EXHIBIT 2.3
AMENDMENT NO. 4
To
ASSET PURCHASE AND SALE AGREEMENT
This Amendment No. 4 to Asset Purchase and Sale Agreement (this
"Amendment") is made and entered into as of July 1, 1999, by and among Fisher
Companies Inc., a Washington corporation ("FCI"), Fisher Broadcasting Inc., a
Washington corporation ("FBI"), Fisher Broadcasting - Fresno, L.L.C., a Delaware
limited liability company ("Fisher - Fresno"), and Fisher Broadcasting -
Georgia, L.L.C., a Delaware limited liability company ("Fisher - Georgia")
(collectively, the "Purchaser"), and Retlaw Enterprises, Inc., a California
corporation ("REI"), Retlaw Broadcasting, L.L.C., Retlaw Broadcasting of Boise,
L.L.C., Retlaw Broadcasting of Fresno, L.L.C., Retlaw Broadcasting of Idaho
Falls, L.L.C., Retlaw Broadcasting of Yakima, L.L.C., Retlaw Broadcasting of
Eugene, L.L.C., Retlaw Broadcasting of Columbus, L.L.C. and Retlaw Broadcasting
of Augusta, L.L.C., each a Delaware limited liability company (collective with
REI, the "Sellers").
RECITALS
WHEREAS, the Purchaser and the Sellers are parties to that certain Asset
Purchase and Sale Agreement dated as of November 18, 1998, as amended by
Amendment No. 1 dated November 30, 1998, Amendment No. 2 dated December 7, 1998
and Amendment No. 3 dated June 30, 1999 (collectively, the "Purchase
Agreement"); and
WHEREAS, the Purchase Agreement provides that Sellers retain all liability
for providing continuation coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") as Excluded Liabilities; and
WHEREAS, as an accommodation to Sellers, Purchaser and Sellers desire to
further amend the Purchase Agreement to provide for COBRA coverage to be
provided by Purchaser, at the expense of Sellers, on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. Assumption of COBRA Obligation. Notwithstanding the Purchase
------------------------------
Agreement, Purchaser hereby agrees with Sellers as follows:
1
a. Purchaser shall assume, as of the Closing Date, Sellers'
obligations to provide COBRA continuation coverage for Covered Expenses incurred
on or after Closing to all Covered Persons.
b. Purchaser shall be obligated to administer all claims
submitted by Covered Persons arising from such COBRA continuation coverage
obligation in accordance with COBRA.
c. Purchaser acknowledges that, subject to the terms of this
Amendment and except as provided below, such COBRA coverage shall be deemed to
be an Assumed Liability under the Purchase Agreement.
d. Purchaser further acknowledges, subject to the terms of this
Amendment No. 4, that the following contracts shall be deemed to be Assumed
Contracts under the Purchase Agreement:
(1) Retlaw Enterprises, Inc. Group Medical Plan
(2) Sierra Health and Life Insurance Company, Inc. Stop Loss
Policy No. 72360
(3) Contract Administration Agreement between Retlaw Enterprises
and Harden & Company Insurance Services, Inc. dated January 1, 1999
e. Sellers agree to assign the Assumed Contracts set forth in
Section 2(d) above to Purchaser on Closing.
f. The following terms shall have the following meanings for
the purposes of this Amendment No. 4:
"Covered Persons" means each current and former employee of Sellers, and
his or her covered dependents, to the extent that, as of any qualifying event,
such person is defined as a qualified beneficiary under COBRA, other than the
persons whose employment will continue with the non-broadcast business of REI.
"Covered Expenses" means the actual paid claims of Covered Persons under
COBRA continuation coverage assumed by Purchaser pursuant to this Amendment No.
4 for each calendar year (or portion thereof) during which such persons are
Covered Persons less the aggregate premiums paid or payable by such Covered
Persons for such year (or portion thereof).
Section 2. Reimbursement by Sellers. In consideration for Purchaser's
------------------------
covenants contained herein, and subject to the terms of this Amendment, Sellers
hereby agree with Purchaser as follows:
2
a. REI shall pay Purchaser $500,000.00 on the Closing Date,
such payment to be made by reducing the Purchase Price to be paid by Purchaser
pursuant to Section 3.3(c) of the Purchase Agreement.
b. To the extent, and at such time, that the amount set forth
in paragraph (a) immediately above is insufficient to reimburse Purchaser for
its actual paid claims under COBRA continuation coverage assumed by Purchaser
pursuant to this Amendment, net of premiums collected with respect thereto (the
"Excess"), REI agrees, from time to time, to reimburse Purchaser for such Excess
within ten (10) days after written request for reimbursement by Purchaser
setting forth the amount of such Excess and a reasonable description thereof.
REI agrees that, in the event that it ceases to exist, by reason of liquidation
or merger, it shall cause its successor to succeed to its obligation under this
paragraph (b). The Excess, if any, shall be calculated on the basis of claims
actually paid, provided, if the aggregate stop loss limitation has been
exceeded, the Excess shall be calculated pro rata based on the ratio of claims
of Covered Persons to all claims
c. Sellers hereby represent and warrant that there will be no
Excess, with the intention that breach of such representation and warranty will
entitle Purchaser to indemnification in accordance with the provisions of
Article IX of the Purchase Agreement. Sellers further agree that the threshold
set forth in Section 9.6 of the Agreement shall not apply solely with respect to
claims for breach of the representation and warranty contained in this paragraph
(c).
Section 3. Miscellaneous.
-------------
a. This Amendment is hereby incorporated into the Purchase
Agreement by reference and supersedes any provisions of the Purchase Agreement
that are contrary to this Amendment.
b. Except as modified by this and other amendments, the
Purchase Agreement remains in full force and effect.
c. The headings used in this Amendment have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
This Amendment shall be governed by and construed in accordance with the Laws of
the State of Delaware applicable to a contract executed and performed in such
State, without giving effect to the conflicts of laws principles thereof. This
Amendment may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
d. Unless otherwise defined in this Amendment, all capitalized
terms used herein shall have the meanings respectively ascribed to them in the
Purchase Agreement.
3
e. This Amendment No. 4 shall survive until the expiration of
time for filing and the payment of all Covered Expenses and any Excess.
PURCHASER
---------
FISHER COMPANIES INC., a Washington corporation
By: /s/ William W. Krippaehne, Jr.
---------------------------------------------------------
William W. Krippaehne, Jr., President and CEO
FISHER BROADCASTING INC., a Washington corporation
By: /s/ Patrick M. Scott
---------------------------------------------------------
Patrick M. Scott, President and CEO
FISHER BROADCASTING - FRESNO, L.L.C., a Delaware
limited liability company
By: /s/ William W. Krippaehne, Jr.
---------------------------------------------------------
William W. Krippaehne, Jr., Manager
By: /s/ Patrick M. Scott
---------------------------------------------------------
Patrick M. Scott, Manager
FISHER BROADCASTING - GEORGIA, L.L.C., a Delaware
limited liability company
By: /s/ William W. Krippaehne, Jr.
---------------------------------------------------------
William W. Krippaehne, Jr., Manager
By: /s/ Patrick M. Scott
--------------------------------------------------------
Patrick M. Scott, Manager
4
SELLERS
-------
RETLAW ENTERPRISES, INC., a California corporation
By: /s/ Benjamin W. Tucker
---------------------------------------------------------
Benjamin W. Tucker, Vice President, Broadcasting
RETLAW BROADCASTING, L.L.C., a Delaware limited
liability company
By: /s/ Benjamin W. Tucker
---------------------------------------------------------
Benjamin W. Tucker, Vice President, Broadcasting
RETLAW BROADCASTING OF BOISE, L.L.C., a Delaware
limited liability company
By: /s/ Benjamin W. Tucker
---------------------------------------------------------
Benjamin W. Tucker, President
RETLAW BROADCASTING OF FRESNO, L.L.C., a
Delaware limited liability company
By: /s/ Benjamin W. Tucker
---------------------------------------------------------
Benjamin W. Tucker, President
RETLAW BROADCASTING OF IDAHO FALLS, L.L.C., a
Delaware limited liability company
By: /s/ Benjamin W. Tucker
---------------------------------------------------------
Benjamin W. Tucker, President
5
RETLAW BROADCASTING OF YAKIMA, L.L.C., a
Delaware limited liability company
By: /s/ Benjamin W. Tucker
--------------------------------------------------------
Benjamin W. Tucker, President
RETLAW BROADCASTING OF EUGENE, L.L.C., a
Delaware limited liability company
By: /s/ Benjamin W. Tucker
--------------------------------------------------------
Benjamin W. Tucker, President
RETLAW BROADCASTING OF COLUMBUS, L.L.C., a
Delaware limited liability company
By: /s/ Benjamin W. Tucker
--------------------------------------------------------
Benjamin W. Tucker, President
RETLAW BROADCASTING OF AUGUSTA, L.L.C., a
Delaware limited liability company
By: /s/ Benjamin W. Tucker
-------------------------------------------------------
Benjamin W. Tucker, President
6