this Agreement or the Joinder Agreement; or
(b) the failure to perform any covenant of this Agreement or the
Company Documents; or
(c) any liability (i) for any Indebtedness of the Company incurred
prior to and not paid as of the Closing Date, and (ii) arising from the failure
of the Company or the Shareholders to timely file any Tax Returns due prior to
the Closing Date or to timely pay any Taxes due for periods prior to the Closing
Date (except for any Taxes being contested in good faith and by appropriate
proceedings (and for which adequate reserves have been established and are being
maintained)), as well as any interest or penalties arising as a result
therefrom, provided that the Shareholders shall have no liability for the
underlying Taxes in the event the Company paid such Taxes on or prior to the
Closing Date (in which case the Shareholders? liability hereunder shall be
limited to the interest and penalties related thereto), and provided further
that the Buyer shall promptly notify the Shareholders after its discovery of any
such delinquent Tax Returns and/or Taxes (as well as any such interest or
penalties related thereto). As used in this Agreement, (x) the term ?Tax
Returns? means all tax returns and tax reports required to be filed by the
Company with all appropriate Governmental Authorities (including all federal,
state, commonwealth, foreign, local, and other tax or information returns and
tax reports) with respect to, among other things, all income tax, unemployment
compensation, social security, payroll, sales and use, profit, excise,
privilege, occupation, property, ad valorem, franchise, license, school and any
other tax under the laws of the United States or of any state or any municipal
entity or of any political subdivision with valid taxing authority), and (y) the
term ATaxes= means all federal, state,
48
commonwealth, foreign, local and other governmental taxes and estimated taxes,
but not interest or penalties, in connection with the foregoing which have
become due pursuant to the Tax Returns; or
(d) uninsured third party claims resulting from the actions of
Shareholders or Company in the conduct of the Business prior to the Closing
except for the matter described in Schedule 5.14; or
(e) any and all violations of or liabilities under Environmental Law
that (i) relate to the real property or the Company and arise on or before the
Closing; or (ii) arise from or relate to conditions, actions, activities or
operations, whether conducted by, caused by or attributable to the Company, the
Shareholders or any entity acting on behalf of the Company, on or before
Closing; or
(f) any damages, penalties and taxes arising from any breach of ERISA
fiduciary duty or ERISA prohibited transaction occurring before the Closing; or
(g) all compensation, benefits, and claims arising out of the
termination of employment by employees of Company before Closing.
10.2. OBLIGATIONS OF BUYER. Buyer agrees to indemnify and hold harmless
(after the Closing) Shareholders from and against any and all Loss of
Shareholders, directly or indirectly, resulting from, based upon or arising out
of:
(a) any inaccuracy in or breach of any of the representations, or
warranties, made by Buyer in this Agreement; or
(b) the failure by Buyer to perform any covenant of this Agreement or
the Buyer Documents; or
(c) except as to matters as to which Buyer is indemnified under the
terms of Section 10.1, third party claims (in contract, tort or otherwise)
resulting from the actions of Buyer and its conduct of the Business after
Closing; or
(d) any liability for Taxes or Indebtedness of Company incurred after
the Closing.
10.3. PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
49
(a) The party claiming indemnification (the "Claimant") shall give
written notice to the party from which indemnification is sought (the
"Indemnitor") promptly after the Claimant learns of any claim or proceeding
covered by the foregoing agreements to indemnify and hold harmless and failure
to provide prompt notice shall not be deemed to jeopardize Claimant?s right to
demand indemnification, provided, that, Indemnitor is not prejudiced by the
delay in receiving notice.
(b) With respect to claims between the parties, following receipt of
notice from the Claimant of a claim, the Indemnitor shall have 15 days to make
any investigation of the claim that the Indemnitor deems necessary or desirable,
or such lesser time if a 15-day period would jeopardize any rights of Claimant
to oppose or protest the claim. For the purpose of this investigation, the
Claimant agrees to make available to the Indemnitor and its authorized
representatives the information relied upon by the Claimant to substantiate the
claim. If the Claimant and the Indemnitor cannot agree as to the validity and
amount of the claim within the 15-day period, or lesser period if required by
this Section (or any mutually agreed upon extension hereof) the Claimant may
seek appropriate legal remedies.
(c) The Indemnitor shall have the right to undertake, by counsel or
other representatives of its own choosing, the defense of such claim, provided,
that, Indemnitor acknowledges in writing to Claimant that Indemnitor would
assume responsibility for and demonstrates its financial ability to satisfy the
claim should the party asserting the claim prevail. In the event that the
Indemnitor shall not satisfy the requirements of the preceding sentence or shall
elect not to undertake such defense, or within 15-days after notice of such
claim from the Claimant shall fail to defend, the Claimant shall have the right
to undertake the defense, compromise or settlement of such claim, by counsel or
other representatives of its own choosing, on behalf of and for the account and
risk of the Indemnitor. Anything in this Section 10.3 to the contrary
notwithstanding, (i) if there is a reasonable probability that a claim may
materially and adversely affect the Claimant, the Claimant shall have the right,
at its own cost and expense, to participate in the defense, compromise or
settlement of the claim; (ii) the Indemnitor shall not, without the Claimant?s
written consent, settle or compromise any claim or consent to entry of any
judgment which does not include as an unconditional term thereof the giving by
the plaintiff to the Claimant of a release from all liability in respect of such
claim; and (iii) in the event that the Indemnitor undertakes defense of any
claim consistent with this Section, the Claimant, by counsel or other
representative of its own choosing and at its sole cost and expense, shall have
the
50
right to consult with the Indemnitor and its counsel or other representatives
concerning such claim and the Indemnitor and the Claimant and their respective
counsel or other representatives shall cooperate with respect to such claim.
(d) If any payment is made pursuant to this Section, the Indemnitor
shall be subrogated to the extent of such payment to all of the rights of
recovery of Claimant, and Claimant shall assign to Indemnitor, for its use and
benefit, any and all claims, causes of actions, and demands of whatever kind and
nature that Claimant may have against the person, firm, corporation or entity
giving rise to the loss for which payment was made. Claimant agrees to
reasonably cooperate in any efforts by Indemnitor to recover such loss from any
person, firm, corporation or entity.
10.4. EXCLUSIVE REMEDIES. Except as otherwise specifically provided in this
Agreement, the sole and exclusive remedy of the Buyer and the Shareholders
hereunder shall be restricted to the indemnification rights set forth in this
Section 10, provided that this limitation shall not apply to any actions or
claims arising out of fraud.
10.5. NOTICE. Each party agrees to notify the other of any liabilities,
claims or misrepresentations, breaches or other matters covered by this Section
10 upon discovery or receipt of notice thereof.
10.6. THRESHOLD CONCERNING SECTIONS 10.1 AND 10.2. Notwithstanding anything
to the contrary in Sections 10.1 and 10.2, the parties shall not be entitled to
indemnity under Sections 10.1 and 10.2 unless the aggregate Loss indemnified
against thereunder exceeds Two Hundred Thousand Dollars ($200,000.00
("Indemnification Basket") (in which case, the Claimant shall be entitled to
recovery from the Indemnitor of the full amount of the Loss), provided that any
Loss arising from the following shall not be subject to the Indemnification
Basket and, in any such case, the Indemnified Party shall be entitled to
indemnification from the first dollar of the Loss incurred for: (i) any monies
paid by the Buyer as a result of the failure to accurately reflect on the
document to be delivered to the Buyer pursuant to Section 9.2(r) all of the
Accounts Payable of the Company as of the Closing Date; (ii) the indemnification
obligations arising under Section 10.1(c)(ii); (iii) any obligations of the
Shareholders arising under the last sentence of Section 9.2(h); and (iv) any
actions or claims brought by the Shareholders against the Company for claims
arising under Sections 10.2(b) or 10.2(d).
10.7. SURVIVAL OF REPRESENTATIONS: MAXIMUM CONCERNING SHAREHOLDERS'
DAMAGES. The representations and warranties of the parties set forth in this
Agreement or in any certificate, document
51
or instrument delivered in connection herewith shall survive the execution and
delivery of this Agreement and the Closing hereunder for a period of eighteen
(18) months after the Closing Date. Notwithstanding any other provision in this
Agreement to the contrary, the aggregate amount of damages recoverable from or
against the Shareholders pursuant to the provisions of this Agreement or the
Company Documents by the Buyer shall be limited in the aggregate to the Post
Closing Escrow Fund, i.e., initially, the principal amount of $1,500,000),
provided that there shall be no such limitation for actions or claims arising
from fraud. In the event of any claim (including any tax-related claims) against
the Shareholders or Company arising out of the Company's operations after the
Closing Date, the Shareholders shall cooperate with Buyer by responding to
reasonable requests by Buyer for information (including any documentation which
may be in the Shareholders' possession) which may be pertinent to the defense of
such claim. In the event of any claim (including any tax-related claims) against
the Shareholders arising out of the Company's operations prior to the Closing
Date, the Buyer shall cooperate with Shareholders by responding to reasonable
requests by Shareholders for information (including any documentation which may
be in the Buyer's possession) which may be pertinent to the defense of such
claim.
10.8. TAX RETURNS.
(A) PREPARATION AND FILING OF RETURNS FOR PRE-CLOSING PERIODS.
Shareholders shall be responsible for causing an independent accountant to
initially prepare all Federal, State, commonwealth, foreign and local income tax
returns of the Company for taxable periods actually ending on or before the
Closing Date. Buyer shall have the right, directly and through its designated
representatives, to review at its expense any such returns that pertain to the
Company at least 30 days prior to the due date of the return. Shareholders agree
not to take, or cause the Company to take, any position or make any election on
any such return inconsistent with prior reporting practices without the prior
written consent of Buyer, if the effect of any such election or position may be
to increase the Taxes of the Company thereof from taxable periods (or portions
thereof) beginning after the Closing Date or to file an extension on the due
date for any tax return or to file an amended return without first obtaining
Buyer?s consent.
(B) PREPARATION AND FILING OF RETURNS FOR POST-CLOSING PERIODS. Buyer
shall cause to be prepared, and filed, all income tax returns of the Company for
all such returns due after the Closing.
52
10.9. ALLOCATION OF TAX LIABILITY.
(a) To the extent permitted by applicable law, the parties hereto
agree to cause federal, state and local tax periods of the Company to be closed
at the close of business on the Closing Date. In the event applicable law does
not permit the closing of any such period, the allocation of tax liability shall
be made in accordance with Section 10.9(b).
(b) In the case of a tax return for the taxable period beginning
before and ending after the Closing Date ("Overlap Period") based upon income or
gross receipts, the amount of taxes attributable to any Pre-Closing Period or
Post-Closing Period included in the Overlap Period shall be determined by
closing the books of the Company as of the close of business on the Closing Date
and by treating each of such Pre-Closing Period and Post-Closing Period as a
separate taxable year, except that exemptions, allowances or deductions that are
calculated on an annual basis shall be apportioned on a per diem basis. If the
liability for the Taxes for an Overlap Period is determined on a basis other
than income or gross receipts, the amount of Taxes attributable to any
Pre-Closing Period included in the Overlap Period shall be equal to the amount
of Taxes for the Overlap Period multiplied by a fraction, the numerator of which
is the number of days in the Pre-Closing Period included in the Overlap Period
and the denominator of which is the total number of days in the Overlap Period,
and the amount of such Taxes attributable to any Post-Closing Period included in
an Overlap Period shall be the excess of the amount of Taxes for the Overlap
Period over the amount of Taxes attributable to the Pre-Closing Period.
Shareholders shall be responsible for Taxes due for the Pre-Closing Period and
Buyer shall be responsible for Taxes due for the Post-Closing Period.
10.10. COOPERATION WITH RESPECT TO FINANCIAL AND TAX MATTERS. From the date
of Closing and for a period of three (3) years thereafter, Shareholders and
Buyer shall provide to each other such cooperation and information as each shall
reasonably request in the: (i) filing of any tax return, amended return or claim
or refund; (ii) determining a liability for taxes or a right to a refund of
taxes; (iii) participating in or conducting any audit or proceeding in respect
of taxes; (iv) analysis and review of the Financial Statements; or (v)
preparation of documentation to fulfill any reporting requirements of Buyer
including reports that may be filed with the Securities and Exchange Commission.
Such cooperation and information shall include providing copies of relevant tax
returns or portions thereof, together with the accompanying schedules and
related work papers and documents
53
relating to rulings or other determinations by tax authorities. Shareholders'
Representatives and Buyer shall make themselves available at no charge to each
other and shall request that the Company's independent accounting firm(s) make
available to each other the information relied upon by that firm(s), including
its opinions and Financial Statements for the Company, to provide explanations
of any documents or information provided hereunder and to permit disclosure by
Buyer, including disclosure to any Governmental Authority.
10.11. NONDISCLOSURE AND CONFIDENTIALITY. Shareholders agree that they will
not after Closing use or disclose to others any trade secrets or other
confidential information about the business or any proprietary rights of the
Company; provided, however, that such agreement shall not apply to trade secrets
or other confidential information that the Shareholders are obligated to
disclose by a court of competent jurisdiction, or which lawfully becomes
available to the public other than as a result of a disclosure by Shareholders.
11. DEFAULT AND REMEDIES.
11.1. OPPORTUNITY TO CURE. If any party believes the other to be in breach
hereunder, the former party shall provide the other with written notice
specifying in reasonable detail the nature of such breach. If the breach has not
been cured by the earlier of: (i) the Closing Date; or (ii) within thirty (30)
days after delivery of that notice (or such additional reasonable time as the
circumstances may warrant provided the party in breach undertakes diligent, good
faith efforts to cure the breach within such thirty (30) day period and
continues such efforts thereafter), then the party giving such notice may
consider the other party to be in default and exercise the remedies available to
such party pursuant to this Section, subject to the right of the other party to
contest the alleged default through appropriate proceedings.
11.2. SHAREHOLDERS' REMEDIES. Buyer recognizes that if the Transaction is
not consummated as a result of Buyer's default, Shareholders would be entitled
to compensation, the extent of which is extremely difficult and impractical to
ascertain. To avoid this problem, the parties agree that if the Transaction is
not consummated within the later to occur of (i) thirty (30) days after the
FCC's approval of the Transfer of Control Application becomes a Final Order, or
(ii) in the event Buyer has purchased any extension of the Closing Date pursuant
to Section 2.2, the expiration of any such extension, Shareholders shall be
entitled to the Initial Escrow Deposit of $2,000,000, minus any amounts that
have previously been deducted for extensions of the Closing Date as
54
permitted by Section 2.2, plus interest earned thereon provided that the
Shareholders are not in material default under this Agreement. The parties agree
that this sum shall constitute liquidated damages and shall be in lieu of any
other relief to which Shareholders might otherwise be entitled due to Buyer's
failure to consummate the Transaction as a result of a default by Buyer.
11.3. BUYER'S REMEDIES. Shareholders agree that the Shares represent an
interest in unique property that cannot be readily obtained on the open market
and that Buyer will be irreparably injured if this Agreement is not specifically
enforced. Therefore, Buyer shall have the right specifically to enforce
Shareholders' performance under this Agreement, and Shareholders agree (i) to
waive the defense in any such suit that Buyer has an adequate remedy at law; and
(ii) to interpose no opposition, legal or otherwise, as to the propriety of
specific performance as a remedy. If Buyer elects to terminate this Agreement as
a result of Shareholders' default instead of seeking specific performance, Buyer
shall be entitled to the return of the Initial Escrow Deposit together with all
interest earned thereon, and in addition thereto, Buyer shall be entitled to sue
for damages due to Shareholders' failure to consummate the Transaction as a
result of a default by Shareholders, provided that in no event shall Buyer be
entitled to recover damages arising under this Section 11.3 in an amount in
excess of $1.5 million in the aggregate provided further that this limitation
shall not apply to actions or claims arising from fraud.
12. TERMINATION OF AGREEMENT.
12.1. TERMINATION OF AGREEMENT. Anything herein to the contrary
notwithstanding, this Agreement and the transactions contemplated by this
Agreement may terminate at any time before the Closing in the event any of the
following shall occur:
(A) MUTUAL CONSENT. By mutual consent in writing by Buyer and Sellers.
(B) CONDITIONS TO BUYER'S PERFORMANCE NOT MET. By Buyer upon written
notice to Sellers if any event occurs or condition exists which would render
impossible the satisfaction of one or more conditions to the obligations of
Buyer to consummate the transactions contemplated by this Agreement as set forth
in Section 9.1 or 9.2.
(C) CONDITIONS TO SELLERS' PERFORMANCE NOT MET. By Sellers upon
written notice to Buyer if any event occurs or condition exists which would
render impossible the satisfaction of
55
one or more conditions to the obligation of Sellers to consummate the
transactions contemplated by this Agreement as set forth in Section 9.1 or 9.3.
(D) MATERIAL BREACH. By Buyer or Sellers, provided such party is not
in material breach of this Agreement, if there has been a material breach by the
other party of any representation, warranty or covenant set forth herein;
provided, however, that the non-breaching party shall not be excused from its
obligations under this Agreement (i) if such breach is susceptible to cure and
the breaching party cures such breach by the earlier of the Closing Date or
within 30 days after receipt of notice of such breach from the other party or
provides assurances reasonably satisfactory to the other party that the breach
will be cured prior to Closing; or (ii) if such breach gives rise solely to
money damages that can readily be ascertained or estimated with reasonable
accuracy and the breaching party tenders such amount to the other party within
30 days after receipt of notice of such breach.
(E) BANKRUPTCY; RECEIVERSHIP. By Buyer, if any of the following events
shall have occurred with respect to Company or Sellers, if any of the following
events shall have occurred with respect to Buyer: (i) it has been adjudicated a
bankrupt or insolvent or has admitted in writing its inability to pay its debts
as they mature or has made an assignment for the benefit of creditors, or has
applied for or consented to the appointment of a trustee or receiver for it or
for the major part of its property; (ii) a trustee or receiver has been
appointed for it or for any part of its property without its consent; or (iii)
bankruptcy, reorganization, arrangement or insolvency proceedings, or other
proceedings for relief under any bankruptcy or similar law or laws for the
relief of creditors, have been instituted by or against it and remain
undismissed for 10 days or longer.
(F) FCC APPROVAL. By either Buyer or Sellers, provided such party is
not otherwise in default, if a Final Order granting the Transfer of Control
Application is not obtained within 270 days after the FCC has accepted the
Transfer of Control Application for filing.
(G) ENVIRONMENTAL REMEDIATION. By either Buyer or Shareholders if the
Environmental Assessment shows the presence of conditions that must be cured or
removed under the terms of Section 9.2(p) and such remediation will cost in
excess of One Hundred Thousand Dollars ($100,000) ("Threshold Amount") and
Shareholders decline to pay for remediation in excess of the Threshold Amount,
provided that neither Buyer nor Shareholders will be entitled to terminate this
Agreement pursuant to this Section 12.1(g) if Buyer
56
elects to pay for remediation in excess of the Threshold Amount and such payment
does not reduce the Purchase Price.
12.2. REMEDIES. In the event of termination by Shareholders due to a
material breach by Buyer, Shareholders shall be entitled to the remedies
described in Section 11.2. In the event of termination by Buyer due to a
material breach by Shareholders, Buyer shall be entitled to the remedies
described in Section 11.3.
13. GENERAL PROVISIONS.
13.1. FEES. All recording costs, transfer taxes, sales tax, document stamps
and other similar charges shall be paid by Shareholders from the Purchase Price
or otherwise at Closing. Except as otherwise provided herein, all other expenses
incurred in connection with this Agreement or the Transaction shall be paid by
the party incurring those expenses whether or not the Transaction is
consummated.
13.2. NOTICES. All notices, requests, demands and other communications
pertaining to this Agreement shall be in writing and shall be deemed duly given
when (i) delivered personally (which shall include delivery by Federal Express
or other recognized overnight courier service that issues a receipt or other
confirmation of delivery) to the party for whom such communication is intended;
(ii) delivered by facsimile transmission; or (iii) three business days after the
date mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
(a) If to Company or Shareholders:
Wendell T. Arnold
Bell Broadcasting Company
2466 Ethel
Detroit, MI 48217
And to:
E. Harold Munn, Jr.
8865 McCain Road
Parma, MI 49269-5543
Fax: (517) 531-5543
57
with a copy (which shall not constitute notice) to:
Lauren A. Colby, Esq.
10 East Fourth Street
P.O. Box 113
Frederick, MD 21705
Fax: (301) 695-8734
and to:
Dykema Gossett PLLC
400 Renaissance Center
Detroit, Michigan 48243-1668
Attn: J. Michael Bernard, Esq.
Fax: 313-568-6832
and to:
Lawrence S. Jackier, Esq.
Jackier, Gould, Bean, Upfal, Eizelman & Goldman
1533 N. Woodward Avenue, Suite 250
Bloomfield Hills, Michigan 48304
and to:
Randall S. Wangen, Esq.
Fildew Hinks, PLLC
645 Griswold Street, Suite 3600
Detroit, Michigan 48226
(b) If to Buyer:
Radio One, Inc.
c/o Alfred C. Liggins, III
5900 Princess Garden Parkway, 8th Floor
Lanham, MD 20706
Fax: (301) 306-9694
with a copy (which shall not constitute notice) to:
Linda J. Eckard, Esq.
Davis Wright Tremaine LLP
1155 Connecticut Avenue, N.W.
Suite 700
Washington, D.C. 20036
Fax: (202) 508-6699
58
Any party may change its address for notices by written notice to the other
given pursuant to this Section. Any notice purportedly given by a means other
than as set forth in this Section shall be deemed ineffective.
13.3. ASSIGNMENT. No party may assign its rights or obligations under this
Agreement without the express prior written consent of the other parties,
provided that Shareholders' consent shall not be unreasonably withheld if Buyer
assigns its rights and obligations pursuant to this Agreement to (i) an entity
which is a subsidiary or parent of Buyer or to an entity at least 50% of whose
voting securities are owned by Buyer or its principals Catherine Hughes and
Alfred Liggins, and the purpose for such assignment is to facilitate the
financing of the Transaction; or (ii) to Buyer's or its permitted assignee?s
lenders as collateral for any indebtedness incurred and Shareholders agree not
to unreasonably withhold their consent to such an assignment and provided
further that Dr. Wendell F. Cox may assign or transfer his stock as described in
Section 8.3(b). However, any assignment made pursuant to this section will not
be effective until the assignee executes and delivers to all parties to this
Agreement a document in which such assignee acknowledges that it is subject to
this Agreement, and that this Agreement governs the rights and obligations of
such assignee. Subject to the foregoing, this Agreement shall be binding on,
inure to the benefit of, and be enforceable by the original parties hereto and
their respective successors and permitted assignees.
13.4. EXCLUSIVE DEALINGS. For so long as this Agreement remains in effect,
neither Company nor any Shareholder nor any person acting on either party?s
behalf shall, directly or indirectly, solicit or initiate any offer from, or
conduct any negotiations with, any person or entity concerning the acquisition
of all or any interest in the Shares or in the assets of the Business, other
than Buyer or Buyer's permitted assignees.
13.5. THIRD PARTIES. Nothing in this Agreement, whether express or implied,
is intended to: (i) confer any rights or remedies on any person other than
Shareholders, Buyer and their respective successors and permitted assignees;
(ii) relieve or discharge the obligations or liability of any third party; or
(iii) give any third party any right of subrogation or action against either
Shareholders or Buyer.
13.6. INDULGENCES. Unless otherwise specifically agreed in writing to the
contrary: (i) the failure of any party at any time to require performance by
another party of any provision of this Agreement shall not affect such party's
right thereafter to enforce
59
the same; (ii) no waiver by any party of any default by another party shall be
taken or held to be a waiver by such party of any other preceding or subsequent
default; and (iii) no extension of time granted by any party for the performance
of any obligation or act by any party shall be deemed to be an extension of time
for the performance of any other obligation or act hereunder.
13.7. PRIOR NEGOTIATIONS. This Agreement supersedes in all respects all
prior and contemporaneous oral and written negotiations, understandings and
agreements between the parties with respect to the subject matter hereof. All of
such prior and contemporaneous negotiations, understandings and agreements are
merged herein and superseded hereby.
13.8. EXHIBITS AND SCHEDULES. The Exhibits and Schedules attached hereto or
referred to herein are a material part of this Agreement, as if set forth in
full herein.
13.9. ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Exhibits and
Schedules to this Agreement set forth the entire understanding between the
parties in connection with the Transaction, and there are no terms, conditions,
warranties or representations other than those contained, referred to or
provided for herein and therein. Neither this Agreement nor any term or
provision hereof may be altered or amended in any manner except by an instrument
in writing signed by each of the parties hereto.
13.10. COUNSEL/INTERPRETATION. Each party has been represented by its own
counsel in connection with the negotiation and preparation of this Agreement.
This Agreement shall be fairly interpreted in accordance with its terms and, in
the event of any ambiguities, no inferences shall be drawn against either party.
13.11. GOVERNING LAW, JURISDICTION. This Agreement shall be governed by,
and construed and enforced in accordance with the laws of the State of Michigan
without regard to the choice of law rules utilized in that jurisdiction. Each of
the parties hereto executing this Agreement hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the States of Michigan or Maryland or the courts of the United States of
America located in the States of Michigan or Maryland for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby or thereby and agrees not to commence any action, suit or
proceeding relating hereto or thereto except in such courts, and further agrees
that service of any process, summons, notice or document by United States
registered or certified mail (at the address(es) set forth in Section 13.2)
shall be effective service of process for any
60
action, suit or proceeding brought in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to personal
jurisdiction and the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby or thereby, in the
courts of the States of Michigan or Maryland, or the courts of United States of
America located in the States of Michigan or Maryland, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum. Each of Buyer and Shareholders agree
that its submission to jurisdiction and its consent to service of process by
certified mail is made for the express benefit of the other parties hereto.
Final judgment against Buyer or Shareholders in any such action, suit or
proceeding may be enforced in other jurisdictions by suit, action or proceeding
on the judgment, or in any other manner provided by or pursuant to the laws of
such other jurisdiction; provided, however, that any party may at its option
bring suit, or institute other judicial proceedings, in any state or federal
court of the United States or of any country or place where the other party or
its assets, may be found.
13.12. SEVERABILITY. If any term of this Agreement is illegal or
unenforceable at law or in equity, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby. Any illegal or unenforceable term shall be deemed to be void
and of no force and effect only to the minimum extent necessary to bring such
term within the provisions of applicable law and such term, as so modified, and
the balance of this Agreement shall then be fully enforceable.
13.13. COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signature on each such counterpart
were on the same instrument. Each fully executed set of counterparts shall be
deemed to be an original, and all of the signed counterparts together shall be
deemed to be one and the same instrument.
13.14. FURTHER ASSURANCES. Shareholders shall at any time and from time to
time after the Closing execute and deliver to Buyer such further conveyances,
assignments and other written assurances as Buyer may request to vest and
confirm in Buyer (or its assignee) the title and rights to and in all the Shares
and/or assets of the Business to be and intended to be transferred, assigned and
conveyed hereunder.
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13.15. SHAREHOLDERS' REPRESENTATIVE.
(A) APPOINTMENT AND AUTHORITY. The Shareholders, for themselves and
their personal representatives and other successors, hereby constitute and
appoint E. Harold Munn, Jr. and Wendell T. Arnold (the "Shareholders'
Representatives"), with full power and authority (including power of
substitution), except as otherwise expressly provided in this Agreement, in the
name of and for and on behalf of the Shareholders or in his own name as
Shareholders' Representatives, to take all actions required or permitted to be
taken by the Shareholders, or any of them, under this Agreement (including the
giving and receiving of all reports, notices and consents, execution of the
Transfer of Control Application, as well as the execution and delivery of
documents to be delivered by the Shareholders at the Closing, except for
documents affecting title to the Shares or Shareholder Real Property). The
authority conferred under this Section 13.15 is an agency coupled with an
interest, and all authority conferred hereby is irrevocable and not subject to
termination by the Shareholders or by any of them, or by operation of law,
whether by the death or incapacity of any Shareholder, the termination of any
trust or estate or the occurrence of any other event. If any Shareholder should
die or become incapacitated, if any trust or estate should terminate or if any
other such event should occur, any action taken by the Shareholders'
Representatives pursuant to this Section 13.15 shall be as valid as if such
death or incapacity, termination or other event had not occurred, regardless of
whether or not the Shareholders' Representatives or the Buyer shall have
received notice of such death, incapacity, termination or other event. Any
notice given to the Shareholders' Representatives pursuant to Section 13.2 shall
constitute effective notice to all Shareholders and the Buyer or any other
person may rely on any notice, consent, election or other communication received
from the Shareholders' Representatives as if it had been received from all
Shareholders on whose behalf it was given.
(B) SUCCESSORS. A Shareholders' Representative may resign upon 20 days
prior written notice to Buyer and each other Shareholder. Upon the death,
resignation, removal or incapacity of a Shareholders' Representatives, the
Shareholders shall appoint a successor Shareholders' Representatives, by written
consent of the Required Majority of Shareholders, and any successor
Shareholders' Representatives so appointed shall, with the surviving
Shareholders' Representatives, constitute the Shareholders' Representatives to
the same effect as if originally named in this Section 13.15. Required Majority
Shareholders as used in this section means those Shareholders who currently hold
Class A Common
62
Stock as described in Schedule 4.2 acting by the affirmative vote of the
majority of such Shareholders with each such Shareholder entitled to one vote.
The Shareholders may remove one or both of the Shareholders' Representatives at
any time, by written consent of the Required Majority of Shareholders. The
Shareholders shall give the Buyer written notice of the appointment or removal
of any Shareholders' Representative pursuant to this Section 13.15, including a
copy of the written consent of the Required Majority of Shareholders relating
thereto, as soon as practicable after any such appointment or removal, and such
appointment or removal shall not be effective as against the Buyer until such
notice shall have been given, unless the Buyer shall have actual knowledge of
such appointment or removal.
63
IN WITNESS WHEREOF, and to evidence their assent to the foregoing,
Shareholders and Buyer have executed this Stock Purchase Agreement under seal as
of the date first written above.
SELLERS:
BY: __________________________________
E. Harold Munn, Jr., NBD Bank, N.A.,
Trustee of the Mary L. Bell Trust
Agreement
BY: __________________________________
Janice L. Hall, Trustee of the
Mary L. Bell Trust Agreement
BY: __________________________________
Arthur Middlebrooks, Trustee of
the Mary L. Bell Trust Agreement
BY: __________________________________
Janice L. Hall
BY: __________________________________
Dr. Wendell F. Cox
BY: __________________________________
Estate of Iris Bell Cox
BY: __________________________________
Wendell H. Cox
BY: __________________________________
William E. Fisher, Trustee for
Mariel Cox
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BY: __________________________________
William E. Fisher, Trustee for
Benjamin Cox
BY: __________________________________
William E. Fisher, Trustee for
Sonam Bass
BY: __________________________________
William E. Fisher, Trustee for
Julian Bass
BY: __________________________________
Eric Bell Bass
BY: __________________________________
Treva Bell Bass
BY: __________________________________
Robert Bell Bass
BY: __________________________________
Mary L. Bell, Trust
BY: __________________________________
Wendell T. Arnold
BY: __________________________________
William E. Fisher, Trustee for
Brianna Bass
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BUYER:
RADIO ONE, INC.
BY: __________________________________
Alfred C. Liggins, III
President
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