<PAGE> 1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): JANUARY 29, 1998
---------------------------
CAPSTAR BROADCASTING PARTNERS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 333-25683 75-2672663
(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of incorporation) Identification Number)
600 CONGRESS AVENUE
SUITE 1400 78701
AUSTIN, TEXAS (Zip code)
(Address of principal
executive offices)
Registrant's telephone number, including area code: (512) 340-7800
NOT APPLICABLE
(Former name or former address, if changed since last report)
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On January 29, 1998, Capstar Radio Broadcasting Partners, Inc.
("Capstar Radio"), a wholly-owned subsidiary of Capstar Broadcasting Partners,
Inc. ("Capstar Partners"), acquired all of the outstanding preferred stock,
common stock and common stock equivalents of Patterson Broadcasting, Inc.
("Patterson"). Capstar Radio acquired the Patterson stock (the "Acquisition")
pursuant to a Stock Purchase Agreement dated June 12, 1997, as amended, by and
among Capstar Acquisition Company, Inc. ("Capstar Acquisition"), Capstar
Partners, Patterson and each of the stockholders of Patterson (the "Purchase
Agreement"), as assigned to Capstar Radio by Capstar Acquisition. As a result of
the Acquisition, Patterson became a wholly-owned direct subsidiary of Capstar
Radio.
The purchase price for the Acquisition, including related fees and
expenses (the "Purchase Price"), was approximately $217 million in cash, which
included the repayment of approximately $80 million of outstanding indebtedness
of Patterson. The Purchase Price was determined through arm's-length
negotiations among the parties.
The Purchase Price was funded through (i) an equity investment by an
affiliate of Hicks, Muse, Tate & Furst, (ii) borrowings under Capstar Radio's
existing credit facility (the "Credit Facility Loan") and (iii) the proceeds of
a temporary line of credit (the "Patterson Loan"). The Credit Facility Loan and
the Patterson Loan were subsequently repaid through an additional equity
investment by an affiliate of Hicks, Muse, Tate & Furst.
Through its subsidiaries, Patterson owns and operates or provides
services to 37 radio stations (24 FM and 13 AM) in the Savannah Georgia,
Harrisburg, Pennsylvania, Fresno, California, Honolulu, Hawaii, Battle Creek and
Grand Rapids, Michigan, Reno, Nevada, Springfield, Illinois and Pensacola,
Florida markets.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED.
It is impracticable to provide the required financial statements for
Patterson at the time of this Report because such information is not currently
available. The required financial statements will be filed as an amendment to
this Report as soon as practicable, but not later than 60 days after the date
this Report is required to be filed.
(b) PRO FORMA FINANCIAL INFORMATION.
It is impracticable to provide the required pro forma financial
information for Patterson at the time of this Report because such information is
not currently available. The required pro forma financial information will be
filed as an amendment to this Report as soon as practicable, but not later than
60 days after the date this Report is required to be filed.
<PAGE> 3
(c) EXHIBITS.
2.1 -- Stock Purchase Agreement, dated June 12, 1997, by and among
Capstar Acquisition, Capstar Partners, Patterson and the
selling stockholders of Patterson named therein
(incorporated by reference to the Registrant's Amendment
No. 1 to Registration Statement on Form S-4, dated July 8,
1997, File No. 333-25638).
2.2 -- Amendment No. 1 to Stock Purchase Agreement, dated July 2,
1997, among Capstar Acquisition, The Dyson-Kissner-Moran
Corporation, as representative of the Patterson stockholders
("DKM"), and Patterson (incorporated by reference to the
Registrant's Amendment No. 2 to Registration Statement on
Form S-4, dated August 5, 1997, File No. 333-25638).
2.3 -- Amendment No. 2 to Stock Purchase Agreement, dated August
25, 1997 among Capstar Acquisition, DKM and Patterson.*
2.4 -- Amendment No. 3 to Stock Purchase Agreement, dated January
19, 1998, among Capstar Acquisition, DKM and Patterson.*
2.5 -- Amendment No. 4 to Stock Purchase Agreement, dated January
29, 1998 among Capstar Acquisition, DKM, Patterson and
Capstar Broadcasting Corporation.*
------------------
* Filed herewith.
2
<PAGE> 4
SIGNATURES
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 thereunto duly authorized.
CAPSTAR BROADCASTING PARTNERS, INC.
(Registrant)
By:/s/ William S. Banowsky, Jr.
----------------------------
Name: William S. Banowsky, Jr.
Title: Executive Vice President
and General Counsel
Date: February 13, 1998
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE PAGE
- ------- ------------- ----
<S> <C> <C>
2.1 -- Stock Purchase Agreement, dated June 12, 1997, by and among
Capstar Acquisition, Capstar Partners, Patterson and the
selling stockholders of Patterson named therein
(incorporated by reference to the Registrant's Amendment
No. 1 to Registration Statement on Form S-4, dated July 8,
1997, File No. 333-25638).
2.2 -- Amendment No. 1 to Stock Purchase Agreement, dated July 2,
1997, among Capstar Acquisition, The Dyson-Kissner-Moran
Corporation, as representative of the Patterson stockholders
("DKM"), and Patterson (incorporated by reference to the
Registrant's Amendment No. 2 to Registration Statement on
Form S-4, dated August 5, 1997, File No. 333-25638).
2.3 -- Amendment No. 2 to Stock Purchase Agreement, dated August
25, 1997 among Capstar Acquisition, DKM and Patterson.*
2.4 -- Amendment No. 3 to Stock Purchase Agreement, dated January
19, 1998, among Capstar Acquisition, DKM and Patterson.*
2.5 -- Amendment No. 4 to Stock Purchase Agreement, dated January
29, 1998 among Capstar Acquisition, DKM, Patterson and
Capstar Broadcasting Corporation.*
</TABLE>
<PAGE> 1
EXHIBIT 2.3
AMENDMENT NO. 2
TO
STOCK PURCHASE AGREEMENT
AMENDMENT No. 2 dated as of August 25, 1997 (this
"Amendment"), by and among Patterson Broadcasting, Inc., a Delaware corporation
(the "Company"), Capstar Acquisition Company, Inc., a Delaware corporation
("Buyer"), and The Dyson-Kissner-Moran Corporation, a Delaware corporation, as
representative of the stockholders of the Company (the "Stockholders'
Representative"), to the Stock Purchase Agreement dated as of June 12, 1997, as
amended by Amendment No. 1 dated as of July 2, 1997 (as amended, the "Purchase
Agreement"), by and among Buyer, Capstar Broadcasting Partners, Inc., a
Delaware corporation, the Company, the Stockholders' Representative and each of
the persons identified on Schedule I thereto (the "Selling Stockholders").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Purchase Agreement.
W I T N E S S E T H
WHEREAS, the parties hereto have entered into the Purchase
Agreement pursuant to which, among other things, the Selling Stockholders have
agreed to sell, and the Buyer has agreed to purchase, the Shares and the Series
A Preferred Shares; and
WHEREAS, the parties hereto desire to amend certain of the
provisions of the Purchase Agreement as more particularly described below.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I.
AMENDMENT TO PURCHASE AGREEMENT
1.01 The parties hereto acknowledge and agree that
Schedule 3.1(j) of the Purchase Agreement is hereby amended by adding the
following paragraph (7) at the end thereof:
<PAGE> 2
2
"7. Patterson Fresno Broadcasting Corp.
(a) The real property located in Dinuba, Tulare
County, California as described in attachment
3.1(j)-P hereto.
(b) The real property located in Tulare County,
California as described in attachment
3.1(j)-Q hereto."
1.02 The parties hereto acknowledge and agree that
Paragraph 1 of Schedule 3.1(k) of the Purchase Agreement is hereby amended by
adding the following subparagraph (c) at the end thereof:
"C. KJOI-FM & KRDU-AM
(1) Commercial Lease Agreement dated September 1,
1989, as extended as of November 12, 1996, by
and among Clarence Matlack, Phoebe Matlack,
Deborah C. Twaddle as trustee for Carri A.
Twaddle, Evelyn M. Cardoni and Radio Dinuba
Company (tower located at Eshom Point, Tulare
County, California)."
1.03 The parties hereto acknowledge and agree that
Paragraph A(8) of Schedule 3.1(p) of the Purchase Agreement is hereby amended
by adding the following subparagraphs (b), (c) and (d) at the end thereof:
"b. Employment Agreement dated November 21, 1995 between
Radio Dinuba Company and Vallrie Dusablon (employee
may be able to enforce the contract for the remainder
of the term if terminated without cause).
c. Employment Agreement dated November 21, 1995 between
Radio Dinuba Company and Archer Dusablon (employee
may be able to enforce the contract for the remainder
of the term if terminated without cause).
d. Consulting Agreement dated as of July 31, 1997
between Patterson Fresno Broadcasting Corp. and David
L. Hofer (severance of remaining compensation under
the term if terminated other than as a result of
death or disability)."
<PAGE> 3
3
1.04 The parties hereto acknowledge and agree that
Paragraph B(1) of Schedule 3.1(p) of the Purchase Agreement is hereby amended
by adding the following subparagraphs (aaa), (bbb), (ccc) and (ddd) at the end
thereof:
"aaa. Promissory Note dated June 17, 1997 issued by
Patterson Pensacola Licensee Corp. in favor of the
Company in the principal amount of $3,699,407.20.
bbb. Promissory Note dated June 17, 1997 issued by
Patterson June Broadcasting Inc. in favor of
the Company in the principal amount of
$1,900,592.80.
ccc. Promissory Note Date July 31, 1997 issued by
Patterson Fresno Broadcasting Corp. in favor
of the Company in the principal amount of
$3,424,800.00.
ddd. Promissory Note dated July 31, 1997 issued by
Patterson Fresno Licensee Corp. in favor of
the Company in the principal amount of
$1,375,200.00."
1.05 The parties hereto acknowledge and agree that
Paragraph B(1)(s) of Schedule 3.1(p) of the Purchase Agreement is hereby
amended by deleting such Paragraph B(1)(s) in its entirety and replacing it
with the following Paragraph B(1)(s):
"s. Second Amended and Restated Management Agreement
dated as of July 31, 1997 between Patterson Fresno
Broadcasting Corp. and Patterson Fresno Licensee
Corp."
1.06 The parties hereto acknowledge and agree that
Paragraph B(1)(u) of Schedule 3.1(p) of the Purchase Agreement is hereby
amended by deleting such Paragraph B(1)(u) in its entirety and replacing it
with the following Paragraph B(1)(u):
"u. Second Amended and Restated Management Agreement
dated as of June 17, 1997 between Patterson Pensacola
Licensee Corp. and June Broadcasting, Inc."
<PAGE> 4
4
1.07 The parties hereto acknowledge and agree that
Paragraph B(8)(c) of Schedule 3.1(p) of the Purchase Agreement is hereby
amended by adding the following subparagraphs (5), (6), (7), (8) and (9) at the
end thereof:
"(5) Local Station Blanket Radio License Agreement
effective January 1, 1996 between ASCAP and
Radio Dinuba Company (KJOI-FM).
(6) Local Station Blanket Radio License Agreement
effective January 1, 1996 between ASCAP and
Radio Dinuba Company (KRDU-AM).
(7) 1997 BMI Radio Station Interim License
Agreement effective January 1, 1997 between
BMI and Radio Dinuba Company (KJOI-FM).
(8) 1997 BMI Radio Station Interim License
Agreement effective January 1, 1997 between
BMI and Radio Dinuba Company (KRDU-AM).
(9) Radio Broadcasting Performance License
Agreement effective as of August 4, 1997
between SESAC, Inc. and Patterson Fresno
Broadcasting Corp. (KJOI-FM).
(10) Radio Broadcasting Performance License
Agreement effective as of August 4, 1997
between SESAC, Inc. and Patterson Fresno
Broadcasting Corp. (KRDU-AM).
(11) Station License to Receive and Use Arbitron
Radio Listening Estimates effective April 1,
1995 between Arbitron and Radio Dinuba
Company (KJOI-FM & KRDU-AM)."
1.08 The parties hereto acknowledge and agree that
Paragraph C of Schedule 3.1(q) of the Purchase Agreement is hereby amended by
adding the following subparagraph (33) at the end thereof:
"(33) Incentive Plan for John Araiza (KJOI-FM &
KRDU-AM)."
1.09 The parties hereto acknowledge and agree that Section
1.1 of the Purchase Agreement is hereby amended
<PAGE> 5
5
by deleting the definition of "Existing Title Policies" set forth in such
Section 1.1 and replacing such definition with the following:
"Existing Title Policies" means the title insurance
policies listed in Schedule 3.1(i) hereto, Title Insurance
Policy (no. 449195 GL) issued by Chicago Title Insurance
Company to Patterson Fresno Broadcasting Corp. with respect to
certain real property located in Dinuba, Tulare County,
California and Title Insurance Policy (no. 449195-A GL) issued
by Chicago Title Insurance Company to Radio Dinuba Company
with respect to certain real property located in Tulare
County, California."
ARTICLE II.
MISCELLANEOUS
2.01 Invalidity, Etc. If any provision of this Amendment,
or the application of any such provision to any person or circumstance, shall
be held invalid by a court of competent jurisdiction, the remainder of this
Amendment, or the application of such provision to persons or circumstances
other than those as to which it is held invalid, shall not be affected thereby.
2.02 Governing Law. This Amendment shall be interpreted,
construed, and enforced under and according to the laws of the State of New
York.
2.03 Recitals. The recitals set forth in the "Whereas"
clauses in this Amendment are true and correct and are hereby incorporated
herein by reference and made a part of the Purchase Agreement as amended
hereby.
2.04 Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
2.05 Ratification. The parties hereto hereby ratify and
approve the Purchase Agreement, as amended hereby, and the parties hereto
acknowledge that all of the terms and provisions of the Purchase Agreement as
amended hereby, are and remain in full force and effect.
* * *
<PAGE> 6
6
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
BUYER:
CAPSTAR ACQUISITION COMPANY, INC.
By: /s/ Kathy Archer
---------------------------
Name: Kathy Archer
Title: Vice President
THE COMPANY:
PATTERSON BROADCASTING, INC.
By: /s/ James M. Strawn
---------------------------
Name: James M. Strawn
Title: Vice President
THE STOCKHOLDERS' REPRESENTATIVE:
THE DYSON-KISSNER-MORAN CORPORATION
By: /s/ Bruce A. Cauley
---------------------------
Name: Bruce A. Cauley
Title: Vice President
<PAGE> 1
EXHIBIT 2.4
AMENDMENT NO. 3
TO
STOCK PURCHASE AGREEMENT
AMENDMENT No. 3 dated as of January 19, 1998 (this
"Amendment"), by and among Patterson Broadcasting, Inc., a Delaware corporation
(the "Company"), Capstar Acquisition Company, Inc., a Delaware corporation
("Buyer"), and The Dyson-Kissner-Moran Corporation, a Delaware corporation, as
representative of the stockholders of the Company (the "Stockholders'
Representative"), to the Stock Purchase Agreement dated as of June 12, 1997, as
amended by Amendment No. 1 dated as of July 2, 1997 and Amendment No. 2 dated
as of August 25, 1997 (as amended, the "Purchase Agreement"), by and among
Buyer, Capstar Broadcasting Partners, Inc., a Delaware corporation, the
Company, the Stockholders' Representative and each of the persons identified on
Schedule I thereto (the "Selling Stockholders"). Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to them in
the Purchase Agreement.
W I T N E S S E T H
WHEREAS, the parties hereto have entered into the Purchase
Agreement pursuant to which, among other things, the Selling Stockholders have
agreed to sell, and the Buyer has agreed to purchase, the Shares and the Series
A Preferred Shares; and
WHEREAS, the parties hereto desire to amend certain of the
provisions of the Purchase Agreement as more particularly described below.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
<PAGE> 2
2
ARTICLE I.
AMENDMENT TO PURCHASE AGREEMENT
1.01 The parties hereto acknowledge and agree that
Paragraph 3 of Schedule 3.1(k) of the Purchase Agreement is hereby amended by
adding the following subparagraph (c) at the end thereof:
"c. WQFN(FM)
(1) Tower Rental Agreement dated April 6, 1993
between Dale Scholten d/b/a General
Communications Co. and William E. Kuiper, Jr.
(tower located at 2853 Three Mile Road, N.W.,
Walker, Michigan), as amended on May 30,
1997"
1.02 The parties hereto acknowledge and agree that
Paragraph B(1) of Schedule 3.1(p) of the Purchase Agreement is hereby amended
by adding the following subparagraphs (eee) and (fff) at the end thereof:
"eee. Promissory Note dated October 28, 1997 issued by
Patterson Grand Rapids Broadcasting Corp. in favor of
the Company in the principal amount of $267,200.
fff. Promissory Note dated October 28, 1997 issued by
Patterson Grand Rapids Licensee Corp. in favor of the
Company in the principal amount of $1,252,800."
1.03 The parties hereto acknowledge and agree that
Paragraph B(1)(o) of Schedule 3.1(p) of the Purchase Agreement is hereby
amended by deleting such Paragraph B(1)(o) in its entirety and replacing it
with the following Paragraph B(1)(o):
"o. Amended and Restated Management Agreement dated as of
October 28, 1997 between Patterson Grand Rapids
Broadcasting Corp. and Patterson Grand Rapids
Licensee Corp."
1.04 The parties hereto acknowledge and agree that
Paragraph B(7)(c) of Schedule 3.1(p) of the Purchase Agreement is hereby
amended by adding the following subparagraphs (3), (4) and (5) at the end
thereof:
<PAGE> 3
3
"(3) Local Station Blanket Radio License Agreement
effective January 1, 1996 between ASCAP and
Patterson Grand Rapids Licensee Corp.
(WQFN(FM)).
(4) 1997 BMI Radio Station Interim License
Agreement dated as of October 31, 1997
between BMI and Patterson Grand Rapids
Licensee Corp. (WQFN(FM)).
(5) Radio Broadcasting Performance License
Agreement effective as of November 4, 1997
between SESAC, Inc. and Patterson Grand
Rapids Licensee Corp. (WQFN(FM))."
1.05 The parties hereto acknowledge and agree that the
Purchase Agreement is hereby amended by deleting subsection 9.2(d) of the
Purchase Agreement in its entirety and substitutes the following subsection
9.2(d) thereof:
"At the Closing, Buyer shall receive either (i) from each
Selling Stockholder a non-foreign affidavit within the meaning of
section 1445(b) of the Code or (ii) from the Company a certification
under section 1445(b) of the Code providing that the Company is not a
United States real property holding corporation and that the common
stock of the Company is not a United States real property interest as
those terms are defined in Section 897 of the Code."
1.06 Capstar hereby waives the requirement pursuant to
Section 8.2(b) of the Purchase Agreement that the Company obtain the consent of
the contracting party prior to Closing to the following agreements:
1. Contemporary Radio Network Affiliation Agreement
dated January 31, 1992 between Keymarket
Communications of Pennsylvania, Inc. and ABC Radio
Network, Inc., as assigned to June Broadcasting, Inc.
(WNNK-FM, Harrisburg, Pennsylvania)
2. ABC Contemporary Radio Network Affiliation Agreement
dated January 31, 1992 between ABC Radio Network,
Inc. and Patterson Broadcasting, Inc. (KRZR-FM and
KBOS-FM, Fresno, California)
1.07 Capstar hereby agrees to pay to the Company prior to
or at Closing $1,502.51, representing the amount paid by the Company to Kokea
Ventures in connection
<PAGE> 4
4
with the consent to the Lease dated February 12, 1985 between Kokea Venture and
Patterson Honolulu Broadcasting Corp., as assignee.
ARTICLE II.
MISCELLANEOUS
2.01 Invalidity, Etc. If any provision of this Amendment,
or the application of any such provision to any person or circumstance, shall
be held invalid by a court of competent jurisdiction, the remainder of this
Amendment, or the application of such provision to persons or circumstances
other than those as to which it is held invalid, shall not be affected thereby.
2.02 Governing Law. This Amendment shall be interpreted,
construed, and enforced under and according to the laws of the State of New
York.
2.03 Recitals. The recitals set forth in the "Whereas"
clauses in this Amendment are true and correct and are hereby incorporated
herein by reference and made a part of the Purchase Agreement as amended
hereby.
2.04 Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
2.05 Ratification. The parties hereto hereby ratify and
approve the Purchase Agreement, as amended hereby, and the parties hereto
acknowledge that all of the terms and provisions of the Purchase Agreement as
amended hereby, are and remain in full force and effect.
* * *
<PAGE> 5
5
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
BUYER:
CAPSTAR ACQUISITION COMPANY, INC.
By: /s/ William S. Banowsky
------------------------------------
Name: William S. Banowsky
Title: Executive Vice President
THE COMPANY:
PATTERSON BROADCASTING, INC.
By: /s/ James W. Wesley
------------------------------------
Name: James W. Wesley
Title: President
THE STOCKHOLDERS' REPRESENTATIVE:
THE DYSON-KISSNER-MORAN CORPORATION
By: /s/ Bruce A. Cauley
------------------------------------
Name: Bruce A. Cauley
Title: Vice President
<PAGE> 1
EXHIBIT 2.5
AMENDMENT NO. 4
TO
STOCK PURCHASE AGREEMENT
AMENDMENT NO. 4 dated as of January 29, 1998 (this "Amendment"), by
and among Patterson Broadcasting, Inc., a Delaware corporation (the "Company"),
Capstar Broadcasting Corporation, a Delaware corporation ("Buyer"), Capstar
Acquisition Company, Inc., a Delaware corporation ("Assignor"), Capstar
Broadcasting Partners, Inc., a Delaware corporation ("Capstar"), and The
Dyson-Kissner-Moran Corporation, a Delaware corporation, as representative of
the stockholders of the company (the "Stockholders' Representative"), to the
Stock Purchase Agreement dated as of June 12, 1997, as amended by Amendment No.
1 dated as of July 2, 1997, Amendment No. 2 dated as of August 25, 1997 and
Amendment No. 3 dated as of January 19, 1998 (as amended, the "Purchase
Agreement"), by and among Assignor, Capstar Partners, the Company, the
Stockholders' Representative and each of the person identified ion Schedule I
thereto (the "Selling Stockholders"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the
Purchase Agreement.
WITNESSETH:
WHEREAS, the parties hereto have entered into the Purchase Agreement
pursuant to which, among other things, the Selling Stockholders have agreed to
sell, and Assignor has agreed to purchase, the Shares and the Series A
Preferred Shares;
WHEREAS, effective as of January 26, 1998, Buyer has assumed all of
Assignor's rights an obligations under the Purchase Agreement; and
WHEREAS, the parties hereto desire to amend certain of the provisions
of the Purchase Agreement as more particularly described below.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
AMENDMENT TO PURCHASE AGREEMENT
1.01 Buyer hereby represents and warrants to each Selling
Stockholder and the Company as of the date hereof (with the understanding that
the Selling Stockholders and the Company are relying on such representations
and warranties in entering into and performing the Purchase Agreement) that
each of the representations and warranties set forth on Exhibit A hereto are
true and correct as of the date hereof, all of which representations and
warranties are incorporated into the
<PAGE> 2
Purchase Agreement by reference as if such representations and warranties were
made in the Purchase Agreement. Buyer hereby acknowledges and agrees that, by
its execution hereof, Buyer hereby assumes all of the obligations and duties of
Assignor under or in respect of the Purchase Agreement, as amended by this
Amendment, without releasing the Assignor from any of its obligations or duties
thereunder.
1.02 The parties hereby acknowledge and agree that Paragraph
B(8)(c)(11) of Schedule 3.1(p) of the Purchase Agreement is hereby amended by
adding the following footnote (1) at the end thereof:
"(1) The Company must report the date and nature
of the change of ownership of the stations within 30 days of
such change."
1.03 The parties hereto acknowledge and agree that Section
9.2(b)(vii) of the Purchase Agreement is hereby deleted in its entirety.
1.04 The parties hereto acknowledge and agree that Section 5.8 of
the Purchase Agreement is hereby deleted in its entirety and the following
substituted therefor:
"5.8 Employment Agreements. Subject to the terms
and conditions hereof, Buyer shall enter into an (x) Agreement
with James W. Wesley, Jr. in the form attached as Exhibit 1 to
Amendment No. 4 to the Purchase Agreement and (y) Employment
Agreement with James M. Strawn in the form attached as Exhibit
2 to Amendment No. 4 to the Purchase Agreement."
1.05 The parties hereto acknowledge and agree that Section 5.9 of
the Purchase Agreement is hereby deleted in its entirety.
1.06 The parties hereto acknowledge and agree that the definition
of "Cash on Hand" is hereby deleted in its entirety and the following
substituted therefor:
"Cash on Hand" means all cash and cash equivalents of
the Company or its subsidiaries as of 12:01 a.m. on January
28, 1998 (Pacific Time) that is not utilized to pay Funded
Debt or otherwise utilized pursuant to Section 2.9, but shall
not include any Acquisition Escrow Amount."
ARTICLE II
MISCELLANEOUS
2.01 INVALIDITY, ETC. If any provision of this Amendment, or the
application of any such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction,
2
<PAGE> 3
the remainder of this Amendment, or the application of such provision to
persons or circumstances other than those as to which it is held invalid, shall
not be affected thereby.
2.02 GOVERNING LAW. This Amendment shall be interpreted,
construed, and enforced under and according to the laws of the State of New
York.
2.03 RECITALS. The recitals set forth in the "Whereas" clauses in
this Amendment are true and correct and are hereby incorporated herein by
reference and made a part of the Purchase Agreement as amended hereby.
2.04 COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
2.05 RATIFICATION. The parties hereto hereby ratify and approve
the Purchase Agreement, as amended hereby, and the parties hereto acknowledge
that all of the terms and provisions of the Purchase Agreement as amended
hereby, are and remain in full force and effect.
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
ASSIGNOR:
CAPSTAR ACQUISITION COMPANY, INC.
By: /s/ William S. Banowsky
-----------------------------------
Name: William S. Banowsky
Title: Executive Vice President
BUYER:
CAPSTAR BROADCASTING CORPORATION
By: /s/ William S. Banowsky
-----------------------------------
Name: William S. Banowsky
Title: Executive Vice President
CAPSTAR:
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ William S. Banowsky
-----------------------------------
Name: William S. Banowsky
Title: Executive Vice President
THE COMPANY:
PATTERSON BROADCASTING, INC.
By: /s/ James W. Wesley, Jr.
-----------------------------------
Name: James W. Wesley, Jr.
Title: President
4
<PAGE> 5
THE STOCKHOLDERS' REPRESENTATIVE:
THE DYSON-KISSNER-MORAN CORPORATION
By: /s/ Bruce A. Cauley
-------------------------
Name: Bruce A. Cauley
Title: Vice President
5
<PAGE> 6
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF BUYER
(a) ORGANIZATION STANDING AND POWER. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
Buyer is the ultimate parent of Assignor, Capstar, the entities acquired in the
Benchmark Acquisition and directly or indirectly holds all of the issued and
outstanding capital stock of each entity set forth on Schedule 3.4(a) to the
Purchase Agreement.
(b) AUTHORITY. Buyer has all requisite corporate power and
authority to enter into this Amendment and the other Transaction Documents to
which it is a party and to consummate the transactions contemplated by the
Purchase Agreement, as amended by this Amendment, and the Transaction
Documents. The execution and delivery of this Amendment and the other
Transaction Documents to which it is a party and the consummation by it of the
transactions contemplated by the Purchase Agreement, as amended by this
Amendment, and the other Transaction Documents have been duly authorized by all
necessary action on the part of Buyer. The Purchase Agreement, as amended by
this Amendment, and the other Transaction Documents to which Buyer is a party
have been, or upon execution and delivery will be, duly executed and delivered
and constitute the valid and binding obligations of Buyer.
(c) NO CONFLICT; REQUIRED FILINGS AND CONSENTS. Neither the
execution and delivery of this Amendment and the other Transaction Documents to
which Buyer is a party nor the performance by Buyer of the transactions
contemplated by the Purchase Agreement, as amended by this Amendment, or the
other Transaction Documents will, subject to obtaining the consents, approvals,
authorizations, and permits and making the filings set forth on Schedule 3.4(c)
to the Purchase Agreement or as described in this clause (c), (i) violate,
conflict with, or result in any breach of any provisions of Buyer's Certificate
of Incorporation or Bylaws, (ii) violate, conflict with, or result in a
violation or breach of, or constitute a default (with or without due notice or
lapse of time or both) under, any of the terms, conditions, or provisions of
any loan or credit Agreement, note, bond, mortgage, indenture, or deed of
trust, or any license, lease, Agreement, or other instrument or obligation to
which Buyer is a party or by which it or any of its assets is bound, or (iii)
violate any order, writ, judgment, injunction, decree, statute, law, rule or
regulation, of or registration, declaration, or filing with any Governmental
Entity applicable to Buyer or by which it or any of its assets is bound. No
Consent of any Governmental Entity is required by or with respect to Buyer in
connection with the execution and delivery of this Amendment or any other
Transaction Documents by Buyer or the consummation by it of the transactions
contemplated by the Purchase Agreement, as amended by this Amendment, or the
other Transaction Documents, except for (A) the FCC Consents (as contemplated
by Section 7.1 of the Purchase Agreement) and notification to the FCC upon
consummation, (B) the filing of a premerger notification report and any other
filing required under the HSR Act and the expiration or termination of any
waiting period in connection
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therewith, and (C) applicable requirements, if any, of the Securities Act and
Exchange Act and the rules and regulations thereunder and state securities or
blue sky laws.
(d) LITIGATION. As of the date hereof, there is no action, suit,
judicial or administrative proceeding pending or, to the Knowledge of Buyer,
threatened against it relating to the transactions contemplated by the Purchase
Agreement, as amended by this Amendment, or any other Transaction Documents or
which, if adversely determined, would adversely affect its ability to
consummate the transactions contemplated by the Purchase Agreement, as amended
by this Amendment, or the other Transaction Documents or to perform its
covenants and agreements under the Purchase Agreement, as amended by this
Amendment, or any other Transaction Document.
(e) FCC MATTERS. Except as set forth in Schedule 3.3(e) to the
Purchase Agreement, there are no facts relating to Buyer (or an Affiliate
thereof) under the Communications Act that would disqualify it (or any
Affiliate or assignee) from obtaining control of the Station Licenses or that
would prevent it (or any Affiliate or assignee) from consummating the
transactions contemplated by this Agreement or materially delay the grant of
the FCC Consents. Except as may be set forth in Schedule 3.3(e) to the
Purchase Agreement, it is not necessary for Buyer, Capstar or any subsidiary or
other Affiliate of Buyer or Capstar to seek or obtain any waiver from the FCC,
dispose of any interest in any media or communications property or interest
(including, without limitation, any of the Stations), terminate any venture or
arrangement, or effectuate any change or restructuring of its ownership
(including, without limitation, the removal or withdrawal of officers or
directors or the conversion or repurchase of equity securities in Buyer or
Capstar or any Affiliate) to obtain, or to avoid any delay in obtaining, the
FCC Consents. Buyer is able to certify on an FCC Form 315 that it is
financially qualified.
(f) INVESTMENT INTENT. The Shares and Series A Preferred Shares
to be acquired by Buyer are being acquired for its own account, for investment
and with no intention of distributing or reselling such Shares or Series A
Preferred Shares or any part thereof or interest therein in any transaction
which would be a violation of the securities laws of the United States of
America or any state or any foreign country or jurisdiction. Buyer has not
been formed for the purpose of acquiring the Shares or Series A Preferred
Shares and Buyer is a sophisticated investor and has such Knowledge,
sophistication and experience in business and financial matters so as to be
capable to evaluating the merits and the risks of acquiring the Shares and
Series A Preferred Shares and is able to bear the risks of such investment.
Buyer acknowledges that (i) the Shares and Series A Preferred Shares are
"restricted securities" (as defined under the rules and regulations promulgated
under the Securities Act), (ii) the Shares and Series A Preferred Shares have
not been issued or sold pursuant to any registration or similar filing,
listing, prospectus or document, or pursuant to any delivery requirements under
the laws of any Governmental Entity or the rules, regulations or guidelines of
any stock exchange or quotation system and (iii) it has had access to all
information which it considers necessary or advisable to enable it to make a
decision concerning the purchase of the Shares and Series A Preferred Shares.
At the date hereof, Buyer is an "accredited investor" as defined in Rule 501
under the Securities Act.
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