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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of Report (Date of Earliest Event Reported): February 13, 1997
CHANCELLOR BROADCASTING COMPANY
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE
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(State or Other Jurisdiction of Incorporation)
0-27726 75-2538487
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(Commission File Number) (I.R.S. Employer
Identification No.)
12655 North Central Expressway
Suite 405, Dallas, Texas 75243
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(Address of Principal Executive Offices) (Zip Code)
(972) 239-6220
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(Registrant's Telephone Number, Including Area Code)
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ITEM 5. OTHER EVENTS
PURCHASE OF RADIO STATIONS FROM OMNIAMERICA GROUP
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On February 13, 1997, Chancellor Broadcasting Company, a Delaware
corporation ("Chancellor Broadcasting Company" and, together with its
subsidiaries, the "Company"), and its principal operating subsidiary
Chancellor Radio Broadcasting Company, a Delaware corporation
("Chancellor Radio Broadcasting Company"), completed the previously
announced acquisition of one AM radio station and seven FM radio
stations (the "Omni Stations") from OmniAmerica Group. The aggregate
purchase price for the Omni Stations, based upon an appraisal of the
assets purchased, was $163 million in cash and 555,556 shares of
Company's Class A Common Stock, par value $.01 per share. The cash
portion of the purchase price was funded with proceeds from Chancellor
Radio Broadcasting Company's $345 million credit facility. The
Company plans to operate three of the eight Omni Stations (all located
in Orlando, Florida) and to divest the other five Omni Stations
pursuant to existing asset swap agreements.
MERGER WITH EVERGREEN MEDIA CORPORATION
---------------------------------------
On February 18, 1997, the Company announced that it had reached
an agreement in principle to merge with Evergreen Media Corporation, a
Delaware corporation ("Evergreen").
On February 19, 1997, Chancellor Broadcasting Company and
Chancellor Radio Broadcasting Company entered into a definitive
Agreement and Plan of Merger (the "Merger Agreement") with Evergreen.
Pursuant to the terms of the Merger Agreement, the Company will be
merged with and into Evergreen, with Evergreen remaining as the
surviving corporation. Upon the consummation of the Merger (the
"Effective Time"), the surviving corporation will be renamed
Chancellor Media Corporation (as such, the "Surviving Corporation").
At the Effective Time, (i) each share of Chancellor Broadcasting
Company's Class A Common Stock, par value $.01 per share, and Class B
Common Stock, par value $.01 per share, will be converted into 0.9091
shares of Common Stock of the Surviving Corporation, (ii) each share
of Evergreen's Class A Common Stock, par value $.01 per share, and
Class B Common Stock, par value $.01 per share, will be converted into
one share of common stock of the Surviving Corporation, (iii) each
share of Chancellor Broadcasting Company's 7% Convertible Preferred
Stock, par value $.01 per share, will be converted into one share of
preferred stock of the Surviving Corporation with substantially
identical powers, preferences and relative rights, (iv) each share of
Chancellor Radio Broadcasting Company's 12.25% Series A
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Senior Cumulative Exchangeable Preferred Stock, par value $.01 per
share, will be converted into one share of preferred stock of the
Surviving Corporation with substantially identical powers, preferences
and relative rights, and (v) each share of Chancellor Radio
Broadcasting Company's 12% Exchangeable Preferred Stock, par value
$.01 per share, will be converted into one share of preferred stock of
the Surviving Corporation with substantially identical powers,
preferences and relative rights. All shares of Common Stock of the
Surviving Corporation will be entitled to one vote per share on all
matters upon which holders of such stock are entitled to vote.
Additionally, at the Effective Time, all indebtedness of the Company
will either be assumed or refinanced by the Surviving Corporation.
The Merger Agreement provides that, at the Effective Time, the
board of directors of the Surviving Corporation will consist of three
classes of directors. Class I directors will hold their respective
office from the Effective Time until the 1998 annual meeting of the
Surviving Corporation. Class II directors will hold their respective
office from the Effective Time until the 1999 annual meeting of the
Surviving Corporation. Class III directors will hold their respective
office from the Effective Time until the 2000 annual meeting of the
Surviving Corporation. The Merger Agreement provides that, at the
Effective Time, the board of directors of the Surviving Corporation
will consist of the following individuals: (a) Class I -- Eric C.
Neumann, Perry J. Lewis and Matrice Ellis-Kirk; (b) Class II --
Lawrence D. Stuart, Jr., Steven Dinetz, Jeffrey A. Marcus and James E.
de Castro; and (c) Class III -- Thomas O. Hicks, Scott K. Ginsburg,
John H. Massey and Thomas J. Hodson. Subsequent to the execution of
the Merger Agreement, Ms. Ellis-Kirk resigned from the Company's board
of directors and it is expected that the Company will identify another
nominee to fill the seat Ms. Ellis-Kirk would have held on the board
of directors of the Surviving Corporation.
Pursuant to the Merger Agreement, at the Effective Time, the
following individuals will become officers of the Surviving
Corporation: (a) Chairman of the Board -- Thomas O. Hicks; (b)
President and Chief Executive Officer -- Scott K. Ginsburg; (c) Co-
Chief Operating Officers -- Steven Dinetz and James E. de Castro; and
(d) Chief Financial Officer -- Matthew E. Devine. Other officers of
the Surviving Corporation will be determined by the Company and
Evergreen prior to the Effective Time.
Consummation of the Merger Agreement is subject to (i) consent of
the Federal Communications Commission ("FCC"), (ii) expiration or
early termination of the waiting period required
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under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (iii) approval of the common shareholders of
Chancellor Broadcasting Company, (iv) approval of the common
shareholders of Evergreen, and (v) other closing conditions, each as
more fully described in the Merger Agreement. In order to obtain the
consent of the FCC, it will be necessary for the Surviving Corporation
to divest or commit to divest certain stations in the Chicago,
Detroit, Washington D.C. and San Francisco markets in order to comply
with limits set by the FCC's multiple ownership rules. No assurance
can be given that the Merger Agreement will be consummated. Subject
to such conditions, the Company anticipates that the Merger Agreement
will be consummated in the third quarter of 1997.
On February 19, 1997, Thomas O. Hicks and certain individuals and
entities affiliated with Thomas O. Hicks (the "Hicks Stockholders")
and Scott K. Ginsburg entered into a Stockholders Agreement (the
"Stockholders Agreement") with Chancellor Broadcasting Company and
Evergreen. Pursuant to the Stockholders Agreement, the Hicks
Stockholders and Mr. Ginsburg agreed, among other things, to vote all
shares of capital stock of Chancellor Broadcasting Company and
Evergreen held by such parties at any meeting of the stockholders of
the respective companies in favor of transactions contemplated by the
Merger Agreement. The Hicks Stockholders control approximately 90% of
the voting power of the outstanding common stock of Chancellor
Broadcasting Company. Mr. Ginsburg controls approximately 44 % of the
voting power of the outstanding common stock of Evergreen.
JOINT PURCHASE OF VIACOM INTERNATIONAL, INC.'S RADIO STATION PORTFOLIO
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On February 16, 1997, Evergreen Media Corporation of Los Angeles,
a Delaware corporation ("EMCLA"), a direct, wholly-owned subsidiary of
Evergreen, entered into a Stock Purchase Agreement (the "Viacom Stock
Purchase Agreement") with Viacom International, Inc. ("Viacom").
Under the Viacom Stock Purchase Agreement, EMCLA agreed to acquire
from Viacom all of the issued and outstanding capital stock of WAXQ
Inc., Riverside Broadcasting Co., Inc., KYSR Inc., KIBB Inc., WMZQ
Inc., Viacom Broadcasting East Inc., WLIT Inc., and WDRQ Inc. (each, a
subsidiary of Viacom, and referred to collectively as the "Viacom
Subsidiaries") for an aggregate purchase price of $1.075 billion,
subject to certain adjustments as set forth in the Viacom Stock
Purchase Agreement. The Viacom Subsidiaries own and operate (or will
own and operate at the consummation of the Viacom Stock Purchase
Agreement) the assets involved in the operation of the following radio
broadcast stations: (i) WAXQ(FM), New York, New
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York; (ii) WLTW(FM), New York, New York; (iii) KYSR(FM), Los Angeles,
California; (iv) KIBB(FM), Los Angeles, California; (v) WMZQ-FM,
Washington, D.C.; (vi) WZHF(AM), Arlington, Virginia; (vii) WJZW(FM),
Woodbridge, Virginia; (viii) WBZS(AM), Alexandria, Virginia; (ix)
WLIT(FM), Chicago, Illinois; and (x) WDRQ(FM), Detroit, Michigan.
Consummation of the Viacom Stock Purchase Agreement is subject to
(i) consent of FCC, (ii) expiration or early termination of the
waiting period required under the HSR Act and (iii) other closing
conditions, each as more fully described in the Viacom Stock Purchase
Agreement. No assurance can be given that the Viacom Stock Purchase
Agreement will be consummated. Subject to such conditions, Evergreen
anticipates that the Viacom Stock Purchase Agreement will be
consummated in the second quarter of 1997.
If the Merger Agreement is not consummated before the Viacom
Stock Purchase Agreement, certain aspects of the consummation of the
Viacom Stock Purchase Agreement will be governed by the Joint Purchase
Agreement (the "Joint Purchase Agreement") dated February 19, 1997,
among Evergreen, EMCLA, Chancellor Broadcasting Company and Chancellor
Radio Broadcasting Company. Pursuant to the Joint Purchase Agreement,
each of Chancellor Broadcasting Company and Evergreen will divide
equally certain costs due under the Viacom Stock Purchase Agreement,
including those amounts owed as deposits. On February 19, 1997, each
of Evergreen and Chancellor Broadcasting Company paid $53.75 million
to Viacom to satisfy the obligation of Evergreen under the Viacom
Stock Purchase Agreement to pay a non-refundable (except under limited
circumstances) deposit of 10% of the purchase price. If the
consummation of the Viacom Stock Purchase Agreement occurs prior to
the consummation of the Merger Agreement, (i) EMCLA will be required
to purchase the Viacom Subsidiaries that own and operate radio
stations WAXQ(FM), New York, New York, WlTW(FM), New York, New York,
WMZQ-FM, Washington, D.C., WZHF(AM), Arlington, Virginia, WJZW(FM),
Woodbridge, Virginia and WBZS(AM), Alexandria, Virginia, for an
aggregate purchase price of approximately $595 million and (ii)
Chancellor Radio Broadcasting Company will be required to purchase the
Viacom Subsidiaries that own and operate radio stations KYSR(FM), Los
Angeles, California, KIBB(FM), Los Angeles, California, WLIT(FM),
Chicago, Illinois and WDRQ(FM), Detroit, Michigan for an aggregate
purchase price of approximately $480 million. If the Viacom Stock
Purchase Agreement is consummated after the consummation of the Merger
Agreement, the Surviving Corporation will be required to purchase all
of the Viacom Subsidiaries, subject to the FCC's multiple ownership
limitations as described above.
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The Company anticipates that the Joint Purchase Agreement and the
Merger Agreement will be financed through additional bank borrowings
or additional public or private debt or equity financing.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(c) Exhibits
2.1 Agreement and Plan of Merger dated as of February 19, 1997
among Chancellor Broadcasting Company, Chancellor Radio
Broadcasting Company and Evergreen Media Corporation
(annexes and exhibits intentionally omitted).(1)
2.2 Stockholders agreement dated February 19, 1997 among
Chancellor Broadcasting Company, Evergreen Media
Corporation, Scott K. Ginsburg (individually and as
custodian for certain shares held by his children), and
HM2/Chancellor, L.P., Hicks, Muse, Tate & Furst Equity Fund
II, L.P., HM2/HMW, L.P., the Chancellor Business Trust,
HM2/HMD Sacramento GP, L.P., Hicks, Muse GP Partners, L.P.,
Thomas O. Hicks, as trustee of the William Cree Hicks 1992
Irrevocable Trust, Thomas O. Hicks, as trustee of the
Catherine Forgrave Hicks 1993 Irrevocable Trust, Thomas O.
Hicks, as trustee of the John Alexander Hicks 1984 Trust,
Thomas O. Hicks, as trustee of the Mack Hardin Hicks 1984
Trust, Thomas O. Hicks, as trustee of the Thomas O. Hicks,
Jr. 1984 Trust, Thomas O. Hicks and H. Rand Reynolds, as
trustees for the Muse Children's GS Trust, and Thomas O.
Hicks (schedule intentionally omitted).(2)
2.3 Joint Purchase Agreement dated the 19th day of February,
1997, by and between Chancellor Radio Broadcasting Company,
Evergreen Media Corporation of Los Angeles and Evergreen
Media Corporation.
2.4 Stock Purchase Agreement dated as of February 16, 1997
between Viacom International Inc. and Evergreen Media
Corporations of Los Angeles (schedules and exhibits
intentionally omitted).
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(1) Previously filed as Exhibit 99(a) to the Schedule 13D filed
on March 3, 1997 on behalf of Chancellor Broadcasting
Company, Thomas O. Hicks and Lawrence D.
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Stuart, Jr. with respect to the Class A Common Stock, par
value $.01 per share, of Evergreen Media Corporation and
incorporated herein by reference.
(2) Previously filed as Exhibit 99(b) to the Schedule 13D filed
on March 3, 1997 on behalf of Chancellor Broadcasting
Company, Thomas O. Hicks and Lawrence D. Stuart, Jr. with
respect to the Class A Common Stock, par value $.01 per
share, of Evergreen Media Corporation and incorporated
herein by reference.
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Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
CHANCELLOR BROADCASTING COMPANY
Date: February 28, 1997 By: /s/ JACQUES D. KERREST
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Jacques D. Kerrest,
Senior Vice President and
Chief Financial Officer
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INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION
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2.1 Agreement and Plan of Merger dated as of February 19, 1997
among Chancellor Broadcasting Company, Chancellor Radio
Broadcasting Company and Evergreen Media Corporation
(annexes and exhibits intentionally omitted).(1)
2.2 Stockholders agreement dated February 19, 1997 among
Chancellor Broadcasting Company, Evergreen Media
Corporation, Scott K. Ginsburg (individually and as
custodian for certain shares held by his children), and
HM2/Chancellor, L.P., Hicks, Muse, Tate & Furst Equity Fund
II, L.P., HM2/HMW, L.P., the Chancellor Business Trust,
HM2/HMD Sacramento GP, L.P., Hicks, Muse GP Partners, L.P.,
Thomas O. Hicks, as trustee of the William Cree Hicks 1992
Irrevocable Trust, Thomas O. Hicks, as trustee of the
Catherine Forgrave Hicks 1993 Irrevocable Trust, Thomas O.
Hicks, as trustee of the John Alexander Hicks 1984 Trust,
Thomas O. Hicks, as trustee of the Mack Hardin Hicks 1984
Trust, Thomas O. Hicks, as trustee of the Thomas O. Hicks,
Jr. 1984 Trust, Thomas O. Hicks and H. Rand Reynolds, as
trustees for the Muse Children's GS Trust, and Thomas O.
Hicks (schedule intentionally omitted).(2)
2.3 Joint Purchase Agreement dated the 19th day of February,
1997, by and between Chancellor Broadcasting Company,
Chancellor Radio Broadcasting Company, Evergreen Media
Corporation of Los Angeles and Evergreen Media Corporation.
2.4 Stock Purchase Agreement dated as of February 16, 1997
between Viacom International Inc. and Evergreen Media
Corporation of Los Angeles (schedules and exhibits
intentionally omitted).
_______________
(1) Previously filed as Exhibit 99(a) to the Schedule 13D filed
on March 3, 1997 on behalf of Chancellor Broadcasting
Company, Thomas O. Hicks and Lawrence D. Stuart, Jr. with
respect to the Class A Common Stock, par value $.01 per
share, of Evergreen Media Corporation and incorporated
herein by reference.
(2) Previously filed as Exhibit 99(b) to the Schedule 13D filed
on March 3, 1997 on behalf of Chancellor
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Broadcasting Company, Thomas O. Hicks and Lawrence D.
Stuart, Jr. with respect to the Class A Common Stock, par
value $.01 per share, of Evergreen Media Corporation and
incorporated herein by reference.
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EXHIBIT 2.3
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JOINT PURCHASE AGREEMENT
This Joint Purchase Agreement ("Agreement") is made this 19th day
of February, 1997, by and between Chancellor Radio Broadcasting
Company, a Delaware Corporation ("Chancellor"), Chancellor
Broadcasting Company, a Delaware corporation and sole common
stockholder of Chancellor ("CBC"), Evergreen Media Corporation of Los
Angeles, a Delaware corporation ("Evergreen") and Evergreen Media
Corporation, a Delaware corporation and the sole stockholder of
Evergreen ("EMC").
RECITALS:
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A. Chancellor, CBC and EMC have entered into a Memorandum of
Understanding dated as of February 17, 1997, under which the parties
have agreed to execute and deliver, subject to approval by their
respective boards of directors, an Agreement and Plan of Merger (the
"Merger Agreement"), with EMC surviving the Merger (the "Surviving
Entity").
B. Evergreen and Viacom International, Inc., a Delaware
corporation ("Viacom") and the sole stockholder of certain companies
owning certain radio y
ynnstations (the "Viacom Radio Companies"), have entered into a Stock
Purchase Agreement dated as of February 16, 1997, pursuant to which
Evergreen has agreed to acquire (the "Viacom Acquisition") all of the
outstanding shares of the Viacom Radio Companies.
C. The parties hereto anticipate that the acquisition of the
Viacom Radio Companies in connection with the consummation of the
Merger would significantly enhance the operations and business of the
Surviving Entity.
D. The parties have reach certain understandings and agreements
regarding the Viacom Acquisition, including without limitation the
sharing of the risks and benefits related thereto.
NOW, THEREFORE, in consideration of the foregoing premises, and
in further consideration of the mutual agreements herein contained,
the parties agree as follows:
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1. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined shall
have the meanings given such terms in the Viacom Agreement.
2. TERM.
This Agreement shall automatically terminate, without further
action by the parties hereto, upon consummation of the Merger.
3. CERTAIN MATTERS WITH RESPECT TO THE VIACOM AGREEMENT.
a. On February 19, 1997, Chancellor and Evergreen shall each
pay $53,750,000 to Viacom at the Seller's Account, via wire transfer
of immediately available funds.
b. Chancellor and Evergreen shall each pay one-half of the
Interest Amount, and all fees and expenses payable by the Purchaser
pursuant to the Viacom Agreement, including, without limitation, fees
and expenses in connection with the FCC Consent and the HSR Act.
c. Evergreen shall notify Chancellor of all other payments due
under the Viacom Agreement no later than three Business Days prior to
the date such payment is to be made. Chancellor, at its option, shall
pay its share of such payment either (i) to Evergreen by wire transfer
of immediately available funds on the Business Day immediately prior
to the date such payment is due, or (ii) directly to the party
entitled to receive such payment.
d. In the event the Viacom Agreement is validly terminated
under the circumstances specified in Section 9.02(a) thereof,
Chancellor consents to the forfeiture of its portion of the Deposit
and further agrees to pay one-half of any other Losses incurred by
Viacom that a court finally determines is owed to Viacom by Purchaser,
subject to reapportionment thereof as outlined below. Evergreen and
Chancellor shall jointly control (and shall share equally the expenses
associated with) the defense of any action initiated by Viacom under
the Viacom Agreement, and neither party shall consent to the
settlement or compromise of such action without the prior written
consent of the other (not to be unreasonably withheld or delayed).
Losses paid to Viacom by the parties shall be apportioned between
Evergreen and Chancellor in accordance with their relative
responsibility for the cause of such Losses and the applicable party
shall promptly reimburse the other party for any excess portion of
such Losses paid by the other party to Viacom. Absent
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agreement as to such reapportionment, the parties shall submit the
issue of such proportional responsibility to binding arbitration in
New York, New York, in accordance with local American Arbitration
Association rules and procedures, promptly following the award and
payment of such damages to Viacom.
e. In the event the Viacom Agreement is terminated based on the
circumstances specified in Section 9.02(b) thereof, Evergreen shall
promptly upon receipt deliver to Chancellor that portion of the
Deposit funded by Chancellor pursuant to subparagraph (a) above, plus
accrued interest repaid to Evergreen by Viacom. Evergreen and
Chancellor shall jointly control (and shall share equally the expenses
associated with) any action initiated by or on behalf of the Purchaser
against Viacom under the Viacom Agreement to recover any Losses
incurred by the Purchaser as a result of the termination of the Viacom
Agreement. Evergreen shall immediately upon receipt thereof pay to
Chancellor one-half of all damages that are paid to Purchaser in any
such action.
f. The parties shall use their reasonable best efforts to cause
the consummation of the transactions contemplated by the Viacom
Agreement. Without the prior written consent of Chancellor, which
consent shall not be unreasonably withheld or delayed, Evergreen
agrees that it will not take any actions under the Viacom Agreement,
including, without limitation, entering into any agreements (such as
determination of working capital or other adjustments to the Base
Purchase Price), amendments, waivers, or consents, without the prior
written consent of Chancellor, which shall not be unreasonably
withheld or delayed. Evergreen shall promptly forward to Chancellor
copies of each notice, statement, certificate or other information
received by Evergreen as the Purchaser.
4. ALLOCATION OF THE VIACOM RADIO COMPANIES UNDER VARIOUS CONTINGENT
CONDITIONS.
a. The parties seek to cause the consummation of the Viacom
Acquisition within the 120-day period contemplated by Section 2.07
thereof, if possible, and, in all events, within the nine-month period
contemplated by Section 9.01(b) thereof. Accordingly, within three (3)
days of the date hereof, the parties shall file mutually-contingent
applications with the FCC seeking Commission consent to the transfer
of control of the Viacom Radio Companies (the "Purchase
Applications"). The Purchase Applications will propose that Evergreen
shall be the transferee of the New York and DC Viacom Radio Companies,
and Chancellor shall be the transferee of the Chicago, Detroit and
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Los Angeles Viacom Radio Companies. As between themselves, Evergreen
and Chancellor agree that the Base Purchase Price allocable to the
markets to be purchased by Chancellor is as follows: Los Angeles -
$325 million; Chicago - $125 million; and Detroit - $30 million.
Evergreen and Chancellor shall each secure on a timely basis adequate
financing, on commercially-reasonable and materially comparable terms,
to permit the timely consummation of the Viacom Acquisition through
the purchases contemplated by the Purchase Applications. If the
Merger has not been consummated prior to the required closing date for
the Viacom Acquisition (or if the Merger Agreement has been terminated
for any reason), the parties will proceed respectively to consummate
each and all of the transactions contemplated by the Purchase
Applications.
b. Upon final determination of the Working Capital under the
Viacom Agreement, any adjustments to the estimated Working Capital
shall be allocated between Evergreen and Chancellor based on the final
aggregate Working Capital of the Viacom Radio Companies acquired by
the parties respectively under Paragraph (a) hereof.
c. The parties shall cooperate promptly to identify and secure
qualified parties to acquire those properties which must be divested
in order to obtain FCC and/or HSR clearance of the Merger, taking into
account the consummation of the Viacom Acquisition ("Divestitures").
Evergreen will negotiate the terms and conditions of such
Divestitures, but all Divestiture transactions will be subject to the
approval of Chancellor, which approval shall not be unreasonably
withheld or delayed. All expenses associated with the Divestitures
will be shared equally by Chancellor and Evergreen. In the event a
Divestiture sale is consummated before the Merger has been
consummated, proceeds of the Divestiture sale shall be applied (i)
first, to reimburse any acquisition costs paid by the applicable party
to Viacom to acquire the Divested property, and (ii) thereafter,
divided equally by the parties. Evergreen agrees to seek a purchaser
for the Detroit Radio Company as promptly as practicable after the
date hereof.
d. The parties shall also cooperate in the prompt preparation,
filing and prosecution of applications for FCC consent and HSR
clearance for the Merger, and any other necessary consents (the
"Merger Applications"). The parties will endeavor to prosecute the
Merger Applications contemporaneously with the Purchase Applications
and any applications related to the Divestitures. In the event the
Merger Applications are approved prior to the consummation of the
Viacom Acquisition pursuant to
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the Purchase Applications, the parties will proceed to consummate the
Viacom Acquisition through the Surviving Entity.
e. The failure by either party to make any of the payments or
fulfill any of the material obligations under the Viacom Agreement or
this Agreement (including, without limitation, the failure to secure
the financing contemplated under Paragraph 4(a) hereof or the timely
consummation of the Purchase Application transactions), shall be
deemed a material breach hereof. In addition to any other remedies
available at law or equity, the non-defaulting party shall have the
right in such circumstances to assume the rights and obligations of
the other party so as to permit the non-breaching party to preserve
for itself the benefits of the Viacom Agreement and the Viacom
Acquisition. Evergreen shall use its reasonable best efforts to
obtain promptly after the date hereof Viacom s agreement to the
provisions of this paragraph 4(e).
f. If the Merger Agreement is terminated at any time but the
Viacom Transaction is nevertheless consummated, the parties shall
retain each of the properties acquired by them under the Purchase
Applications, provided, however, that Evergreen shall cause Viacom
Broadcasting East, Inc. to promptly sell to Chancellor, and Chancellor
shall purchase from Evergreen, Radio Stations WJZW/WBZS, for a total
consideration of Sixty Five Million Dollars ($65,000,000), in a
transaction to be structured in a manner mutually satisfactory to
Evergreen and Chancellor. If Evergreen acquires WJZW and WBZS prior
to the consummation of the Merger, Evergreen shall operate WJZW and
WBZS only in the ordinary course of business and consistent with such
station s past practices.
5. REPRESENTATIONS AND WARRANTIES.
a. Chancellor and CBC represent and warrant to Evergreen and
EMC as follows:
b. Each of Chancellor and CBC is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to enter
into this Agreement and consummate the transactions contemplated
hereby to be consummated by it. The execution and delivery by each of
Chancellor and CBC of this Agreement and the consummation by it of the
transactions contemplated hereby to be consummated by it have been
duly authorized by all necessary corporate action on the party of
Chancellor or CBC, as the case may be. This Agreement has been duly
executed and delivered by each of Chancellor and CBC and,
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assuming the due execution and delivery of this Agreement by Evergreen
and EMC, constitutes a valid and binding obligation, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors rights in general
and subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
c. The execution and delivery of this Agreement by Chancellor
and CBC does not, and the performance by Chancellor and CBC of the
transactions contemplated hereby to be performed by it will not (a)
conflict with the certificate of incorporation or by-laws of
Chancellor or CBC, (b) conflict with, or result in any violation of,
or constitute a default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a benefit under, any
material contract or permit, order, judgment or decree to which either
Chancellor or CBC is a party or by which it is bound, or (c)
constitute a violation of any law or regulation applicable to
Chancellor or CBC.
d. Evergreen and EMC represent and warrant to Chancellor and
CBC as follows:
e. Each of Evergreen and EMC is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to enter
into this Agreement and consummate the transactions contemplated
hereby to be consummated by it. The execution and delivery by each of
Evergreen and EMC of this Agreement and the consummation by it of the
transactions contemplated hereby to be consummated by it have been
duly authorized by all necessary corporate action on the part of
Evergreen or EMC, as the case may be. This Agreement has been duly
executed and delivered by each of Evergreen and EMC and, assuming the
due execution and delivery of this Agreement by Chancellor and CBC,
constitutes a valid and binding obligation, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors rights in general and
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
f. The execution and delivery of this Agreement by Evergreen
and EMC does not, and the performance by Evergreen and EMC of the
transactions contemplated hereby to be performed by it
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will not (a) conflict with the certificate of incorporation or by-laws
of Evergreen or EMC, (b) conflict with, or result in any violation of,
or constitute a default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a benefit under, any
material contract or permit, order, judgment or decree to which either
Evergreen or EMC is a party or by which it is bound, or (c) constitute
a violation of any law or regulation applicable to Evergreen or EMC.
6. MISCELLANEOUS.
a. The parties hereto shall cooperate fully with each other in
taking any actions, including actions to obtain the required consent
of any Governmental Authority or any third party, necessary or helpful
to accomplish the transactions.
b. Any notices or other correspondence delivered pursuant to
this Agreement shall be delivered in accordance with the terms of the
Merger Agreement and to the respective addresses of the parties hereto
set forth in the Merger Agreement.
c. No party hereto shall take any action which is materially
inconsistent with its obligations under this Agreement.
d. Except as otherwise expressly provided herein, each party
hereto will pay any expenses incurred by it incident to this Agreement
and in preparing to consummate and consummating the transactions
provided for herein.
e. This Agreement will be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted
assigns, but will not be assignable or delegable by any party hereto
without the prior written consent of the other parties which shall not
be unreasonably withheld.
f. This Agreement, including without limitation, the
interpretation, construction and validity hereof, shall be governed by
the Laws of the state of New York.
g. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together
with constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto executed this
Agreement as of the day and year first above written.
CHANCELLOR RADIO BROADCASTING COMPANY
By: /s/ Thomas O. Hicks
-------------------------------------
Name: Thomas O. Hicks
Title: Chairman
CHANCELLOR BROADCASTING COMPANY
By: /s/ Thomas O. Hicks
-------------------------------------
Name: Thomas O. Hicks
Title: Chairman
EVERGREEN MEDIA CORPORATION OF LOS
ANGELES
By: /s/ Scott K. Ginsburg
-------------------------------------
Name: Scott K. Ginsburg
Title: Chairman and Chief
Executive Officer
EVERGREEN MEDIA CORPORATION
By: /s/ Scott K. Ginsburg
-------------------------------------
Name: Scott K. Ginsburg
Title: Chairman and Chief
Executive Officer
<PAGE>
<PAGE>
EXHIBIT 2.4
<PAGE>
<PAGE>
======================================================================
----------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
----------------------------------------------------------------------
dated as of February 16, 1997
between
VIACOM INTERNATIONAL INC.
and
EVERGREEN MEDIA CORPORATION OF
LOS ANGELES
----------------------------------------------------------------------
======================================================================
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms . . . . . . . . . . . . 2
Section 1.2 Other Defined Terms . . . . . . . . . . . . . 8
Section 1.3 Terms Generally . . . . . . . . . . . . . . . 9
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of the Shares . . . . . . . 10
Section 2.2 Purchase Price . . . . . . . . . . . . . . . 10
Section 2.3 Closing . . . . . . . . . . . . . . . . . . . 10
Section 2.4 Closing Deliveries by Seller . . . . . . . . 10
Section 2.5 Closing Deliveries by Purchaser . . . . . . . 11
Section 2.6 Purchase Price Adjustment . . . . . . . . . . 11
Section 2.7 Interest Amount . . . . . . . . . . . . . . . 13
Section 2.8 Payments and Computations . . . . . . . . . . 13
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.1 Incorporation and Authority of Seller . . . . 14
Section 3.2 Incorporation and Qualification of Each
Company . . . . . . . . . . . . . . . . . . . 14
Section 3.3 Capital Stock of the Companies . . . . . . . 15
Section 3.4 No Conflict . . . . . . . . . . . . . . . . . 15
Section 3.5 Consents and Approvals . . . . . . . . . . . 16
Section 3.6 Financial Information . . . . . . . . . . . . 16
Section 3.7 Absence of Undisclosed Liabilities . . . . . 16
Section 3.8 Absence of Certain Changes or Events . . . . 17
Section 3.9 Absence of Litigation . . . . . . . . . . . . 18
Section 3.10 Compliance with Laws . . . . . . . . . . . . 18
Section 3.11 Licenses and Permits . . . . . . . . . . . . 18
Section 3.12 The Assets . . . . . . . . . . . . . . . . . 19
Section 3.13 Real Property . . . . . . . . . . . . . . . . 19
Section 3.14 Employee Benefit Matters . . . . . . . . . . 20
Section 3.15 Taxes . . . . . . . . . . . . . . . . . . . . 21
Section 3.16 Brokers . . . . . . . . . . . . . . . . . . . 21
Section 3.17 Environmental Compliance . . . . . . . . . . 22
Section 3.18 EXCLUSIVITY OF REPRESENTATIONS . . . . . . . 22
<PAGE>
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 4.1 Incorporation and Authority of Purchaser . . 22
Section 4.2 No Conflict . . . . . . . . . . . . . . . . . 23
Section 4.3 Consents and Approvals . . . . . . . . . . . 23
Section 4.4 Absence of Litigation . . . . . . . . . . . . 23
Section 4.5 Securities Matters . . . . . . . . . . . . . 23
Section 4.6 FCC Qualification . . . . . . . . . . . . . . 24
Section 4.7 Brokers . . . . . . . . . . . . . . . . . . . 25
Section 4.8 EXCLUSIVITY OF REPRESENTATIONS . . . . . . . 25
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.1 Conduct of Business Prior to the Closing . . 25
Section 5.2 Access to Information . . . . . . . . . . . . 28
Section 5.3 Confidentiality . . . . . . . . . . . . . . . 29
Section 5.4 Regulatory and Other Authorizations;
Consents . . . . . . . . . . . . . . . . . . 29
Section 5.5 Intercompany Accounts . . . . . . . . . . . . 30
Section 5.6 Insurance . . . . . . . . . . . . . . . . . . 31
Section 5.7 Financial Statements . . . . . . . . . . . . 31
Section 5.8 Notification . . . . . . . . . . . . . . . . 31
Section 5.9 No Other Bids . . . . . . . . . . . . . . . . 32
Section 5.10 Environmental Audit . . . . . . . . . . . . . 32
Section 5.11 Further Action . . . . . . . . . . . . . . . 32
ARTICLE VI
EMPLOYEE MATTERS
Section 6.1 Employees . . . . . . . . . . . . . . . . . . 33
Section 6.2 INTENTIONALLY OMITTED . . . . . . . . . . . . 34
Section 6.3 Retirement Plan . . . . . . . . . . . . . . . 34
Section 6.4 Indemnity . . . . . . . . . . . . . . . . . . 35
Section 6.5 No Third Party Beneficiaries . . . . . . . . 36
ARTICLE VII
TAX MATTERS
Section 7.1 Tax Indemnities . . . . . . . . . . . . . . . 36
Section 7.2 Refunds and Tax Benefits . . . . . . . . . . 37
Section 7.3 Contests . . . . . . . . . . . . . . . . . . 38
Section 7.4 Preparation of Tax Returns . . . . . . . . . 39
Section 7.5 Section 338(h)(10) Election . . . . . . . . . 40
Section 7.6 Cooperation and Exchange of Information . . . 41
Section 7.7 Conveyance Taxes . . . . . . . . . . . . . . 41
<PAGE>
<PAGE>
Section 7.8 Miscellaneous 41
ARTICLE VIII
CONDITIONS TO CLOSING
Section 8.1 Conditions to Obligations of Seller . . . . . 42
Section 8.2 Conditions to Obligations of Purchaser . . . 43
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination . . . . . . . . . . . . . . . . . 44
Section 9.2 Termination is Non-exclusive Remedy . . . . . 46
Section 9.3 Waiver . . . . . . . . . . . . . . . . . . . 46
ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnification by Purchaser . . . . . . . . 47
Section 10.2 Indemnification by Seller . . . . . . . . . . 48
Section 10.3 Notification of Claims . . . . . . . . . . . 49
Section 10.4 Certain Exclusive Remedies . . . . . . . . . 50
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Survival . . . . . . . . . . . . . . . . . . 50
Section 11.2 Expenses . . . . . . . . . . . . . . . . . . 50
Section 11.3 Notices . . . . . . . . . . . . . . . . . . . 51
Section 11.4 Public Announcements . . . . . . . . . . . . 51
Section 11.5 Non-Solicitation . . . . . . . . . . . . . . 51
Section 11.6 Headings . . . . . . . . . . . . . . . . . . 52
Section 11.7 Severability . . . . . . . . . . . . . . . . 52
Section 11.8 Entire Agreement . . . . . . . . . . . . . . 52
Section 11.9 Successors and Assigns . . . . . . . . . . . 52
Section 11.10 No Recourse . . . . . . . . . . . . . . . . . 53
Section 11.11 No Third-Party Beneficiaries . . . . . . . . 53
Section 11.12 Amendment . . . . . . . . . . . . . . . . . . 53
Section 11.13 Sections and Schedules . . . . . . . . . . . 53
Section 11.14 Governing Law . . . . . . . . . . . . . . . . 53
Section 11.15 Counterparts . . . . . . . . . . . . . . . . 54
Section 11.16 No Presumption . . . . . . . . . . . . . . . 54
Section 11.17 Specific Performance . . . . . . . . . . . . 54
<PAGE>
<PAGE>
STOCK PURCHASE AGREEMENT, dated as of February 16, 1997, between
VIACOM INTERNATIONAL INC., a Delaware corporation ("Seller"), and
-------
EVERGREEN MEDIA CORPORATION OF LOS ANGELES, a Delaware corporation
("Purchaser").
---------
WITNESSETH:
WHEREAS, Seller owns all of the issued and outstanding shares of
capital stock of each of the companies listed in Schedule 1 and each
company listed in such Schedule owns and operates the radio broadcast
station or stations set forth opposite its name in such Schedule;
WHEREAS, the Shares (as hereinafter defined) constitute all of
the issued and outstanding shares of capital stock of each of the
Companies (as hereinafter defined);
WHEREAS, the Companies operate all of the radio broadcast
stations owned directly or indirectly by Seller (the "Stations") and
--------
serving the radio broadcast markets in New York, NY (the "NY Market"),
---------
Los Angeles, CA (the "LA Market"), Washington, D.C. (the "D.C.
--------- ----
Market"), Chicago, IL (the "Chicago Market") and Detroit, MI (the
------ --------------
Detroit Market") (individually a "Market" and collectively, the
-------------- ------
"Markets"), in each case as reflected in Schedule 1;
-------
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Purchaser has delivered to Seller a deposit (the "Deposit")
-------
in an amount equal to 10% of the Base Price (as hereinafter defined);
WHEREAS, Purchaser has informed Seller that Purchaser and certain
of its Affiliates (as hereinafter defined) intend to consummate a
business combination (the "Purchaser Merger") with Chancellor
----------------
Broadcasting Company, a Delaware company, and certain of its
Affiliates; and
WHEREAS, Seller now wishes to sell to Purchaser, and Purchaser
now wishes to purchase from Seller, the Shares upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, Purchaser and Seller hereby agree as follows:
<PAGE>
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. As used in this Agreement,
---------------------
the following terms shall have the following meanings:
"Accounting Firm" means (a) an independent certified public
---------------
accounting firm in the United States of national recognition (other
than a firm which then serves as the independent auditor for Seller,
or Purchaser or any of their respective Affiliates) mutually
acceptable to Seller and Purchaser or (b) if Seller and Purchaser are
unable to agree upon such a firm, then the regular independent
auditors for Seller and Purchaser shall mutually agree upon a third
independent certified public accounting firm, in which event,
"Accounting Firm" shall mean such third firm.
"Action" means any claim, action, suit, arbitration,
------
inquiry, proceeding or investigation by or before any Governmental
Authority.
"Affiliate" means, with respect to any specified Person, any
---------
other Person who or which, directly or indirectly through one or more
intermediaries, Controls, is Controlled by or is under common Control
with such specified Person; provided, however, that for purposes of
-------- -------
this definition and except as used in Section 5.2(b), Affiliates of
Seller shall be limited to Viacom and its direct and indirect
Subsidiaries.
"Agreement" means this Agreement, including the Disclosure
---------
Schedule, all exhibits and schedules hereto, all documents,
certificates and instruments delivered pursuant hereto and all
amendments hereto made in accordance with Section 11.12.
"Assets" means all of the assets, properties and rights of
------
every type and description, real, personal and mixed, tangible and
intangible, that are owned, leased or licensed by each of the
Companies and are used exclusively or held for use exclusively in the
conduct of the Business on the date hereof, including the following:
(i) the goodwill relating exclusively to the Business;
(ii) all the Owned Real Property and all rights in respect
of the Leased Real Property;
DAFS03...:\82\34982\0001\1761\FRM2197U.39A
<PAGE>
<PAGE>
(iii) all furniture, fixtures, equipment, machinery and other
tangible personal property;
(iv) all vehicles;
(v) all receivables;
(vi) all books of account, general, financial, tax and
personnel records, invoices, supplier lists, correspondence and
other documents, records and files and all computer software and
programs and any rights thereto;
(vii) all intellectual property;
(viii) all claims, causes of action, classes in action, rights
of recovery and rights of set-off of any kind (including rights
to insurance proceeds and rights under and pursuant to all
warranties, representations and guarantees made by suppliers of
products, materials or equipment, or components thereof);
(ix) all sales and promotional literature, customer lists
and other sales-related materials;
(x) all rights under all contracts, licenses, sublicenses,
agreements, leases, commitments, and sales and purchase orders,
and under all commitments, bids and offers (to the extent such
offers are transferable);
(xi) all of the FCC Licenses;
(xii) all municipal, state and federal franchises, permits,
licenses, agreements, waivers and authorizations, to the extent
transferable; and
(xiii) all of each Company's right, title and interest in and
to all other assets, rights and claims of every kind and nature
used exclusively or held for use exclusively in the operation of
the Business.
"Base Price" means One Billion Seventy-Five Million Dollars
----------
($1,075,000,000), which is the aggregate purchase price for all of the
Companies being acquired by Purchaser hereunder.
"Business" means the business of operating the Stations,
--------
considered as a single enterprise, as conducted on the date hereof.
<PAGE>
<PAGE>
"Business Day" means any day that is not a Saturday, a
------------
Sunday or other day on which banks are required or authorized by Law
to be closed in the City of New York.
"Cash" means the aggregate of all cash, cash equivalents and
----
bank accounts owned by each of the Companies from time to time from
the date hereof to the Closing Date.
"Closing Working Capital" means Working Capital as of the
-----------------------
close of business on the day immediately preceding the Closing Date,
as reflected on the Final WC Statement.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Communications Act" means the Communications Act of 1934,
------------------
as amended.
"Companies" means WAXQ Inc. and Riverside Broadcasting Co.,
---------
Inc. in the NY Market, KYSR Inc. and KIBB Inc. in the LA Market,
Viacom Broadcasting East Inc. and WMZQ Inc. in the D.C. Market, WLlT
Inc. in the Chicago Market and WDRQ Inc. in the Detroit Market, each
of which is a Delaware corporation.
"Control" means, as to any Person, the power to direct or
-------
cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise. The term "Controlled" shall have a correlative meaning.
----------
"Disclosure Schedule" means the Disclosure Schedule attached
-------------------
as Schedule 1.1 hereto.
"Environmental Laws" means any applicable federal, state or
------------------
local law, rule or regulation relating to the environment, natural
resources, or public health and safety.
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended.
"FCC" means the Federal Communications Commission and any
---
successor thereto.
"FCC Consent" means the FCC's initial grant of its consent
-----------
to the transfer of the FCC Licenses to Purchaser pursuant to this
Agreement.
<PAGE>
<PAGE>
"FCC Licenses" means all of the licenses, permits and
------------
authorizations granted and issued from time to time by the FCC to each
of the Companies to operate their respective Station or Stations as
currently operated.
"Final Order" means the FCC Consent to the extent not
-----------
reversed, stayed, enjoined, set aside, annulled or suspended, and with
respect to which no timely request for stay, petition for rehearing,
or appeal is pending, and as to which the time for filing any such
request, petition or appeal or reconsideration by the FCC on its own
motion has expired.
"Governmental Authority" means any United States federal,
----------------------
state or local or any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal,
or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment,
------------------
injunction, decree, stipulation, determination or award entered by or
with any Governmental Authority.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements
-------
Act of 1976, as amended, and the rules and regulations thereunder.
"Interest Amount" means, as of any date of determination,
---------------
the aggregate amount of interest accrued on the Base Price (less the
----
amount of the Deposit) pursuant to Section 2.7 as of such date of
determination.
"Interest Payment Date" means the earlier of the (i) Closing
---------------------
Date and (ii) the fifth Business Day following the date of the
termination, if any, of this Agreement pursuant to Section 9.1 (other
than clause (a) thereof).
"Interest Rate" means 8% per annum.
-------------
"IRS" means the Internal Revenue Service.
---
"Knowledge of Seller" or "Seller's knowledge" means the
------------------- ------------------
actual knowledge of Mr. William Figenshu, President, Viacom Radio, and
Mr. Kevin Reymond, Senior Vice President and Chief Financial Officer,
Viacom Radio, in each case without specific investigation.
"Law" means any federal, state, local or foreign statute,
---
law, ordinance, regulation, rule, code, order, other requirement or
rule of law.
<PAGE>
<PAGE>
"Liabilities" means all liabilities or obligations, with
-----------
respect to the Business, Assets or Stations, whether direct or
indirect, matured or unmatured or absolute, contingent or otherwise.
"Lien" means any mortgage, deed or trust, pledge,
----
hypothecation, security interest, encumbrance, claim, lien, lease
(including any capitalized lease) or charge of any kind, whether
voluntarily incurred or arising by operation of Law or otherwise,
affecting any assets or property, including any agreement to give or
grant any of the foregoing, any conditional sale or other title
retention agreement and the filing of or agreement to give any
financing statement with respect to any assets or property under the
Uniform Commercial Code of any state or comparable Law of any U.S.
jurisdiction.
"Material Adverse Effect" means a material adverse effect on
-----------------------
the Assets, taken as a whole, or on the results of operations or the
condition (financial or otherwise) of the Stations, considered as a
single enterprise; provided, however, that any material adverse effect
-------- -------
arising out of or resulting from an event or series of events or
circumstances affecting (i) the radio broadcast industry generally or
(ii) the Market or Markets in which any of the Stations operate, shall
not constitute a Material Adverse Effect.
"Permitted Liens" means the following Liens: (a) Liens for
---------------
Taxes, assessments or other governmental charges or levies not yet
due; (b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanic, material and other Liens imposed by Law and on
a basis consistent with past practice for amounts not yet due;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of the Business and on a basis consistent
with past practice in connection with worker's compensation,
unemployment insurance or other types of social security; (d) minor
defects of title, easements, rights-of-way, restrictions and other
similar charges or encumbrances with respect to any parcel of Owned
Real Property not materially detracting from the value of such Owned
Real Property or interfering with the current use of such Owned Real
Property or interfering with the ordinary conduct of the Business;
(e) Liens not created by Seller or any of the Companies which affect
the underlying fee interest of any Leased Real Property; (f) Liens
incurred in the ordinary course of the Business and on a basis
consistent with past practice securing liabilities which are not
individually or in the aggregate material; (g) any state of facts an
accurate survey would show, provided such facts do not render title
unmarketable or
<PAGE>
<PAGE>
materially interfere with the present use of the Owned Real Property;
and (h) other Liens that, individually or in the aggregate, would not
have a Material Adverse Effect.
"Person" means any natural person, general or limited
------
partnership, corporation, limited liability company, firm, association
or other legal entity.
"Purchase Price" means the sum of (i) the Base Price, plus
-------------- ----
(ii) the Interest Amount, if any, and (iii) either (a) if Estimated
Closing Working Capital is positive, plus the amount of Estimated
----
Closing Working Capital, or (b) if Estimated Closing Working Capital
is negative, less the amount of Estimated Closing Working Capital.
----
"Securities Act" means the Securities Act of 1933, as
--------------
amended.
"Seller's Account" means the account of Seller maintained by
----------------
Seller with Chase Manhattan Bank, N.A. at its office at One Chase
Manhattan Plaza, New York, NY, Account No. 910-2-712511, ABA No.
021000021.
"Shares" means all of the issued and outstanding shares of
------
capital stock of each of the Companies.
"Subsidiary" of any Person means any corporation,
----------
partnership, joint venture, limited liability company, trust or estate
of which (or in which) more than 50% of (a) the issued and outstanding
capital stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether at the
time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or Controlled by such Person.
"Tax" or "Taxes" means all income, excise, gross receipts,
--- -----
ad valorem sales, use, employment, franchise, profits, gains,
property, transfer, use, payroll, intangibles or other taxes, fees,
stamp taxes, duties, charges, levies or assessments of any kind
whatsoever (whether payable directly or by withholding), together with
any interest and any penalties, additions to tax or additional amounts
imposed by any Tax authority with respect thereto.
<PAGE>
<PAGE>
"Tax Returns" means all returns and reports (including
-----------
elections, declarations, disclosures, schedules, estimates and
information returns) required to be supplied to a Tax authority
relating to Taxes.
"Viacom" means Viacom Inc., a Delaware corporation, the
------
parent of Seller.
"Working Capital" means, for all Markets, on a combined
---------------
basis, as of any date of determination, (a) the sum of (i) Cash,
(ii) receivables and (iii) prepaid expenses minus (b) the sum of
-----
(i) accounts payable and (ii) accrued expenses, in each case as of
such date, calculated in the same manner and using the same methods,
as the line items on the Reference Balance Sheet(s).
Section 1.2 Other Defined Terms. The following terms have the
-------------------
meanings defined for such terms in the Sections set forth below:
Term Section
---- -------
Acquisition Proposal 5.9
Allocations 7.5(b)
Chicago Market Recitals
Closing 2.3
Closing Date 2.3
COBRA 6.3(c)
Confidentiality Agreement 5.3
Contest 7.3(b)
Continuation Period 6.1(d)
D.C. Market Recitals
Deposit Recitals
Deposit Delivery Time 2.2
Detroit Market Recitals
Election 7.5(a)
Environmental Assessments 5.10
Estimated Closing Working Capital 2.6(a)
Filing 5.2(b)
Final WC Statement 2.6(a)
Financial Statements 3.6
Forms 7.5(a)
lndemnified Party 10.3(a)
Indemnifying Party 10.3(a)
Initial WC Statement 2.6(a)
KIBB Assets Article III
LA Market Recitals
Leased Real Property 3.13
Losses 10.1(a)
<PAGE>
<PAGE>
MADSP 7.5(b)
Market Recitals
Markets Recitals
Multiemployer Plan 3.14(b)
Multiple Employer Plan 3.14(b)
Notice of Disagreement 2.6(a)
NY Market Recitals
Outside Date 9.1(b)
Owned Real Property 3.13
Post-Closing Date Tax Benefit 7.2(b)
Purchaser Preamble
Purchaser Assignee 11.9
Purchaser lndemnified Parties 10.2(a)
Purchaser's DC Plan 6.3(b)
Purchaser Merger Recitals
Reference Balance Sheet(s) 3.6
Securities Acts 5.2(b)
Seller Preamble
Seller Indemnified Parties 10.1(a)
Stations Recitals
Station Employees 6.1(a)
Sublease 2.4(d)
Submitted Notice of Disagreement 2.6(a)
Submitted WC Statement 2.6(a)
Surviving Entity 11.9
Supplemental Financial Statements 5.7
Transferred Employees 6.1 (b)
Viacom ERISA Plan 3.14(a)
Viacom Plans 3.14(a)
VIP 3.14(d)
VPP 3.14(d)
Section 1.3 Terms Generally. (a) Words in the singular shall
---------------
be held to include the plural and vice versa and words of one gender
shall be held to include the other genders as the context requires,
(b) the term "hereof," "herein," and "herewith" and words of similar
import shall, unless otherwise stated, be construed to refer to this
Agreement and not to any particular provision of this Agreement, and
Article, Section, paragraph, Exhibit and Schedule references are to
the Articles, Sections, paragraphs, Exhibits and Schedules to this
Agreement unless otherwise specified, (c) the word "including" and
words of similar import when used in this Agreement means "including,
without limitation," unless otherwise specified, and (d) the word "or"
shall not be exclusive.
<PAGE>
<PAGE>
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of the Shares. On the terms and
-------------------------------
subject to the conditions set forth in this Agreement, at the Closing,
Seller shall sell, convey, assign, transfer and deliver to Purchaser,
and Purchaser shall purchase, acquire and accept from Seller, the
Shares.
Section 2.2 Purchase Price. Subject to the adjustments set
--------------
forth in Section 2.6, Purchaser shall pay the Purchase Price in cash
to Seller as follows: (i) the Deposit, which will be delivered to
Seller's Account by wire transfer in immediately available funds no
later than 3:00 P.M. (New York City time) on the second Business Day
immediately succeeding the date hereof (the "Deposit Delivery Time")
---------------------
and (ii) the balance of the Purchase Price at the Closing as provided
in Section 2.5(a).
Section 2.3 Closing. Subject to the terms and conditions of
-------
this Agreement, the sale and purchase of the Shares contemplated
hereby shall take place at a closing (the "Closing") to be held at
-------
10:00 A.M. (New York City time) on the fifth Business Day following
the later to occur of (i) the expiration or termination of the
applicable waiting periods under the HSR Act and (ii) the satisfaction
or waiver of the other conditions to the obligations of the parties
set forth in Article VIII, at the offices of Seller, 1515 Broadway,
New York, New York, or at such other time or on such other date or at
such other place as Seller and Purchaser may mutually agree upon in
writing (the day on which the Closing takes place being the "Closing
-------
Date").
------
Section 2.4 Closing Deliveries by Seller. At the Closing,
----------------------------
Seller shall deliver or cause to be delivered to Purchaser:
(a) stock certificates evidencing the Shares, duly endorsed
in blank or accompanied by stock powers duly executed in blank,
with all required stock transfer tax stamps affixed;
(b) a receipt for the Purchase Price;
(c) the certificates and other documents required to be
delivered pursuant to Section 8.2; and
(d) the sublease described on Schedule 3.13(b) (the
"Sublease") duly executed by Seller.
--------
<PAGE>
<PAGE>
Section 2.5 Closing Deliveries by Purchaser. At the Closing,
-------------------------------
Purchaser shall deliver to Seller:
(a) the balance of the Purchase Price after the application
of the Deposit thereto, by wire transfer in immediately available
funds to Seller's Account;
(b) the certificates and other documents required to be
delivered pursuant to Section 8.1; and
(c) the Sublease duly executed by Purchaser.
All deliveries under Sections 2.4 and 2.5 shall occur simultaneously.
Section 2.6 Purchase Price Adjustment. (a) No less than two
-------------------------
Business Days prior to the Closing Date, Seller shall deliver a notice
to Purchaser which sets forth Seller's good faith estimate of Working
Capital as of the close of business on the day immediately preceding
the Closing Date (the "Estimated Closing Working Capital"). Within 30
---------------------------------
days after the Closing Date, Purchaser shall prepare and deliver to
Seller a statement setting forth Working Capital as of the close of
business on the day immediately preceding the Closing Date (the
"Initial WC Statement"). During the 30 days immediately following
--------------------
Seller's receipt of the Initial WC Statement, Seller will be permitted
to review Purchaser's working papers relating to the Initial WC
Statement, all of Purchaser's and each Company's books and records
with respect thereto and such other books and records of Purchaser and
each Company as Seller may reasonably request in connection with such
review. The Initial WC Statement shall become final and binding upon
the parties (and shall thereupon become the Final WC Statement) on the
31 st day following receipt thereof by Seller, unless Seller shall
provide a written notice (the "Notice of Disagreement") of its
----------------------
disagreement with the Initial WC Statement to Purchaser prior to such
date. Any Notice of Disagreement shall specify in reasonable detail
the nature of any disagreement so asserted. If a timely Notice of
Disagreement is received by Purchaser, then the Initial WC Statement
(as revised in accordance with clause (x) or (y) below) shall become
final and binding upon the parties, and shall thereupon become the
"Final WC Statement", on the earlier of (x) the date on which the
------------------
parties hereto resolve in writing any differences they have with
respect to any matter specified in the Notice of Disagreement, and
agree upon a Final WC Statement, or (y) the date on which the
Accounting Firm finally resolves in writing any matters with respect
to the Initial WC Statement that are properly in dispute by providing
each of the parties hereto with
<PAGE>
<PAGE>
a Final WC Statement. During the 30 days immediately following the
delivery of a Notice of Disagreement, Seller and Purchaser shall seek
in good faith to resolve in writing (and thereby agree on a Final WC
Statement) any differences which they may have with respect to any
matter specified in the Notice of Disagreement. During such period,
Purchaser shall have access to the working papers of Seller prepared
in connection with Seller's preparation of the Notice of Disagreement.
At the end of such 30-day period, Seller and Purchaser shall submit to
the Accounting Firm for review and resolution any and all matters
which remain in dispute and which were properly included in the Notice
of Disagreement (the Initial WC Statement, as it may be modified by
Purchaser prior to submission to the Accounting Firm, being the
"Submitted WC Statement", and the Notice of Disagreement, as it may be
----------------------
modified by Seller prior to submission to the Accounting Firm, being
the "Submitted Notice of Disagreement"), and, within 30 days of its
--------------------------------
receipt of the Submitted Notice of Disagreement, the Accounting Firm
shall make a final determination, binding on the parties hereto, of
Working Capital as of the close of business on the day immediately
preceding the Closing Date. Purchaser and Seller shall share equally
the cost of the Accounting Firm's review and determination.
(b) (i) If Closing Working Capital exceeds Estimated
Closing Working Capital, then Purchaser shall pay to Seller an amount
equal to such excess or (ii) if Estimated Closing Working Capital
exceeds Closing Working Capital, then Seller shall pay to Purchaser an
amount equal to such excess, in either case within 10 Business Days
after the Final WC Statement becomes final and binding on the parties
hereto, together with interest thereon from the Closing Date to the
date of payment at the rate of interest publicly announced by
Citibank, N.A. in New York, New York from time to time as its base
rate. If Closing Working Capital is equal to Estimated Closing
Working Capital, then neither Purchaser nor Seller shall owe any
amount to the other party pursuant to this Section 2.6.
(c) Purchaser agrees that following the Closing through the
date that payment, if any, is made pursuant to Section 2.6(b), it will
not, and will cause the Companies not to, take any actions with
respect to any accounting books, records, policy or procedure on which
the Initial WC Statement is to be based that are inconsistent with
past practices of Seller or that would make it impossible or
impracticable to calculate Working Capital in the manner utilizing the
methods required hereby. Without limiting the generality of the
foregoing, no changes shall be made in any reserve or other account
existing as of the date of the Reference Balance Sheet(s) except as a
result of events
<PAGE>
<PAGE>
occurring after the date of the Reference Balance Sheet(s) and, in
such event, only in a manner consistent with the past practices of
Seller.
Section 2.7 Interest Amount. If the Closing shall not have
---------------
occurred on or prior to the 120th day following the date hereof for
any reason other than as a result of Seller's failure to comply in all
material respects with its covenants and agreements hereunder or the
material inaccuracy of the representations and warranties made by
Seller herein, then interest shall commence to accrue on the Base
Price (less the amount of the Deposit) at the Interest Rate from such
----
date through the Interest Payment Date. Purchaser shall pay the
Interest Amount to Seller on the Interest Payment Date.
Section 2.8 Payments and Computations. Each party shall make
-------------------------
each payment due to the other party hereunder as soon as practicable
on the day when due in U.S. dollars, in the case of payments to Seller
at Seller's Account or as otherwise directed by Seller, and in the
case of payments to Purchaser as directed by Purchaser in writing, by
wire transfer in immediately available funds. All computations of
interest shall be made by the party entitled to receive payment on the
basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in
the period for which such interest is payable. Each determination by
the party to which interest is to be paid pursuant to the terms of
this Agreement of an interest rate or any amount of interest due
hereunder shall be conclusive and binding for all purposes, absent
manifest error. Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Purchaser understands and acknowledges that as of the date
of this Agreement such of the Assets as are used or held for use
exclusively in the operation of the radio broadcast station identified
by the call letters KIBB-FM (the "KIBB Assets") and serving the Los
-----------
Angeles Market, are held directly by Viacom. Seller hereby represents
and warrants to Purchaser that KIBB Inc. is a recently-formed Delaware
corporation that, other than for its organization, has undertaken no
operations and conducted no
<PAGE>
<PAGE>
business as of the date hereof. Purchaser further understands and
Seller hereby covenants and agrees that prior to the Closing, Viacom
shall contribute the KIBB Assets to Seller which will then contribute
such assets to KIBB Inc. Accordingly, the references to "each
Company", "any of the Companies", the "Companies", any "Company" or
any comparable phrase or reference contained in Sections 3.11, 3.12 or
3.13, to the extent the representations and warranties set forth in
such Sections are made as of the date hereof and solely to the extent
referring to or including KIBB Inc., shall be deemed to include
Viacom. The immediately preceding sentence shall not apply to the
representations and warranties set forth in Sections 3.11, 3.12 or
3.13 when made as of the Closing Date. Seller represents and warrants
to Purchaser as follows:
Section 3.1 Incorporation and Authority of Seller. Seller is
-------------------------------------
a corporation duly incorporated, validly existing and in good standing
under the Laws of the State of Delaware and has all necessary
corporate power and authority to enter into this Agreement, to carry
out its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
Seller, the performance by Seller of its obligations hereunder and the
consummation by Seller of the transactions contemplated hereby have
been duly authorized by all requisite corporate action on the part of
Seller. This Agreement has been duly executed and delivered by Seller
and (assuming due authorization, execution and delivery by Purchaser)
this Agreement constitutes the legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms,
subject, as to enforceability, to the effect of any applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or similar Laws affecting creditors' rights generally and
to the effect of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
Law).
Section 3.2 Incorporation and Qualification of Each Company.
-----------------------------------------------
Each Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has the
corporate power and authority to own or lease and operate its
respective Assets. Each Company is duly qualified as a foreign
corporation to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or leased and
operated or the nature of its activities makes such qualification
necessary, except for where the failure to be so qualified would not
have a Material Adverse Effect.
<PAGE>
<PAGE>
Section 3.3 Capital Stock of the Companies. The Shares
------------------------------
constitute all the authorized, issued and outstanding shares of
capital stock of the Companies. The Shares have been duly authorized
and validly issued and are fully paid and nonassessable and were not
issued in violation of any pre-emptive rights. There are no options,
warrants or rights of conversion or other rights, agreements,
arrangements or commitments relating to the capital stock of any
Company obligating such Company to issue or sell any of its shares of
capital stock. Seller owns the Shares, free and clear of all Liens
except for Permitted Liens specified in clause (a) of the definition
of Permitted Liens and any Liens arising out of, under or in
connection with this Agreement or through Purchaser. There are no
voting trusts, stockholder agreements, proxies or other agreements in
effect with respect to the voting or transfer of the Shares. None of
the Companies owns, directly or indirectly, any shares of any
corporation or any ownership or other investment interest, either of
record, beneficially or equitably, in any association, partnership,
joint venture or other legal entity.
Section 3.4 No Conflict. Assuming all consents, approvals,
-----------
authorizations and other actions described in Section 3.5 have been
obtained and all filings and notifications listed in Section 3.5 of
the Disclosure Schedule have been made, and except as may result from
any facts or circumstances relating solely to Purchaser or as
described in Section 3.4 of the Disclosure Schedule, the execution,
delivery and performance of this Agreement by Seller do not and will
not (a) violate or conflict with the Certificate of Incorporation or
By-laws of Seller or any Company, (b) conflict with or violate any Law
or Governmental Order applicable to Seller or any Company, except as
would not, individually or in the aggregate, have a Material Adverse
Effect or prohibit Seller from consummating the purchase and sale of
the Shares as contemplated hereby or (c) result in any breach of, or
constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, or give to any
Person any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any Lien on any Shares
or on any of the Assets pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or
other instrument to which Seller or any Company is a party or by which
any of the Shares or, to the knowledge of Seller, the Assets are bound
or affected, except as would not, individually or in the aggregate,
have a Material Adverse Effect or prohibit Seller from consummating
the purchase and sale of the Shares as contemplated hereby.
<PAGE>
<PAGE>
Section 3.5 Consents and Approvals. The execution and
----------------------
delivery of this Agreement by Seller does not, and the performance of
this Agreement by Seller will not, require any consent, approval,
authorization or other action by, or filing with or notification to,
any Governmental Authority or other Person except (a) as described in
Section 3.5 of the Disclosure Schedule, (b) the notification
requirements of the HSR Act, (c) for consents required from the FCC
prior to the Closing and those notices to be filed with the FCC after
the Closing, (d) where failure to obtain such consent, approval,
authorization or action, or to make such filing or notification, would
not prohibit Seller from consummating the purchase and sale of the
Shares as contemplated hereby, (e) as would not have a Material
Adverse Effect and (f) as may be necessary as a result of any facts or
circumstances relating solely to Purchaser or its Affiliates.
Section 3.6 Financial Information. The unaudited balance
---------------------
sheet relating to all of the Stations, on a combined basis, in each
Market as at December 31, 1996 (collectively for all of the Markets,
the "Reference Balance Sheet(s)") and the related unaudited statement
--------------------------
of income of all such Stations, on a combined basis, in each such
Market for the fiscal year then ended (collectively, the "Financial
---------
Statements"), all of which are included in Exhibit 3.6 hereto, fairly
----------
present, in all material respects, the financial condition and results
of operations of all such Stations, on a combined basis, in each such
Market at such date, or for the period covered thereby, and were
prepared on a basis consistent with the past practices of Seller for
purposes of inclusion in the consolidated financial statements of
Viacom and, except as disclosed in Section 3.6(a) of the Disclosure
Schedule, were prepared in accordance with generally accepted
accounting principles.
Section 3.7 Absence of Undisclosed Liabilities. As of the
----------------------------------
Closing Date, there shall be no liability of any Company except
liabilities (i) disclosed in Section 3.7(a) of the Disclosure Schedule
or otherwise included in the Disclosure Schedule or addressed by or
referred to in any of the representations, warranties, covenants or
agreements made by Seller in this Agreement, (ii) as, and to the
extent, reflected or reserved against in the Reference Balance
Sheet(s), (iii) covered by insurance, indemnification, contribution or
comparable arrangements, the benefits of which will be available to
Purchaser or the Companies after the Closing, (iv) with respect to the
matters addressed in Sections 3.14 and 3.15 and Articles VI and VII
(which shall be governed solely by the terms of such Sections and
Articles), (v) incurred in the ordinary
<PAGE>
<PAGE>
course of the Business after the date hereof and prior to the Closing
and (vi) liabilities which would not individually or in the aggregate
have a Material Adverse Effect.
Section 3.8 Absence of Certain Changes or Events. (a) Since
------------------------------------
the date of the Reference Balance Sheet(s) or such other date as
specified below, except as disclosed in Section 3.8 of the Disclosure
Schedule, the Business has been conducted in the ordinary course and
consistent with past practice.
(b) Since the date of the Reference Balance Sheet(s) and,
except as set forth in Section 3.8 of the Disclosure Schedule or as
contemplated by this Agreement or in the ordinary course of the
Business, there has not been:
(i) a Material Adverse Effect;
(ii) the creation of any Lien on the Assets or the Shares,
other than, in the case of the Shares, Permitted Liens specified
in clause (a) of the definition of Permitted Liens;
(iii) any establishment or material increase in any bonus,
insurance severance, deferred compensation, pension, retirement,
profit sharing, stock option (including any grant of any stock
options, stock appreciation rights, performance awards or
restricted stock awards), stock purchase or other employee
benefit plans, or other material increase in the compensation
payable or to become payable to any officer or key employee of
any of the Stations by Seller or by any Company, except, in any
case described above, as may be required by Law, existing
contracts or applicable collective bargaining agreements;
(iv) any employment or severance agreement providing for
annual compensation or severance payments in excess of $100,000
entered into by Seller or by any Company with any of the Station
Employees;
(v) any sale, assignment, transfer, lease or other
disposition or agreement to sell, assign, transfer, lease or
otherwise dispose of any of the Assets having an aggregate
replacement value exceeding $100,000;
(vi) by any Company, (A) any acquisition (by merger,
consolidation acquisition of stock or assets or otherwise) of any
corporation, partnership or other business organization or
division thereof or interest therein or
<PAGE>
<PAGE>
(B) any incurrence of any indebtedness for borrowed money (other
than to Seller on arm's-length terms) or issuance of any debt
securities or assumption, grant, guarantee or endorsement, or
other accommodation or arrangement making any Company responsible
for, the obligations of any Person or any distributions of cash
(other than by one or more of the Companies to Seller) or any
loans or advances other than to Seller on arm's-length terms;
(vii) any material change in any method of accounting or
accounting practice used by any Company.
Section 3.9 Absence of Litigation. Except as set forth in
---------------------
Section 3.9 of the Disclosure Schedule, there are no Actions pending,
or to Seller's knowledge threatened in writing, against Seller or any
Company, or to which any of the Shares or Assets are subject, before
any Governmental Authority that, individually or in the aggregate,
would have a Material Adverse Effect or would prohibit Seller from
consummating the purchase and sale of the Shares as contemplated
hereby.
Section 3.10 Compliance with Laws. Except as set forth in
--------------------
Section 3.10 of the Disclosure Schedule, to the knowledge of Seller,
neither Seller nor any Company is in material violation of any Law or
Governmental Order applicable to the Business, Shares or any material
Asset, or by which any of them is bound.
Section 3.11 Licenses and Permits. Each Company holds and is
--------------------
in material compliance with all FCC Licenses necessary to operate as
currently operated each of the Stations set forth opposite such
Company's name on Schedule 1 as a radio broadcast station with the
power disclosed in Section 3.11 of the Disclosure Schedule. Except as
set forth in Section 3.11 of the Disclosure Schedule, no governmental
qualifications, registrations, filings, privileges, franchises,
licenses, permits, approvals or authorizations other than the FCC
Licenses are required to operate each of the Stations as a radio
broadcast station in substantially the same manner as each such
Station is being operated as of the date hereof, other than those that
the failure to hold or obtain would not, individually or in the
aggregate, have a material adverse effect on the results of operations
or financial condition of any Station. Except as set forth in Section
3.11 of the Disclosure Schedule, no application, action or proceeding
is pending for the renewal or modification of any of the FCC Licenses,
and, except for actions or proceedings affecting radio broadcast
stations generally, no application, complaint, action or proceeding is
pending, or to Seller's knowledge threatened in writing, that would
reasonably
<PAGE>
<PAGE>
be expected to result in (i) the denial of an application for renewal
of any of the FCC Licenses, (ii) the revocation, modification,
nonrenewal or suspension of any of the FCC Licenses, (iii) the
issuance of a cease-and-desist order with respect to any of the FCC
Licenses or (iv) the imposition of any material administrative or
judicial sanction with respect to Seller, any Company or any Station.
To Seller's knowledge, there is no fact or circumstance relating to
Seller, the Companies or any of Seller's Affiliates that would cause
the FCC to deny the FCC application for assignment of the FCC Licenses
as provided in this Agreement. No waiver of any FCC rule or policy is
necessary to be obtained by Seller, any Company or any of Seller's
Affiliates for the grant of the FCC application for assignment of the
FCC Licenses as provided in this Agreement, nor will processing
pursuant to any exception to a rule of general applicability be
requested or required in connection with the consummation by Seller of
the transactions contemplated hereby except in each case for facts or
circumstances not related to Seller, the Companies or any of Seller's
Affiliates.
Section 3.12 The Assets. (a) Except as set forth in Section
----------
3.12(a) of the Disclosure Schedule, the Assets include all of the
assets, properties and rights of every type and description, real,
personal and mixed, tangible and intangible, that are owned, leased or
licensed by any of the Companies and are used exclusively or held for
use exclusively in the operation of the Business as of the date
hereof. All of the tangible Assets material to the operation of any
Station are in good operating condition and repair, subject to normal
wear and maintenance, except to the extent the failure to be in such
condition or repair would not result in a Material Adverse Effect.
The Assets constitute all of the assets necessary for the continued
operation of the Business in substantially the same manner as
conducted on the date of this Agreement.
(b) The Companies hold, and at the Closing will hold, good
title to or have valid leasehold interests in all of their respective
Assets (other than the Owned Real Property and Leased Real Property as
to which the provisions of Section 3.13 apply), free and clear of any
and all Liens, except (i) as disclosed in Section 3.12(b) of the
Disclosure Schedule, (ii) for Permitted Liens and (iii) for Liens
created by or through Purchaser or any of its Affiliates.
Section 3.13 Real Property. Each parcel of real property,
-------------
including those properties set forth in Sections 3.13(a) (which lists
material real property owned by each Company, the "Owned Real
----------
Property") and 3.13(b) (which lists material real property
--------
<PAGE>
<PAGE>
leased by each Company, the "Leased Real Property") of the Disclosure
--------------------
Schedule, owned or leased by any Company is, and at the Closing will
be, owned in fee simple or held pursuant to a valid leasehold estate,
free and clear of all Liens, except (i) as disclosed in Section
3.13(a) or in Section 3.13(b), as the case may be, of the Disclosure
Schedule, (ii) for Permitted Liens and (iii) for Liens created by or
through Purchaser or any of its Affiliates.
Section 3.14 Employee Benefit Matters. (a) Section 3.14 of the
------------------------
Disclosure Schedule contains a true and complete list of all employee
benefit plans (within the meaning of Section 3(3) of ERISA, hereafter
"Viacom ERISA Plan") and all bonus, stock option, stock purchase,
-----------------
restricted stock, incentive, deferred compensation, supplemental
retirement, severance or other benefit plans, programs or arrangements
(collectively, the "Viacom Plans") with respect to which Seller or any
------------
Company has any obligation or which are maintained, contributed to or
sponsored by Viacom, Seller or any Company for the benefit of any
current employee, officer or director of Seller or any Company or any
former employee of Seller or any Company who was previously employed
in the Business, other than plans, programs, arrangements, contracts
or agreements for which no benefits are payable after the Closing.
Except as disclosed in Section 3.14 of the Disclosure Schedule, each
Viacom ERISA Plan is in writing and Seller has previously made
available to Purchaser a true and complete copy of each Viacom ERISA
Plan and a true and complete copy of each of the following documents,
to the extent applicable, prepared in connection with each such Viacom
Plan: (i) a copy of each trust or other funding arrangement, (ii) the
most recently filed IRS Form 5500 and (iii) the most recently received
IRS determination letter.
(b) Except as otherwise disclosed in Section 3.14 of the
Disclosure Schedule, none of the Viacom ERISA Plans (i) is a
multiemployer plan, within the meaning of Section 3(37) or 4001 (a)(3)
of ERISA (a "Multiemployer Plan"), or a single employer pension plan,
------------------
within the meaning of Section 4001 (a)(15) of ERISA, for which Seller
could incur liability under Section 4063 or 4064 of ERISA (a "Multiple
--------
Employer Plan"), or (ii) provides or promises to provide retiree
-------------
medical or life insurance benefits.
(c) With respect to each Viacom ERISA Plan, neither Seller
nor any Company is currently liable for any material tax arising under
Section 4971, 4972, 4975,4979, 4980 or 4980B of the Code. Seller has
not incurred any material liability under, arising out of or by
operation of Title IV of ERISA (other than
<PAGE>
<PAGE>
liability for premiums to the Pension Benefit Guaranty Corporation
arising in the ordinary course), including any liability in connection
with (i) the termination or reorganization of any employee pension
benefit plan subject to Title IV of ERISA or (ii) the withdrawal from
any Multiemployer Plan or Multiple Employer Plan.
(d) The Viacom Pension Plan (the "VPP") and the Viacom
---
Investment Plan (the "VIP") which are intended to be qualified under
---
Section 401(a) of the Code have received favorable determination
letters from the IRS that such plans are so qualified, and the related
trusts which are intended to be exempt from federal income tax
pursuant to Section 501(a) of the Code have received determination
letters from the IRS that such trusts are so exempt.
(e) Seller and the Companies have complied with their
obligations under the collective bargaining agreements disclosed in
Section 3.14 of the Disclosure Schedule, except for any failure to
comply that would not result in a Material Adverse Effect.
Section 3.15 Taxes. Except as set forth in Section 3.15 of the
-----
Disclosure Schedule, (a) each Company has timely filed or been
included in, or will timely file or be included in, all material Tax
Returns required to be filed by it or in which it is to be included
with respect to Taxes for any period ending on or before the Closing
Date, (b) all material Taxes which are due with respect to each
Company have been paid except to the extent such Taxes are being
contested in good faith, (c) no deficiency for any material amount of
Tax has been asserted or assessed by a Tax authority against any
Company or for which any Company may be liable, (d) there are no
judicial proceedings with respect to material Taxes due from any
Company; and (e) there is no contract, agreement, plan or arrangement
covering any Person that, individually or collectively, could give
rise to the payment of any amount that would not be deductible by any
Company by reason of Section 280G of the Internal Revenue Code of
1986, as amended.
Section 3.16 Brokers. Except for Credit Suisse First Boston
-------
Corporation, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Seller or any Company. Seller is solely
responsible for the fees and expenses of Credit Suisse First Boston
Corporation.
<PAGE>
<PAGE>
Section 3.17 Environmental Compliance. Except as set forth in
------------------------
Section 3.17 of the Disclosure Schedule or as would not result in a
Material Adverse Effect, (i) Seller and each Company is in compliance
with all Environmental Laws and (ii) there are no judicial or
administrative actions, proceedings or investigations pending or, to
the knowledge of Seller, threatened in writing against Seller or any
Company or any real property owned, operated or leased by any Company
alleging the violation of or seeking to impose liability pursuant to
any Environmental Law.
Section 3.18 EXCLUSIVITY OF REPRESENTATIONS. THE
------------------------------
REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS AGREEMENT ARE IN
LIEU OF AND ARE EXCLUSIVE OF ALL OTHER REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTIES. SELLER HEREBY DISCLAIMS ANY SUCH
OTHER OR IMPLIED REPRESENTATIONS OR WARRANTIES, NOTWITHSTANDING THE
DELIVERY OR DISCLOSURE TO PURCHASER OR ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS OR REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER
INFORMATION (INCLUDING, WITHOUT LIMITATION, ANY FINANCIAL PROJECTIONS
OR OTHER SUPPLEMENTAL DATA).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Section 4.1 Incorporation and Authority of Purchaser.
----------------------------------------
Purchaser is a corporation duly incorporated, validly existing and in
good standing under the Laws of its jurisdiction of incorporation or
organization and has all necessary corporate power and authority to
enter into this Agreement, to carry out its obligations hereunder and
to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Purchaser, the performance by Purchaser
of its obligations hereunder and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of Purchaser. This Agreement
has been duly executed and delivered by Purchaser and (assuming due
authorization, execution and delivery by Seller) constitutes the
legal, valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms subject, as to enforceability,
to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or similar Laws
affecting creditors' rights generally and to the effect of general
principles of equity (regardless of
<PAGE>
<PAGE>
whether such enforceability is considered in a proceeding in equity or
at Law).
Section 4.2 No Conflict. Except as may result from any facts
-----------
or circumstances relating solely to Seller, the execution, delivery
and performance of this Agreement by Purchaser do not and will not (a)
violate or conflict with the Certificate of Incorporation or By-laws
(or other similar applicable documents) of Purchaser, (b) conflict
with or violate any Law or Governmental Order applicable to Purchaser
or (c) result in any breach of, or constitute a default (or event
which with the giving of notice or lapse of time, or both, would
become a default) under, or give to any Person any rights of
termination, amendment, acceleration or cancellation of, or result in
the creation of any Lien on any of the assets or properties of
Purchaser pursuant to, any material note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument relating to such assets or properties to which Purchaser is
a party or by which any of such assets or properties is bound or
affected, except as would not, individually or in the aggregate,
prohibit Purchaser from consummating the purchase and sale of the
Shares as contemplated hereby.
Section 4.3 Consents and Approvals. The execution and
----------------------
delivery of this Agreement by Purchaser do not, and the performance of
this Agreement by Purchaser will not, require any consent, approval,
authorization or other action by, or filing with or notification to,
any Governmental Authority or other Person, except (a) as described in
a writing delivered to Seller by Purchaser on the date hereof, (b) the
notification requirements of the HSR Act, (c) for consents required
from the FCC prior to the Closing and those notices to be filed with
the FCC after the Closing, (d) where failure to obtain such consent,
approval, authorization or action, or to make such filing or
notification, would not prohibit Purchaser from consummating the
purchase and sale of the Shares as contemplated hereby and (e) as may
be necessary as a result of any facts or circumstances relating solely
to Seller or its Affiliates.
Section 4.4 Absence of Litigation. There are no Actions
---------------------
pending against Purchaser before any Governmental Authority that,
individually or in the aggregate, would prohibit Purchaser from
consummating the purchase and sale of the Shares as contemplated
hereby.
Section 4.5 Securities Matters. (a) Purchaser understands
------------------
that (i) the offering and sale of the Shares
<PAGE>
<PAGE>
hereunder is intended to be exempt from the registration requirements
of the Securities Act pursuant to Section 4(2) thereof and (ii) there
is no existing public or other market for the Shares and there can be
no assurance that such a market will exist or that Purchaser will be
able to sell or dispose of the Shares.
(b) The Shares are being acquired by Purchaser for its own
account and without a view to the public distribution of the Shares or
any interest therein.
(c) Purchaser is an "accredited investor" as such term is
defined in Regulation D promulgated under the Securities Act.
(d) Purchaser is not a broker-dealer subject to Regulation
T promulgated by the Board of Governors of the Federal Reserve System.
(e) Purchaser has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the
merits and risks of its investment in the Shares, and Purchaser is
capable of bearing the economic risks of such investment, including a
complete loss of its investment in the Shares.
(f) In evaluating the suitability of an investment in the
Shares, Purchaser has relied solely upon the representations,
warranties, covenants and agreements made by Seller herein and
Purchaser has not relied upon any other representations or other
information (whether oral or written and including any estimates,
projections or supplemental data) made or supplied by or on behalf of
Seller or any Affiliate, employee, agent or other representative of
Seller other than as contemplated by this Section 4.5.
(g) Purchaser understands and agrees that it may not sell
or dispose of any of the Shares other than pursuant to a registered
offering or in a transaction exempt from the registration requirements
of the Securities Act.
Section 4.6 FCC Qualification. Except as set forth on
-----------------
Schedule 4.6, Purchaser is legally, technically, financially and
otherwise qualified under the Communications Act and all rules,
regulations and policies of the FCC to acquire the FCC Licenses and
own and operate each of the Stations. Except as set forth on Schedule
4.6, and except for proceedings of general applicability to the radio
industry, there are no proceedings pending or, to the knowledge of
Purchaser, threatened in writing, or facts,
<PAGE>
<PAGE>
which could reasonably be expected to disqualify Purchaser under the
Communications Act or otherwise from acquiring the FCC Licenses or
owning and operating each of the Stations or would cause the FCC not
to approve the assignment of the FCC Licenses to Purchaser. Except as
set forth on Schedule 4.6, there is no fact or circumstance relating
to Purchaser or any of its Affiliates that could (i) cause the FCC to
deny the FCC application for assignment of the FCC Licenses as
provided for in this Agreement or (ii) delay processing of the FCC
application for the assignment of the FCC Licenses as provided for in
this Agreement because the FCC is considering whether acts or
omissions of Purchaser or any of its Affiliates warrant admonishing
Purchaser or any of its Affiliates, or imposing a fine, forfeiture, or
other penalty against Purchaser or any of its Affiliates. Except as
set forth on Schedule 4.6, no waiver of any FCC rule or policy is
necessary to be obtained by Purchaser and/or its Affiliates for the
grant of the FCC application for assignment of the FCC Licenses as
provided for in this Agreement, nor will processing pursuant to any
exception to a rule of general applicability be requested or required
in connection with the consummation by Purchaser of the transactions
contemplated hereby.
Section 4.7 Brokers. No broker, finder or investment banker
-------
is entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement based
upon arrangements made by or on behalf of Purchaser.
Section 4.8 EXCLUSIVITY OF REPRESENTATIONS. THE
------------------------------
REPRESENTATIONS AND WARRANTIES MADE BY PURCHASER IN THIS AGREEMENT ARE
IN LIEU OF AND ARE EXCLUSIVE OF ALL OTHER REPRESENTATIONS AND
WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES. PURCHASER HEREBY
DISCLAIMS ANY SUCH OTHER OR IMPLIED REPRESENTATIONS OR WARRANTIES,
NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO SELLER OR ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF ANY DOCUMENTATION
OR OTHER INFORMATION.
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.1 Conduct of Business Prior to the Closing.
----------------------------------------
(a) Between the date hereof and the Closing Date, Purchaser shall not
directly or indirectly control, supervise or direct, or attempt to
control, supervise or direct, the operation of the
<PAGE>
<PAGE>
Business or any Station. Such operation, including complete control
and supervision of all programs, employees and policies of the
Business and each Station shall be the sole responsibility of Seller
and the Companies. Neither title nor right to possession of the
Shares, the Business or any Station shall pass to Purchaser until the
Closing, but Purchaser shall, however, be entitled to reasonable
inspection of each Station and the Assets (upon reasonable prior
notice and approval of Seller, which shall not be unreasonably
withheld) during normal business hours with the purpose that an
uninterrupted and efficient transfer thereof may be accomplished.
(b) Unless Purchaser otherwise agrees in writing and except
as otherwise set forth herein or in the Disclosure Schedule, between
the date of this Agreement and the Closing Date, Seller shall, and
shall cause each Company to, (i) conduct the Business only in the
ordinary course consistent with past practice, (ii) use commercially
reasonable efforts to preserve substantially intact the organization
of the Business, (iii) use commercially reasonable efforts to keep
available to Purchaser the services of the key employees and on-air
talent of each Station, (iv) use commercially reasonable efforts to
preserve the current relationships of each Station with its customers,
suppliers, distributors and other Persons with which such Station has
significant business relationships and (v) pay and discharge all
material liabilities of the Companies and the Stations substantially
in accordance with their terms (other than liabilities being contested
in good faith and for which appropriate reserves are established in
the books and records of the appropriate Company).
(c) Except as expressly provided in this Agreement,
including, without limitation, the contribution by Viacom of the KIBB
Assets to Seller and the subsequent contribution of such assets by
Seller to KIBB Inc., between the date of this Agreement and the
Closing Date, Seller shall not, and shall not permit any Company to,
do any of the following without the prior written consent of Purchaser
(which consent shall not be unreasonably withheld):
(i) grant any Lien on any material Asset, other than
Permitted Liens or incur any liabilities other than, in either
such case, in the ordinary course of the Business consistent with
past practice;
(ii) establish or materially increase any bonus, insurance,
severance, deferred compensation, pension, retirement, profit
sharing, stock option (including the
<PAGE>
<PAGE>
granting of stock options, stock appreciation rights, performance
awards or restricted stock awards), stock purchase or other
employee benefit plan, or otherwise materially increase the
compensation payable to or to become payable to any officers or
key employees and on-air talent of any Station by Seller or any
Company, except in any case described above, in the ordinary
course of the Business consistent with past practice or as may be
required by Law, existing contracts or applicable collective
bargaining agreements;
(iii) enter into any material employment or severance
agreement providing for annual compensation or severance payments
in excess of $100,000 with any of the Station Employees;
(iv) except (A) in the ordinary course of the Business and
(B) cash dividends by any Company to Seller, sell, assign,
transfer, lease or otherwise dispose of any of the Assets having
an aggregate replacement value exceeding $100,000;
(v) solely in the case of each of the Companies,
(A) acquire (by merger, consolidation, acquisition of stock or
assets or otherwise) any corporation, partnership or other
business organization or division thereof or interest therein or
(B) incur any indebtedness for borrowed money (other than to
Seller on terms no more advantageous to Seller than could be
procured by the Companies at arm's length) or issue any debt
securities or assume, grant, guarantee or endorse, or otherwise
as an accommodation become responsible for, the obligations of
any Person, or make any loans, advances or distributions of cash
(other than by one or more of the Companies to Seller);
(vi) except in accordance with Law or changes required by
U.S. generally accepted accounting principles, materially change
any method of accounting or accounting practice used by any
Company;
(vii) issue or sell any additional shares of the capital
stock of, or other equity interests in, any Company or securities
convertible into or exchangeable for such shares or equity
interests, or issue or grant any options, warrants, calls,
subscription rights or other rights of any kind to acquire
additional shares of such capital stock, such other equity
interests, or such securities;
<PAGE>
<PAGE>
(viii) amend the Certificate of Incorporation or By-laws of
any Company; or
(ix) agree to do any of the foregoing.
Section 5.2 Access to Information. (a) From the date hereof
---------------------
until the Closing, upon reasonable notice, Seller shall, and shall
cause the officers, directors, employees, auditors and agents of each
Company to (i) afford the officers, employees and agents and
representatives of Purchaser reasonable access, during normal business
hours, to the offices, properties, books and records of each Station
and (ii) furnish to the officers, employees and authorized agents and
representatives of Purchaser such additional financial and operating
data and other information regarding the Business and the Assets as
Purchaser may from time to time reasonably request; provided, however,
-------- -------
that such investigation shall not unreasonably interfere with the
Business or any of the businesses or operations of Seller or any
Affiliate of Seller, any Company or any Station.
(b) Seller shall, and shall cause its officers, employees
and representatives to, cooperate in all reasonable respects with the
efforts of Purchaser and Purchaser's independent auditors to prepare
such audited and interim unaudited financial statements of the
Stations and/or the Companies as Purchaser may reasonably determine
are necessary to satisfy the requirements of the Securities Act of
1933 or the Securities Exchange Act of 1934 (the "Securities Acts")
---------------
applicable to Purchaser and its Affiliates. Without limiting the
foregoing, Seller shall execute and deliver to Purchaser's independent
auditors such customary management representation letters as the
auditors may reasonably require as a condition to such auditors'
ability to deliver a report upon the audited financial statements of
the Stations and/or the Companies for the periods for which such
financial statements are required under the Securities Acts; provided,
however, under no circumstance shall Seller or any such officer,
employee or representative have any liability whatsoever (other than
as expressly provided in this Agreement) to Purchaser, Purchaser's
independent auditors or otherwise to any Person or Governmental
Authority, including, without limitation, under the Securities Acts as
a result of providing such management representation letters and
Purchaser shall indemnify and hold Seller and each such Person
harmless against any and all such liability. Seller hereby consents
to the inclusion of the audited and interim financial statements
referred to in this Section 5.2(b) in any registration statement or
report (each a "Filing") filed by Seller under the Securities Acts as
------
registrant under such Filing and hereby waives such
<PAGE>
<PAGE>
provisions of the Confidentiality Agreement as are necessary solely to
permit such public disclosure.
Section 5.3 Confidentiality. (a) Except as provided in
---------------
Section 5.2(b), the terms of the letter agreement dated as of November
22, 1996 (the "Confidentiality Agreement") between Seller and
-------------------------
Purchaser are hereby incorporated herein by reference and shall
continue in full force and effect until the Closing, at which time the
Confidentiality Agreement and the obligations of Purchaser under this
Section 5.3 shall terminate; provided, however, that the
-------- -------
Confidentiality Agreement shall terminate only in respect of that
portion of the Evaluation Material (as defined in the Confidentiality
Agreement) exclusively relating to the transactions contemplated by
this Agreement. If this Agreement is, for any reason, terminated
prior to the Closing, the Confidentiality Agreement shall nonetheless
continue in full force and effect.
(b) Except as Seller in its sole discretion may determine
to be required by applicable law, rule or regulation or by any stock
exchange rule, after the Closing, Seller agrees to keep confidential
all material non-public information with respect to the Stations and
all material non-public information obtained by it with respect to
Purchaser in connection with this Agreement and the negotiations
preceding this Agreement. Notwithstanding the foregoing, Seller shall
not be required to keep confidential or return any information which
(a) is known by it through other lawful sources not, to the knowledge
of Seller, subject to a confidentiality agreement with the disclosing
party, (b) is or becomes publicly known through no breach of a
confidentiality obligation owed by Seller or its agents or (c) is
developed by Seller independently of any disclosure by Purchaser.
Section 5.4 Regulatory and Other Authorizations; Consents.
---------------------------------------------
(a) Each party hereto shall use its reasonable best efforts to obtain
all authorizations, consents, orders and approvals of all Governmental
Authorities that may be or become necessary for its execution and
delivery of, and the performance of its obligations pursuant to, this
Agreement and will cooperate fully with the other party in promptly
seeking to obtain all such authorizations, consents, orders and
approvals. With respect to Purchaser, the foregoing obligation to use
reasonable best efforts shall be deemed to include, without
limitation, the obligation to divest such radio station or stations in
such radio broadcast market or markets as may be required by the FCC
or any other Governmental Authority or as may be necessary in order to
secure all required approvals of the FCC or any other Governmental
Authority. Except for the Purchaser Merger, the
<PAGE>
<PAGE>
parties hereto will not take any action that would have the effect of
delaying, impairing or impeding the receipt of any required approval.
(b) Seller and Purchaser shall prepare and file with the
FCC as soon as practicable, but in no event later than five Business
Days after the execution of this Agreement, the requisite applications
and other necessary instruments or documents requesting the FCC
Consent. After the aforesaid applications and documents have been
filed with the FCC, Seller and Purchaser shall prosecute such
applications with all reasonable diligence to obtain the requisite FCC
Consent; provided, however, except as provided in the following
-------- -------
sentence, that neither Seller nor Purchaser shall be required to pay
consideration to any third party to obtain the FCC Consent. Purchaser
shall pay all FCC filing fees relating to the Transaction.
(c) Each party hereto agrees to make an appropriate filing
of a Notification and Report Form pursuant to the HSR Act with respect
to the transactions contemplated hereby within 10 Business Days after
the date hereof and to supply promptly any additional information and
documentary material that may be requested pursuant to the HSR Act.
Purchaser shall bear all filing fees associated with both its and
Seller's HSR filings.
(d) Each party hereto agrees to cooperate in obtaining any
other consents and approvals which may be required in connection with
the transactions contemplated by this Agreement; provided, however,
-------- -------
that Seller in cooperation with Purchaser shall use its commercially
reasonable efforts to obtain each consent identified in Section 3.5 of
the Disclosure Schedule prior to the Closing Date. Notwithstanding
the foregoing, neither Seller nor Purchaser shall be required to pay
consideration to any third party to obtain any such consent or
approval.
Section 5.5 Intercompany Accounts. Immediately prior to the
---------------------
Closing, Seller will contribute to the capital of each Company all
amounts then owing from such Company to Seller and Seller's
Affiliates, and each Company will forgive all amounts then owing from
Seller and its Affiliates to such Company, and all of such debts shall
be cancelled. Any tax sharing or tax allocation or other similar
contract shall be cancelled with respect to each Company as of the
Closing Date, and no Company shall have any further obligations or
liability under any such tax sharing or tax allocation agreement or
other similar contract.
<PAGE>
<PAGE>
Section 5.6 Insurance. (a) Effective 12:01 A.M. on the
---------
Closing Date, each Company and the Assets shall cease to be insured by
Seller's or its Affiliates' insurance policies. With respect to
insurance coverage written on an "occurrence basis," Seller and its
Affiliates will have no liability for occurrences which take place on
and after 12:01 A.M. on the Closing Date. With respect to insurance
coverage written on a "claims made basis," Seller and its Affiliates
will have no liability for claims made after 12:01 A.M. on the Closing
Date. Purchaser agrees to indemnify and hold harmless Seller and its
Affiliates in respect to any liability, claim, damage or expense of
any kind whatsoever, which Seller and its Affiliates might incur
arising out of or relating to any occurrences, losses or claims
arising after 12:01 A.M. on the Closing Date.
(b) From and after the Closing Date, neither Seller nor any
of its Affiliates shall have any liability for self-insured workers'
compensation claims with respect to the Transferred Employees in
existence on the Closing Date or arising from any event or
circumstance taking place or existing prior to, on or subsequent to
the Closing Date. Purchaser shall take all steps necessary under any
applicable Law to assume the liability for self-insured workers'
compensation pursuant to this Section 5.6 and shall fully indemnify
Seller and its Affiliates with respect to any liability, claim, damage
or expense of any kind whatsoever arising out of or relating to any
workers' compensation claim assumed by Purchaser hereunder. Purchaser
shall cooperate with Seller and its Affiliates in order to obtain the
return or release of bonds or securities or indemnifications given by
Seller or any of its Affiliates to any state in connection with
workers' compensation self-insurance with respect to the Station
Employees; and, in order to effectuate such return or release,
Purchaser shall, to the extent required by any state, post its own
bonds, letters of credit, indemnifications or other securities in
substitution therefor.
Section 5.7 Financial Statements. Within 30 days of the end
--------------------
of each month, Seller shall use commercially reasonable efforts to
deliver to Purchaser an unaudited income statement and a balance sheet
of all the Stations, on a combined basis in each Market for the month
then ended (collectively, the "Supplemental Financial Statements").
---------------------------------
The Supplemental Financial Statements shall be prepared on a basis
consistent with past practices regarding the preparation of internal
monthly financial statements.
Section 5.8 Notification. Seller shall notify Purchaser, and
------------
Purchaser shall notify Seller, of any litigation, arbitration
<PAGE>
<PAGE>
or administrative proceeding pending or, to Seller's knowledge,
threatened in writing against Seller or any Company, on one hand, or
Purchaser, on the other hand, which challenges the transactions
contemplated hereby or the Purchaser Merger. Purchaser shall keep
Seller informed and shall consult with Seller concerning the status,
scope and nature of Purchaser's efforts to comply with its covenant in
Section 5.4, and regarding the status of the Purchaser Merger.
Section 5.9 No Other Bids. From and after the date hereof,
-------------
neither Seller nor any of Seller's Affiliates shall, nor shall it
permit any of the Companies to, nor shall it authorize or permit any
officer, director or employee of, or any investment banker, attorney
or other advisor or representative of Seller, any of the Companies or
any of Seller's Affiliates to, directly or indirectly, (a) solicit,
initiate or encourage the submission of any Acquisition Proposal (as
hereinafter defined) or (b) participate in any discussions or
negotiations regarding, or furnish to any person any information with
respect to, or take any other action to facilitate any inquiries or
the making of any proposal that constitutes an Acquisition Proposal.
For purposes of this Agreement, "Acquisition Proposal" means any
--------------------
proposal with respect to a merger, consolidation, share exchange or
similar transaction or business combination involving any Company, or
any proposal or offer to acquire in any manner a substantial equity
interest in any Company or any proposal or offer to purchase of all or
any significant portion of the Assets, other than the transactions
contemplated hereby.
Section 5.10 Environmental Audit. Within 60 days of the date
-------------------
of this Agreement, Purchaser may, at its sole cost and expense,
perform Phase I environmental assessments (the "Environmental
-------------
Assessments") of the parcels of the Owned Real Property and/or Leased
-----------
Real Property designated by Purchaser and the improvements thereon and
shall deliver to Seller a report prepared by an environmental
consulting firm designated by Purchaser and reasonably acceptable to
Seller summarizing the results of the Environmental Assessments. In
the event that such report indicates that any material remediation is
necessary in order to cause the Companies and the Assets to comply
with any Environmental Law, Seller shall, at Seller's cost and
expense, cause such remediation to be completed in all material
respects.
Section 5.11 Further Action. Each of the parties hereto shall
--------------
execute and deliver such documents and other papers and take such
further actions as may be reasonably required to carry out the
provisions of this Agreement and give effect to the transactions
contemplated hereby.
<PAGE>
<PAGE>
ARTICLE VI
EMPLOYEE MATTERS
Section 6.1 Employees. (a) Set forth in Section 6.1(a) of the
---------
Disclosure Schedule is a true and complete list showing the names and
current annual salary rates of all of the employees and on-air talent
of each Station as of the date hereof (all such employees and on-air
talent together being the "Station Employees"), which includes for
-----------------
such employees the amounts paid or payable as a base salary and lists
any other compensation arrangements for such employees for 1996,
including bonuses or other compensation arrangements. The Station
Employees constitute all of the on-air talent and personnel working at
the Stations (whether full-time or part-time) or otherwise involved in
the operations of the Stations.
(b) Purchaser shall furnish to Seller at the earliest
practicable date but no later than 10 days prior to Closing a list of
the Station Employees which Purchaser desires Seller to terminate
prior to Closing. Seller shall indemnify and hold harmless Purchaser
from and against all costs and liabilities resulting from the
termination of such Station Employees, except that Seller shall have
no obligation with respect to, and Purchaser shall indemnify and hold
harmless Seller and Seller's Affiliates from and against, all costs
and liabilities resulting from any termination requested by Purchaser
pursuant to this Section 6.1(b) which violates of any federal, state
or local law, rule or regulation or any collective bargaining
agreement. For the purposes hereof, those Station Employees who
remain as employees of the Companies following the Closing Date are
hereinafter referred to collectively as the "Transferred Employees".
----------------------
(c) Purchaser agrees (i) subject to the rights of the
affected Transferred Employees regarding representation, to recognize
the unions listed in Section 3.14 of the Disclosure Schedule as the
sole and exclusive collective bargaining agents for the affected
Transferred Employees and (ii) to be bound by, and to comply in all
respects with, the terms and conditions of the collective bargaining
agreements listed in Section 3.14 of the Disclosure Schedule
applicable to Transferred Employees.
(d) For the one-year period commencing on the Closing Date
(the "Continuation Period"), Purchaser agrees to provide (i) those
-------------------
Transferred Employees whose employment is governed by the terms of a
collective bargaining agreement with such employee benefits as are
required by the terms of such collective
<PAGE>
<PAGE>
bargaining agreement and (ii) all other Transferred Employees with
employee benefits that in the aggregate are substantially equivalent
in value as, and no less favorable in value than, those provided to
such Transferred Employees immediately prior to the Closing.
Notwithstanding anything to the contrary herein, Purchaser shall not
have any obligation to provide any equity, equity-based or similar
compensation or benefit to any Transferred Employee with respect to
the equity of Purchaser or any Company, and no equity or equity-based
compensation or benefits provided to Transferred Employees immediately
prior to the Closing shall be taken into account for purposes of this
Section 6.1(d) in determining substantial equivalence.
(e) To the extent that service is relevant for eligibility,
vesting, benefit accrual, benefit contributions, benefit calculations
or allowances (including entitlements to vacation and sick days) under
any employee benefit plan, program or arrangement established or
maintained by Purchaser or any Company for the benefit of Transferred
Employees, such plan, program or arrangement shall credit such
Transferred Employees for service on or prior to the Closing with
Seller or any Affiliate thereof; provided, however, that Purchaser
-------- -------
shall not be obligated to give credit for such service to the extent
it (i) would result in duplication of any benefits to which a
Transferred Employee is entitled to under any comparable plans,
programs or arrangements maintained by Seller or any of its Affiliates
on or prior to the Closing Date or by Purchaser after the Closing Date
or (ii) was not a service which was recognized for purposes of such
comparable plans, programs or arrangements. In addition, Purchaser
shall waive any pre-existing conditions and recognize for purposes of
annual deductible and out-of-pocket limits under its medical and
dental plans, claims of Transferred Employees incurred during the year
in which the Closing Date occurs and prior to the Closing Date.
Section 6.2 INTENTIONALLY OMITTED.
Section 6.3 Retirement Plan. (a) As soon as practicable after
---------------
the Closing, Seller shall prepare and deliver to Purchaser a schedule
listing the Transferred Employees who were participants in the VPP and
the VIP as of the Closing. Seller shall cause all Transferred
Employees to be paid such benefits under the terms of the VPP and VIP,
and Purchaser shall not have any responsibility with respect thereto.
Purchaser shall cooperate with Seller to provide such current
information regarding Transferred Employees on an ongoing basis as may
be necessary to facilitate payment of benefits to such Transferred
Employees from the VPP and VIP.
<PAGE>
<PAGE>
(b) Purchaser agrees that it shall designate a defined
contribution plan ("Purchaser's DC Plan") that will accept a direct
-------------------
rollover, within the meaning of Section 401(a)(31) of the Code, of the
account balances of Transferred Employees in the VIP, including any
loan obligation that a Transferred Employee may have in his or her
account in the VIP. To the extent that a Transferred Employee
transfers a loan obligation to Purchaser's DC Plan, Purchaser's DC
Plan shall continue to accept repayments of such loan amounts and
shall otherwise administer such loans in accordance with their terms
and the terms of ERISA until such loan amounts are repaid or are
foreclosed upon.
(c) Purchaser shall provide continuation health care
coverage to all Transferred Employees and their qualified
beneficiaries who incur a qualifying event on and after the Closing in
accordance with the continuation health care coverage requirements of
Section 4980D of the Code and Sections 601 through 608 of ERISA
("COBRA"). Seller shall be responsible for providing continuation
-----
coverage to the extent required by law (i) to any Transferred Employee
who incurs a "qualifying event" under COBRA on or before the Closing
Date and (ii) to any employee who is not a Transferred Employee who
incurs a "qualifying event" under COBRA on or before the Closing Date.
Section 6.4 Indemnity. Anything in this Agreement to the
---------
contrary notwithstanding (including Section 10.1), Purchaser hereby
agrees to indemnify Seller and its Affiliates against and hold Seller
and its Affiliates harmless from any and all claims, losses, damages,
expenses, obligations and liabilities (including costs of collection,
reasonable attorneys' fees and other costs of defense) arising out of
or otherwise in respect of (i) any failure of Purchaser or any Company
to comply with their obligations under any collective bargaining
agreement applicable to Transferred Employees, (ii) any withdrawal
liability attributable to a withdrawal as a result of or after the
Closing assessed against Seller or any of its Affiliates in respect of
any Multiemployer Plan listed in Section 3.14 of the Disclosure
Schedule, (iii) any claim made by any Transferred Employee against
Seller or any of its Affiliates for any severance or termination
benefits pursuant to the provisions of any Viacom Plan which was
disclosed in Section 3.14 of the Disclosure Schedule, (iv) any suit or
claim of violation brought against Seller or any of its Affiliates
under WARN for any actions taken by Purchaser or any Company on or
after the Closing Date with respect to any facility, site of
employment, operating unit or Transferred Employee, and (v) any claim
for payments of benefits by Transferred Employees or their
beneficiaries with respect to their employment after the Closing.
<PAGE>
<PAGE>
Section 6.5 No Third Party Beneficiaries. Nothing in this
----------------------------
Article VI or elsewhere in this Agreement shall be deemed to make any
of the Station Employees third party beneficiaries of this Agreement.
ARTICLE VII
TAX MATTERS
Section 7.1 Tax Indemnities. (a) From and after the Closing
---------------
Date, Seller shall indemnify Purchaser and each Company against all
Taxes (i) imposed on Seller or any member of an affiliated group with
which Seller files a consolidated or combined income Tax Return (other
than the Companies) with respect to any taxable period that ends on or
before the Closing Date or includes the Closing Date; (ii) imposed on
any Company with respect to any taxable period or portion thereof that
ends on or before the Closing Date, in excess of any amount reserved
for Taxes on such Company's Financial Statements or (iii) arising as a
result of the Election; provided, however, that no indemnity shall be
-------- -------
provided under this Agreement for any Tax resulting from any
transaction of any Company occurring on the Closing Date but after the
Closing that is not in the ordinary course of the Business other than
the Election.
(b) From and after the Closing Date, Purchaser and each
Company shall, jointly and severally, indemnify Seller and its
Affiliates against all Taxes imposed on or with respect to such
Company that are not subject to indemnification pursuant to paragraph
(a) of this Section 7.1, including Taxes resulting from any
transaction of the Company occurring on the Closing Date but after the
Closing that is not in the ordinary course of the Business.
(c) Payment by the indemnitor of any amount due under this
Section 7.1 shall be made within 10 days following written notice by
the indemnitee that payment of such amounts to the appropriate Tax
authority is due, provided that the indemnitor shall not be required
to make any payment earlier than two days before it is due to the
appropriate Tax authority. In the case of a Tax that is contested in
accordance with the provisions of Section 7.3, payment of the Tax to
the appropriate Tax authority will not be considered to be due earlier
than the date a final determination to such effect is made by such Tax
authority or a court.
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<PAGE>
(d) For purposes of this Agreement, in the case of any Tax
that is imposed on a periodic basis and is payable for a period that
begins before the Closing Date and ends after the Closing Date, the
portion of such Taxes payable for the period ending on the Closing
Date shall be (i) in the case of any Tax other than a Tax based upon
or measured by income, the amount of such Tax for the entire period
multiplied by a fraction, the numerator of which is the number of days
in the period ending on the Closing Date and the denominator of which
is the number of days in the entire period and (ii) in the case of any
Tax based upon or measured by income, the amount which would be
payable if the taxable year ended on the Closing Date. Any credit
shall be prorated based upon the fraction employed in clause (i) of
the preceding sentence. In the case of any Tax based upon or measured
by capital (including net worth or longterm debt) or intangibles, any
amount thereof required to be allocated under this Section 7.1(d)
shall be computed by reference to the level of such items on the
Closing Date.
Section 7.2 Refunds and Tax Benefits. (a) Purchaser shall
------------------------
promptly pay to Seller any refund or credit (including any interest
paid or credited with respect thereto) received by Purchaser or any
Company of Taxes of any Company (i) relating to taxable periods or
portions thereof ending on or before the Closing Date or (ii)
attributable to an amount paid by Seller or any of its Affiliates
under Section 7.1 hereof. Purchaser shall, if Seller so requests and
at Seller's expense, cause the relevant entity to file for and obtain
any refund to which Seller is entitled under this Section 7.2.
Purchaser shall permit Seller to control (at Seller's expense) the
prosecution of any such refund claimed, and shall cause the relevant
entity to authorize by appropriate power of attorney such Persons as
Seller shall designate to represent such entity with respect to such
refund claimed. In the event that any refund or credit of Taxes for
which a payment has been made pursuant to this Section 7.2(a) is
subsequently reduced or disallowed, Seller shall indemnify and hold
harmless the payor for any Tax liability, including interest and
penalties, assessed against such payor by reason of the reduction or
disallowance.
(b) Any amount otherwise payable by Seller under Section
7.1 shall be reduced by any Tax benefit to Purchaser or any Company
for a period or portion thereof beginning after the Closing Date (a
"Post-Closing Date Tax Benefit") that arose as a result of any
-----------------------------
underlying adjustment resulting in the obligation of Purchaser or such
Company to pay Taxes for which Seller is responsible under Section 7.1
or the payment of such Taxes. If a payment is made by Seller in
accordance with Section 7.1, and if
<PAGE>
<PAGE>
in a subsequent taxable year a Post-Closing Date Tax Benefit is
realized by Purchaser or any Company (that was not previously taken
into account pursuant to the preceding sentence to reduce an amount
otherwise payable by Seller under Section 7.1), Purchaser or such
Company shall pay to Seller at the time of such realization the amount
of such Post-Closing Date Tax Benefit to the extent that the Post-
Closing Date Tax Benefit would have resulted in a reduction in the
amount paid by Seller under Section 7.1 if the Post-Closing Date Tax
Benefit had been obtained in the year of such payment. A Post-Closing
Date Tax Benefit will be considered to be realized for purposes of
this Section 7.2 at the time that it is actually utilized on a Tax
Return which includes Purchaser or any Company.
(c) Neither Purchaser nor any Company shall carryback to
any taxable period ending on or before the Closing Date any net
operating loss, capital loss or tax credit incurred by any Company in
any taxable period beginning after the Closing Date.
Section 7.3 Contests. (a) After the Closing, Purchaser shall
--------
promptly notify Seller in writing of the commencement of any Tax audit
or administrative or judicial proceeding or of any demand or claim on
Purchaser or any Company which, if determined adversely to the
taxpayer or after the lapse of time, would be grounds for
indemnification under Section 7.1. Such notice shall contain factual
information (to the extent known) describing the asserted Tax
liability in reasonable detail and shall include copies of any notice
or other document received from any Tax authority in respect of any
such asserted Tax liability. If Purchaser fails to give Seller prompt
notice of an asserted Tax liability as required by this Section 7.3,
then (a) if Seller is precluded by the failure to give prompt notice
from contesting the asserted Tax liability in both the administrative
and judicial forums, then Seller shall not have any obligation to
indemnify for any loss arising out of such asserted Tax liability, and
(b) if Seller is not so precluded from contesting but such failure to
give prompt notice results in a detriment to Seller, then any amount
which Seller is otherwise required to pay Purchaser pursuant to
Section 7.1 with respect to such liability shall be reduced by the
amount of such detriment.
(b) Seller may elect to direct, through counsel of its own
choosing and at its own expense, any audit, claim for refund and
administrative or judicial proceeding involving any asserted liability
with respect to which indemnity may be sought under Section 7.1 (any
such audit, claim for refund or proceeding relating to an asserted Tax
liability is referred to herein as a "Contest"). If Seller elects to
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direct a Contest, it shall
<PAGE>
<PAGE>
within 30 days of receipt of the notice of asserted Tax liability
notify Purchaser of its intent to do so, and Purchaser shall cooperate
and shall cause each Company to cooperate, at the expense of Seller,
in each phase of such Contest. Seller shall keep Purchaser informed
regarding the progress but not any substantive aspect of any Contest
which Seller has elected to direct. If Seller elects not to direct
the Contest, fails to notify Purchaser of its election as herein
provided or contests its obligation to indemnify under Section 7.1,
Purchaser or the relevant Company may pay, compromise or contest, at
its own expense, such asserted liability. However, in such case,
neither Purchaser nor such Company may settle or compromise any
asserted liability over the objection of Seller; provided, however,
-------- -------
that consent to settlement or compromise shall not be unreasonably
withheld. In any event, Seller may participate, at its own expense,
in the Contest. If Seller chooses to direct the Contest, Purchaser
shall promptly empower and shall cause the relevant Company promptly
to empower (by power of attorney and such other documentation as may
be appropriate) such representatives of Seller as it may designate to
represent Purchaser and such Company in the Contest insofar as the
Contest involves an asserted Tax liability for which Seller would be
liable under Section 7.1.
Section 7.4 Preparation of Tax Returns. Seller shall prepare
--------------------------
and file U.S. federal, state and local income and franchise Tax
Returns relating to each Company for any Tax period ending on or prior
to the Closing Date and which are required to be filed after the
Closing Date. The parties agree that if any Company is permitted, but
not required, under applicable state or local income or franchise Tax
Laws to treat the Closing Date as the last day of a Tax period, it
will treat the Tax period as ending on the Closing Date. Seller shall
prepare and file all other Tax Returns for any period ending on or
prior to the Closing Date to the extent Seller or an Affiliate of
Seller previously was responsible for the preparation and filing of
such Tax Returns for the immediately preceding Tax period. All Tax
Returns relating to any Company and prepared by Seller shall be
prepared in a manner consistent with past practices, except as
otherwise required by applicable law. Purchaser shall prepare and
timely file, and shall cause each Company to prepare and timely file,
all Tax Returns for which Seller is not responsible pursuant to this
Section 7.4. Purchaser will deliver to Seller a complete and accurate
copy of each Tax Return required to be filed by Purchaser or any
Company under this Section 7.4 for Tax periods that include the
Closing Date, and any amendment to such return, within 10 days of the
date such Tax Return is filed with the appropriate Tax authority.
<PAGE>
<PAGE>
Section 7.5 Section 338(h)(10) Election. (a) At the option of
---------------------------
Purchaser given in writing to Seller on or before the Closing Date,
Seller and Purchaser shall jointly make the election provided for by
Section 338(h)(10) of the Code and any corresponding elections under
state, local or foreign Tax Law (the "Election") with respect to the
--------
Shares. Seller and Purchaser shall provide to the other all necessary
information to permit the Election to be made. Seller and Purchaser
shall, as promptly as practicable following the Closing Date, take all
actions necessary and appropriate (including filing IRS Form 8023-A
and other such forms, returns, elections, schedules, attachments, and
other documents as may be required (the "Forms")) to effect and
-----
preserve a timely Election.
(b) In connection with the Election, Seller and Purchaser
shall mutually (i) determine the amount of the modified aggregate
deemed sales price ("MADSP") of the Shares (within the meaning of
-----
Treas. Reg. Section 1.338(h)(10)-1(f)) and (ii) the proper allocations
of the MADSP among the Assets in accordance with Treas. Reg. section
1.338(h)(10)-1. The allocations referred to in the preceding sentence
are referred to herein as the "Allocations". Seller will calculate
-----------
the gain or loss, if any, in a manner consistent with the Allocations
and will not take any position inconsistent with the Allocations in any
Tax Return or otherwise (subject to appropriate adjustments pursuant to
Treas. Reg. section 1.338(h)(10)-1(f)(4)). Purchaser will allocate the
Purchase Price consistently with the Allocations and will not take any
position inconsistent with the Allocations in any Tax Return or
otherwise (subject to appropriate adjustments pursuant to Treas. Reg.
section 1.338(h)(10)-1(f)(4)).
(c) At least 120 days prior to the latest date for the
filing of each Form, Seller, after consultation with Purchaser, shall
prepare and submit to Purchaser a draft of each Form. No party hereto
shall file any Form unless it shall have obtained the consent of the
other party hereto, which consent shall not be unreasonably withheld.
On or prior to the 30th day after Purchaser's receipt of a draft Form,
Purchaser shall deliver to Seller either (i) its consent to such
filing or (ii) a written notice specifying in reasonable detail all
disputed items and the basis therefor. If Purchaser and Seller have
been unable to resolve their differences within 30 days after Seller's
receipt of Purchaser's written notice of disputed items, any remaining
disputed issues shall be submitted to the Accounting Firm to resolve
in a final binding manner after hearing the views of both parties.
The fees and expenses of the Accounting Firm pursuant to this Section
7.5 shall be shared equally between Seller and Purchaser.
<PAGE>
<PAGE>
Section 7.6 Cooperation and Exchange of Information. Seller
---------------------------------------
and Purchaser shall, and they shall cause each Company to, provide
each other with such cooperation and information as any of them
reasonably may request of another in filing any Tax Return, amended
return or claim for refund, determining a liability for Taxes or a
right to a refund of Taxes or participating in or conducting any audit
or other proceeding in respect of Taxes. Such cooperation and
information shall include providing copies of relevant Tax Returns or
portions thereof, together with accompanying schedules and related
work papers and documents relating to rulings or other determinations
by Tax authorities. Each such party shall make its employees
available on a mutually convenient basis to provide explanations of
any documents or information provided hereunder. Each such party will
retain all Tax Returns, schedules and work papers and all material
records or other documents relating to Tax matters of any Company for
its taxable period first ending after the Closing Date and for all
prior taxable periods until the later of (i) the expiration of the
statute of limitations of the taxable periods to which such Tax
Returns and other documents relate, without regard to extensions
except to the extent notified by another party in writing of such
extensions for the respective Tax periods, or (ii) eight years
following the due date (without extension) for such Tax Returns. Any
information obtained under this Section 7.6 shall be kept
confidential, except as may be otherwise necessary in connection with
the filing of Tax Returns or claims for refund or in conducting an
audit or other proceeding.
Section 7.7 Conveyance Taxes. Purchaser agrees to assume
----------------
liability for and to pay all sales, transfer, stamp, real property
transfer or gains and similar Taxes incurred as a result of the sale
of the Shares contemplated hereby. In addition, Purchaser agrees to
indemnify Seller and its Affiliates for any and all liabilities,
losses, damages, claims, costs, expenses, interest, awards, judgments
and penalties (including attorneys' and consultants' fees and
expenses) incurred by Seller and its Affiliates arising out of
Purchaser's failure to make timely or full payments of such Taxes.
Purchaser and Seller shall jointly prepare all Tax Returns relating to
such Taxes.
Section 7.8 Miscellaneous. (a) The parties agree to treat all
-------------
payments made under Article X or this Article VII (except payments
made pursuant to Section 7.7) as adjustments to the Purchase Price for
Tax purposes.
(b) Except as expressly provided otherwise and except for
the representations contained in Section 3.15 of this
<PAGE>
<PAGE>
Agreement, this Article VII shall be the sole provision governing Tax
matters and indemnities therefor under this Agreement.
(c) For purposes of this Article VII, all references to
Seller, Purchaser or a Company includes successors thereto.
ARTICLE VIII
CONDITIONS TO CLOSING
Section 8.1 Conditions to Obligations of Seller. The
-----------------------------------
obligations of Seller to consummate the transactions contemplated by
this Agreement shall be subject to the fulfillment or waiver, at or
prior to the Closing, of each of the following conditions:
(a) Representations and Warranties; Covenants. (i) The
-----------------------------------------
representations and warranties of Purchaser contained in Article IV
(A) that are qualified as to materiality, shall be true and correct
and (B) that are not qualified as to materiality, shall be true and
correct in all material respects, in each case as of the Closing,
other than representations and warranties made as of another date,
which representations and warranties shall have been true and correct,
or true and correct in all material respects, as the case may be, as
of such date; (ii) the obligations, covenants and agreements of
Purchaser contained in this Agreement to be performed or complied with
on or prior to the Closing Date (A) that are qualified as to
materiality shall have been performed or complied with and (B) that
are not qualified as to materiality shall have been performed or
complied with in all material respects, in each case on or prior to
the Closing Date, except that Purchaser shall have complied in all
respects with its obligations under Article II hereof; and (iii)
Seller shall have received a certificate to such effect signed by a
duly authorized senior officer of Purchaser;
(b) Communications Act. The FCC Consent shall have been
------------------
issued and shall contain no provision materially adverse to Seller;
(c) HSR Act. Any waiting period (and any extension
-------
thereof) under the HSR Act applicable to the purchase and sale of the
Shares contemplated hereby shall have expired or shall have been
terminated;
(d) No Governmental Order. There shall be no Governmental
---------------------
Order in existence which restrains or which
<PAGE>
<PAGE>
materially and adversely affects the transactions contemplated by this
Agreement or is likely to render it impossible or unlawful to
consummate such transactions; and
(e) Resolutions. Seller shall have received a true and
-----------
complete copy, certified by the Secretary or an Assistant Secretary of
Purchaser, of the resolutions duly and validly adopted by the Board of
Directors of Purchaser evidencing its authorization of the execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
Section 8.2 Conditions to Obligations of Purchaser. The
--------------------------------------
obligations of Purchaser to consummate the transactions contemplated
by this Agreement shall be subject to the fulfillment or waiver, at or
prior to the Closing, of each of the following conditions:
(a) Representations and Warranties; Covenants. (i) The
-----------------------------------------
representations and warranties of Seller contained in this Agreement
(A) that are qualified as to materiality, shall be true and correct
and (B) that are not qualified as to materiality, shall be true and
correct in all material respects, in each case as of the Closing,
other than representations and warranties made as of another date,
which representations and warranties shall have been true and correct,
or true and correct in all material respects, as the case may be, as
of such date; (ii) the obligations, covenants and agreements of Seller
contained in this Agreement to be performed or complied with on or
prior to the Closing Date (A) that are qualified as to materiality,
shall have been performed or complied with and (B) that are not
qualified as to materiality, shall have been performed or complied
with in all material respects, in each case on or prior to the Closing
Date; and (iii) Purchaser shall have received a certificate to such
effect signed by a duly authorized senior officer of Seller;
(b) Communications Act. The FCC Consent shall have been
------------------
issued and shall contain no provision materially adverse to Purchaser;
provided, however, that Purchaser shall not be required to close
-------- -------
before the FCC Consent has become a Final Order if a financing source
from whom Purchaser is obtaining financing for the purpose of
consummating the purchase and sale of the Shares as contemplated by
this Agreement refuses, after Purchaser has used its good faith
reasonable best efforts to persuade such financing source to close
upon receipt of the FCC Consent, to consummate such financing
arrangements until the FCC Consent has become a Final Order.
<PAGE>
<PAGE>
(c) HSR Act. Any waiting period (and any extension
-------
thereof) under the HSR Act applicable to the purchase and sale of the
Shares contemplated hereby shall have expired or shall have been
terminated;
(d) No Governmental Order. There shall be no Governmental
---------------------
Order in existence which restrains or which materially and adversely
affects the transactions contemplated by this Agreement or is likely
to render it impossible or unlawful to consummate such transactions;
(e) Resolutions. Purchaser shall have received a true and
-----------
complete copy, certified by the Secretary or an Assistant Secretary of
Seller, of the resolutions duly and validly adopted by the Board of
Directors of Seller evidencing its authorization of the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby;
(f) Leased Transmission Properties. Seller shall have
------------------------------
obtained and delivered to Purchaser all material consents (in writing
and signed by the applicable lessor) required in connection with the
consummation of the transactions contemplated hereby with respect to
any lease pursuant to which any Company leases a main transmission
facility; and
(g) Indebtedness. Seller shall have satisfied in full all
------------
indebtedness for borrowed money of the Companies other than the
current portion of such indebtedness that would reduce the Working
Capital of the Companies as to the Closing Date.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination. This Agreement may be terminated at
-----------
any time prior to the Closing as follows:
(a) by the mutual written consent of Seller and Purchaser;
(b) by either Seller or Purchaser, if the Closing shall not
have occurred prior to the nine-month anniversary of the date hereof
(the "Outside Date"); provided, however, that the right to terminate
------------
this Agreement under this Section 9.1(b) shall be suspended as to any
party whose failure to fulfill any material obligation under this
Agreement shall have been the cause of, or shall have resulted in, the
failure of the Closing
<PAGE>
<PAGE>
to occur prior to such date, until the 10th day after such failure has
been cured; provided further, that subject to Purchaser's good faith
-------- --------
obligation in Section 8.2(b) to seek to consummate the Closing
following receipt of the FCC Consent but prior receipt of Final Order,
the Outside Date shall be automatically extended by 60 days if the FCC
shall have issued the FCC Consent on or before the Outside Date, but
such FCC Consent shall not have become a Final Order.
(c) by Seller in the event that any representation or
warranty of Purchaser made hereunder shall be materially inaccurate or
breached or Purchaser shall have failed to comply with or satisfy, in
all material respects, its covenants and agreements made hereunder;
provided that written notice of such material inaccuracy, breach or
failure shall have been given to Purchaser and Purchaser shall not
have cured the same within 10 Business Days of receipt of such notice,
except that Seller shall be entitled to terminate this Agreement and
there shall be no cure period for any breach, whether or not material,
for a failure by Purchaser to deliver the Purchase Price pursuant to
Section 2.5;
(d) by Purchaser in the event that any representation or
warranty of Seller made hereunder shall be materially inaccurate or
breached or Seller shall fail to comply with or satisfy, in all
material respects, its covenants and agreements made hereunder
provided that written notice of such material inaccuracy, breach or
failure shall have been given to Seller and Seller shall not have
cured the same within 10 Business Days of receipt of such notice,
except that Purchaser shall be entitled to terminate this Agreement,
and there shall be no cure period for any breach, whether or not
material, for a failure by Seller to deliver the Shares pursuant to
Section 2.4;
(e) by either Seller or Purchaser in the event of the
issuance of a final, nonappealable Governmental Order restraining or
prohibiting the transactions contemplated herein; or
(f) by Seller if the Deposit has not been delivered by
Purchaser to Seller on or prior to the Deposit Delivery Time.
Notwithstanding the foregoing, neither party may terminate this
Agreement pursuant to clauses (c) or (d) of this Section 9.1 if any
representation or warranty of the party seeking to terminate is
materially inaccurate or breached or such party has failed to comply
with or satisfy, in all material respects, its covenants and
agreements made hereunder.
<PAGE>
<PAGE>
Section 9.2 Termination is Non-exclusive Remedy. (a) If this
-----------------------------------
Agreement is terminated pursuant to Section 9.1 (b) (provided that
Seller is not then in material breach of this Agreement), Section
9.1(c) or 9.1(e) (unless, in the case of Section 9.1(e), such
Governmental Order is attributable to facts or circumstances relating
exclusively to Seller, any of Seller's Affiliates, any of the
Companies or any of the Stations), then (i) Seller shall retain the
Deposit and (ii) Purchaser shall pay the Interest Amount to Seller on
the Interest Payment Date. The termination rights of Seller under
Section 9.1 and the rights of Seller under this Section 9.2(a) are in
addition to, and not exclusive of, any other rights or remedies Seller
may have hereunder, at Law or otherwise.
(a) If this Agreement is terminated by Purchaser pursuant
to Section 9.1(d) or 9.1(e) (if such Governmental Order is
attributable to facts or circumstances relating exclusively to Seller,
any of Seller's Affiliates, any of the Companies or any of the
Stations) or is terminated by Seller other than in compliance with the
terms of this Agreement, then the Deposit (together with interest
thereon at the Interest Rate through the date of repayment) shall be
refunded by Seller promptly to Purchaser and the Interest Amount shall
not be payable to Seller.
(b) In the event of the termination of this Agreement as
provided in Section 9.1, this Agreement shall forthwith become void
and there shall be no liability on the part of any party hereto,
except as set forth in Sections 5.3, 9.2(a) and 11.02 and nothing
herein shall relieve either party from liability for any breach hereof
or failure to perform hereunder.
Section 9.3 Waiver. At any time prior to the Closing, any
------
party may (a) extend the time for the performance of any of the
obligations or other acts of any other party hereto, (b) waive any
inaccuracies in the representations and warranties of the other party
hereto contained herein or in any document delivered pursuant hereto
or (c) waive compliance by the other party hereto with any of the
agreements or conditions contained herein. Any such extension or
waiver shall be valid only if set forth in an instrument in writing
signed by the party to be bound thereby.
<PAGE>
<PAGE>
ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnification by Purchaser. (a) Subject to
----------------------------
Section 11.1, Purchaser shall indemnify and hold Seller, its
Affiliates and their respective employees, officers and directors
(collectively, the "Seller Indemnified Parties") harmless from and
--------------------------
against, and agrees to promptly defend any Seller Indemnified Party
from and reimburse any Seller Indemnified Party for, any and all
losses, damages, costs, expenses, liabilities, obligations and claims
of any kind (including any Action brought by any Governmental
Authority or Person and including reasonable attorneys fees and
expenses reasonably incurred) (collectively, "Losses"), which such
------
Seller lndemnified Party may at any time suffer or incur, or become
subject to, as a result or in connection with:
(i) the inaccuracy as of the date of this Agreement or the
Closing Date of any representations and warranties made by
Purchaser in or pursuant to this Agreement or in any instrument
or certificate delivered by Purchaser at the Closing in
accordance herewith; or
(ii) any failure by Purchaser to carry out, perform, satisfy
and discharge any of its covenants, agreements, undertakings,
liabilities or obligations under this Agreement or under any of
the documents and/or other instruments delivered by Purchaser
pursuant to this Agreement.
(b) The amounts for which Purchaser shall be liable under
Section 10.1(a) shall be net of (i) any insurance payable to Seller
lndemnified Parties from their own insurance policies in connection
with the facts giving rise to the right of indemnification and (ii)
any Tax benefits received by or accruing to Seller lndemnified
Parties.
(c) Notwithstanding any other provision to the contrary,
Purchaser shall not be required to indemnify and hold harmless any
Seller lndemnified Party pursuant to Section 10.1(a) unless Seller has
asserted a claim with respect to such matters within the applicable
survival period set forth in Section 11.1, and the cumulative
indemnification obligation of Purchaser under Section 10.1(a)(i) of
this Article X shall in no event exceed the Purchase Price.
<PAGE>
<PAGE>
Section 10.2 Indemnification by Seller. (a) Subject to Section
-------------------------
11.1 hereof, Seller shall indemnify and hold Purchaser, its Affiliates
and their respective employees, officers and directors (collectively,
the "Purchaser Indemnified Parties") harmless from and against, and
-----------------------------
agrees to promptly defend any Purchaser lndemnified Party from and
reimburse any Purchaser Indemnified Party for, any and all Losses
which such Purchaser lndemnified Party may at any time suffer or
incur, or become subject to, as a result or in connection with:
(i) the inaccuracy as of the date of this Agreement or the
Closing Date of any representations and warranties made by Seller
in or pursuant to this Agreement or in any instrument or
certificate delivered by Seller at the Closing in accordance
herewith; or
(ii) any failure by Seller to carry out, perform, satisfy
and discharge any of its covenants, agreements, undertakings,
liabilities or obligations under this Agreement or under any of
the documents and/or other instruments delivered by Seller
pursuant to this Agreement.
(b) The amounts for which Seller shall be liable under
Section 10.2(a) shall be net of (i) any insurance payable to Purchaser
lndemnified Parties from their own insurance policies in connection
with the facts giving rise to the right of indemnification and (ii)
any Tax benefits received by or accruing to Purchaser lndemnified
Parties.
(c) Notwithstanding any other provision to the contrary,
Seller shall not be required to indemnify and hold harmless any
Purchaser Indemnified Party pursuant to Section 10.2(a), (i) unless
Purchaser has asserted a claim with respect to such matters within the
applicable survival period set forth in Section 11.1, and (ii) until
the aggregate amount of Purchaser lndemnified Parties' Losses exceeds
an amount equal to 1 % of the Purchase Price, after which Seller shall
be obligated for all Losses of Purchaser Indemnified Parties in excess
of such amount; provided, however, that the cumulative indemnification
-------- -------
obligation of Seller under this Article X shall in no event exceed the
Purchase Price.
(d) For purposes of calculating the amount of Losses
subject to indemnification pursuant to Sections 10.1 and 10.2, it is
understood and agreed between the parties hereto that to determine if
there has been an inaccuracy or breach of a representation or warranty
which is qualified as to materiality by the party making such
representation or warranty or contains
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an exception for matters that would not have a Material Adverse
Effect, then such representation or warranty shall be read as if it
were not so qualified or contained no such exception.
Section 10.3 Notification of Claims. (a) A party entitled to
----------------------
be indemnified pursuant to Section 10.1 or 10.2 (the "Indemnified
-----------
Party") shall promptly notify the party liable for such
-----
indemnification (the "Indemnifying Party") in writing of any claim or
------------------
demand which the Indemnified Party has determined has given or could
give rise to a right of indemnification under this Agreement;
provided, however, that a failure to give prompt notice or to include
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any specified information in any notice will not affect the rights or
obligations of any party hereunder except and only to the extent that,
as a result of such failure, any party which was entitled to receive
such notice was damaged as a result of such failure. Subject to the
Indemnifying Party's right to defend in good faith third party claims
as hereinafter provided, the Indemnifying Party shall satisfy its
obligations under this Article X within 30 days after the receipt of
written notice thereof from the lndemnified Party.
(b) If the Indemnified Party shall notify the Indemnifying
Party of any claim or demand pursuant to Section 10.3(a), and if such
claim or demand relates to a claim or demand asserted by a third party
against the lndemnified Party which the Indemnifying Party
acknowledges is a claim or demand for which it must indemnify or hold
harmless the lndemnified Party under Section 10.1 or 10.2, the
Indemnifying Party shall have the right to employ counsel reasonably
acceptable to the Indemnified Party to defend any such claim or demand
asserted against the Indemnified Party for so long as the Indemnifying
Party shall continue in good faith to diligently defend against such
action or claim. The Indemnified Party shall have the right to
participate in the defense of any such claim or demand at its own
expense. The Indemnifying Party shall notify the lndemnified Party in
writing, as promptly as possible (but in any case five Business Days
before the due date for the answer or response to a claim) after the
date of the notice of claim given by the lndemnified Party to the
Indemnifying Party under Section 10.3(a) of its election to defend in
good faith any such third party claim or demand. So long as the
Indemnifying Party is defending in good faith any such claim or demand
asserted by a third party against the Indemnified Party, the
lndemnified Party shall not settle or compromise such claim or demand
without the consent of the Indemnifying Party, which consent shall not
be unreasonably withheld, and the Indemnified Party shall make
available to the Indemnifying Party or its agents all records and
other material in the lndemnified Party's possession reasonable
required by it
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for its use in contesting any third party claim or demand. Whether or
not the Indemnifying Party elects to defend any such claim or demand,
the lndemnified Party shall have no obligations to do so. In the
event the Indemnifying Party elects not to defend such claim or action
or if the Indemnifying Party elects to defend such claim or action but
fails to diligently defend such claim or action in good faith, the
Indemnified Party shall have the right to settle or compromise such
claim or action without the consent of the Indemnifying Party, except
that the Indemnified Party shall not settle or compromise any such
claim or demand, unless the Indemnifying Party is given a full and
completed release of any and all liability by all relevant parties
relating thereto.
Section 10.4 Certain Exclusive Remedies. Except (i) as
--------------------------
provided in Section 9.2(a) and (ii) for the indemnification
obligations specified in Sections 5.2(b) and 5.6, Article VI and
Article VII, Seller and Purchaser acknowledge and agree that the
indemnification provisions of Sections 10.1 and 10.2 shall be the sole
and exclusive remedies of Seller and Purchaser, respectively, for any
breach of the representations or warranties herein or nonperformance
of any covenants and agreements herein of the other party.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Survival. The representations, warranties,
--------
covenants and agreements of Seller and Purchaser contained in or made
pursuant to this Agreement or in any certificate furnished pursuant
hereto shall terminate at the Closing, except that the representations
and warranties made in Article Ill and Article IV and the covenants
and agreements made herein shall survive in full force and effect
until the later of (x) the six-month anniversary of the Closing Date
or (y) March 31, 1998. In addition, Section 10.4, including the
indemnification obligations contained in Sections 5.2(b), 5.6,6.4 and
7.1, shall survive in perpetuity and Section 2.6 shall survive until
the working capital adjustment contemplated therein has been
completed.
Section 11.2 Expenses. Except as may be otherwise specified
--------
herein, all costs and expenses, including fees and disbursements of
counsel, financial advisors and accountants, incurred in connection
with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such
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costs and expenses, whether or not the Closing shall have occurred.
Section 11.3 Notices. All notices, requests, claims, demands
-------
and other communications hereunder shall be in writing and shall be
deemed to have been duly given or made when delivered in person one
Business Day after having been dispatched via a nationally recognized
overnight courier service, when dispatched by facsimile, or three
Business Days after being sent by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties
at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section
11.3):
(a) if to Seller:
Viacom International Inc. 1515 Broadway
New York, New York 10036
Attention: General Counsel and Deputy
General Counsel
Telecopier: (212) 258-6099
(b) if to Purchaser:
Evergreen Media Corporation of Los Angeles
433 East Las Colinas Boulevard, Suite 1130
Irving, Texas 75039
Attention: Scott K. Ginsburg
Telecopier: (977) 432-0754
With a copy to:
Latham & Watkins
1001 Pennsylvania Ave., N.W.,
Suite 1300
Washington, D.C. 20004
Attention: Eric L. Bernthal
Telecopier: (202) 637-2201
Section 11.4 Public Announcements. Except as may be required
--------------------
by Law or stock exchange rules, no party to this Agreement shall make
any public announcements in respect of this Agreement or the
transactions contemplated hereby or otherwise communicate with any
news media without prior notification to the other party, and the
parties shall cooperate as to the timing and contents of any such
announcement.
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<PAGE>
Section 11.5 Non-Solicitation. Until the six-month anniversary
----------------
of the Closing Date, Seller (excluding any of Seller's Affiliates)
will not solicit or offer employment to any general manager or on-air
talent who is then a Transferred Employee except that a general
solicitation through advertisement or a professional broker will not
constitute a violation of this Section.
Section 11.6 Headings. The headings contained in this
--------
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 11.7 Severability. If any term or other provision of
------------
this Agreement is invalid, illegal or incapable of being enforced
because of any Law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse
to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
Section 11.8 Entire Agreement. This Agreement constitutes the
----------------
entire agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersedes all prior agreements and
undertakings, both written and oral, between Seller and Purchaser with
respect to the subject matter hereof and thereof, except as otherwise
expressly provided herein.
Section 11.9 Successors and Assigns. This Agreement will be
----------------------
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns but will not be assignable
or delegable by any party without the prior written consent of the
other party which shall not be unreasonably withheld; provided,
--------
however, that in the event the Purchaser Merger is completed either
-------
prior to or after the Closing, then this Agreement and all of the
rights and obligations of Purchaser hereunder, hereto and herein shall
become binding upon and inure to the benefit of the corporation or
other Person (the "Surviving Entity") surviving the Purchaser Merger;
----------------
provided further, that (a) except as otherwise permitted in this
-------- -------
Section 11.9, prior to Closing, Purchaser or the Surviving Entity, as
the case may be, may assign this Agreement
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to another party (the "Purchaser Assignee") without the consent of
------------------
Seller if, but only if, (A) such Purchaser Assignee is legally,
financially and in all other respects qualified under the laws, rules,
and regulations of the FCC and each other applicable Governmental
Authority to own the FCC Licenses and to operate the Stations as
currently operated and (B) Purchaser or the Surviving Entity, as the
case may be, agrees in a writing, in form and substance satisfactory
to Seller, to remain primarily liable and responsible for the timely
performance by Purchaser Assignee of this Agreement, and (b) Purchaser
or the Surviving Entity, as the case may be, may without the consent
of Seller make a collateral assignment of its rights under this
Agreement to any financing source who provides funds to Purchaser or
the Surviving Entity, as the case may be. Seller agrees to execute
acknowledgments of such assignment(s) and collateral assignments in
such forms as Purchaser or the Surviving Entity, as the case may be,
or institutional lender(s) may from time to time reasonably request.
In the event that the Purchaser Merger is consummated, all references
herein to Purchaser shall be deemed to be references to the Surviving
Entity.
Section 11.10 No Recourse. Notwithstanding any of the terms or
-----------
provisions of this Agreement, each of Seller on the one hand, and
Purchaser, on the other hand, agree that neither it nor any Person
acting on its behalf may assert any claims or cause of action against
any employee, officer or director of the other party or stockholder of
such other party in connection with or arising out of this Agreement
or the transactions contemplated hereby.
Section 11.11 No Third-Party Beneficiaries. Except as expressly
----------------------------
provided in Articles VII and X, this Agreement is for the sole benefit
of the parties hereto and their permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other
Person or entity any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
Section 11.12 Amendment. This Agreement may not be amended or
---------
modified except by an instrument in writing signed by Seller and
Purchaser.
Section 11.13 Sections and Schedules. Any disclosure with
----------------------
respect to a Section or Schedule of this Agreement shall be deemed to
be disclosure for all other Sections and Schedules of this Agreement.
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Section 11.14 Governing Law. This Agreement shall be governed
-------------
by, and construed in accordance with, the Laws of the State of New
York. All actions and proceedings arising out of or relating to this
Agreement shall be heard and determined in a New York state or federal
court sitting in the City of New York, and the parties hereto hereby
irrevocable submit to the nonexclusive jurisdiction of such courts in
any such action or proceeding and irrevocably waive the defense of an
inconvenient forum to the maintenance of any such action or
proceeding.
Section 11.15 Counterparts. This Agreement may be executed in
------------
one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.
Section 11.16 No Presumption. This Agreement shall be construed
--------------
without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to
be drafted.
Section 11.17 Specific Performance. Seller agrees that the
--------------------
Shares represent unique property that cannot be readily obtained on
the open market and that Purchaser would be irreparably injured if
this Agreement is not specifically enforced after default. Therefore,
in addition to any other remedy Purchaser may have under this
Agreement or at law or in equity, Seller agrees to waive the defense
to the remedy of specific performance that Purchaser has an adequate
remedy at law and to interpose no opposition, legal or otherwise, as
to the propriety of specific performance as a remedy.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
VIACOM INTERNATIONAL INC.
By: /s/ Philippe P. Dauman
-------------------------------------
Name: Philip P. Dauman
Title: Deputy Chairman and
Executive Vice President
<PAGE>
<PAGE>
EVERGREEN MEDIA CORPORATION OF LOS
ANGELES
By: /s/ Scott K. Ginsburg
-------------------------------------
Name: Scott K. Ginsburg
Title: Chairman and Chief
Executive Officer
<PAGE>
