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EXHIBIT 10.38
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made effective the
6th day of June, 2000 by and between OnRadio.com, a California corporation
("OnRadio"), and GlobalMedia.com, a Nevada corporation ("Global").
BACKGROUND
OnRadio is the owner of contracts under which it provides streaming
media, web site hosting, maintenance, content delivery, and e-commerce
services to terrestrial radio stations (the "Customers"). Global desires to
acquire certain of the contracts and OnRadio is willing to sell such
contracts on the terms and subject to the conditions set forth in this
Agreement. Therefore, the parties agree as follows:
AGREEMENT
SECTION 1. DEFINED TERMS.
1.1 DEFINITIONS. In addition to the terms defined elsewhere in
this Agreement, the following terms, when used herein, shall have the
following meanings:
(a) "ADDITIONAL CONSIDERATION" shall have the meaning set forth in
Section 2.4.
(b) "AGREEMENT" means this Asset Purchase Agreement, including the
schedules and exhibits.
(c) "ASSETS" shall mean, collectively, the Web Site Assets and the
Streaming Media Assets.
(d) "BEST EFFORTS" means the efforts that a prudent Person desirous
of achieving a result would use in similar circumstances to achieve
that result as expeditiously as possible; PROVIDED, HOWEVER, that an
obligation to use Best Efforts under this Agreement does not require
the Person subject to that obligation to take actions that would
result in a materially adverse change in the benefits to such Person
under this Agreement or that would violate any Law or court order
applicable to such Person.
(e) "BREAKUP SHARES" shall have the meaning set forth in Section
2.3(a)(iii).
(f) "BUSINESS DAY" shall mean a day, other than Saturday or
Sunday, on which banks in California are open to the public for the
transaction of their normal banking business.
(g) "CLOSING" AND "CLOSING DATE" means, where the context so
provides, "Initial Closing" and "Initial Closing Date", "Intermediate
Closing(s) and "Intermediate Closing(s) Dates", or "Final Closing" and
"Final Closing Date."
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(h) "CLOSING SHARE PRICE" shall mean the average closing sales price
of the Common Stock on the Nasdaq Stock Market or other stock market
if applicable for the 20 trading days prior to the Initial Closing,
not to exceed $11.00 per share nor be below $5.00 per share.
(i) "COMMON STOCK" means the common stock, par value $0.0001 per
share, of Global.
(j) "CONTRACTS" shall mean, collectively, the Web Site Contracts and
the Streaming Media Contracts.
(k) "CUME" means the cumulative audience statistic for a radio
station as published by Arbitron.
(l) "CUSTOMER CUME" means, where the context so requires, the
agreed-upon CUME for a Customer or the aggregate CUME for all
Customers, in each case as set forth in Schedule 2.1(a)(i) and
2.1(a)(ii). Customer CUME does not include CUME of Sales Prospects.
(m) "CUSTOMER CUME ATTRITION" means, for the relevant period, a
decline in Customer CUME (measured by the Customer CUME for the
relevant customer as set forth in Schedule 2.1 (a)) resulting from
Customer Terminations. Customer CUME Attrition shall be measured by
subtracting the Customer CUME set forth in Schedule 2.1 (a)(i) or
Schedule 2.1 (a)(ii) for each Customer that is the subject of a
Customer Termination.
(n) "CUSTOMER TERMINATION" means (i) the termination of any Contract
by a Customer during the Transition Period, provided that the Customer
does not enter into a new contractual relationship with respect to the
delivery of one or more Global Services prior to the end of the
Transition Period, or (ii) the failure of a Customer to enter into a
new contractual relationship with Global with respect to the delivery
of one or more of Global Services prior to the earlier of (A) the
expiration of a Contract including any extension term contemplated
therein, or (B) the end of the Transition Period.
(o) "CUSTOMERS" means the terrestrial radio customers of OnRadio who
are parties to the Contracts.
(p) "DAMAGES" means any and all costs, losses, damages, amounts paid
in settlement, liabilities, demands, claims, suits, actions,
judgments, causes of action, assessments or expenses, including
interest, penalties, fines and reasonable attorney's fees incident
thereto, incurred in connection with any claim for indemnification
arising out of this Agreement
(q) "DISCLOSURE DOCUMENTS" shall have the meaning set forth in
Section 4.5.
(r) "EQUIPMENT LEASE" shall have the meaning set forth in Section
5.6.
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(s) "ESCROW AGENT" shall have the meaning set forth in the Escrow
Agreement.
(t) "ESCROW AGREEMENT" means the Amended and Restated Holding
Agreement and Instructions to Escrow Agent dated as of May 8, 2000,
and amended June 6, 2000 by and among the Parties and the Escrow
Agent.
(u) "ESCROW FUNDS" shall have the meaning set forth in the Escrow
Agreement.
(v) "FINAL CLOSING" AND "FINAL CLOSING DATE" shall have the
respective meanings set forth in Section 7.6.
(w) "FINAL CLOSING SHARES" shall have the meaning set forth in
Section 2.3(c).
(x) "GLOBAL MEDIA PLAYER" shall mean Global's HTML based streaming
media player with embedded RealPlayer codec.
(y) "GLOBAL SERVICES" means internet-related services, including but
not limited to the streaming media, web site hosting, maintenance,
content delivery, and e-commerce services offered by Global to its
customers in the ordinary course of its business.
(z) "GOVERNMENTAL AUTHORITY" means any nation or government, foreign
or domestic, any state or other political subdivision thereof, and any
agency or other entity exercising executive, legislative, judicial,
regulatory or administrative functions of government, including,
without limitation, all taxing authorities and all authorities having
regulatory oversight of any aspect of OnRadio's Terrestrial Radio
Business.
(aa) "INITIAL CLOSING" and "INITIAL CLOSING DATE" shall have the
respective meanings set forth in Section 7.1.
(bb) "INTERMEDIATE CLOSING(S)" AND "INTERMEDIATE CLOSING DATE(S)"
shall have the respective meanings set forth in Section 7.4.
(cc) "INTERMEDIATE CLOSING(S) SHARES" shall have the meaning set forth
in Section 2.3(b).
(dd) "INTERMEDIATE CLOSING CUTOFF DATE" shall have the meaning set
forth in Section 7.4.
(ee) "INVESTOR RIGHTS AGREEMENT" shall have the meaning set forth in
Section 5.4
(ff) "LAW" means any statute, rule, common law, ordinance, regulation,
order, writ, judgment, injunction, decree, determination, or award
enacted or promulgated by a Governmental Authority.
(gg) "LOSS" means any demand, obligation, liability, claim, loss,
cost,
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expense, tax, lawsuit, arbitration or other legal action, judgment or
damage, liquidated or unliquidated, accrued or contingent, incurred or
suffered, including without limitation any interest, penalties, costs
and reasonable legal fees and expenses in connection with the
incurrence of any Loss or in defending against any Loss.
(hh) "ONRADIO TERRESTRIAL RADIO SERVICES" means the streaming media,
website hosting, maintenance, content delivery, and e-commerce and
other services as set forth in the Contracts.
(ii) "ONRADIO'S TERRESTRIAL RADIO BUSINESS" means the business carried
on by OnRadio of providing the OnRadio Terrestrial Radio Services
under the Contracts to the Customers.
(jj) "PARTIES" means OnRadio and Global.
(kk) "PERSON" means an individual, corporation, partnership, limited
liability company, unincorporated association, trust, joint venture or
other organization or entity, including a Governmental Authority.
(ll) "RELATED CONTRACTS" means certain third party contracts as set
forth in Schedule 3.17 under which OnRadio is providing certain
OnRadio Terrestrial Radio Services to Customers as of the date of this
Agreement.
(mm) "SALES PROSPECTS" shall mean, collectively, the large market
radio station identified in Section 2.4(b), the Streaming Services
Sales Prospects and the Web Services Sales Prospects.
(nn) "SECURITIES LAWS" means the Securities Act of 1933, as amended,
and the securities laws of any state solely to the extent applicable.
(oo) "SHARES" means the shares of Common Stock issued to OnRadio
pursuant to the Escrow Agreement or Section 2.3 or 2.4 below.
(pp) "SOFTWARE LICENSE" shall have the meaning set forth in Section
5.5.
(qq) "STREAMING MEDIA ASSETS" shall have the meaning set forth in
Section 2.1 (a)(ii)
(rr) "STREAMING MEDIA CONTRACTS" means the contracts listed in
Schedule 2.1 (a)(ii).
(ss) "STREAMING MEDIA CONTRACTS CUSTOMERS" means those Customers that
are parties to the Streaming Media Contracts. Streaming Media
Contracts Customers shall not include Customers whose Streaming Media
Contracts have not been renewed or which have been terminated.
(tt) "STREAMING CUSTOMER TRANSITION PROCESS" shall mean, with respect
to a
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particular Streaming Media Contract Customer, (i) installation by or
on behalf of Global of a private frame relay line for the Streaming
Media Contract Customer, (ii) delivery to the Streaming Media Contract
Customer and set-up of an encoder box, and (iii) creation by Global of
a player for the Streaming Media Contract Customer.
(uu) "STREAMING SERVICES SALES PROSPECTS" shall have the meaning set
forth in Section 2.4(a).
(vv) "SUPPLEMENTAL DOCUMENTS" means the instruments, certificates and
other documents referred to herein which shall be executed pursuant to
or in connection with this Agreement, including, without limitation,
the Transition Agreement, the Investor Rights Agreement, the Software
License, and the Equipment Lease.
(ww) "TAX" or "TAXES" means any income, gross receipts, excise,
business and occupation, franchise, real and personal property, sales
and use, withholding, social security, unemployment, disability, and
other taxes or governmental fees or charges or other assessments
(whether imposed directly or through withholding), including any
interest or penalties that may become payable in respect thereof,
imposed by any Governmental Authority.
(xx) "THREATENED" means a claim, proceeding, dispute, action, or other
matter where any demand or statement has been made (orally or in
writing) or any notice has been given (orally or in writing), or if
any other event has occurred or any other circumstances exist, that
would lead a prudent Person to conclude that such a claim, proceeding,
dispute, action, or other matter is likely to be asserted, commenced,
taken, or otherwise pursued in the future.
(yy) "TRANSITION PERIOD" means the period commencing on the Initial
Closing Date and ending on the one year anniversary thereof.
(zz) "TRANSITION AGREEMENT" shall have the meaning set forth in
Section 5.3.
(aaa) "WEB SERVICES SALES PROSPECTS" shall have the meaning set forth
in Section 2.4(c).
(bbb) "WEB SITE ASSETS" shall have the meaning set forth in Section
2.1 (a).
(ccc) "WEB SITE CONTRACTS" means the web site hosting and other
contracts listed in Schedule 2.1 (a)(i).
1.2 ACCOUNTING TERMS; MONETARY TERMS. Any term that is used in the
context of describing or referring to an accounting concept and that is not
specifically defined in this Agreement shall be construed in accordance with
United States Generally Accepted Accounting Principles. All sums of money
referred to herein are expressed in United States Dollars.
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1.3 MEANING OF "KNOWLEDGE." For all purposes of this Agreement, any
reference to the existence or absence of facts which is indicated to be based on
a Party's knowledge, is intended to signify that no information has come to the
attention of any current officer or director of such Party that would give such
Person constructive or actual knowledge of the existence or absence of such
facts. For the purposes of this Agreement, a Person shall have constructive
"knowledge" of a fact, event, condition or circumstance when she or he has
knowledge that would lead a reasonable Person to inquire as to the existence or
absence of such fact, event, condition or circumstance.
1.4 DISCLOSURE SCHEDULES AND EXHIBITS. Schedules delivered by OnRadio
to Global in connection with the execution and delivery of this Agreement or
after the execution of this Agreement (the "Disclosure Schedules") contain
certain information and data required to be disclosed by this Agreement. The
Disclosure Schedules identify the information and data disclosed with reference
to the sections of this Agreement and shall be attached to and form a part of
this Agreement. Exhibits attached to this Agreement contain examples of
documents that are substantially similar to the Supplemental Documents.
SECTION 2. ASSETS PURCHASED; LIABILITIES ASSUMED; CONTINGENT PAYMENTS;
CUSTOMER RETENTION HOLDBACK
2.1 PURCHASE AND SALE OF ASSETS.
(a) On the terms and subject to the conditions set forth in this
Agreement, OnRadio shall sell, assign, transfer, convey and deliver to Global,
and Global shall purchase, acquire and accept from OnRadio, all of the following
assets, properties and rights of OnRadio (collectively, the "Web Site Assets"):
(i) All Web Site Contracts;
(ii) All of OnRadio's rights under the Web Site Contracts,
including without limitation the right to receive fees payable by the
Customers under the Web Site Contracts;
(iii) Copies of the invoices and correspondence related to
the Web Site Contracts; summaries of payments, accounts receivables
for the Web Site Contracts only;
(iv) All rights and claims (known or unknown, matured or
unmatured, accrued or contingent) in favor of OnRadio in respect of
the Web Site Contracts.
(b) On the terms and subject to the conditions set forth in this
Agreement, OnRadio shall sell, assign, transfer, convey and deliver to Global,
and Global shall purchase, acquire and accept from OnRadio, all of the following
assets, properties and rights of OnRadio (collectively, the "Streaming Media
Assets"):
(i) All Streaming Media Contracts;
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(ii) All of OnRadio's rights under the Streaming Media
Contracts, including without limitation the right to receive fees
payable by the Customers under the Streaming Media Contracts;
(iii) Copies of the invoices and correspondence related to
the Streaming Media Contracts; summaries of payments, accounts
receivables for the Streaming Media Contracts only;
(iv) All rights and claims (known or unknown, matured or
unmatured, accrued or contingent) in favor of OnRadio in respect of
the Streaming Media Contracts.
2.2 ASSUMPTION OF LIABILITIES. Contemporaneously with the purchase of
the Web Site Contracts, OnRadio shall assign and Global shall assume each
liability and obligation of OnRadio under the Web Site Contracts arising or to
be performed after the Initial Closing ("Assumed Web Site Contract Liability").
Contemporaneously with the purchase of the Streaming Media Contracts, OnRadio
shall assign and Global shall assume each liability and obligation of OnRadio
under the Streaming Media Contracts arising or to be performed with respect to
each Streaming Media Contract assigned in connection with an Intermediate
Closing, and with respect to all the Streaming Media Contracts assigned in
connection with the Final Closing ("Assumed Streaming Media Contract
Liability"). Global is not assuming, and shall not be deemed to have assumed,
any liabilities of OnRadio other than those described in this paragraph,
including any liability or obligation of OnRadio (except as set forth in this
paragraph) whether accrued or fixed, absolute or contingent, known or unknown,
or determined or determinable, and whether incurred prior to, on, or after the
Closing ("Retained Liability"). Nothing herein shall be construed to relieve
OnRadio of any obligation under the Transition Agreement.
2.3 PURCHASE PRICE FOR WEB SITE ASSETS; PAYMENT. The aggregate
purchase price for the Web Site Assets and Streaming Media Assets shall be
$9,000,000 ($2,250,000 of which shall be subject to the Holdback Provision set
forth in Section 2.7 below) paid as follows:
(a) at the Initial Closing:
(i) $500,000 in cash;
(ii) a number of Shares determined by dividing $2,250,000
by the Closing Share Price; and
(iii) the stock certificate registered in OnRadio's name
representing 47,619 shares of Common Stock with the agreed value of
$250,000 ("Breakup Shares"), which was delivered to OnRadio pursuant
to the terms of the amended and restated letter of intent between the
Parties dated May 5, 2000;
(b) at each Intermediate Closing, a number of Shares determined
in the manner set forth in Section 7.4 below for the Streaming Media Contracts
being transferred and assigned in such Intermediate Closing; and
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(c) at the Final Closing, a number of Shares determined by
dividing $3,750,000 by the Closing Share Price (the "Final Closing Shares"),
less the total number of shares issued and delivered to OnRadio in any prior
Intermediate Closing(s) under 2.3 (b).
2.4 CONTINGENT PAYMENTS. OnRadio shall be entitled to up to an
additional $3,000,000 ("Additional Consideration"), payable in Shares based upon
the Closing Sales Price, on the following terms and conditions:
(a) OnRadio shall transition all on-going radio station
streaming sales leads and prospects ("Streaming Services Sales Prospects"),
all of which are identified on the attached Schedule 2.4, to Global.
(b) OnRadio shall introduce Global to the large market radio
station listed in Schedule 2.4; and
(c) OnRadio shall transition all on-going radio station web
services sales prospects ("Web Services Sales Prospects"), all of which are
identified on the attached Schedule 2.4, to Global.
To that end, within thirty (30) days of Initial Closing, OnRadio shall assist in
the transition of these opportunities through joint sales or executive level
calls with Global representatives at each Sales Prospect. The Parties agree that
the aggregate CUME for the above three opportunities (the "Aggregate Sales
Prospect CUME") shall be the sum of the CUME for each Sales Prospect set forth
in Schedule 2.4. If Global enters into a contract for the provision of Global
Services with a Sales Prospect within six (6) months of Initial Closing, OnRadio
shall be entitled to a portion of the Additional Consideration determined by
multiplying $3,000,000 by a ratio, the numerator of which is the CUME for the
Sales Prospect set forth on Schedule 2.4 and the denominator of which is the
Aggregate Sales Prospects CUME as set forth in such schedule. A certificate for
that number of Shares (based upon the Closing Sales Price) representing the
portion of the Additional Consideration to which OnRadio is entitled shall be
delivered to OnRadio within thirty (30) days of the execution of each such
contract.
2.5 REGISTRATION RIGHTS. All Shares issued to OnRadio under this
Agreement, including Shares issued pursuant to Sections 2.3, 2.4, 2.7 and 9.3,
or to be delivered pursuant to Section 7, shall be "Registrable Securities" as
defined in the Investor Rights Agreement.
2.6 FURTHER DOCUMENTS OR NECESSARY ACTION. OnRadio and Global,
respectively, shall take all action that is reasonably necessary to effectuate
the transactions contemplated under this Agreement. On or after the Initial
Closing Date, if any further action is reasonably necessary to carry out the
purposes of this Agreement and to vest Global with full title to the Web Site
Assets, OnRadio and Global shall take all reasonably necessary actions. On or
after each Intermediate Closing Date and on or after the Final Closing Date, if
any further action is reasonably necessary to carry out the purposes of this
Agreement and to vest Global with full title to the Streaming Media Assets
transferred and assigned on such Intermediate Closing Date or Final Closing
Date, as applicable, OnRadio and Global shall take all reasonably necessary
actions. Each party shall bear its own costs and expenses in connection with any
such
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further actions.
2.7 CUSTOMER RETENTION HOLDBACK. OnRadio acknowledges that Global is
entering into this Agreement based in part upon certain Customer retention
assumptions. In particular, Global has assumed that the monthly Customer CUME
loss will not exceed 1.5% per month during the Transition Period ("Assumed
Customer CUME Attrition"). The Parties have therefore agreed to an adjustment of
the Purchase Price in the event that, at the end of the Transition Period,
Customer CUME Attrition exceeds the cumulative Assumed Customer CUME Attrition.
For these purposes, the Parties agree that Global shall retain $2,250,000 of the
aggregate Purchase Price in the form of Shares, based upon the Closing Share
Price, (as a holdback (the "Holdback Shares"). At the Initial Closing, a
certificate evidencing the Holdback Shares shall be issued in the name of
OnRadio but deposited into Escrow, and OnRadio will deliver to the Escrow Agent
an assignment separate from certificate duly executed by OnRadio with respect to
the Holdback Shares. If on the one year anniversary of the Initial Closing (the
"Anniversary"), the aggregate annualized Customer CUME Attrition is no more than
18%, all of the Holdback Shares shall be paid over and distributed to OnRadio.
If on the Anniversary, the aggregate annualized Customer CUME Attrition is more
than 18%, all of the Holdback Shares shall be retained by Global and cancelled.
The Parties agree that the same CUME statistics on Schedules 2.1(a)(i) and (ii)
shall be used as the basis to measure Customer CUME Attrition. Global
acknowledges and agrees that its retention and cancellation of the Holdback
Shares shall be Global's exclusive remedy in the event that Customer CUME
Attrition exceeds the Assumed Customer CUME Attrition.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER. OnRadio hereby
represents and warrants to Global that, except as disclosed on any Disclosure
Schedule, the following statements are true and correct on the date of this
Agreement (unless some other date is specified as of which the statement is
made) and will be true and correct on the Initial Closing Date as though made on
such date:
3.1 ORGANIZATION. OnRadio is a corporation duly organized, validly
existing and in good standing under the laws of the State of California. OnRadio
is duly qualified or licensed as a foreign corporation and is in good standing
in each jurisdiction where the nature of OnRadio's Terrestrial Radio Business or
the ownership of the Assets or performance of the Contracts requires such
qualification or license.
3.2 POWER AND AUTHORITY. OnRadio has all requisite corporate power
and authority to enter into, execute, deliver and perform this Agreement and the
Supplemental Documents to which it is party.
3.3 AUTHORIZATION; ENFORCEABILITY. OnRadio's board of directors has
approved the transactions contemplated by this Agreement and the Supplemental
Documents, and on or before the Initial Closing Date OnRadio will have taken or
caused to have been taken all action (including the obtaining of any approval of
shareholders required by law or by OnRadio's articles of incorporation or
bylaws) necessary for the authorization, execution, delivery and performance of
this Agreement and the Supplemental Documents. This Agreement has been duly
executed and
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delivered by OnRadio. As of the Initial Closing Date, each of the Supplemental
Documents to which OnRadio is a party will have been duly executed and delivered
by OnRadio. Assuming the due authorization, execution and delivery by Global,
this Agreement constitutes a valid and binding obligation of OnRadio enforceable
against OnRadio in accordance with its terms except to the extent that
enforceability may be limited by bankruptcy, reorganization, insolvency or other
laws affecting the enforcement of creditors' rights generally or the
availability of equitable remedies subject to the discretion of the court. Upon
execution of the Supplemental Documents by Global and OnRadio, the Supplemental
Documents to which OnRadio is a party will be the valid and binding obligations
of OnRadio enforceable against OnRadio in accordance with their respective terms
except to the extent that enforceability may be limited by bankruptcy,
reorganization, insolvency or other laws affecting the enforcement of creditors'
rights generally or the availability of equitable remedies subject to the
discretion of the court.
3.4 ABSENCE OF CERTAIN CONFLICTS. Neither the execution and delivery
of this Agreement and the Supplemental Documents to which OnRadio is a party,
nor the consummation of any of the transactions contemplated by this Agreement
and the Supplemental Documents, will (i) conflict with or result in a breach of
any provision of the Articles of Incorporation or Bylaws of OnRadio; (ii)
require the payment or the incurring of any obligation on the part of OnRadio,
or result in a loss of rights or default (or give rise to any right of
termination, cancellation or acceleration), with or without notice or lapse of
time, under any of the provisions of any Contract, except for such defaults (or
rights of termination, cancellation or acceleration) as to which requisite
waivers or consents have been obtained, which necessary waivers or consents are
listed on Schedule 3.4; (iii) require OnRadio to obtain any consent, approval,
authorization or permit of, or make any filing with or provide any notification
to, any Governmental Authority, except as listed on Schedule 3.4; or (iv) to the
Knowledge of OnRadio violate any judgment, decree, order, injunction, or any Law
applicable to the Contracts, or the Assets.
3.5 FINANCIAL STATEMENTS. OnRadio has furnished to Global audited
financial statements of OnRadio for the fiscal year ending December 31, 1998,
and unaudited financial statements for the fiscal year ended 1999 and for the
three (3) month period ended March 30, 2000 (the "Financial Statements"). Such
financial statements and notes fairly present the financial condition and the
results of operations, changes in stockholders' equity, and cash flow of OnRadio
at the respective dates of and for the periods referred to in such financial
statements. The Financial Statements have been prepared in accordance with GAAP
and reflect the consistent application of such accounting principles throughout
the periods involved, except as disclosed in the notes to such financial
statements.
3.6 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on
Schedule 3.6, to OnRadio's knowledge, OnRadio had no material liability of any
nature (matured or unmatured, fixed or contingent) that would materially and
adversely affect the Assets, other than provided for or disclosed in the
Financial Statements. To the best of OnRadio's knowledge, there are no
undisclosed liabilities with respect to the Assets.
3.7 CONTRACTS AND CUSTOMERS. Schedule 2.1(a)(i) sets forth a full,
complete and accurate list of all Web Site Contracts and the radio station call
letters for the Customers who are parties thereto. Schedule 2.1(a)(i) also
includes Customer CUME numbers for each Web Site Contract Customer that are
based on third party sources identified in Schedule 2.1
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(a)(i). Except where indicated as estimates, Schedule 2.1(a)(i) accurately
reflects the third party information used by OnRadio to prepare the Schedule.
Schedule 2.1(a)(ii) sets forth a full, complete and accurate list of all
Streaming Media Contracts and the radio station call letters for the Customers
who are parties thereto. Schedule 2.1(a)(ii) also includes Customer CUME numbers
for each Streaming Contract Customer that are based on third party sources
identified in Schedule 2.1 (a)(ii). Except where indicated as estimates,
Schedule 2.1(a)(ii) accurately reflects the third party information used by
OnRadio to prepare the Schedule. OnRadio has delivered to Global true and
complete copies of all the Contracts, together with all amendments. Except as
set forth in Schedule 3.7, (i) all of the Contracts are fully enforceable
according to their terms, (ii) neither OnRadio nor any other person is in breach
or violation of, or in default under, any of the Contracts, (iii) the execution
and delivery of this Agreement and the Supplemental Documents and the
consummation of the transactions contemplated by this Agreement and the
Supplemental Documents will not constitute a default or breach under any of the
Contracts, (iv) the execution and delivery of this Agreement and the
Supplemental Documents and the consummation of the transactions contemplated by
this Agreement and the Supplemental Documents will not give rise to any consent
requirement under any of the Contracts, (v) no party to any of the Contracts has
given OnRadio notice of its intention to cancel, terminate or fail to renew a
Contract or to otherwise cease doing business with OnRadio.
3.8 LITIGATION; JUDGMENTS. Except as set forth in Schedule 3.8, there
are no claims, investigations, arbitrations, grievances, litigation, actions,
suits and proceedings, administrative or judicial, pending or, to OnRadio's
Knowledge, threatened regarding any of the Contracts, at law or in equity, or
before any Governmental Authority or arbitrator with respect to the rights and
obligations set forth in the Contracts that will, or that could reasonably be
expected to, have a materially adverse effect on the Contracts, nor, to
OnRadio's Knowledge, does there exist any basis therefor. Except as set forth in
Schedule 3.8, OnRadio is neither a party to nor subject to the provisions of any
order, writ, injunction, decree or judgment of any Governmental Authority or
arbitrator with respect to the rights and obligation set forth in the Contracts.
3.9 BROKERS AND FINDERS. Except as set forth in Schedule 3.9, OnRadio
has not employed a broker in connection with the transactions contemplated by
this Agreement, nor is OnRadio liable for any brokerage fees, agents'
commissions or finders' fees.
3.10 RISK FACTORS. OnRadio has been informed and fully understands
that there are significant risks associated with purchasing the Shares as set
forth in the Disclosure Documents and in the prospectus dated January 19, 2000
(a copy of which has been made available to OnRadio), which factors OnRadio has
considered carefully before executing this Agreement.
3.11 FINANCIAL CONDITION. OnRadio certifies that it is an "accredited
investor", as that term is defined in Regulation D under the Securities Act.
OnRadio is capable of bearing the economic risk and the burden of an investment
in the Shares, including, but not limited to, the possibility of the complete
loss of the value thereof. OnRadio understands that there are substantial
restrictions on the transferability of the Shares which may make the liquidation
of the investment represented by the Shares impossible for the immediate future.
3.12 DISCLOSURE. OnRadio has received copies of the Disclosure
Documents.
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All documents requested by OnRadio have been made available for inspection and
copying and OnRadio has been supplied with all of the additional information
concerning the Shares and Global that OnRadio has requested.
3.13 NO REGISTRATION. OnRadio acknowledges that the Shares are being
issued without being registered under the Securities Laws. The Shares are being
acquired by OnRadio for its own account, for investment (and not on behalf of,
or with a view toward distribution to, any other person) under exemptions from
the registration provisions of the Securities Laws. OnRadio acknowledges that it
must therefore hold the Shares indefinitely unless they are subsequently
registered under the Securities Laws or exemptions from such registration are
available, and that Global will place stop transfer instructions with respect to
the Shares. Except as otherwise provided in this Agreement or the Supplemental
Documents, Global is under no obligation (a) to register the Shares or take any
other action which would make an exemption from registration available, or (b)
to cause or permit the Shares to be transferred in the absence of such
registration or an opinion satisfactory to Global's counsel that an exemption is
available.
3.14 EXCLUSIVE RELIANCE ON THIS AGREEMENT; NO ORAL REPRESENTATIONS. In
making the decision to acquire the Shares, OnRadio has relied exclusively upon
the information provided by this Agreement, the Disclosure Documents, and any
investigations made by OnRadio. OnRadio confirms that it is not relying upon any
oral representations or statements made by Global or by any other person in
acquiring the Shares in connection with this Agreement.
3.15 RULE 144. OnRadio acknowledges that the Shares are restricted
securities, as defined in Rule 144 under the Securities Act, that the Shares may
not be resold in reliance on Rule 144 for at least one year after issuance, and
that once the Shares are eligible for resale under Rule 144, they will be
subject to certain resale restrictions contained in Rule 144, including volume
limitations and restrictions on the manner of resale, until they have been held
for two years as provided in Rule 144. If OnRadio is an affiliate of Global for
purposes of Rule 144, OnRadio understands that certain restrictions on resale
would continue to apply under Rule 144 for so long as OnRadio is an affiliate.
3.16 LEGEND. OnRadio acknowledges that the certificates representing
the Shares will bear substantially the following legend until such legend can be
removed under applicable securities laws:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE AND WERE OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENT OF THE ACT AND SUCH LAWS. THESE SECURITIES HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION,
ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY
OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THESE
SECURITIES. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. THESE
SECURITIES CANNOT BE SOLD, TRANSFERRED OR OTHERWISE
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DISPOSED OF TO ANY PERSON OR ENTITY UNLESS SUBSEQUENTLY REGISTERED UNDER
THE ACT, AND/OR THE LAWS OF CERTAIN STATES, OR UNLESS AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE AND THE HOLDER HAS PROVIDED THE COMPANY WITH
A LEGAL OPINION ACCEPTABLE TO THE COMPANY TO THAT EFFECT.
3.17 RELATED CONTRACTS. All of the Related Contracts are in full force
and effect in accordance with their terms. The execution and delivery of this
Agreement and the Supplemental Documents and the consummation of the
transactions and performance of the obligations contemplated by this Agreement
and the Supplemental Documents will not constitute a default or breach under any
of the Related Contracts. The execution and delivery of this Agreement and the
Supplemental Documents and the consummation of the transactions and performance
of the obligations contemplated by this Agreement and the Supplemental Documents
will not give rise to any consent requirement under any of the Related
Contracts.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Global represents
and warrants to OnRadio that the following statements are true and correct:
4.1 ORGANIZATION. Global is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. Global is
duly qualified or licensed as a foreign corporation and is in good standing in
each jurisdiction where the nature of its business or the ownership or use of
its property requires such qualification or license, or where the failure to so
qualify would not result in a material adverse effect on Global's business or
property.
4.2 POWER AND AUTHORITY. Global has all requisite power and authority
to own, lease, possess and operate its property, and to transact its business as
presently conducted. Global has all requisite power and authority to enter into,
execute, deliver and perform this Agreement and the Supplemental Documents to
which it is party and to carry out the transactions contemplated hereby and
thereby.
4.3 AUTHORIZATION; ENFORCEABILITY. The Board of Directors of Global
has duly approved, and on or prior to the Initial Closing Date Global will have
taken or caused to be taken all corporate action (including the obtaining of any
approval of shareholders required by law or by Global's articles of
incorporation or bylaws) necessary for, the execution, delivery and performance
of this Agreement by Global and the consummation of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Global. This Agreement constitutes a valid and binding obligation of Global,
enforceable against Global in accordance with its terms, except to the extent
that enforceability may be limited by bankruptcy, reorganization, insolvency or
other laws affecting the enforcement of creditors' rights generally or the
availability of equitable remedies subject to the discretion of the court. Upon
execution of the Supplemental Documents, the Supplemental Documents to which
Global is a party will be the valid and binding obligations of Global
enforceable against Global in accordance with their respective terms, except to
the extent that enforceability may be limited by bankruptcy, reorganization,
insolvency or other laws affecting the enforcement of creditors' rights
generally or the availability of equitable remedies subject to the discretion of
the court. All corporate action on the part of Global, its officers, directors,
and shareholders necessary for the authorization, issuance, and delivery of the
Shares has been taken.
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4.4 ABSENCE OF CERTAIN CONFLICTS. Neither the execution and
delivery by Global of this Agreement or the Supplemental Documents to which
Global is a party nor the consummation of the transactions contemplated by
this Agreement and the Supplemental Documents will (i) conflict with or
result in a breach of any provision of the Articles of Incorporation or
Bylaws of Global, (ii) require Global to obtain any consent, approval,
authorization or permit of, or make any filing with or provide any
notification to, any Governmental Authority, (iii) conflict with or result in
a breach of any material contract, agreement, indenture or instrument to
which Global is a party or by which Global or its property is bound, or (iv)
to the knowledge of Global, violate any judgment, decree, order, injunction,
or any Law applicable to Global or its operations or property.
4.5 DISCLOSURE. Global has delivered to OnRadio a copy of its
Annual Report on Form 10-K for the year ended July 31, 1999, as filed in the
SEC on November 1, 1999, and copy of its Quarterly Report for the quarter
ended January 31, 2000 as filed with the SEC on March 16, 2000 (the
"Disclosure Documents"). The information concerning Global set forth in the
Disclosure Documents was, as of the date thereof, complete and accurate in
all material respects and, to Global's knowledge, did not contain any untrue
statement of a material fact or omit to state a material fact required to
make the statements made, in light of the circumstances under which they were
made, not misleading. As of their respective dates, the Disclosure Documents
complied in all material respects with the requirements of the 1934 Act and
the rules and regulations of the SEC promulgated thereunder applicable to the
Disclosure Documents. Global shall provide to OnRadio any additional reports
filed with the SEC after the date of this Agreement but prior to the Initial
Closing Date. Since March 16, 2000, Global has filed all reports, schedules,
forms, statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the Securities Exchange Act of
1934, as amended (the "1934 Act"). As of their respective dates, the
financial statements of Global included in the Disclosure Documents complied
as to form in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC with respect thereto. Such
financial statements have been prepared in accordance with generally accepted
accounting principles, consistently applied, during the periods involved
(except (i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to the
extent they may exclude footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position of Global
as of the dates thereof and the results of its operations and cash flows for
the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments).
4.6 DUE ISSUANCE OF SHARES. The Shares, when issued and delivered
to OnRadio in accordance with the terms of this Agreement, will be duly and
validly authorized and issued, fully paid, and nonassessable. There are no
preemptive rights to acquire Common Stock of Global, other than certain
rights which have been, or prior to the Initial Closing will be, waived by
the holders thereof.
4.7 BROKERS AND FINDERS. Except as set forth in Schedule 4.5,
Global has not employed a broker in connection with the transactions
contemplated by this Agreement, nor is Global liable for any brokerage fees,
agents' commissions or finders' fees.
4.8 LITIGATION. Except as set forth in Schedule 4.8, there are no
claims,
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investigations, arbitrations, grievances, litigation, actions, suits and
proceedings, administrative or judicial, pending or, to Global's knowledge,
threatened regarding Global or its properties, at law or in equity, or before
any Governmental Authority or arbitrator, nor to Global's knowledge, does
there exist any basis therefor. Except as set forth in Schedule 4.8, Global
is neither a party to nor subject to the provisions of any order, writ,
injunction, decree or judgment of any Governmental Authority or arbitrator
with respect to the transactions contemplated in this Agreement and the
Supplemental Documents.
4.9 VALIDITY OF SHARES. The Shares, when issued, sold and
delivered in accordance with the terms and for the consideration expressed in
this Agreement, will be duly and validly issued (including, without
limitation, issued in compliance with applicable federal and state securities
laws), fully paid and non-assessable. The Shares are not subject to any
preemptive rights or rights of first refusal, except as otherwise so agreed
to by the holders thereof.
SECTION 5. OPERATIONS AND COVENANTS
5.1 ONRADIO'S AFFIRMATIVE COVENANTS. Between the date of this
Agreement and the Initial Closing Date, except as otherwise consented to in
writing by Global (which consent shall not unreasonably be withheld) or as
otherwise contemplated by this Agreement:
(a) OnRadio will perform under the Contracts in the ordinary course
and consistent with past practices, and use its Best Efforts to
preserve the Contracts and the OnRadio Terrestrial Radio Business;
(b) OnRadio will use its Best Efforts to maintain in good standing
all Contracts, except as modifications may be required in the ordinary
course of OnRadio's Terrestrial Radio Business, as consented to by
Global in writing (which consent shall not be withheld unreasonably);
and
(c) OnRadio will maintain its books, accounts and records with
respect to the Contracts in the usual and regular manner, in
accordance with GAAP and in compliance with all applicable Law.
With respect to each Streaming Media Contract, between the date of this
Agreement and the Intermediate Closing Date and/or Final Closing Date, as
applicable, at which such Streaming Media Contract is transferred and
assigned to Global, except as otherwise consented to in writing by Global
(which consent shall not unreasonably be withheld) or as otherwise
contemplated in this Agreement:
(a) OnRadio will perform under such Streaming Media Contract in the
ordinary course and consistent with past practices and use its Best
Efforts to preserve such Streaming Media Contract;
(b) OnRadio will use its Best Efforts to maintain in good standing
such Streaming Media Contracts, except as modifications may be
required in the ordinary course of OnRadio's Terrestrial Radio
Business, as consented to by Global in writing (which consent shall
not be withheld unreasonably); and
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(c) OnRadio will maintain its books, accounts and records with
respect to such Streaming Media Contract in the usual and regular
manner, in accordance with GAAP and in compliance with all applicable
Law.
5.2 ONRADIO'S NEGATIVE COVENANTS. Between the date of this Agreement
and the Initial Closing Date, except as required or permitted under this
Agreement or as otherwise consented to in writing by Global:
(a) OnRadio will not take any action or omit to take any action that
could reasonably be expected to render inaccurate any representation
or warranty of either OnRadio contained in this Agreement (as if such
representation or warranty was made on each date from the date of this
Agreement to the Initial Closing Date);
(b) OnRadio will not sell, lease, pledge, hypothecate, mortgage,
encumber, transfer, or otherwise dispose of, or agree to sell, lease,
pledge, hypothecate, mortgage, encumber, transfer, license, or
otherwise dispose of, any of the Assets.
5.3 TRANSITION SERVICES AGREEMENT. At Initial Closing, OnRadio and
Global shall enter into a Transition Services Agreement ("Transition Agreement")
pursuant to which OnRadio shall provide certain transition services ("Transition
Services") during the periods specified therein. The form of the Transition
Agreement is attached to this Agreement as Exhibit 5.3.
5.4 INVESTOR RIGHTS AGREEMENT. At Initial Closing, OnRadio and Global
shall enter into an Investor Rights Agreement ("Investor Rights Agreement")
pursuant to which Global shall provide OnRadio certain registration rights with
respect to the Shares acquired by OnRadio pursuant to this Agreement and OnRadio
shall agree to certain conditions set forth in that agreement. The form of the
Investor Rights Agreement is attached to this Agreement as Exhibit 5.4.
5.5 SOFTWARE LICENSE. At Initial Closing, OnRadio and Global shall
enter into a Software License Agreement pursuant to which OnRadio shall grant
Global a royalty free license to OnRadio's proprietary Content Manager Software
for use by Global in connection with the provision of web site services for
Customer's web sites served by Global Media for a term of 2 (two) years
beginning on the Closing Date (the "Software License"). The form of the Software
License is attached to this Agreement as Exhibit 5.5.
5.6 EQUIPMENT LEASE. At Initial Closing, OnRadio and Global shall
enter into an Equipment Lease Agreement pursuant to which OnRadio shall lease to
Global certain computer equipment identified therein and grant Global the right,
exercisable at the end of the term of such lease, to purchase certain the leased
equipment for the total sum of $1.00 (the "Equipment Lease"). The form of the
Equipment Lease is attached to this Agreement as Exhibit 5.6.
5.7 ACCESS; CONFIDENTIALITY. Between the date of this Agreement and
the Initial Closing Date, OnRadio shall, during normal business hours and at
other times reasonably requested in advance by Global, cause its officers and
advisors to furnish Global with such
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financial and operating data and other information with respect to the Assets
and OnRadio's Terrestrial Radio Business as Global may from time to time
reasonably request.
5.8 CONSENTS AND APPROVALS. OnRadio will use its best efforts to
obtain, and to assist Global in obtaining, all consents, waivers, amendments,
modifications, approvals, authorizations by such party to effectuate this
Agreement and the Supplemental Documents and to transfer the Assets to Global.
5.9 PUBLIC ANNOUNCEMENTS; NONDISCLOSURE OF AGREEMENT TERMS.
OnRadio and Global will consult before making any public statement with
respect to this Agreement and the transactions contemplated by this
Agreement. OnRadio shall provide Global with a copy of its customer
notification letter for review and approval prior to distributing the letter
to its Customers. Neither party will make any public statement without the
prior consent of the other except as may be required by Law, in which case
the disclosing party shall advise the other prior to making the disclosure.
Each party covenants to the other that it shall not disclose to any third
party (other than its attorneys, accountants, or employees, in their capacity
as such, and the employees of any parent, affiliated or controlling person or
entity on a need to know basis so long as they are bound by the terms of this
covenant) any information regarding the terms or provisions of this Agreement
except (a) to the extent necessary to comply with law, rule or regulation or
the valid order of a court of competent jurisdiction (or any regulatory or
administrative tribunal), in which event the party so complying shall so
notify the other as promptly as practicable (and, if possible, prior to
making any disclosure) and shall seek confidential treatment of such
information, if available, (b) as part of its normal reporting or review
procedure to its auditors or its attorneys, as the case may be, so long as
they are notified of the provisions of this covenant, (c) in order to enforce
its rights pursuant to this Agreement, (d) in connection with any filing with
the SEC, the FCC, or any other governmental body, including any and all such
filings as may be publicly available, provided that the disclosing party
shall seek confidential treatment of such terms and provisions of this
Agreement as which could reasonably be expected to be accorded confidential
treatment by such entity, (e) in a confidential disclosure made in connection
with a contemplated merger, consolidation or sale of capital stock of OnRadio
or Global or the sale of substantially all of the stock of OnRadio or Global
or the sale of substantially all of the assets of OnRadio or Global, (f) in
any confidential disclosure made in connection with any transaction in which
OnRadio or Global is seeking to obtain financing or raise capital, other than
in the public markets, including without limitation disclosures to such
party's potential investors, lenders, investment bankers, ratings agencies
and their respective employees, attorneys, auditors, and other authorized
representatives, so long as they are notified of the provisions of this
covenant (it being understood that notification to such third party shall be
deemed to constitute notice to such third party's employees, attorneys,
auditors and other authorized representatives), (g) in any prospectus or
similar document publicly disseminated to potential investors upon receipt of
advice of counsel that disclosures regarding this Agreement are necessary in
order to avoid such prospectus being deemed misleading or having omitted to
disclose a material fact, (h) to representatives of Katz Communications,
Inc., or any of its parent or affiliated companies ("Katz"), so long as such
representative of Katz agrees to be bound by the terms of this covenant, (i)
in a joint press release to be approved by both parties upon consummation of
this Agreement, including references to the press release on the web sites of
Global and OnRadio, and (j) to the limited extent that the parties hereafter
mutually agree in a writing signed by authorized representatives
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of both parties.
5.10 SUPPLEMENTS TO DISCLOSURE SCHEDULE. From time to time prior to
the Initial Closing Date, OnRadio shall promptly supplement or amend the
Disclosure Schedules of OnRadio with respect to any matter arising after the
date of this Agreement.
5.11 COVENANT TO SATISFY CONDITIONS. Global and OnRadio will use
their collective best efforts to cause the conditions set forth in Section 6
to be satisfied, insofar as such matters are reasonably within their
respective control.
5.12 NO SOLICITATIONS OR OFFERS. Between the date of this Agreement
and the Final Closing Date, OnRadio shall not, and shall not allow OnRadio's
representatives to, offer, entertain, negotiate for, or discuss any solicited
or unsolicited inquiries or proposals for the possible disposition of the
Assets by way of sale, merger, consolidation, liquidation, or otherwise
5.13 NON-COMPETITION. OnRadio agrees, for a period of two years
after the Initial Closing Date, not to compete directly with Global by
directly soliciting the provision of e-commerce solutions targeted
specifically to terrestrial radio station web sites, or by solicitation of
terrestrial radio station signal streaming media services to terrestrial
radio stations in North America. As a condition to the Initial Closing, each
of OnRadio's key management employees listed on Schedule 5.13 ("Key
Employees") shall have entered into a non-competition agreement with Global
in the form attached as Exhibit 5.13 (the "Employee Non-competition
Agreement").
5.14 NONSOLICITATION. Global agrees that if the Initial Closing
does not occur for any reason, it will not directly solicit (or attempt to
directly solicit) any Customers identified on Schedule 2.1 (a) to become a
network associate in the GlobalMedia Network or for the provision of
e-commerce or streaming media services during the period starting on the
receipt of such Schedule and ending May 30, 2001. Notwithstanding the
foregoing, Global shall be permitted to solicit any multi-property
broadcasting company, such as Clear Channel Communications, Jacor, Infinity
and others, that own and operate multiple radio and/or television stations,
for the provision of e-commerce and/or streaming media services to such
company's radio or television stations even if an OnRadio Affiliate is owned
by such company. However, the foregoing non-solicitation covenant will not
apply to any of the companies or stations listed on a schedule of up to 42
stations that has previously been provided by Global to OnRadio which
identifies companies or stations to whom Global has marketed its own
e-commerce and streaming media solutions, prior to receipt of the Customer
List.
5.15 POTENTIAL STRATEGIC RELATIONSHIP. It is OnRadio and Global's
desire to enter into a broader strategic alliance whereby OnRadio becomes a
value added reseller of Global products and services, and Global becomes a
value added reseller of OnRadio products and services. The intention of the
Parties is that under the terms of such agreement, OnRadio and Global will
promote each other's products and services to their prospective clients
requiring products and/or services that can be fulfilled by the partner's
offerings. Upon Initial Closing, Global and OnRadio shall begin good-faith
negotiations regarding, and upon mutual agreement, shall enter into such an
agreement.
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SECTION 6. CONDITIONS TO THE CLOSING
6.1 CONDITIONS TO OBLIGATIONS OF GLOBAL AND ONRADIO. The
respective obligations of each party to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction or waiver
in writing, on or before the applicable Closing Date, of the conditions that
(i) neither of OnRadio nor Global shall be subject to any order, decree, or
injunction of a court of competent jurisdiction or other Governmental
Authority that would affect this Agreement, the Supplemental Documents or the
transactions governed hereby; (ii) no Law shall be enacted or issued which
prevents or significantly delays any of the transactions to be consummated at
the applicable Closing Dates, or would impose any limitation on the ability
of Global to effectively exercise full rights of ownership of the Assets.
6.2 CONDITIONS TO OBLIGATIONS OF ONRADIO WITH RESPECT TO THE
INITIAL CLOSING. The obligation of OnRadio to consummate the transactions
contemplated in 2.1 (a) of this Agreement shall be subject to the
satisfaction or waiver in writing, on or before the Initial Closing Date, of
the following conditions:
(a) On the Initial Closing Date, the representations and warranties
of Global set forth in Section 4 shall be accurate in all material
respects with the same effect as if made on the Initial Closing Date.
(b) Global shall have performed all obligations and complied in all
material respects with all covenants required to be performed or to be
complied with by it under this Agreement on or prior to the Initial
Closing Date.
(c) At the Initial Closing, Global shall have executed and delivered
the Supplemental Documents to which it is a party or for which it is
responsible.
(d) Global shall have obtained the consent or approval of all
Governmental Authorities and other Persons whose consent or approval
is required for the consummation by Global of the transactions
contemplated by this Agreement and the Supplemental Documents.
6.3 WAIVER OF CONDITIONS BY ONRADIO. OnRadio may waive any
condition set forth in this Section. Except as otherwise provided herein, the
result of any such waiver by OnRadio of any condition precedent to OnRadio's
obligations shall be (a) the elimination of the waived condition as a valid
basis for OnRadio to refuse to close the transactions contemplated by this
Agreement, and (b) the release of Global from any claim by OnRadio for
resulting injuries and damages with respect to the waiver of that condition.
Any waivers made under this Section shall not be effective unless in writing.
6.4 CONDITIONS TO OBLIGATIONS OF GLOBAL WITH RESPECT TO INITIAL
CLOSING. The obligation of Global to consummate the transactions contemplated
in Section 2.1 (a) of this Agreement is subject to the satisfaction or waiver
in writing, on or before the Initial Closing Date, of the following
conditions:
(a) On the Initial Closing Date, the representations and warranties
of OnRadio set forth in Section 3 shall be accurate in all material
respects with the same effect as
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if made on the Initial Closing Date.
(b) OnRadio shall have performed all obligations and complied in all
material respects with all covenants required to be performed or to be
complied with by them prior to the Initial Closing Date under this
Agreement.
(c) OnRadio shall have obtained the consent or approval of all
Governmental Authorities and other Persons whose consent or approval
is required for the consummation by OnRadio of the transactions
contemplated by this Agreement and the Supplemental Documents.
(d) OnRadio shall have executed and delivered to Global all
Supplemental Documents to which it is a party or for which it is
responsible.
6.5 WAIVER OF CONDITIONS BY GLOBAL. Global may waive any condition
set forth in this Section. Except as otherwise provided herein, the result of
any waiver of any condition precedent to the obligation of Global shall be
(a) the elimination of the waived condition as a valid basis for Global to
refuse to close the transactions contemplated by this Agreement, and (b) the
release of OnRadio from any claim by Global for resulting injuries and
damages with respect to the waiver of that condition. Any waivers made under
this Section shall not be effective unless in writing.
6.6 CONDITIONS TO OBLIGATIONS OF GLOBAL WITH RESPECT TO THE FINAL
CLOSING. The obligation of Global to purchase any Streaming Media Assets not
previously purchased in the Intermediate Closing(s) pursuant to Section 7.4
below, and to pay OnRadio the related consideration, shall be subject to the
satisfaction of the earliest to occur of either of the following conditions:
(a) Global shall have received written consent or assurance from
RealNetworks that the provision of streaming media services to Customers to
be acquired by Global under this Agreement using streaming media formats
and services of third parties other than Real will not be deemed a
violation of exclusivity covenants in certain agreements between Global and
RealNetworks; or
(b) One hundred and twenty (120) calendar days have passed since
the Initial Closing Date.
In connection with the alternative condition described in subclause (a)
above, Global agrees to continue using its Best Efforts to obtain such
consent or assurance as soon as reasonably practicable. Global shall provide
OnRadio with written notice of the occurrence of condition 6.6 (a) within one
(1) business day of its occurrence.
SECTION 7. CLOSINGS
7.1 INITIAL CLOSING. Subject to the provisions of Section 6, the
closing of the transactions contemplated by section 2.1(a) of this Agreement
(the "Initial Closing") will take place on June 6, 2000 (the "Initial Closing
Date"), or at such other time as may be mutually agreed upon in writing by
OnRadio and Global. The parties agree that time is of the essence with
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respect to the Closing Date.
7.2 INITIAL CLOSING DELIVERIES BY ONRADIO. At the Initial Closing,
OnRadio shall deliver or cause to be delivered to Global:
(a) An executed original Transition Agreement;
(b) An executed original Investor Rights Agreement;
(c) An executed original Software License;
(d) An executed original Equipment Lease;
(e) Executed originals of the Employee Non-Competition Agreements
signed by each of the Key Employees;
(f) Such other instruments and documents as Global may reasonably
require to vest in Global all right, title and interest of OnRadio in
and to the Web Site Contracts;
(g) Copies of the resolutions of the Board of Directors of OnRadio
authorizing the execution, delivery and performance of this Agreement
and the Supplemental Documents to which OnRadio is a party, certified
as of the Initial Closing Date by the Secretary of OnRadio;
(h) A certificate, executed by the Chief Executive Officer and Chief
Financial Officer of OnRadio, certifying that the conditions set forth
in Section 6.4(a) and (b) have been met; and
(i) All other documents required by this Agreement to be delivered at
Initial Closing by OnRadio.
7.3 INITIAL CLOSING DELIVERIES BY GLOBAL. At the Initial Closing,
Global shall deliver or cause to be delivered to OnRadio or the Escrow Agent as
specified below:
(a) to the Escrow Agent, instructions directing the Escrow Agent to
disburse the Escrow Funds by electronic wire transfer to an account
designated by OnRadio in payment of the cash portion of the Purchase
Price;
(b) to OnRadio, a copy of Global's irrevocable transfer instructions
to Pacific Stock Transfer Company, Global's transfer agent ("Transfer
Agent"), in the form attached as Exhibit 7.3(c), instructing the
Transfer Agent to (i) issue and deliver to OnRadio a certificate
evidencing the number of Shares due under Section 2.3(a)(ii), (ii)
issue and deliver to the Escrow Agent a certificate evidencing the
number of Shares determined by dividing $3,750,000 by the Closing
Share Price, and (iii) issue and deliver to the Escrow Agent a
certificate evidencing the Holdback Shares ("Transfer Agent
Instructions"), which Transfer Agent Instructions shall have been
countersigned by the Transfer Agent;
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(c) to OnRadio, an executed original Transition Agreement;
(d) to OnRadio, an executed original Investor Rights Agreement;
(e) to OnRadio, an executed original Software License;
(f) to OnRadio, an executed original of the Equipment Lease;
(g) to OnRadio, copies of the resolutions of the Board of Directors
of Global authorizing the execution, delivery and performance of this
Agreement and the Supplemental Documents to which Global is a party,
certified as of the Initial Closing Date by the Secretary of Global;
(h) to OnRadio, a certificate, executed by the Chairman of the Board,
Chief Executive Officer or President and Chief Financial Officer of
Global, certifying that the conditions set forth in Section 6.2(a) and
(b) have been met; and
(i) to OnRadio, all other documents required by the provisions of
this Agreement to be delivered at Initial Closing by Global.
7.4 INTERMEDIATE CLOSING(S). Within five business days (each, an
"Intermediate Closing Date") after the end of each month commencing June 2000
through and including August 2000 (each, an "Intermediate Closing Cutoff
Date"), an intermediate closing ("Intermediate Closing") shall be held;
provided that the Final Closing has not already occurred prior thereto. At
least one business day prior to an Intermediate Closing Date, Global shall
notify OnRadio in writing of the names (identified by call letters) of each
Streaming Media Contract Customer for which the Streaming Customer Transition
Process has been completed and provide OnRadio a copy of Intermediate Closing
transfer instructions in the form attached as Exhibit A to the Transfer Agent
Instructions filled in to appropriately reflect the number of Shares to be
released to OnRadio out of escrow in consideration for the Streaming Media
Assets to be assigned to Global in such Intermediate Closing. The number of
Shares to be released to OnRadio in connection with each Intermediate Closing
(the "Intermediate Closing Shares") shall be the sum of the number of Shares
indicated in Schedule 2.1(a)(ii) for the Streaming Media Contract Customers
for which the Streaming Customer Transition Process has been completed as of
the related Intermediate Closing Cutoff Date. At each Intermediate Closing,
(i) OnRadio shall take such actions as are necessary to transfer and assign
to Global the Streaming Media Assets relating to each Streaming Media
Contract Customer for which the Streaming Customer Transition Process has
been completed on or before the related Intermediate Closing Cutoff, and (ii)
Global shall deliver to the Escrow Agent duly executed Intermediate Closing
transfer instructions appropriately completed by Global.
7.5 FINAL CLOSING. Unless the transfer and assignment of all of the
Streaming Media Assets has been previously consummated pursuant to Section 7.4
above, and subject to the provisions of Section 6, the closing of the transfer
and assignment of any remaining Streaming Media Assets (the "Final Closing")
will take place within three (3) business days of the occurrence of the first to
occur of the conditions set forth in Section 6.7 ("Final Closing Date"). At the
Final Closing, (i) OnRadio shall take such actions as are necessary to transfer
and
22
<PAGE>
assign to Global any Streaming Media Assets which have not been previously
transferred and assigned to Global in Intermediate Closing(s) under Section 7.4,
and (ii) Global shall deliver to the Escrow Agent duly executed instructions
directing the Escrow Agent to disburse the Final Closing Shares to OnRadio. The
parties agree that time is of the essence with respect to the Final Closing
Date.
SECTION 8. INDEMNIFICATION
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement or made pursuant
hereto, whether express or implied, shall survive the Closing and shall
terminate fifteen (15) months after the Initial Closing Date and thereafter
shall be of no force or effect, except for any claim with respect to which
notice has been given to the party to be charged prior to such expiration
date.
8.2 INDEMNIFICATION BY ONRADIO. Subject to the Initial Closing
having occurred and to the provisions of this Section 8. OnRadio shall
protect, defend, indemnify, and hold Global, its successors and assigns, and
their respective officers, directors, shareholders and employees (each, a
"Global Indemnitee") harmless from and against any Loss asserted against or
suffered or incurred by a Global Indemnitee that directly or indirectly
arises or results from or relates to: (a) the untruthfulness, inaccuracy or
breach of any of the representations or warranties of OnRadio contained in
this Agreement and/or in any of the Supplemental Documents (an "OnRadio
Misrepresentation") and (b) any breach by OnRadio of any covenants or
agreements made by OnRadio in this Agreement or in any of the Supplemental
Documents.
8.3 INDEMNIFICATION BY GLOBAL. Subject to the Closing having
occurred and to the provisions of this Section 8, Global shall protect,
defend, indemnify, and hold OnRadio, its successors and assigns, and their
respective officers, directors, shareholders and employees (each, a "OnRadio
Indemnitee") harmless from and against any Loss asserted against or suffered
or incurred by an OnRadio Indemnitee that directly or indirectly results or
arises from or relates to the following: (a) the untruthfulness, inaccuracy
or breach of any of the representations or warranties of Global contained in
this Agreement and/or in any of the Supplemental Documents ("Global
Misrepresentation); (b) any breach by Global of any covenants or agreements
made by Global in this Agreement or in any of the Supplemental Documents; and
(c) the assertion against an OnRadio Indemnitee of any liability which is an
Assumed Liability, provided, however, that Global shall have no liability
hereunder for any Loss asserted against an OnRadio Indemnitee by a third
party that arises out of an Assumed Liability where the claim arises directly
or indirectly from any act or omission by OnRadio that constitutes a breach
of its obligations under the Transition Agreement or any other Supplemental
Document to which OnRadio is a party. Global shall not be relieved of
liability where the breach results from Global's failure to pay the third
party vendor fees in advance as set forth in Schedule C of the Transition
Agreement.
8.4 CLAIMS PROCEDURE. The obligations of a party from whom
indemnification is sought under this Section shall be subject to the
following terms and conditions:
(a) The party or parties seeking indemnification (the "Indemnitee")
shall promptly notify the party or parties from whom indemnification
is sought (the
23
<PAGE>
"Indemnifying Party") in writing of the existence and nature of such
Claim. Each such notice shall be accompanied by copies of all relevant
documentation, including but not limited to any summons, complaint or
other pleading which may have been served or written demand or other
instrument. No failure or delay by the Indemnitee in the performance
of the foregoing shall reduce or otherwise affect the obligation of
the Indemnifying Party to indemnify and hold the Indemnitee harmless,
except to the extent the Indemnitee's failure to give or delay in
giving the required notice materially impairs the Indemnifying Party's
ability to perform its obligation to indemnify or defend or to
mitigate its damages in which case the Indemnifying Party shall have
no obligation to indemnify the Indemnitee to the extent of Loss, if
any, caused by such failure to give or delay in giving the required
notice.
(b) If the Claim is by a third Person, the Indemnitee shall give the
Indemnifying Party a reasonable opportunity to defend the same or
prosecute such action to conclusion or settlement satisfactory to the
Indemnifying Party at its sole cost and expense and with counsel of
its own selection (who shall be approved by the Indemnitee, which
approval shall not unreasonably be withheld) and the Indemnifying
Party shall pay any resulting settlements, judgments or decrees,
provided, however, that the Indemnitee shall at all times also have
the right fully to participate in the defense at Indemnitee's sole
cost and expense so long as such participation occurs without
hindering or impairing the defense of the Indemnifying Party.
(c) If the Indemnifying Party shall, within fifteen (15) Business
Days after said notice, fail to defend, the Indemnitee shall have the
right, but not the obligation, and without waiving any rights against
the Indemnifying Party, to undertake the defense of, and, in its sole
discretion, to compromise or settle the Claim on behalf, for the
account, and at the risk and expense, of the Indemnifying Party and
shall be entitled to collect the amount of any settlement or judgment
or decree and all costs and expenses (including, without limitation,
reasonable attorneys' fees) in connection therewith, and including
costs and fees on appeal or review, if any. Except as provided in the
preceding sentence, the Indemnitee shall not compromise or settle the
Claim without the written consent of the Indemnifying Party, which
shall not unreasonably be withheld.
(d) If the Claim is one that cannot by its nature be defended solely
by the Indemnifying Party, the Indemnitee shall make available all
information and assistance that the Indemnifying Party may reasonably
request, provided, however, that any associated out-of-pocket expenses
shall be paid by the Indemnifying Party.
8.5 INSURED LOSSES. Notwithstanding any other term or provision of
this Section, neither party shall be required to indemnify the other party for a
Loss to the extent that such Loss has been reimbursed by the Indemnified Party's
receipt of insurance proceeds. In the event that insurance does not cover the
full amount of the Loss, the Indemnifying Party shall remain liable for the
difference between the insurance payment as described above and the
24
<PAGE>
amount of the Loss.
8.6 IDEMNIFICATION THRESHOLD AND CAP. Notwithstanding anything to
the contrary herein, except for the payment of the consideration due under
this Agreement, in no event shall either Party be liable to any other party
under any warranty, representation, indemnity or covenant made by such party
in this Agreement or the Supplemental Documents until the aggregate amount of
Damages thereunder against such party exceeds one hundred thousand dollars
($100,000), at which point such party shall be liable for the full amount of
liability for such claims below and above the threshold. Except for the
payment of the consideration due under this Agreement, in no event shall
either Party's liability under this Agreement and the Supplemental Documents
exceed (i) $2,250,000 after the Initial Closing but before the Final Closing;
and (ii) $3,750,000 after the Final Closing and in the event that Global
retains and cancels the Holdback Shares pursuant to Section 2.7, OnRadio's
liability under this Section 8 shall not exceed $1.5 million. The caps set
forth in this Section 8.6 shall not apply to judgments or settlements for
Fraud claims or for third party claims asserted against either party which
arise directly or indirectly our of any breach of representation or warranty
or any breach of any covenant or obligation under this Agreement or the
Supplemental Documents.
8.7 LIMITATION OF REMEDY. The indemnification provisions of this
Section 8 shall be each Party's sole remedy for Loss arising out of this
Agreement or any of the Supplemental Documents, except that either party
shall have the right to seek and obtain injunctive relief for any breach or
threatened breach of any obligation arising this Agreement or any of the
Supplemental Documents.
SECTION 9. MISCELLANEOUS.
9.1 AMENDMENTS AND WAIVERS. The provisions of this Agreement may
be amended only by the written agreement of all of the parties hereto. Any
waiver, permit, consent or approval of any kind or character on the part of
any party of any provisions or conditions of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in
such writing.
9.2 SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties hereto,
which consent shall not be unreasonably withheld or delayed, and any
purported assignment or delegation of this Agreement without such consent
shall be null and void. This Agreement is binding upon and inures to the
benefit of the parties hereto and their respective successors, heirs,
executors and permitted assigns. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement
and all of its provisions and conditions are for the sole and exclusive
benefit of the parties to this Agreement and their successors and assigns.
9.3 TERMINATION. This Agreement may be terminated at any time
prior to the Initial Closing:
25
<PAGE>
(a) by the written agreement of both OnRadio and Global;
(b) upon written notice by Global to OnRadio if there has been a
material violation or breach by OnRadio of any covenant, agreement,
representation or warranty contained in this Agreement;
(c) upon written notice by OnRadio to Global if there has been a
material violation or breach by Global of any covenant, agreement,
representation or warranty contained in this Agreement;
(d) upon written notice by either party to the other party, in the
event that any condition to such party's obligations to close the
transactions contemplated hereby as set forth in Section 6 of this
Agreement has not been met on or prior to the Initial Closing Date;
(e) upon written notice by Global to OnRadio if it elects to
terminate this Agreement other than as provided in paragraphs (a),
(b), and (d) above; provided, that in such event OnRadio shall be
entitled to retain the Breakup Shares.
(f) upon written notice by OnRadio to Global if it elects to
terminate this Agreement other than as provided in paragraphs (a),
(c), or (d) above, if such notice is accompanied by the original
certificate evidencing the Breakup Shares (together with the related
assignment separate from certificate).
The Parties acknowledge and agree that if the Agreement is terminated for any
reason, the Escrow Funds shall be returned to Global.
9.4 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law. If any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
9.5 DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not
constitute a part of this Agreement.
9.6 NOTICES. Any notices, requests, demands or other
communications required or permitted to be sent hereunder or under any
Supplemental Document shall be delivered personally, sent by facsimile
transmission, sent by overnight or international courier or mailed by
registered or certified mail, return receipt requested, to the following
addresses, and shall be deemed to have been received on the day of personal
delivery or the day sent by facsimile transmission (provided there has been
confirmation of receipt by the recipient's facsimile machine), one (1)
Business Day after deposit with an overnight domestic courier, two Business
Days after deposit with an international courier, or three (3) Business Days
after deposit in the mail:
26
<PAGE>
If to Global, to: Global Media Corp.
400 Robson Street
Vancouver, BC V6B 2B4
CANADA
Facsimile: 604-688-2987
Attention: Chief Executive Officer
with a copy to: Davis Wright Tremaine LLP
Suite 2600, 1501 Fourth Avenue
Seattle, Washington 98101
Facsimile: (206) 628-7699
Attention: Eric A. DeJong, Esq.
If to OnRadio, to: OnRadio Inc.
1500 Green Hills Road
Scotts Valley, CA 95066
Facsimile: (831) 440-0388
Attention: President
9.7 GOVERNING LAW. The validity, meaning and effect of this Agreement
shall be determined in accordance with the laws of the State of California
applicable to contracts made and to be performed in that state, without
reference to the choice of law provisions thereof.
9.8 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
9.9 PARTIES IN INTEREST. Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by any reason
of this Agreement on any Persons other than the parties to it and their
respective permitted successors and assigns. Nothing in this Agreement is
intended to relieve or discharge the obligation or liability of any third
Persons to any party to this Agreement, nor shall any provision give any third
Persons any right of subrogation or action over against any party to this
Agreement.
9.10 EXPENSES; ATTORNEY'S FEES. Whether or not the transactions
contemplated by this Agreement are consummated, and except as otherwise
expressly provided in this Agreement, each of the parties hereto will pay its
own expenses incurred by it or on its behalf in connection with this Agreement
or any transactions contemplated by this Agreement. Notwithstanding the
foregoing, in any legal action or other proceeding (including any arbitration
proceeding) brought to enforce or interpret the terms of this Agreement or any
Related Document, the prevailing party or parties shall be entitled to
reasonable attorney's fees and other costs and expenses incurred in that
proceeding and in any subsequent appeals, in addition to any other relief to
which it is entitled.
27
<PAGE>
9.11 ENTIRE AGREEMENT. Except for the Confidentiality, Non-Disclosure
Agreements, and the Escrow Agreement, this Agreement supersedes all prior
agreements and understandings, oral or written between the parties with respect
to its subject matter (including the Letter of Intent between Buyer and Sellers
dated November 24, 1999, the Amended Letter of Intent dated February 7, 1999 and
the Amended Letter of Intent dated May 5, 2000) and constitutes, along with the
Schedules, the Supplemental Documents, and the other exhibits, certificates and
documents expressly referred to herein or therein which form a part hereof or
thereof, the entire agreement of the parties concerning the matters referred to
herein and therein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date provided herein.
ONRADIO.COM
a California corporation
By: /s/ Timothy Herr
-------------------------------------
Its: President
------------------------------------
GLOBALMEDIA.COM
a Nevada corporation
By: /s/ L. James Porter
-------------------------------------
Its: Chief Financial Officer
------------------------------------
28
<PAGE>
Schedule 2.1 (a)(1)
Web Site Contracts
<TABLE>
<CAPTION>
CALL PRO- MSA CUME FORM E COM
LETTERS MARKET CITY REC # DUCT CUME(1) BOOK(2) SIGN DATE TERM LIVE EXPIRY(3) TYPE CODE URL
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
KBAY-FM San Jose 2 RC 130,000 Fall 99 7/16/97 12 7/18/97 7/18/00 A http://www.kbay.com
KGON-FM Portland 26 RC 242,500 Fall 99 10/4/96 12 10/22/96 10/22/99 I http://www.kgon.com
KKBB-FM Bakersfield 39 RC 46,700 Fall 99 3/2/98 12 1/7/97 1/7/00 K http://www.brock99.com
KLBJ-FM Austin 43 RC 133,800 Fall 99 9/1/96 24 9/5/96 9/6/00 L http://www.lbj.com/fm
KOOS-FM North Bend 64 RC 10,000 Fall 99 2/18/98 24 1/21/98 2/18/00 K http://www.bbc-radio.com/
KSFO-FM San Francisco 82 RC 320,000 Fall 99 5/27/98 12 6/1/97 6/1/00 N ACT http://www.ksfo560.com
KXKC-FM Lafayette 98 RC 87,900 Fall 99 5/12/98 24 6/1/98 6/1/00 K http://www.kxkc.com
WCVS-FM Springfield 119 RC 20,500 Spr-Sum 99 1/12/00 12 12/17/96 12/17/99 I http://www.fgi.net/wcvs
WFMB-FM Springfield 128 RC 27,300 Spr-Sum 99 12/6/96 12 3/13/97 3/13/00 I http://www.wfmb.com
WGRD-FM Grand Rapids 134 RC 87,000 Fall 99 2/25/97 12 3/4/97 3/7/00 I http://www.wgrd.com
WHTT-FM Buffalo 137 RC 178,200 Fall 99 1/13/97 12 5/20/97 5/20/00 I http://www.whtt.com
WKKY-FM Geneva 155 RC 10,000 Fall 99 3/5/98 12 2/4/97 2/4/00 K http://www.wkky.com
WNNR-FM Rochester 176 RC 15,300 Fall 99 6/10/97 12 6/13/97 6/13/00 A http://www.wnnr.com
WYCL-FM Pensacola 230 RC 4,700 Fall 99 6/27/97 12 7/7/97 7/7/2000- http://www.cool107.com
nonrenew
WXLP Quad Cities 242 RC 52,600 Fall 99 3/13/98 24 3/16/98 3/16/00 K http://www.97x.com
KSAN-FM San Francisco 270 RC 269,600 Spr-Sum 99 11/11/99 15 11/12/99 2/12/01 D www.ksan.com
WXNR-FM Greenville 271 RC 80,900 Fall 99 6/15/98 24 8/12/98 8/12/00 G http://www.wxnr.com
KKLV-FM Honolulu 33 RCT 63,700 Fall 99 2/25/98 24 3/31/97 3/31/01 K
KIOT-FM Albuquerque 34 RCT 55,600 Fall 99 9/10/98 12 2/22/99 2/22/00 K http://www.arrow1025.com
KJR-AM Seattle 38 RCT 144,600 Spr-Sum 99 8/12/98 12 9/13/98 9/13/99 K http://www.sportsradio950
.com
KJR-FM Seattle 38 RCT 273,800 Fall 99 8/12/98 12 9/13/98 9/13/99 K http://www.kjrfm.com
KUBE-FM Seattle 38 RCT 474,800 Fall 99 8/12/98 12 9/13/98 9/13/99 K http://www.kube93.com
KNCN-FM Corpus Christi 58 RCT 49,600 Fall 99 5/15/98 24 8/1/97 8/1/00 K http://www.c101.com
KOLM-AM Rochester 63 RCT 12,000 Fall 99 2/24/98 24 11/7/97 11/7/01 K http://www.ocbradio.com
KRZR-FM Fresno 81 RCT 76,100 Fall 99 3/5/98 24 6/3/98 6/3/00 K http://www.krzr.com
KZKL-FM Albuquerque 101 RCT 40,200 Fall 99 9/10/98 12 2/22/99 2/22/00 K http://www.kool102.com
WAFL-FM Salisbury-Ocean 106 RCT 8,700 Fall 99 2/24/98 24 3/11/97 3/11/00 K http://www.eagle977.com
City
WBOP-FM Harrisonburg 110 RCT 12,400 Fall 99 3/10/98 24 10/3/96 10/3/00 K http://home.rica.net/wbop/
WBSR-AM Pensacola 112 RCT 6,100 Fall 99 5/21/98 12 5/30/98 5/30/00 K http://www.wbsr.com
WCUZ-FM Grand Rapids 118 RCT 62,400 Fall 99 1/24/00 24 12/1/98 12/1/00 K http://www.wcuz.com
WDSK-AM Cleveland* 122 RCT 10,000 Fall 99 5/13/98 24 5/26/98 5/26/00 K http://www.deltaradio.net
WDTL-FM Cleveland* 123 RCT 10,000 Fall 99 5/13/98 24 5/26/98 5/26/00 K http://www.deltaradio.net
WFWI-FM Ft Wayne 131 RCT 84,900 Fall 99 3/9/98 24 1/6/97 1/6/00 K http://www.wfwi.com
WKLS-FM Atlanta 157 RCT 386,200 Spr-Sum 99 12/12/97 24 2/26/97 2/26/99 J http://www.96rock.com
WKRQ-FM Cincinnati 161 RCT 322,000 Fall 99 4/28/98 24 4/28/98 4/28/00 K http://www.q102online.com
WKVT-FM Keene 163 RCT 10,000 Fall 99 2/24/98 24 1/20/97 2/24/00 K http://www.wkvt.com
WNIC-FM Detroit 173 RCT 581,100 Fall 99 9/24/98 24 12/3/98 12/3/00 K http://www.wnic.com
WOHT-FM Cleveland* 179 RCT 10,000 Fall 99 5/13/98 24 5/26/98 5/26/00 K http://www.deltaradio.net
<PAGE>
WOOD-AM Grand Rapids 181 RCT 80,900 Fall 99 9/30/98 24 11/6/98 11/6/00 K http://www.woodradio.com/
WOOD-FM Grand Rapids 181 RCT 97,300 Fall 99 9/30/98 24 11/6/98 11/6/00 K http://www.ez1057.com
WQUT-FM Johnson City 194 RCT 94,900 Fall 99 5/30/97 24 7/21/98 7/21/00 A http://www.wqut.com
WRNR-FM Baltimore 202 RCT 36,000 Fall 99 6/19/98 24 6/30/98 6/30/00 K http://www.wrnr.com
WTPA-FM Harrisburg 215 RCT 81,500 Fall 99 5/15/98 24 11/4/96 11/4/00 K http://www.935wtpa.com
KBOB QuadCities 242 RCT 34,100 Fall 99 3/13/98 24 3/16/98 3/16/00 K http://www.bobcountry.com
KORB QuadCities 242 RCT 34,800 Fall 99 3/13/98 24 3/16/98 3/16/00 K http://www.planet935.com
KVOR-AM Colorado Springs 250 RCT 48,500 Fall 99 1/7/98 24 4/30/98 4/30/00 G http://www.kvor.com
KMEL-FM San Francisco 53 SRC 653,000 Fall 99 5/18/98 24 6/17/97 6/17/01 K http://www.106kmel.com
KSHE-FM St. Louis 83 SRC 211,300 Fall 99 2/24/97 24 3/22/99 3/22/01 A http://www.kshe95.com
WFOX-FM Atlanta 129 SRC 402,700 Fall 99 2/25/99 12 5/6/97 5/6/00 B http://www.fox97.com
WMMR-FM Philadelphia 170 SRC 440,800 Fall 99 3/19/99 12 11/15/96 11/15/99 B http://www.wmmr.com
WTPI-FM Indianapolis 216 SRC 132,600 Fall 99 5/26/99 24 9/21/99 9/21/01 B http://www.wtpi.com
WYNY-FM New York 231 SRC 380,900 Fall 99 12/3/98 12 12/22/98 12/22/00 B INACT http://www.newcountryy107
.com
KOIT-AF San Francisco 243 SRC 848,600 Fall 99 3/31/99 12 4/19/99 4/19/00 B http://www.koit.com
WXTU-FM Philadelphia 267 SRC 328,900 Fall 99 6/18/98 24 3/30/99 3/30/01 B INACT http://www.wxtu.com
WKIS-FM Miami 271 SRC 295,500 Fall 99 6/15/98 24 7/31/98 7/31/00 G http://www.kiss102.com
KISQ-FM San Francisco 35 SW 530,100 Fall 99 4/6/99 12 6/25/99 6/25/00 B ACT http://www.981kissfm.com
KZQZ-FM San Francisco 105 SW 620,000 Fall 99 12/17/98 12 4/28/99 4/28/00 B ACT http://www.z957.com
WLYF-FM Miami 166 SW 378,300 Fall 99 6/14/99 12 12/20/99 12/20/00 Q http://www.wlyf.com
WMXJ-FM Miami 171 SW 280,400 Fall 99 6/14/99 12 10/7/99 10/7/00 Q http://www.wmxj.com/
WWRC-AM Washington 223 SW 184,000 Fall 99 3/15/99 24 1/13/00 1/13/02 D http://www.
businessradioam570.com/
WZPL-FM Indianapolis 234 SW 234,500 Fall 99 5/12/99 24 10/26/99 10/26/01 B http://www.wzpl.com
WEJZ-FM Jacksonville 260 SW 48,300 Fall 99 7/30/99 24 4/17/00 4/17/02 B http://www.lite961.com
WFKS-FM Jacksonville 261 SW 34,900 Fall 99 7/30/99 24 4/24/00 4/24/02 B http://www.radiokiss.com
WJAS-AM Pittsburgh 262 SW 199,200 Fall 99 7/30/99 24 3/17/00 3/17/02 B http://www.1320wjas.com
WWRR-FM Jacksonville 266 SW 48,700 Spr-Sum 99 7/30/99 24 0/00/00 7/30/01 B http://www.arrow1007.com
WMYS-AM Indianapolis 273 SW 6,600 Fall 99 5/26/99 24 11/4/99 11/4/01 D http:/www.wmys.com
KALZ-FM Fresno 4 W 98,200 Fall 99 3/5/98 24 7/31/98 7/31/2000- http://www.alice1027.com
nonrenew
KAPE-AM Cape Girardeau 5 W 10,000 Fall 99 6/22/98 24 7/22/98 7/22/00 C http://www.1550kape.com
KRHW-AM* Cape Girardeau* 5 W 10,000 Fall 99 6/22/98 24 6/6/99 6/6/01 C
KBOS-FM Fresno 8 W 116,100 Fall 99 3/5/98 24 7/9/98 7/9/2000- http://www.kbos.com
nonrenew
KBXB-FM Cape Girardeau 9 W 10,000 Fall 99 5/13/98 12 7/9/98 7/9/00 C http://www.b98online.com
KCBL-FM Fresno 11 W 9,100 Fall 99 3/5/98 24 6/30/98 6/30/00 C http://www.kcbl.com
KDGE-FM Dallas 14 W 405,300 Fall 99 1/12/98 24 9/24/96 1/12/00 C ACT http://www.kdge.com
KDIS-AM Los Angeles 15 W 194,600 Fall 99 9/28/98 12 2/11/99 2/11/00 F http://www.kdisam710.com
KESO-FM South Padre 18 W 12,500 Spr-Sum 99 1/19/99 24 3/30/99 3/30/01 D http://www.alternative927
Island .com
KEZL-FM Fresno 20 W 35,100 Fall 99 3/5/98 24 6/30/98 6/30/00 C http://www.kezl.com
KGMO-FM Marion-Carbondale 24 W 10,000 Fall 99 5/13/98 24 6/9/97 6/9/00 C http://www.kgmo.com
KGTW-FM Ketchikan 27 W 10,000 Fall 99 11/20/96 24 1/20/97 1/20/00 I http://www.ktknkgtw.com
KHKS-FM Dallas 28 W 781,600 Fall 99 11/19/97 24 4/1/98 4/1/00 J ACT http://www.1061kissfm.com
Spr-Sum
KHTK-AM Sacramento 29 W 84,200 99 1/12/98 24 6/5/98 6/5/00 G http://www.khtkam.com
Spr-Sum
KHVH-AM Honolulu 30 W 47,200 99 6/29/98 24 11/2/98 11/2/00 C http://www.khvhradio830.com
30
<PAGE>
KSSK-AF Honolulu 30 W 221,100 Fall 99 6/29/98 24 9/11/98 9/11/00 C http://www.ksskradio.com
KUCD-FM Honolulu 30 W 86,100 Fall 99 6/29/98 24 6/26/97 6/26/00 C http://www.star1019fm.com
KHYL-FM Sacramento 31 W 150,800 Spr-Sum 99 1/2/97 24 6/20/97 6/20/01 C INACT http://www.magic101jams.com
KJNO-AM Juneau 37 W 10,000 Fall 99 4/24/98 24 6/5/98 6/5/00 C http://www.kjno.com
KTKU-FM* Juneau* 37 W 10,000 Fall 99 4/24/98 24 6/30/98 6/30/00 C http://www.taku105.com
KKDA-FM Dallas 40 W 506,700 Fall 99 7/15/98 24 9/11/98 9/11/00 C ACT http://www.k104fm.com
KKRW-FM Houston 42 W 386,100 Fall 99 11/13/97 24 9/20/96 9/20/99 C INACT http://www.kkrw.com
KMXM-FM Twin Falls 55 W 10,000 Fall 99 4/13/98 24 6/18/98 6/18/00 C http://www.kmxm.com
KMXR-FM Corpus Christi 56 W 34,500 Fall 99 4/22/98 24 7/24/98 7/24/00 C http://www.mix939.com
KNCI-FM Sacramento 57 W 170,900 Fall 99 1/12/98 24 4/14/98 4/14/00 G INACT http://www.kncifm.com
KOCN-FM Monterey 60 W 47,800 Fall 99 8/25/98 24 10/30/98 10/30/00 C http://www.oldies1051.com
KODA-FM Houston 61 W 586,900 Fall 99 11/13/97 24 4/27/98 4/27/00 J http://www.sunny99.com
KQID-FM Alexandria 69 W 29,300 Spr-Sum 99 5/26/98 24 8/31/98 8/31/00 C http://www.q93fm.com
KRAK-FM Sacramento 72 W 56,500 Fall 99 1/12/98 24 7/20/98 7/20/00 G http://www.krakam.com
KRNB-FM Dallas 75 W 111,400 Fall 99 7/15/98 24 10/15/99 10/15/00 C http://www.krnb.com
KRYS-FM Corpus Christi 79 W 61,500 Fall 99 4/22/98 24 8/28/98 8/28/00 C http://www.krysfm.com
KSOF-FM Fresno 84 W 65,600 Spr-Sum 99 3/5/98 24 7/20/98 7/20/00 C http://www.ksof.com
KTFI-AM Twin Falls* 87 W 10,000 Fall 99 4/13/98 24 6/18/98 6/18/00 C http://www.ktfi.com
KTOM-FM Monterey 89 W 83,600 Fall 99 8/25/98 57 10/30/98 10/30/00 C http://www.ktom.com
7/20/2000
KULE-AM Wenatchee* 91 W 10,000 Fall 99 6/9/98 24 7/20/98 nonrenew C http://www.kule.com
7/20/2000
KULE-FM Wenatchee* 91 W 10,000 Fall 99 6/9/98 24 7/20/98 nonrenew C http://www.kule.com
KWIN-FM Stockton 94 W 112,900 Fall 99 7/14/98 24 10/30/98 10/30/00 C ACT http://www.kwin.com
KWNN-FM Stockton 94 W 57,700 Spr-Sum 99 7/14/98 24 0/0/00 7/14/00 C
KYRX-FM Cape Girardeau 99 W 10,000 Fall 99 5/13/98 24 6/12/98 6/12/00 C http://www.mix1047online
.com
KZPS-FM Dallas 102 W 444,000 Fall 99 5/21/98 24 9/9/96 9/9/00 C ACT http://www.kzps.com
KZSP-FM South Padre 103 W 10,000 Fall 99 1/19/99 12 6/30/99 6/30/00 D http://www.love953.com
Island
WCTW-FM Poughkeepsie 117 W 10,000 Fall 99 1/24/00 24 6/17/98 6/17/00 C http://www.wctw.com
WDIZ-AM Panama City 120 W 8,800 Fall 99 1/24/00 24 7/23/98 7/23/00 C http://www.panamaradio.com
WFSY-FM Panama City 120 W 26,700 Fall 99 2/20/98 12 7/23/98 7/23/00 C
WPAP-FM Panama City 120 W 30,700 Fall 99 2/20/98 24 7/23/98 7/23/00 C http://www.panamaradio.com
WPBH-FM Panama City 120 W 15,900 Fall 99 2/20/98 24 7/23/98 7/23/00 C
WEZB-FM New Orleans 127 W 155,900 Spr-Sum 99 12/4/97 24 3/6/98 3/6/00 C http://www.b97.com
WHTG-FM Monmouth 136 W 35,500 Fall 99 12/12/97 24 2/10/97 2/10/00 J INACT http://www.fm1063.com
WILD-AM Boston 139 W 88,600 Fall 99 6/9/98 24 9/9/98 9/9/00 C http://www.wildam1090.com
WINC-FM Winchester 140 W 44,200 Fall 99 2/26/98 24 12/1/97 12/1/01 K http://www.wincfm.com/
WJAN-FM Rutland 144 W 10,000 Fall 99 3/5/98 24 4/3/98 4/3/00 C http://www.catcountry.net
WJJR-FM Rutland 147 W 10,000 Fall 99 3/5/98 24 4/10/98 4/10/00 C http://www.mix981.com
WJMZ-FM Greenville SC 148 W 120,500 Spr-Sum 99 9/16/97 12 11/17/97 11/17/00 A http://www.wjmz.com
WKKN-FM Statesboro 153 W 10,000 Fall 99 7/29/98 12 10/30/98 10/30/00 C http://www.k98fm.com
WMDM-FM Lexington Park 167 W 10,000 Fall 99 7/13/98 24 1/24/97 7/13/00- http://www.977thebay.com
nonrenew
WPKK-FM Altoona 184 W 10,000 Fall 99 10/22/98 24 11/6/98 11/6/00 C http://www.975thepeak.com
WPMX-FM Statesboro 185 W 10,000 Fall 99 7/29/98 24 9/24/98 9/24/00 C http://www.eaglefm.com
WQSY-FM Hawkinsville 193 W 10,000 Fall 99 7/29/98 24 10/30/98 10/30/00 C http://www.sunnyradio.com
WRBQ-FM Tampa 195 W 218,500 Fall 99 1/8/98 24 1/8/98 1/8/00 J http://www.wrbq.com
31
<PAGE>
WRNQ-FM Poughkeepsie 201 W 27,200 Fall 99 5/14/98 24 6/17/98 6/17/00 C http://www.wrnq.com
WSHF-FM Panama City 207 W 7,800 Fall 99 7/23/98 12 7/24/98 7/24/00 C http://www.panamaradio.com
WTEM-AM Washington 211 W 145,100 Fall 99 3/15/99 24 8/13/99 8/13/01 D INACT http://www.sportstalk980
.com
WTHK-FM Hudson, NY* 212 W 10,000 Fall 99 5/14/98 24 0/0/00 5/14/00 C
WTHN-FM Poughkeepsie 212 W 32,100 Fall 99 5/14/98 24 6/17/98 6/17/00 C http://www.
thundercountryradio.com
WTND-FM Greenville* 212 W 10,000 Fall 99 5/14/98 24 0/0/00 5/14/00 C
WTJS-AM Jackson 213 W 9,700 Fall 99 6/5/98 24 7/31/98 7/31/00 C http://www.wtjs.com
WTNV-FN Jackson 213 W 20,700 Fall 99 6/5/98 24 7/31/98 7/31/00 C http://www.104wtnv.com
WYNU-FM Jackson 213 W 11,200 Fall 99 6/5/98 12 7/31/98 7/31/00 C http://www.wynu92fm.com
WYTZ-FM Benton Harbor* 232 W 10,000 Fall 99 1/31/97 12 3/5/97 3/5/00 A http://www.wytz.com
WZYQ-FM Cleveland* 235 W 10,000 Fall 99 5/13/98 24 5/26/98 5/26/00 K http://www.deltaradio.net
WZZL-FM Metropolis 236 W 10,000 Fall 99 5/13/98 24 8/6/98 8/6/00 C http://www.wzzl.com
WERZ Portsmouth 244 W 82,700 Fall 99 11/14/97 24 12/7/98 12/7/00 R http://www.werz.com
WFMD Frederick 244 W 22,600 Fall 99 11/14/97 24 5/13/99 5/13/01 R http://www.wfmd.com
KARA San Jose 249 W 128,400 Fall 99 7/1/99 24 12/22/99 12/22/01 D http://www.kara.com
KLIV San Jose 249 W 62,700 Fall 99 7/1/99 24 1/19/00 1/19/02 D ACT http://www.kliv.com
KRTY San Jose 249 W 110,400 Fall 99 7/1/99 12 1/24/99 11/23/01 D http://www.krty.com
KKZX-FM Spokane 250 W 78,000 Fall 99 1/7/98 24 6/1/98 6/1/00 G http://www.kkzx.com
KTWK-AM Colorado Springs 250 W 15,200 Fall 99 1/7/98 24 4/30/98 4/30/00 G http://www.memory740.com
KUDY-AM Spokane 250 W 10,000 Fall 99 1/7/98 24 9/21/98 9/21/00 G http://www.am1280.com
WCHZ-FM Fayetteville 271 W 48,700 Fall 99 6/15/98 24 8/8/98 8/8/00 G http://www.95rock.com
WFLB-FM Augusta 271 W 44,100 Fall 99 6/15/98 24 9/17/98 9/17/00 G http://www.oldies965.com
WGAC-AM Augusta 271 W 34,500 Fall 99 6/15/98 24 7/31/98 7/31/00 G http://www.wgac.com
WGOR-FM Greenville 271 W 120,500 Fall 99 6/15/98 24 8/31/98 8/31/00 G http://www.939coolfm.com
WIKS-FM Augusta 271 W 37,900 Fall 99 6/15/98 24 7/31/98 7/31/00 G INACT http://www.wkis.com
WJBX-FM Fort Myers 271 W 62,700 Fall 99 6/15/98 24 8/31/98 8/31/00 G http://www.99xwjbx.com
WJST-FM Fort Myers 271 W 60,100 Fall 99 6/15/98 24 7/27/98 7/27/00 G http://www.wjst.com
WKML-FM Fayetteville 271 W 71,600 Fall 99 6/15/98 24 7/31/98 7/31/00 G http://www.wkml.com
WMGV-FM Greenville 271 W 51,500 Spr-Sum 99 6/15/98 24 8/28/98 8/28/00 G http://www.v1033.com
WNCT-AF Greenville 271 W 51,300 Spr-Sum 99 6/15/98 24 1/29/99 1/29/01 G http://www.oldies1079.com
WQAM-AM Miami 271 W 239,700 Fall 99 6/15/98 24 9/30/98 9/30/00 G INACT http://www.wqam.com/
WRXK-FM Fort Myers 271 W 69,700 Fall 99 6/15/98 24 2/5/99 2/5/01 G http://www.96krock.com
WSFL-FM Greenville 271 W 93,100 Fall 99 6/15/98 24 8/14/98 8/14/00 G http://www.wsfl.com
WUKS-FM Fayetteville 271 W 33,900 Spr-Sum 99 6/15/98 24 10/6/98 10/6/00 G http://www.kiss1077.com
WWCN-AM Fort Myers 271 W 13,800 Spr-Sum 99 6/15/98 24 9/24/98 9/24/00 G http://www.am770.com
WWDB-FM Philadelphia 271 W 414,900 Spr-Sum 99 6/15/98 24 8/28/98 8/28/00 G http://www.newstalk965.com
WXKB-FM Fort Myers 271 W 117,600 Spr-Sum 99 6/15/98 24 8/4/98 8/4/00 G http://www.b1039.com
WZFX-FM Fayetteville 271 W 93,800 Fall 99 6/15/98 24 9/21/98 9/21/00 G http://www.foxy99.com
KDON-FM Monterey 274 W 104,300 Spr-Sum 99 8/27/98 24 11/6/98 11/6/00 C INACT http://www.kdon.com
TOTAL STATIONS 164 19,708,600
FOOTNOTES
(1) Non-reported stations were given an estimated cume audience of 10,000.
(2) Where Fall 99 Arbitron numbers were unavailable, Spring-Summer 99 Arbitron numbers were used.
(3) Some expiration dates from our database do not reflect automatic 12-month renewal in the absence of written decline.
</TABLE>
32
<PAGE>
Schedule 2.1 (a)(2)
Streaming Media Contracts
<TABLE>
<CAPTION>
E
REC SIGN FORM COM
CALL LETTERS MARKET CITY # PRO MSA CUME DATE TERM LIVE EXPIRY(3) TYPE CODE
-DUCT CUME(1) BOOK(2)
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
KDFC-FM San Francisco 13 SO 480,000 Spr-Sum 99 3/1/99 12 1/15/99 1/15/00 B
KEDJ-FM Phoenix 17 SO 373,400 Fall 99 8/2/99 24 11/12/99 11/12/01 B
KSOL-FM San Francisco 85 SO 241,100 Fall 99 3/8/99 24 11/6/98 11/6/00 B IN-ACT
KWJJ-FM Portland 95 SO 198,700 Fall 99 7/8/99 12 10/27/99 10/27/00 B
WBOS-FM Boston 111 SO 275,000 Fall 99 4/26/99 12 5/12/99 5/12/00 B
WCAA-FM New York 113 SO 695,900 Spr-Sum 99 9/9/98 24 10/30/98 10/30/00 C
WCRB-FM Boston 115 SO 396,400 Spr-Sum 99 7/15/99 24 10/31/99 10/31/01 B
WEVD-AM New York 126 SO 209,700 Fall 99 7/20/99 24 00/00/00 7/20/01 B
WGAY-AM Washington 132 SO 50,900 Fall 99 6/28/99 24 1/13/00 1/13/02 B
WKIE-FM Chicago 151 SO 10,000 Fall 99 4/21/99 24 10/4/99 10/4/01 B IN-ACT
WKKX-FM St. Louis 154 SO 245,900 Fall 99 2/25/99 12 3/22/99 3/22/00 B
WKLB-FM Boston 156 SO 274,900 Fall 99 4/26/98 12 5/12/99 5/12/00 B
WKQX-FM Chicago 160 SO 890,300 Fall 99 1/5/99 12 2/8/99 2/8/00 B
WLTJ-FM Pittsburgh 165 SO 218,300 Spr-Sum 99 6/29/99 24 3/28/00 3/28/02 B
WMGK-FM Philadelphia 168 SO 461,200 Fall 99 3/19/99 12 4/22/99 4/22/00 B
WMJX-FM Boston 169 SO 640,500 Fall 99 4/26/99 12 5/12/99 5/12/00 B
WNND-FM Chicago 175 SO 570,700 Fall 99 7/30/99 24 9/17/99 9/17/01 B
WPEN-AM Philadelphia 183 SO 313,000 Fall 99 3/13/99 12 4/23/99 4/23/00 B
WPRO-FM Providence 186 SO 287,800 Fall 99 3/8/99 12 3/30/99 3/30/00 B
<CAPTION>
SHARES DOLLARS
ALLOCATED ALLOCATED
FOR FOR
INTERMEDIATE INTERMEDIATE
URL CLOSING(S) CLOSING(S)
---------------------------------------------------------
<S> <C> <C>
http://www.kdfc.com 13,484 67,420
http://www.kedj.com 10,489 52,445
http://www.ksol.com 6,773 33,865
http://www.kwjj.com 5,582 27,910
http://www.wbos.com 7,725 38,625
http://www.calientefm.com 19,549 97,745
http://www.wcrb.com 11,135 55,675
http://www.wevd.com 5,891 29,455
http://www.wgay.com 1,430 7,150
http://www.92kissfm.com 281 1,405
http://www.kix1065.com 6,908 34,540
http://www.wklb.com 7,722 38,610
http://www.q101.com 25,010 125,050
http://www.wltj.com 6,132 30,660
http://www.wmgk.com 12,956 64,780
http://www.wmjx.com 17,992 89,960
http://www.windy100.com 16,032 80,160
http://www.wpen.com 8,793 43,965
http://www.92profm.com 8,085 40,425
33
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WROR-FM Boston 203 SO 318,000 Fall 99 4/26/99 12 5/12/99 5/12/00 B
WRRK-FM Pittsburgh 204 SO 229,600 Fall 99 6/29/99 24 1/6/97 1/6/01 B
WSJZ-FM Boston 209 SO 350,000 Fall 99 4/26/99 12 5/12/99 5/12/00 B
WTMX-FM Chicago 214 SO 900,700 Spr-Sum 99 7/30/99 24 9/17/99 9/17/01 B
WWDC-FM Washington 219 SO 627,400 Fall 99 3/15/99 24 8/19/99 8/19/01 Q
WWLI-FM Providence 222 SO 223,700 Fall 99 3/8/99 12 3/31/99 3/31/00 B
WXTM-FM St. Louis 226 SO 193,800 Fall 99 2/25/99 12 3/22/99 3/22/00 B
WXXM-FM Philadelphia 228 SO 442,700 Spr-Sum 99 3/19/99 12 4/30/99 4/30/00 B
WXXY-FM Chicago 229 SO 10,000 Spr-Sum 99 4/21/99 24 5/14/99 5/14/01 B
KLVE Los Angeles 241 SO 1,951,800 Fall 99 2/23/99 12 3/22/99 3/22/00 B
KSCA Los Angeles 241 SO 1,121,000 Fall 99 2/23/99 12 3/22/99 3/22/00 B IN-ACT
KTNQ Los Angeles 241 SO 1,988,900 Fall 99 2/23/99 12 11/18/98 11/18/00 B
KCNL-FM San Jose 245 SO 10,000 Spr-Sum 99 6/9/99 12 7/6/99 7/6/00 B
KSJO-FM San Jose 246 SO 144,000 Spr-Sum 99 6/9/99 12 7/6/99 7/6/00 B
KUFX-FM San Jose 247 SO 132,300 Fall 99 6/9/99 12 7/6/99 7/6/00 B
KBEZ-FM Tulsa 251 SO 79,100 Fall 99 7/30/99 24 0/00/00 7/30/01 B
KHTT-FM Tulsa 252 SO 146,400 Fall 99 7/30/99 24 0/00/00 7/30/01 B
KMGL-FM Oklahoma City 253 SO 130,900 Fall 99 7/30/99 24 10/22/99 10/22/01 B
KOMA-AM Oklahoma City 254 SO 126,800 Fall 99 7/30/99 24 10/22/99 10/22/01 B
KPWR-FM Los Angeles 255 SO 1,434,500 Fall 99 10/1/99 6 3/3/00 9/3/00 B
KRXO-FM Oklahoma City 256 SO 191,900 Fall 99 7/30/99 24 10/22/99 10/22/01 B
WALR-FM Atlanta 257 SO 396,000 Fall 99 1/27/99 24 2/12/99 2/12/01 B
WAMO-FM Pittsburgh 259 SO 194,700 Fall 99 8/20/99 24 10/25/99 10/25/01 B
WPOW-FM Miami 263 SO 572,300 Fall 99 6/18/98 24 7/31/98 7/31/00 B ACT
<CAPTION>
<S> <C> <C>
http://www.wror.com 8,933 44,665
http://www.rrk.com 6,450 32,250
http://www.smoothjazz969.com 9,832 49,160
http://www.wtmx.com 25,302 126,510
http://www.DC101.com 17,624 88,120
http://www.lite105.com 6,284 31,420
http://www.extremeradio1041.com 5,444 27,220
http://www.jammingold957.com 12,436 62,180
http://www.wxxy.com 281 1,405
http://www.klvefm.com 54,828 274,140
http://www.lanuevafm.com/ 31,490 157,450
http://www.ktnq.com 55,870 279,350
http://www.channel1049.com 281 1,405
http://www.ksjo.com/ 4,045 20,225
http://www.kfox.com 3,716 18,580
http://www.kbez.com 2,222 11,110
http://www.khits.com 4,113 20,565
http://www.magic104.com 3,677 18,385
http://www.komaradio.com 3,562 17,810
http://www.power106la.fm 40,297 201,485
http://www.krxo.com 5,391 26,955
http://www.kiss1047.com 11,124 55,620
http://www.wamo.com 5,469 27,345
http://www.power96.com 16,077 80,385
34
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WSHH-FM Pittsburgh 264 SO 232,300 Fall 99 7/30/99 24 3/17/00 3/17/02 B
WTMJ-AM Milwaukee 265 SO 327,400 Fall 99 11/16/99 12 5/18/00 5/18/01 B
WZAK-FM Cleveland 269 SO 237,700 Fall 99 3/3/99 24 3/23/99 3/23/01 B
WSTR-FM Atlanta 272 SO 731,600 Spr-Sum 99 5/11/99 12 7/1/99 7/1/00 B
WHHH-FM Indianapolis 275 SO 160,300 Spr-Sum 99 7/27/99 24 4/6/00 4/6/02 Q
KMEL-FM San Francisco 53 SRC 653,000 Fall 99 5/18/98 24 6/17/97 6/17/01 K
KSHE-FM St. Louis 83 SRC 211,300 Fall 99 2/24/97 24 3/22/99 3/22/01 A
WFOX-FM Atlanta 129 SRC 402,700 Fall 99 2/25/99 12 5/6/97 5/6/00 B
WMMR-FM Philadelphia 170 SRC 440,800 Fall 99 3/19/99 12 11/15/96 11/15/99 B
WTPI-FM Indianapolis 216 SRC 132,600 Fall 99 5/26/99 24 9/21/99 9/21/01 B
WYNY-FM New York 231 SRC 380,900 Fall 99 12/3/98 12 12/22/98 12/22/00 B IN-ACT
KOIT-AF San Francisco 243 SRC 848,600 Fall 99 3/31/99 12 4/19/99 4/19/00 B
WXTU-FM Philadelphia 267 SRC 328,900 Fall 99 6/18/98 24 3/30/99 3/30/01 B IN-ACT
WKIS-FM Miami 271 SRC 295,500 Fall 99 6/15/98 24 7/31/98 7/31/00 G
KISQ-FM San Francisco 35 SW 530,100 Fall 99 4/6/99 12 6/25/99 6/25/00 B ACT
KZQZ-FM San Francisco 105 SW 620,000 Fall 99 12/17/98 12 4/28/99 4/28/00 B ACT
WLYF-FM Miami 166 SW 378,300 Fall 99 6/14/99 12 12/20/99 12/20/00 Q
WMXJ-FM Miami 171 SW 280,400 Fall 99 6/14/99 12 10/7/99 10/7/00 Q
WWRC-AM Washington 223 SW 184,000 Fall 99 3/15/99 24 1/13/00 1/13/02 D
WZPL-FM Indianapolis 234 SW 234,500 Fall 99 5/12/99 24 10/26/99 10/26/01 B
WEJZ-FM Jacksonville 260 SW 48,300 Fall 99 7/30/99 24 4/17/00 4/17/02 B
WFKS-FM Jacksonville 261 SW 34,900 Fall 99 7/30/99 24 4/24/00 4/24/02 B
WJAS-AM Pittsburgh 262 SW 199,200 Fall 99 7/30/99 24 3/17/00 3/17/02 B
WWRR-FM Jacksonville 266 SW 48,700 Spr-Sum 99 7/30/99 24 0/00/00 7/30/01 B
<CAPTION>
<S> <C> <C>
http://www.wshh.com 6,526 32,630
http://www.620wtmj.com 9,197 45,985
http://www.wzak.com 6,677 33,385
http://www.star94.com 20,551 102,755
http://www.whhh.com 4,503 22,515
http://www.106kmel.com 18,344 91,720
http://www.kshe95.com 5,936 29,680
http://www.fox97.com 11,312 56,560
http://www.wmmr.com 12,383 61,915
http://www.wtpi.com 3,725 18,625
http://www.newcountryy107.com 10,700 53,500
http://www.koit.com 23,838 119,190
http://www.wxtu.com 9,239 46,195
http://www.kiss102.com 8,301 41,505
http://www.981kissfm.com 14,891 74,455
http://www.z957.com 17,417 87,085
http://www.wlyf.com 10,627 53,135
http://www.wmxj.com/ 7,877 39,385
http://www.businessradioam570.com 5,169 25,845
http://www.wzpl.com 6,587 32,935
http://www.lite961.com 1,357 6,785
http://www.radiokiss.com 980 4,900
http://www.1320wjas.com 5,596 27,980
http://www.arrow1007.com 1,368 6,840
35
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WMYS-AM Indianapolis 273 SW 6,600 Fall 99 5/26/99 24 11/4/99 11/4/01 D
--------------------------------------------------------------------------------------------------------
TOTAL STATIONS 68 26,698,800
--------------------------------------------------------------------------------------------------------
TOTAL SHARES 750,000
--------------------------------------------------------------------------------------------------------
<CAPTION>
<S> <C> <C>
http:/www.wmys.com 182 910
---------------------------------------------------
TOTAL SHARES 750,000 3,750,000
-
---------------------------------------------------
</TABLE>
FOOTNOTES
(1) Non-reported stations were given an estimated cume audience of 10,000.
(2) Where Fall 99 Arbitron numbers were unavailable, Spring-Summer 99 Arbitron
numbers were used.
(3) Some expiration dates from our database do not reflect automatic 12-month
renewal in the absence of written decline.
36
<PAGE>
Schedule 2.4
Sales Prospects and Leads
<TABLE>
<CAPTION>
STREAMING MEDIA PROSPECTS
THE FOLLOWING CUME IS BASED ON INFORMATION SUPPLIED
BY HISPANIC BROADCASTING CORP. (HBC):
STATION
MARKET CITY CALL LETTERS CUME COMMENTS
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Los Angeles KTNQ-AM 0 OR Customer
Los Angeles KLVE-FM 0 OR Customer
Los Angeles KSCA-FM 0 OR Customer
Los Angeles KRCD-FM 0
New York WADO-AM 616,200 Spr '99 Book
New York WCAA-FM 0 OR Customer
San Francisco KSOL-FM 0 OR Customer
San Francisco KZOL-FM 111,000 Simulcast w/ KSOL
Las Vegas KLSQ-AM 25,100 Spr '99 Book
Las Vegas KISF-FM 80,300 Spr '99 Book
Phoenix KHOT-FM 93,600 Spr '99 Book
Phoenix KKFR-FM 280,500 Spr '99 Book
Miami WAMR-FM 354,500 Spr '99 Book
Miami WRTO-FM 232,700 Spr '99 Book
Miami WAQI-AM 208,600 Spr '99 Book
Miami WQBA-AM 100,000 Spr '99 Book
Chicago WOJO-FM 121,300 Spr '99 Book
Chicago WIND-AM 93,300 Spr '99 Book
Chicago WLXX-AM 317,000 Spr '99 Book
Houston KLTN-FM 311,500 Spr '99 Book
Houston KOVE-FM 154,500 Spr '99 Book
Houston KOVA-FM 26,900 Spr '99 Book
Houston KRTX-FM 0
Houston KLAT-AM 86,600 Spr '99 Book
McAllen KIWW-FM 129,500 Spr '99 Book
McAllen KGBT-FM 0
McAllen KGBT-AM 63,300 Spr '99 Book
Dallas KHCK-FM 144,000 Spr '99 Book
Dallas KDXX-FM 0
Dallas KDXT-FM 0
Dallas KDXX-AM 48,300 Spr '99 Book
Dallas KESS-AM 61,100 Spr '99 Book
San Antonio KROM-FM 92,600 Spr '99 Book
San Antonio KXTN-FM 217,850 Spr '99 Book
San Antonio KXTN-AM 0
<PAGE>
San Antonio KCOR-AM 37,900 Spr '99 Book
El Paso KBNA-FM 148,600 Spr '99 Book
El Paso KBNA-AM 17,600 Spr '99 Book
El Paso KAMA-AM 14,100 Spr '99 Book
---------------------------------------------------------------------------------------------------
TOTAL CUME 4,188,450
---------------------------------------------------------------------------------------------------
TOTAL AVAILABLE CUME 4,188,450
<CAPTION>
FALL '99
SPILL CUME CUME
---------------------------------------------------------------------------------------------------
<S> <C> <C>
West Palm WRTO-FM 20,100
Riverside KTNQ-AM 18,300
Monterey KSOL/KZOL 44,400
Riverside KLVE-FM 82,000
Oxnard KLVE-FM 23,600
Riverside KSCA-FM 97,200
Oxnard KSCA-FM 12,100
---------------------------------------------------------------------------------------------------
TOTAL SPILL CUME 297,700
---------------------------------------------------------------------------------------------------
TOTAL CUME 4,486,150
---------------------------------------------------------------------------------------------------
TOTAL AVAILABLE CUME 4,486,150
---------------------------------------------------------------------------------------------------
WEB SERVICES SALES PROSPECTS
COX BROADCASTING CORP. (ESTIMATED CUME)
<CAPTION>
STATION
MARKET CITY CALL LETTERS CUME COMMENTS
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
50 Stations 10,000,000+
---------------------------------------------------------------------------------------------------
TOTAL AVAILABLE CUME 10,000,000
---------------------------------------------------------------------------------------------------
LARGE MARKET RADIO STATION
WKRK-FM NEW YORK
<CAPTION>
STATION FALL '99
MARKET CITY CALL LETTERS CUME COMMENTS
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
New York City WKRK-FM 1,608,500 Present OR Customer
(no contract)
---------------------------------------------------------------------------------------------------
TOTAL AVAILABLE CUME 1,608,500
---------------------------------------------------------------------------------------------------
OTHER SALES PROSPECTS
<CAPTION>
STATION
MARKET CITY CALL LETTERS CUME COMMENTS
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Portland KKRZ 372,700 Spr '99
Houston KODA 537,800 Spr '99
38
<PAGE>
Houston KLDE 442,700 Spr '99
San Francisco Wild 94.9 707,600 Spr '99
Houston KQQK 210,000 Spr '99
Rochester WHEB 67,200 Spr '99
San Jose KARA 110,200 Spr '99
San Jose KTRY 119,500 Spr '99
Honolulu KHBH 47,200 Spr '99
St. Louis KSNX 0 Do not subscribe to Arb
Indianapolis WEDJ 0 Do not subscribe to Arb
Boston WJMN 589,200 Spr '99
Chicago WCKG 444,800 Spr '99
Los Angeles KUSC 0 College station
Indianapolis WHHH 173,700 Spr '99
Indianapolis WYJZ 53,900 Spr '99
Indianapolis WBKS 62,000 Spr '99
Chicago WVON 0 Legendary/Must have
Boise KKGL 29,200 Spr '99
Alexandria KRRV 41,000 Spr '99
Alexandria KKST 18,300 Spr '99
Alexandria KZMZ 23,300 Spr '99
Alexandria KDBS 2,900 Spr '99
Statesboro, GA WHKN 0 Not shown in Arb.
Juneau KFMG 0 Not shown in Arb.
El Paso KELT 50,500 Spr '99
Dallas KGGR 0 Mortenson Group
Dallas KTNO 0 Mortenson Grp. Spr '99
Harrodsburg WHBN 0 Mortenson Group
Huntington WEMM 29,300 Spr '99
Indian Head WWGB 0 Mortenson Group
Kansas City KGGN 0 Mortenson Group
Lexington/Fayette WGSW 0 Mortenson Group
Lexington/Fayette WUGR 7,600 Spr '99
Lexington/Fayette WJMM 0 Mortenson Group
Lexington/Fayette WSTL 0 Mortenson Group
Louisville WLLV 14,500 Spr '99
Louisville WLOU 21,300 Spr '99
Nashville WNSG 0 Mortenson Group
Pittsburgh WPGR 0 Mortenson Group
Pittsburgh WWNL 0 Mortenson Group
Sacramento KXOA 98000 R&R Recd Dir Spr 99
---------------------------------------------------------------------------------------------------
TOTAL AVAILABLE CUME 4,274,400
---------------------------------------------------------------------------------------------------
TOTAL AVAILABLE CUME - ALL OPPORTUNITIES 20,369,050
---------------------------------------------------------------------------------------------------
</TABLE>
39
<PAGE>
Schedule 3.4
Required Waivers and Consents--OnRadio
40
<PAGE>
Schedule 3.6
Liabilities--OnRadio
41
<PAGE>
Schedule 3.7
Breaches and Enforceability
The following stations entered into Web Site Contracts to receive remote content
and OnRadio considers these stations in breach of the Web Site Contracts:
WTPA-FM--Harrisburg--Put up new site and station GM indicates that he is not
interested in linking to the content.
KJR-AM, KJR-FM, KUBE-FM--Seattle--claims that contract was limited to ad banners
and that they have no other obligations under the Web Site Contracts.
WKRQ-FM--Cincinnati--Took down their website and indicate that they have no
information of plans for a new site.
WSHF-FM, WFSY-FM, WPAP-FM, WPBH--FM--Panama City--Investigating possible
improper linking to content by stations.
WALR--We received non-renewal letter 12/8/99. Upon contacting the station we
determined that the station did not have access to DSL and that they were
unhappy with the quality of the signal. The station is continuing to stream and
has indicated that they are waiting for DSL to become available in their area.
WEZB--We received a letter from this web site customer dated May 23, 2000
requesting that we cancel their account immediately. A timely notice of
non-renewal was not received.
42
<PAGE>
Schedule 3.8
Litigation--OnRadio
43
<PAGE>
Schedule 3.9
Brokers and Finders--OnRadio
44
<PAGE>
Schedule 3.17
Related Contracts
Intervu
Frontier Global Center
DoubleClick
IBeam
45
<PAGE>
Schedule 4.5
Brokers and Finders--Global
46
<PAGE>
Schedule 4.8
Litigation--Global
47
<PAGE>
Schedule 5.13
Key Employees
Ken Stilwell
Tim Herr
Rick Ramirez
James Chamberlain
48
<PAGE>
Exhibit 5.3
Transition Services Agreement
49
<PAGE>
Exhibit 5.4
Investor Rights Agreement
50
<PAGE>
Exhibit 5.5
Software License
51
<PAGE>
Exhibit 5.6
Equipment Lease
52
<PAGE>
Exhibit 7.3
Instructions to Transfer Agent
53
