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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
January 6, 2000
THE ACKERLEY GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
1-10321 91-1043807
- ---------------------------- ------------------------------
(Commission File Number) IRS Employer Identification No.
1301 Fifth Avenue, Suite 4000
Seattle, Washington 98101
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (206) 624-2888
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On January 5, 2000, we completed the sale of substantially all our
Miami/Ft. Lauderdale and West Palm Beach outdoor billboard assets held by our
wholly-owned subsidiaries to Eller Media Company, a subsidiary of Clear Channel
Communications, Inc., for $300 million in cash. The amount paid represents 34
times our Florida outdoor division's 1999 operating cash flow.
We used $199 million of the proceeds to eliminate our current
outstanding senior bank debt. The remainder, as well as a $325 million unused
revolver, is available to fuel future acquisitions in the outdoor, television,
radio and sports and entertainment markets that benefit our existing media
properties.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements - The requisite historical financial
information will be filed as soon as available, but no later than
60 days after this Report was required to be filed.
(b) Pro forma Financial Information - The requisite pro forma
financial information will be filed as soon as available, but no
later than 60 days after this Report was required to be filed.
(c) Exhibits.
(10.1) Asset Purchase Agreement dated as of November 10, 1999
between AK Media Group, Inc. and Eller Media Company.
(10.2) Amendment No. One to Asset Purchase Agreement dated as
of December 28, 1999 between AK Media Group, Inc., AK
Florida, Inc. and Eller Media Company.
(99) Press Release dated January 6, 2000 issued by The
Ackerley Group, Inc. to announce the completion of the
sale of AK Media/Florida.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: January 11, 2000
THE ACKERLEY GROUP, INC.
By: /s/ DENIS M. CURLEY
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Denis M. Curley
Co-President and Chief Financial Officer
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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is dated as of November 10,
1999, and is between AK MEDIA GROUP, INC., a Washington corporation ("Seller")
and ELLER MEDIA COMPANY, a Delaware corporation ("Buyer").
RECITALS
A. Seller is engaged in the business of owning and operating outdoor
advertising billboards and bus shelters and otherwise providing outdoor
advertising services in the State of Florida under the trade name of "AK
Media/FL" ("Seller's Business"); and
B. Seller desires to sell to Buyer substantially all of the real and
personal property, tangible and intangible, of Seller used in conducting
Seller's Business, and Buyer desires to purchase such assets and to assume
certain liabilities associated with such assets, pursuant to the terms,
conditions, limitations and exclusions contained in this Agreement.
In consideration of the mutual representations, warranties, covenants
and agreements, and upon the terms and conditions set forth below, the parties
agree as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, capitalized terms used herein shall
have the meanings specified or referred to in Exhibit A attached hereto.
ARTICLE 2
PURCHASE PRICE, PRORATIONS,
CLOSING, ENVIRONMENTAL ASSESSMENTS,
PRICE ADJUSTMENT
2.1 Purchase Price. The purchase price for the Assets shall be Three
Hundred Million and 00/100 Dollars ($300,000,000.00) (the "Purchase Price"),
payable by Buyer to Seller on the Closing Date.
2.2. Prorations.
(a) All items of expense and liabilities with respect to the
Assets shall be prorated on an accrual basis as of the Closing Date.
Such items shall include, but are not limited to, utility charges, real
and personal property taxes, rents (including but not limited to
percentage rents and pre-paid rents that are pre-paid for periods of
not more than one year), permit fees, accounts payable, security
deposits under Leases, Bus Shelter Agreements and Assumed Contracts.
Percentage rents shall be prorated as of the Closing Date. All items of
revenue with respect to the Assets shall be prorated on an accrual
basis as of 15 days prior to the
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Closing Date ("Revenue Proration Date"), and shall be prorated on the
basis of the number of days of display before and after the Revenue
Proration Date. Seller shall be credited in the prorations for the
amount of any expenses that have been prepaid for up to one year
post-Closing, but not in excess of one year. Buyer shall be credited
for the amount of any revenues collected by Seller as of the Closing
Date to the extent pertaining to time periods after the Revenue
Proration Date. Any prorations not determinable on the Closing Date
shall be prorated on the basis of the most current information
available on the Closing Date and shall be finalized as soon as the
necessary information is available. Buyer and Seller shall estimate in
good faith the prorations as of the Closing Date and Revenue Proration
Date, as applicable. The net amount of all prorations owed to either
Buyer or Seller shall be updated as information becomes available and
shall be paid no later than the ninetieth (90th) day after the Closing
Date.
(b) In addition to the prorations set forth in (a) above, Buyer
shall be credited at the Closing Date with the following additional
amounts: (i) $2,000,000.00 as a special proration, (ii) the sales price
for each of the six parcels of Real Property described on Schedule
2.2(b)(ii) attached hereto which is sold prior to the Closing (the
"Real Property under Contract"), (iii) the aggregate condemnation
and/or settlement proceeds received or to be received for the Structure
locations identified on Schedule 2.2(b)(iii), and (iv) if the
difference between the "Trade Amount" and the "Trade Liabilities" on
the Balance Sheet for the Seller as of the Closing Date falls below a
$929,000.00 net balance due to Seller, then the amount of the
shortfall. If the sale of any Real Property under Contract has not
closed prior to the Closing and Buyer has elected not to take title to
such property at the Closing pursuant to Section 2.4, then any sales
proceeds from the sale of such property after the Closing shall be
immediately paid to Buyer by Seller.
(c) Notwithstanding anything to the contrary herein, the proration
as of the Closing Date of percentage rents payable under any particular
Lease shall be made by Buyer and notice thereof (showing the applicable
calculations) given to Seller, within thirty (30) days following the
expiration of the period over which the percentage rents are calculated
under such Lease. The proration notice shall be accompanied by any
amounts due the Seller as shown therein, or if Seller owes Buyer as
shown therein, Seller shall reimburse Buyer such amount within ten (10)
days of receipt of the appropriate proration notice, subject to Section
2.2(d). The proration calculation of percentage rents shall be based on
the amount of revenue generated before and after the Closing Date and
it shall not be based on the number of days before and after the
Closing Date.
(d) If any dispute arises over any amount to be refunded and/or
paid under this Section 2.2 (whether pursuant to closing calculations
or the percentage rent prorations), such refund or payment shall
nonetheless be promptly made to the extent such amount is not in
dispute. If any such dispute cannot be resolved by the parties, it
shall be submitted to Buyer's accountants and Seller's accountants for
resolution by the accountants. If the dispute is not resolved by the
accountants within thirty (30) days after the dispute is first
submitted to
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both accountants for resolutions, then Buyer's accountants and Seller's
accountants shall jointly designate a third independent certified
public accountant (the "Third Accountant"), and the resolution of the
dispute shall be made by the Third Accountant. The determination of the
Third Accountant shall be final and binding upon the parties to this
Agreement. Buyer and Seller shall each pay one-half (1/2) of the fees
and expenses of the Third Accountant, and each party shall pay their
own accountants expenses.
(e) Seller agrees to promptly forward to Buyer any payments that
Seller collects after the Closing with respect to any accounts
receivable relating to the Assets to the extent pertaining to the
period after the Closing Date. Buyer agrees to promptly forward to
Seller any payments Buyer receives with respect the accounts
receivables of Seller, to the extent pertaining to the period prior to
the Closing Date.
2.3 Closing. The closing under this Agreement (the "Closing") will take
place on the fifth (5th) business day after all conditions contained in this
Agreement have been satisfied or waived, at 10:00 a.m. at the offices of
Akerman, Senterfitt & Edison, P.A., One Southeast Third Avenue, 28th Floor,
SunTrust International Center, Miami, Florida 33131, or at such other time, date
or place as the parties shall mutually agree. All transactions at the Closing
shall be deemed to take place simultaneously at the close of business on the
Closing Date, and no document shall be deemed to have been delivered until all
transactions are completed and all documents are delivered.
2.4 Environmental Assessments. Seller shall provide Buyer such access
as is reasonably necessary for a Phase I environmental site assessment of the
Real Property. The cost of the Phase Is shall be shared equally between Buyer
and Seller, and shall be conducted during the thirty (30) day period following
execution of this Agreement. If the Phase Is identify environmental conditions
that Buyer reasonably believes requires additional environmental assessments and
such additional environmental site assessments cannot be completed prior to
Closing, then Buyer may elect to not purchase such parcels of Real Property
which Buyer believes require the additional assessments (such parcels which
Buyer elects not to purchase referred to herein as the "Retained Real
Property"), but to instead enter into a 99 year ground lease (the "Ground
Lease") at $1.00 per year and the cost of real property taxes paid by Seller
during the term of the Ground Leases. Such Ground Leases shall be in the form
attached hereto as Exhibit B. If Buyer makes such election, Seller will enter
into such Ground Leases at the Closing and will cooperate with Buyer after the
Closing to cause the additional site assessments to be conducted, the cost to be
shared equally by Buyer and Seller. Buyer will then have the option at any time
during the term of the Ground Leases to acquire the Retained Real Property at
the purchase price of $1.00 per parcel on the same terms and conditions set
forth herein with respect to the Real Property.
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ARTICLE 3
ASSETS PURCHASED AND LIABILITIES ASSUMED
3.1 Agreement to Purchase and Sell Assets. Subject to the terms and
conditions of this Agreement, Seller hereby agrees to grant, sell, assign,
transfer, convey and deliver all of its right, title and interest in and to the
Assets, free and clear of any Lien (except for Permitted Liens), and Buyer
hereby agrees to buy and acquire the Assets from Seller, and to assume the
Assumed Liabilities upon the terms and conditions set forth in this Agreement.
3.2 The "Assets" are the following assets of Seller:
(a) All of the outdoor advertising structures and displays, bus
shelters, related bus shelter advertising panels and any other
out-of-home advertising structures used in Seller's Business,
including, without limitation, those set forth and described on
Schedule 3.2(a) attached hereto, together with all components,
fixtures, parts, appurtenances and equipment attached to or made a part
thereof (collectively, the "Structures");
(b) Except for Easements and Bus Shelter Agreements, all leases,
licenses, other rights of ingress or egress (not described on Schedule
3.2(j)) and all other grants of the right to place, construct, own,
operate, and/or maintain (i) the Structures and (ii) any other
out-of-home advertising structures to be constructed, and all rights
therein, used in Seller's Business, including, without limitation,
those described on Schedule 3.2(b) and those leases entered into upon
the sale of the Real Property under Contract (collectively, the
"Leases");
(c) All easements and similar grants of the right to place,
construct, own, operate and/or maintain (i) the Structures and (ii) any
other out-of-home advertising structures to be constructed, and all
rights therein, used in Seller's Business, including, without
limitation, those described on Schedule 3.2(c) (collectively, the
"Easements");
(d) All municipal agreements for the placement and operation of
bus shelters and related bus shelter advertising panels on public
rights-of-way, used in Seller's Business including, without limitation,
those described on Schedule 3.2(d) (collectively, the "Bus Shelter
Agreements");
(e) Except as set forth in Section 2.4, (i) all real property
owned by Seller and upon which any Structure is located (ii) and all
other real property, including, without limitation, the real property
upon which Seller's two Florida offices are located; and any and all
improvements, fixtures, privileges, and appurtenances pertaining
thereto, including, without limitation, those described on Schedule
3.2(e) provided, however, that if any of the parcels identified on
Schedule 2.2 (b)(ii) are sold prior to the Closing, such parcels shall
be excluded (the "Real Property");
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(f) All rights under advertising contracts, contracts for
telecommunications equipment and barter/trade contracts and
arrangements existing on the Closing Date, associated with the
Structures and used in Seller's Business, including, without
limitation, those described and depicted on Schedule 3.2(d) and all
rights of Seller to the advertising copy displayed on the Structures as
of the Closing Date (collectively, the "Advertising Contracts");
(g) All state and local licenses and permits/tags which Seller has
with respect to the Structures and all other Governmental
Authorizations that Seller has with respect to the operation of the
Structures and used in Seller's Business, including, without
limitation, those described on Schedule 3.2(g) (collectively, the
"Permits");
(h) All prepaid expenses of Seller as of the Closing Date relating
to the Assets, subject to proration at Closing pursuant to Section
2.2(a);
(i) Any Intangible Property used in connection with the Assets and
not otherwise described in this Section 3.2;
(j) Any contracts listed on Schedule 3.2(j), including those
ground leases relating to the Real Property and sale contracts for the
Real Property under Contract that is not sold prior to Closing and is
acquired by Buyer pursuant to 3.2(e) (the "Assumed Contracts");
(k) To the extent assignable, all rights (including any benefits
arising therefrom), causes of action, choses of action, claims and
demands of whatever nature (whether or not liquidated) of Seller
relating to the Assets, including, without limitation, condemnation
rights and proceeds, and all rights against suppliers under warranties
covering any of the Assets;
(l) all unbuilt Structure related inventory, construction in
progress and related materials including, without limitation, those
described on Schedule 3.2(l);
(m) all inventory, supplies, and materials held for use by Seller,
including, without limitation, those assets listed on Schedule 3.2(m);
(n) all trucks, automobiles, other vehicles and equipment and
related leases, as listed on Schedule 3.2(n);
(o) all furniture, office equipment and furnishings, as listed or
described on Schedule 3.2(o); and
(p) All Books and Records relating to the Assets.
3.3 Excluded Assets. Notwithstanding the foregoing, the Assets shall
not include any Benefit Plans, rights in and to the Trade Names of Seller,
income tax returns and related income tax
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records, all other corporate records necessary to the continuation of Seller as
an active business entity and necessary to enable Seller to prepare tax returns,
maintain its accounting systems and prepare financial reports (collectively, the
"Excluded Assets"). For a period of three years following the Closing Date,
Buyer shall have reasonable access during normal business hours to the foregoing
tax, accounting and financial records that relate to the period prior to the
Closing Date and shall have the right to copy such records as Buyer may deem
necessary.
3.4 Assumption of Liabilities. At the Closing, pursuant to the Bill of
Sale, Buyer shall assume and agree to perform, pay or discharge, when due, only
the obligations, commitments and liabilities of Seller that relate to the Assets
and only to the extent such obligations, commitments, and liabilities accrue in
the Ordinary Course of Business, and are attributable to events occurring for
periods arising subsequent to the Closing Date (the "Assumed Liabilities").
3.5 Excluded Liabilities. All claims against and liabilities and
obligations of Seller, not specifically assumed by Buyer pursuant to Section
3.4, including, without limitation, the following claims against and liabilities
of Seller (the "Excluded Liabilities"), are excluded, and shall not be assumed
or discharged by Buyer:
(a) Any liabilities to the extent not related to the Assets;
(b) Any liability of Seller for Taxes;
(c) Any liabilities for or related to indebtedness of Seller to
any banks, financial institutions, or other Persons;
(d) Any liabilities of Seller or its Affiliates for or with
respect to any employees of Seller, including, without limitation, any
liabilities pursuant to any Benefit Plan or any other compensation,
collective bargaining, pension, retirement, severance or termination
plan, agreement, or arrangement;
(e) Any liabilities or obligations of Seller under any Contracts
that are not included within the Assets; and
(f) Any other liabilities for which satisfaction was due prior to
the Closing.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as otherwise described in the Disclosure Schedule attached
hereto as Schedule 4 or otherwise set forth below, Seller represents and
warrants to Buyer as follows:
4.1 Organization and Qualification. Seller is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with full power and authority to own
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and/or use the Assets, to carry on Seller's Business as such business is
currently being conducted, and to perform all its obligations with respect
thereto. Seller is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where it is required to be so
qualified.
4.2 Authority Relative to this Agreement. Seller has the full corporate
right, power and authority to execute and deliver this Agreement and the Closing
Documents and to consummate the transactions and to discharge its obligations
contemplated by this Agreement and the Closing Documents. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly and validly
authorized by the unanimous consent of the directors and shareholders of Seller.
4.3 Agreement Binding. This Agreement has been duly and validly
executed and delivered by Seller, constitutes a legal, valid and binding
obligation of Seller enforceable against it in accordance with its terms, except
as enforcement may be limited by applicable bankruptcy, insolvency or similar
laws affecting the rights of creditors generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity). Upon the execution and delivery by Seller of
any agreements and documents to be executed at Closing pursuant to this
Agreement (collectively, the "Closing Documents"), and assuming due and valid
execution and delivery by Buyer, such Closing Documents will constitute legal,
valid and binding obligations of Seller enforceable against it in accordance
with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency or similar laws affecting the rights of creditors generally, and
subject to general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity).
4.4 Business Since October 1, 1999. Since October 1, 1999, and through
the Closing Date:
(a) Seller's Business has been and will be conducted in the
Ordinary Course of Business;
(b) no Proceeding was commenced or remains pending, nor to the
best knowledge of Seller, is threatened or proposed, to condemn or take
by eminent domain or other governmental action any Asset;
(c) no Asset being sold pursuant to this Agreement has been
removed or is subject to any type of written demand or request for
removal;
(d) Seller has not subjected any of the Assets to a Lien; Seller
has not incurred liabilities affecting any of the Assets or Seller's
Business, except in the Ordinary Course of Business;
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(e) except as contemplated by this Agreement, Seller has not sold
or transferred, or agreed to sell or transfer at some future date, or
granted an option to any party to acquire, any Asset;
(f) there has been no material adverse effect on any of the Assets
or Seller's Business;
(g) neither inventory nor supplies have materially decreased in
quantity or quality from the levels generally maintained prior to
October 1, 1999; and
(h) Seller has not changed in any material respect its practices
with respect to the payment or other discharge of debts or other
obligations incurred in the Ordinary Course of Business.
4.5 No Defaults. The execution, delivery and performance of this
Agreement by Seller will not:
(a) conflict with, violate or result in any breach of any
provision of the Organizational Documents of Seller;
(b) except for a default, termination or cancellation of a Lease
caused by Seller's failure to obtain a consent to assignment to Buyer
with respect to those Leases requiring such consent, result in a
default (or give rise to any right of termination, modification,
cancellation or acceleration) under, or conflict with, any of the
terms, conditions or provisions of any Contract to which Seller is a
party or by which the Assets may be bound, which default, termination,
modification, cancellation, acceleration or conflict would have a
material adverse effect on any of the Assets or Seller's Business;
(c) except for a conflict with or violation of a Permit caused by
Seller's assignment of the Permits to Buyer, conflict with or violate
any Legal Requirement applicable to Seller, any of the Assets or
Seller's Business, which violation would have a material adverse effect
on any of the Assets or Seller's Business;
(d) except for a conflict with or violation of a Permit caused by
Seller's assignment of the Permits to Buyer, conflict with or violate
any Governmental Authorization held by Seller or that otherwise relates
to Seller's Business or the Assets; or
(e) result in the creation or imposition of any Lien on any of the
Assets.
4.6 Undisclosed Liabilities. Except as disclosed on the Financial
Statements, Seller does not have any obligations or liabilities of any kind
relating to the Assets, whether known or unknown, absolute or contingent, in an
aggregate amount exceeding Twenty-Five Thousand Dollars ($25,000.00).
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4.7 Licenses and Authorizations. The Permits constitute all licenses,
permits, registrations and approvals necessary to operate the Assets. Seller is
in material compliance with the terms of the Permits. Seller is not aware of any
fact or event which constitutes a material violation of any Permit. Seller has
not received written notice that any Governmental Body issuing any Permit
intends to cancel, terminate, modify, or amend any Permit. All such Permits are
in full force and effect.
4.8 Contracts and Arrangements.
(a) Seller has furnished or made available to Buyer true and
complete copies of all of the following documents to which a Seller is
a party or is bound:
(i) Advertising Contracts;
(ii) Permits;
(iii) Assumed Contracts;
(iv) Leases;
(v) Easements; and
(vi) Bus Shelter Agreements.
(b) Each of the foregoing interests to be transferred to and
assumed by Buyer on the Closing Date is valid and in full force and
effect, and on the Closing Date shall be free and clear of all Liens.
(c) With respect to all of the interests described in this
Section, no material default by Seller has occurred, or to Seller's
knowledge, by any of the other parties to such obligations; no fact or
circumstance exists which, with or without the passage of time or
giving of notice or the happening of any further event or condition,
would constitute a material default, or would entitle any other party
to terminate any such interests, to make a claim or set-off against
Seller or otherwise to amend such interest or prevent such interest
from being renewed in accordance with its terms; and Seller has not
received any written notice of default, termination, or nonrenewal
under any such interests. All sales made to advertisers in connection
with the Structures have been made pursuant to Advertising Contracts.
(d) With respect to Seller's Business, Seller is not a party to
any:
(i) Contract not made in the Ordinary Course of Business;
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(ii) Contract of employment (other than contracts of
employment at will) or severance agreement with any
employee;
(iii) Contract for the future purchase of materials, supplies,
services, merchandise or equipment in excess of normal
operating requirements;
(iv) Contract for the sale or lease of any of its Assets;
(v) Contract or commitment for capital expenditures in
excess of $10,000; or
(vi) Contract with a labor union or labor association.
4.9 Title. Seller owns and has good and valid title to all of the
Assets, and Seller shall transfer such title to Buyer on the Closing Date, free
and clear of all Liens, except for the Permitted Liens.
4.10 Intangibles. Seller uses no Intangible Property in connection with
the operation of the Assets and Seller's Business except for the Permits, the
Books and Records, certain trade names and licenses for commonly available
software programs under which Seller is the licensee.
4.11 Nature of Assets. Except for the Excluded Assets, the Assets being
acquired by Buyer pursuant to this Agreement include all of the real and
personal property, tangible and intangible, of the Seller used or to be used in
Seller's Business.
4.12 Litigation and Compliance with Laws.
(a) Seller has not been operating under or subject to, or in
default with respect to, any Order;
(b) no Proceeding by or before any Governmental Body related to
any of the Assets, Seller or Seller's Business is pending or, to
Seller's knowledge, threatened;
(c) Seller is in material compliance with all Legal Requirements
applicable to any of the Assets and Seller's Business, including,
without limitation, zoning and land use laws and regulations, and has
filed all required reports and notifications with all Governmental
Bodies, except for noncompliances or failures to file that would not
have a material adverse effect on any of the Assets or Seller's
Business; the present use of the Assets does not materially violate or
fail to comply with any such Legal Requirements, except for
non-compliances or failures to file that could not have a material
adverse effect on any of the Assets or Seller's Business.
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4.13 Taxes. Seller has timely filed, or caused to be filed timely (or
has timely obtained the appropriate extensions for), all Tax Returns required to
be filed by Seller. Seller has timely paid:
(a) all Taxes due for the periods covered by such Tax Returns,
except such accrued and unpaid taxes; and
(b) all deficiencies (including interest and any penalties)
assessed as a result of any examination of such Tax Returns.
4.14 Brokers. No broker or finder or other person has a valid claim
against Buyer for a commission or brokerage fee in connection with this
Agreement or the transaction contemplated hereby as a result of any agreement,
understanding or action by Seller or any of its Representatives.
4.15 Environmental and Similar Laws. Except as disclosed in any Phase
Is and Phase IIs prepared pursuant to Section 2.4:
(a) The present use of the Assets and conduct of Seller's Business
does not violate any Environmental Laws, the effect of which violation
could have a material adverse effect on Seller's Business or any of the
Assets or Buyer's use thereof, or could impose any material liability
on Buyer.
(b) No Release of Hazardous Materials has occurred in connection
with any of the Assets or Seller's Business, or is presently occurring,
in excess of permitted levels under any applicable Environmental Law,
the effect of which could have a material adverse effect on Seller's
Business or any of the Assets or Buyer's use thereof, or could impose
any material liability on Buyer.
(c) None of the Assets or Seller's Business has been operated
under or subject to, or is in default with respect to, any Order of any
Governmental Body with respect to any applicable Environmental Law.
(d) Seller has not received notice that any of Seller's Business
or any of the Assets is the subject of any review or Proceeding by any
Governmental Body with respect to compliance with any applicable
Environmental Law.
(e) Seller has not received any notice from any Governmental Body
or private or public entity advising it that it is or may be
responsible for response costs with respect to a Release, a threatened
Release or clean up of Hazardous Materials produced by, or resulting
from, Seller's Business or the Assets.
(f) Seller has delivered to Buyer true and complete copies and
results of any reports, studies, analysis, tests, or monitoring, if
any, possessed by Seller pertaining to the
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Real Property and properties underlying the Structures and any
Hazardous Material in, on, or under any such Real Property and
properties underlying the Structures.
4.16 Insurance. Seller has maintained and will maintain through the
Closing Date policies of fire and other casualty, liability, title and other
forms of insurance covering the Assets and Seller's Business of the types and
with the amounts of coverage as are customarily maintained by companies with
outdoor advertising businesses comparable to Seller's Business. All such
policies are in full force and effect; all premiums with respect thereto
currently due have been paid; and no notice of cancellation or termination has
been received by Seller with respect to any such policy. Schedule 4.16 contains
a list of all claims related to the Assets and/or Seller's Business which have
been made, or threatened in writing, since December 31, 1997, or are still
pending from a prior period under any insurance policy applicable to the
Seller's Business. Such claim information includes the following information
with respect to each accident, loss, or other event: (i) the identity of the
claimant, (ii) the date of the occurrence, (iii) the status as of the report
date, and (iv) the amounts paid or recovered.
4.17 Employee Benefit Matters. All Benefit Plans are listed on Schedule
4.17. True and complete copies of all Benefit Plans have been provided or made
available to Buyer. All Benefit Plans are in substantial compliance with ERISA,
the IRC, and all other applicable law. Except as set forth on Schedule 4.17,
Seller does not maintain and has never maintained any Benefit Plan which is
intended to be qualified under Section 401(a) of the IRC and has never provided
retirement, termination, life or severance benefits to any of its Employees (or
ever represented or promised such benefits). All contributions required to be
made under the terms of any Benefit Plan have been timely made or have been
reflected on the Financial Statements. The consummation of the transactions
contemplated by this Agreement will not entitle any Employees to severance pay
or accelerate or otherwise trigger a material obligation pursuant to any of the
Benefit Plans or result in any breach or violation of, or a default under, any
of the Benefit Plans. Each Benefit Plan which is an "employee pension benefit
plan" within the meaning of Section 3(2) of ERISA and which is intended to be
qualified under Section 401(a) of the IRC has received a favorable determination
letter from the Internal Revenue Service and Seller is not aware of any
circumstances likely to result in revocation of any such favorable determination
letter.
4.18 Relationships with Affiliates. (a) Seller is not a party to any
contract with any shareholder of Seller or any Affiliate of Seller or any of its
shareholders relating to the Assets or Seller's Business; and (b) neither Seller
nor any of its shareholders nor any Affiliate of Seller or any such shareholder
is the owner (of record or as a beneficial owner) of an equity interest or any
other financial or profit interest in, a Person (other than Seller) that has
business dealings or a material financial interest in any transaction with
Seller involving the Assets or the Seller's Business.
4.19 Solvency. By consummating the transactions contemplated hereby,
Seller does not intend to hinder, delay, or defraud any of Seller's present or
future creditors. Before giving effect to the transactions contemplated hereby,
Seller has been paying its debts as they become due in the Ordinary Course of
Business and, after giving effect to the transactions contemplated hereby,
Seller
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expects to have the means to and intends to pay or discharge all of its debts
(or make adequate provisions for the payment thereof).
4.20 Books and Records. To the extent in the possession or control of
Seller, the Books and Records of Seller maintained in connection with the Assets
have been made available to Buyer for inspection and are correct in all material
respects and have been maintained in accordance with sound business practices.
4.21 Structures. Seller owns all of the Structures and each Structure
is located entirely on either property covered by a Lease or Real Property, and
each Structure (i) complies in all material respects with the terms of the
Permits pertaining to it and (ii) is in condition to accept faces and in
adequate condition and repair for its current use.
4.22 Completeness; Schedules. All representations and warranties made
by Seller in this Agreement, in all certificates delivered pursuant hereto, and
in all exhibits and schedules attached hereto are, and as of the Closing Date
shall be, true, accurate and complete in all material respects. All of the
information set forth on the Schedules attached hereto (whether or not expressly
referred to in this Agreement) is true, accurate and complete in all material
respects.
4.23 Financial Statements. Seller has furnished Buyer its unaudited
financial statements (consisting of a balance sheet, income statement and profit
and loss statement), as of and for the fiscal years ended December 31, 1996,
1997 and 1998 (the "Annual Financial Statements"). Seller also has furnished
Buyer its unaudited financial statements (consisting of balance sheet, income
statement and profit and loss statement), as of and for the period from January
1, 1999, through September 30, 1999 (together with all financial statements
delivered pursuant to Section 6.9 below, the "Interim Financial Statements").
The Annual Financial Statements and the Interim Financial Statements, available
on the date of this Agreement (collectively, the "Financial Statements") are
attached hereto as Schedules 4.23(a) and 4.23(b), respectively, and have been
prepared in accordance with generally accepted accounting principles
consistently applied ("GAAP"). The Financial Statements present fairly the
financial condition of Seller as of the dates thereof and for the periods
covered thereby, subject to the absence of footnotes, which absence does not
render the Financial Statements materially inaccurate or incomplete, and with
respect to the Interim Financial Statements, subject to year-end adjustments.
4.24 Bus Shelter Compliance. The bus shelters transferred to Buyer
hereunder are in compliance with all state and local electrical codes.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
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5.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
5.2 Authority Relative to this Agreement. Buyer has the full corporate
right, power, and authority to execute and deliver this Agreement and the
Closing Documents and to consummate the transaction and to discharge Buyer's
obligations contemplated by this Agreement and the Closing Documents. The
execution, delivery and performance of this Agreement and the consummation of
the transaction contemplated by this Agreement have been duly and validly
authorized by all necessary corporate and shareholder action on the part of
Buyer.
5.3 Agreement Binding. This Agreement has been duly and validly
executed and delivered by Buyer, and assuming due and valid execution and
delivery by Seller, constitutes a legal, valid and binding obligation of Buyer
enforceable against Buyer in accordance with its terms, except as enforcement
may be limited by applicable bankruptcy, insolvency or similar laws affecting
the rights of creditors generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity). Upon the execution and delivery by Buyer of and assuming due and valid
execution and delivery by Seller, such Closing Documents will constitute legal,
valid and binding obligations of Buyer enforceable against it in accordance with
its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency or similar laws affecting the rights of creditors generally, and
subject to general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity).
5.4 No Defaults. The execution, delivery and performance of this
Agreement by Buyer shall not (a) materially conflict with, violate or result in
any breach of any provision of the Organizational Documents of Buyer; (b)
require the consent of Buyer's financing source; or (c) violate any Legal
Requirement applicable to Buyer.
5.5 Brokers. No broker or finder or other person has a valid claim
against Seller for a commission or brokerage fee in connection with this
Agreement or the transaction contemplated hereby as a result of any agreement,
understanding or action by Buyer.
5.6 Buyer's Funding Source. Buyer's obligations to consummate the
transaction contemplated by this Agreement are not subject to or conditioned
upon obtaining financing, and Buyer has sufficient funds or resources to pay in
full the Purchase Price.
5.7 Certain Proceedings. There is no Proceeding pending against Buyer
that challenges, or may have the effect of preventing, making illegal, or
otherwise interfering with, any of the transactions contemplated hereunder. To
Buyer's knowledge, no such Proceeding has been threatened in writing and no
event has occurred or circumstance exist that may give rise to or serve as a
basis for the commencement of any such Proceeding.
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ARTICLE 6
COVENANTS OF SELLER PENDING THE CLOSING
Seller covenants and agrees that from the date hereof through the
Closing Date:
6.1 Maintenance of Business. Seller shall continue to carry on Seller's
Business, maintain its Structures, and keep its Books and Records in
substantially the same manner as heretofore in the Ordinary Course of Business.
Without the prior written consent of Buyer, with respect to the Assets and
Seller's Business, Seller shall not:
(a) dispose of any real or personal property that constitutes the
Assets;
(b) enter into, modify or terminate any Permit, Assumed Contract,
Lease, Easement, Bus Shelter Agreement, Advertising Contract or other
commitment, incur any liability, absolute or contingent, waive any
right or enter into any other transaction, other than in the Ordinary
Course of Business; and provided that no new Advertising Contract or
modification or extension of an existing Advertising Contract obligates
Seller's Business for a period longer than one year;
(c) voluntarily incur any obligations or liability, except
obligations and liabilities incurred in the Ordinary Course of
Business;
(d) enter into any employment or severance agreement with, or
become liable under any new or modified bonus, profit-sharing,
incentive payment, or benefit plan; except that Seller shall be free,
without in any way obligating Buyer, to enter into such severance or
other arrangements it deems appropriate with employees of Seller not
retained by Buyer;
(e) encumber any Asset with a Lien or other encumbrance;
(f) make any material changes in its customary method of
operations, including its accounts payable payment practices, marketing
and pricing policies, and maintenance of business premises, fixtures,
furniture and equipment;
(g) enter into any collective bargaining or other labor agreement;
or
(h) enter into any of the Contracts described in Section 4.8(d)
above.
6.2 Organization and Goodwill. Seller shall preserve its business
organization intact and preserve the goodwill of its suppliers, landlords and
customers and of those advertising agencies and brokers with whom it customarily
does business.
6.3 Access and Investigation. Between the date of this Agreement and
the Closing Date, Seller will, and will cause its Representatives to, afford
Buyer and its Representatives reasonable
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access during normal business hours to Seller's Chief Financial Officer,
properties, including Real Property, Books and Records, and such additional
financial, operating and other data and documents relating to the Assets and
Seller's Business to allow Buyer and its Representatives to conduct its due
diligence and other investigations, and furnish Buyer and its Representatives
with copies of the same.
6.4 Confidentiality. Seller shall not disclose to third parties, other
than on a confidential basis to its employees, lenders, accountants or
attorneys, the specific terms of this Agreement, except as required by law. Any
proposed publicity concerning the transaction contemplated by this Agreement
shall be approved in advance by both Buyer and Seller.
6.5 Representations and Warranties. Seller shall use all reasonable
efforts to insure the accuracy as of the Closing Date of all the representations
and warranties made by Seller in this Agreement.
6.6 Notice of Proceedings. Seller shall promptly notify Buyer upon
becoming aware of any Order or receiving any complaint requesting an Order
restraining or enjoining the consummation of this Agreement or the transaction
to be contemplated hereunder, or upon receiving any notice from any Governmental
Body, of its intention to institute a Proceeding to restrain or enjoin the
enforceability of this Agreement or the consummation of the transactions
contemplated hereby, or to nullify or render ineffective this Agreement or such
transaction if consummated.
6.7 Bulk Sales Indemnity. As an inducement to Buyer to waive compliance
with the provisions of any applicable bulk transfer laws, Seller covenants that
all debts, obligations and liabilities of Seller not expressly assumed or agreed
to be paid by Buyer under this Agreement shall be paid and discharged promptly
by Seller as they become due and payable.
6.8 Non-Competition Agreement. Seller shall and shall cause its parent,
The Ackerley Group, Inc. and Barry Ackerley to enter into a non-competition
agreement substantially in the form of Exhibit C hereto.
6.9 Additional Financial Statements. Seller shall deliver to Buyer all
of its financial statements promptly after the close of each month, quarter and
year of Seller's Business, commencing with the month of October 1, 1999, in
substantially the same form as the Interim Financial Statements attached.
6.10 Required Approvals and Consents. As promptly as practicable after
the date of this Agreement, Seller will make all filings required by Legal
Requirements to be made by it in order to consummate the transactions hereunder
and use its reasonable best efforts to obtain those consents identified in
Schedule 6.10 hereof, and any other consents (governmental or private) requested
by Buyer, which are required to transfer to Buyer of any of the Assets;
provided, however, that Seller shall not make any agreement or reach any
understanding that would impose additional obligations or burdens on Buyer
without the prior written approval of Buyer.
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6.11 Consummation of Agreement. Seller shall use its reasonable best
efforts to perform and fulfill all conditions and obligations on its part to be
performed and fulfilled under this Agreement, to the end that the transactions
contemplated by this Agreement shall be fully carried out.
6.12 Expenses. Seller shall pay all of its expenses incurred in
connection with the transaction contemplated by this Agreement, including but
not limited to all accounting and legal fees.
6.13 Employment Matters. Buyer may offer employment to any Employee of
Seller who is available for work on the Closing Date, as determined by Buyer in
its sole discretion. Any such offer shall be for employment at will by Buyer as
a new employee of Buyer to occupy positions designated by Buyer and pursuant to
the terms and conditions determined by Buyer in its sole discretion. Seller
agrees to make available to Buyer, to the fullest extent permitted by law, all
information and materials requested by Buyer from the personnel files of each
Employee of Seller who shall have elected to accept employment with Buyer. Buyer
assumes no obligation to continue or assume any compensation arrangements or
liabilities of Seller (including, without limitation, any salary, bonuses,
fringe benefits, insurance plans, or other benefits under any Benefit Plan
maintained by Seller, or its Affiliates) to any such Employee. Seller shall
retain the responsibility for payment of all medical, dental, health and
disability claims incurred by any Employee prior to the Closing Date, and Eller
shall not assume any liability with respect to such claims. Seller also agrees
to retain responsibility for disability payments to Employees on medical or
disability leave at the Closing Date until such time as such Employee is offered
employment by Buyer, in its sole discretion, or as otherwise required under
applicable law or regulation. Seller shall make such severance arrangements as
it deems appropriate, without any liability to Buyer, with any Employees not
hired by Buyer.
6.14 Supplemental Disclosure. Prior to the Closing Date, Seller shall
provide information in writing to Buyer with respect to any matter hereafter
arising or discovered which, if existing or known at the date of this Agreement,
would have been required to be set forth in a Schedule to, or representation or
warranty set forth in, this Agreement; provided that no such information shall
constitute an amendment of such Schedule or of any statement, representation or
warranty in this Agreement unless consented to in writing by Buyer.
6.15 Notification.Between the date of this Agreement and the Closing
Date, Seller will promptly notify Buyer in writing if Seller becomes aware of
any fact or condition that causes or constitutes a material breach of any of
Seller's representations and warranties as of the date of this Agreement, or if
Seller becomes aware of the occurrence after the date of this Agreement of any
fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a material breach of any such representations or
warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition. During the same period,
Seller will promptly notify Buyer of the occurrence of any material breach of
any covenant of Seller in this Article 6 or the occurrence of any event that may
make the satisfaction of the conditions in Article 8 impossible or unlikely.
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6.16 No Negotiation. Until such time, if any, as this Agreement is
terminated pursuant to Section 11.1, neither Seller nor any Affiliate will, nor
will it permit its Representatives to, directly or indirectly solicit, initiate,
or encourage any inquiries or proposals from, discuss or negotiate with, provide
any non-public information to, or consider the merits of any unsolicited
inquiries or proposals from, any Person (other than Buyer or its
Representatives) relating to or affecting any transaction involving the sale of
the Assets, or Seller's Business or any stock of Seller.
6.17 Tax Clearance. Seller shall use its reasonable best efforts to
obtain all certificates of clearance for Taxes ("Tax Clearances"), if any,
provided or required by the State of Florida and applicable local jurisdictions
certifying as to the payment by or on behalf of Seller of all Taxes due on or
prior to a date not more than thirty (30) days prior to the Closing Date.
6.18 Bus Shelters. Seller shall be responsible for the costs necessary
to have any bus shelters comply with applicable electrical codes.
6.19 Management Agreements. At the Closing, Seller shall enter into a
Management Agreement for each Structure location deemed necessary by Buyer, as
determined in its sole discretion.
ARTICLE 7
COVENANTS OF BUYER PENDING THE CLOSING
Buyer covenants and agrees that from the date hereof through the
Closing Date:
7.1 Representations and Warranties. Buyer shall use all reasonable
efforts to insure the accuracy as of the Closing Date of all representations and
warranties made by Buyer in this Agreement.
7.2 Notice of Proceedings. Buyer shall promptly notify Seller upon
becoming aware of any Order or any complaint requesting an Order restraining or
enjoining the consummation of this Agreement or the transaction to be
contemplated hereunder, or upon receiving any notice from any Governmental Body,
of its intention to institute a Proceeding to restrain or enjoin the
enforceability of this Agreement or the consummation of the transaction
contemplated hereby, or to nullify or render ineffective this Agreement or such
transaction if consummated.
7.3 Confidentiality. Buyer shall not disclose to third parties, other
than on a confidential basis to its employees, lenders, accountants or
attorneys, the specific terms of this Agreement, except as required by law. Any
proposed publicity concerning the transaction contemplated by this Agreement
shall be approved in advance by both Seller and Buyer.
7.4 Consummation of Agreement. Buyer shall use its reasonable best
efforts to perform and fulfill all conditions and obligations on its part to be
performed and fulfilled under this Agreement, to the end that the transactions
contemplated by this Agreement shall be fully carried
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out; provided that this Agreement will not require Buyer to dispose of or make
any change in any portion of its business or Seller's Business or to incur any
other material burden to obtain a Governmental Authorization, if such disposal,
change or burden would have a material adverse effect on any of the Assets,
Seller's Business, Buyer's use thereof, or Buyer's business.
7.5 Expenses. Buyer shall pay all of its expenses incurred in
connection with the transaction contemplated by this Agreement, including but
not limited to all accounting and legal fees.
7.6 Required Approvals. As promptly as practicable after the date of
this Agreement, Buyer will make all filings required by Legal Requirements to be
made by it to consummate the transactions contemplated hereunder.
7.7 Notification. Between the date of this Agreement and the Closing
Date, Buyer will promptly notify Seller in writing if Buyer becomes aware of any
fact or condition that causes or constitutes a breach of any of Buyer's
representations and warranties as of the date of this Agreement, or if Buyer
becomes aware of the occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a breach of any such representations or warranty had such
representation or warranty been made as of the time of occurrence or discovery
of such fact or condition. During the same period, Buyer will promptly notify
Seller of the occurrence of any breach of any covenant of Buyer in this Article
7 or of the occurrence of any event that may make the satisfaction of the
conditions in Article 9 impossible or unlikely.
ARTICLE 8
CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are subject to the
fulfillment of the following conditions prior to or on the Closing Date:
8.1 Representations, Warranties, Covenants.
(a) All representations and warranties of Buyer contained in this
Agreement and in any statement, certificate, or other document
delivered by Buyer pursuant to this Agreement shall be true, accurate
and complete in all material respects;
(b) As of the Closing Date, with the same force and effect as
though such representations and warranties had been made on, as of and
with reference to such date, Buyer shall have substantially performed
and complied in all material respects with each and every covenant and
agreement required by this Agreement to be performed or complied with
by it prior to or on the Closing Date; and
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(c) Buyer shall have delivered to Seller a certificate of Buyer's
Chief Executive Officer, dated as of the Closing Date, certifying to
the fulfillment of the conditions set forth in subsections (a) and (b)
of this Section 8.1.
8.2 Proceedings. No Proceeding shall have been instituted or threatened
against any of the parties to this Agreement, before any Governmental Body, to
restrain or prohibit, or to obtain substantial damages in respect of, this
Agreement or the consummation of the transaction contemplated hereby. There
shall have occurred the expiration or early termination of the waiting period
required by the HSR Act and there shall not be in effect any Legal Requirement
or any injunction or other order that prohibits or restricts the consummation of
the transaction contemplated hereby.
8.3 Receipt of Funds and Documents. Seller shall have received on the
Closing Date:
(a) immediately available funds in the full amount of the Purchase
Price, with adjustments for prorations as set forth in Section 2.2;
(b) Eller's signature on the Bill of Sale;
(c) Eller's signature on the Management Agreements, if any; and
(d) board resolutions of Buyer, certified by Buyer's Secretary in
form and substance reasonably acceptable to Seller, authorizing this
Agreement and the consummation of the transaction contemplated hereby.
8.4 Opinion of Counsel. Seller shall have received an opinion of
Buyer's Senior Corporate Counsel, on behalf of Buyer, in form and substance as
attached hereto as Exhibit D.
ARTICLE 9
CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement are subject to
fulfillment of the following conditions prior to or on the Closing Date (any of
which may be waived by Buyer, in whole or in part):
9.1 Representations, Warranties, Covenants.
(a) All representations and warranties of Seller contained in this
Agreement and in any statement, deed, bill of sale, certificate,
schedule or other document delivered by Seller pursuant to this
Agreement shall be true, accurate and complete in all material respects
as of the Closing Date, with the same force and effect as though such
representations and warranties had been made on, as of and with
reference to such date;
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(b) Seller shall have substantially performed and complied in all
material respects with each and every covenant and agreement required
by this Agreement to be performed or complied with by it prior to or on
the Closing Date;
(c) Seller shall have delivered to Buyer a certificate of Seller's
Chief Financial Officer, dated as of the Closing Date, certifying to
the fulfillment of the conditions set forth in subsections (a) and (b)
of this Section 9.1.
9.2 Proceedings. No Proceeding shall been instituted against any of the
parties to this Agreement, before any Governmental Body, to restrain or
prohibit, or to obtain substantial damages in respect of, this Agreement or the
consummation of the transaction contemplated hereby. There shall have occurred
the expiration or early termination of the waiting period required by the HSR
Act and there shall not be in effect any Legal Requirement or any injunction or
other order that prohibits or restricts the consummation of the transaction
contemplated hereby.
9.3 Opinion of Counsel. Buyer shall have received an opinion of RUBIN,
WINSTON, DIERCKS, HARRIS & COOKE, L.L.P., counsel for Seller, dated the Closing
Date, in form and substance as attached hereto as Exhibit E.
9.4 No Adverse Change. No material adverse change in Seller's Business
or any of the Assets shall have occurred since the date of this Agreement.
9.5 Receipt of Documents. Buyer shall have received on the Closing
Date:
(a) reasonably satisfactory evidence of the unconditional release
of the Liens of any third party on the Assets effective upon the third
parties' receipt of the amount which Seller and the third party direct
Buyer to wire to the third party from the Purchase Price;
(b) standard owner's policies of title insurance in the amounts
set forth on Schedule 9.5 (b) (title policy premiums to be paid by
Seller at Closing), insuring title to the Easements and the Real
Property in Buyer's name, free and clear of all Liens, except for
Permitted Liens;
(c) A.L.T.A. surveys of the Real Property set forth on Schedule
9.5(c) such surveys to be paid for by Seller;
(d) Bill of Sale executed by Seller;
(e) warranty deeds executed by Seller conveying the Real Property
to Buyer warranting title as set forth in Section 4.9;
(f) Phase I environmental assessments on the Real Property
pursuant to Section 2.4;
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(g) certificates of title for all owned motor vehicles included in
the Assets, duly endorsed for transfer to Buyer;
(h) board and shareholder resolutions of Seller, certified by
Seller's Secretary in form and substance reasonably acceptable to
Buyer, authorizing this Agreement and the consummation of the
transaction contemplated hereby;
(i) the non-competition agreement as set forth in Section 6.8;
(j) the Management Agreement, executed by Seller; and
(k) the Ground Leases executed by Seller.
ARTICLE 10
REMEDIES AND INDEMNIFICATION
10.1 Survival. The representations, warranties, covenants and
agreements of Seller and the representation, warranties, covenants and
agreements of Buyer contained in or made pursuant to this Agreement shall be
deemed to have been made on the Closing Date and shall survive the Closing
subject to Sections 10.2 and 10.3 below.
10.2 Indemnification of Buyer. Subject to the limitations contained
herein, Seller shall indemnify and hold Buyer and its stockholders, controlling
Persons and Affiliates (collectively, the "Seller Indemnified Persons") harmless
from and against any and all damages, claims, losses, expenses, costs,
obligations and liabilities, including without limitation liabilities for
reasonable attorneys' fees and disbursements, whether or not involving a third
party claim (collectively, "Damages"), suffered by the Seller Indemnified
Persons by reason of:
(a) any breach of a representation or warranty made by Seller
pursuant to this Agreement provided that, except for breaches under
Sections 4.1, 4.2, 4.3, 4.8(a), 4.8(b), 4.9, 4.13, 4.14, 4.15, 4.22 and
4.24 above, Buyer notifies Seller of such breach no later than the
second (2nd) anniversary of the Closing Date;
(b) any failure by Seller to perform or fulfill any of its
covenants or agreements set forth in this Agreement, provided that,
except for the covenants at Sections 2.4, 6.13 and
6.18 Buyer notifies Seller of such failure no later than the second
(2nd) anniversary of the Closing Date;
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(c) any failure by Seller to pay or perform when due any of its
liabilities or obligations (including without limitation any liability
for Taxes) arising out of or related to Seller's Business (including
without limitation all liabilities of any kind to Seller employees
except as may arise from Buyer's employment of such individuals
subsequent to the Closing Date);
(d) except for Assumed Liabilities, all liabilities and
obligations of every nature in any way related to the Assets or to the
conduct of Seller's Business prior to the Closing Date, whether known
or unknown, absolute or contingent;
(e) any Excluded Liabilities; and
(f) the failure of a Seller to comply with bulk sales or other
similar laws in any applicable jurisdiction.
10.3 Indemnification of Seller. Subject to the limitations contained
herein, Buyer shall indemnify and hold each Seller and its stockholders,
controlling Persons and Affiliates (collectively, the "Buyer Indemnified
Persons"), harmless from and against any and all Damages, suffered by the Buyer
Indemnified Persons by reason of:
(a) any breach of representation or warranty made by Buyer
pursuant to this Agreement provided that Seller notifies Buyer of such
breach no later than the third (3rd) anniversary of the Closing Date;
(b) any failure by Buyer to perform or fulfill any of its
covenants or agreements set forth in this Agreement provided that
Seller notifies Buyer of such failure no later than the second (2nd)
anniversary of the Closing Date; and
(c) any failure by Buyer to pay or discharge subsequent to the
Closing Date any of the Assumed Liabilities.
10.4 Limitations on Indemnification Obligations. Seller shall have no
liability under Section 10.2 above until the aggregate of all Damages for which
Seller is liable under Section 10.2 exceeds Five Million and No/100 Dollars
($5,000,000.00), after which Seller shall be liable for all such Damages,
including, the initial $5,000,000.00. Buyer shall have no liability under
Section 10.3 above until the aggregate of all Damages for which Buyer is liable
exceeds Five Million and No/100 Dollars ($5,000,000.00) after which Buyer shall
be liable for all such Damages, including, the initial $5,000,000.00.
Notwithstanding the foregoing, if Buyer incurs Damages as a result of a breach
of Sections 4.9 and 4.13, Seller shall be liable under Section 10.2 immediately
and such liability shall not be subject to reaching the $5,000,000.00 basket.
All claims made by Buyer for Damages shall be capped at Thirty Million and
No/100 Dollars ($30,000,000.00). For purposes of calculating the Damages, (a)
each representation and warranty stated in Articles 4 and 5 of this Agreement
shall be deemed to exclude any materiality standard, materiality exception and
materiality qualification stated
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therein and (b) claims made by Buyer for Damages arising out of a breach of
Sections 4.9 and 4.13 shall not be included in calculating whether the basket of
$5,000,000.00 has been reached (Buyer retaining the right to pursue any claims
for such Damages immediately as described above) and shall not be included in
calculating whether the $30,000,000.00 cap has been reached.
10.5 Notice of Claims.
(a) If Seller or Buyer believes that it has a claim for
indemnification pursuant to this Article 10 (a "Claim"), it shall
notify the other party (the "Indemnifying Party") no later than any
applicable time limits set forth in Sections 10.2 or 10.3 above. The
notice from the party presenting the Claim (the "Indemnified Party")
shall describe the Claim and the estimated amount thereof. The
estimated amount set forth in the notice shall not be a limitation on
the actual amount of the Claim.
(b) If the Indemnifying Party does not object in writing to a
Claim within forty-five (45) days after receiving notice of the Claim,
the Indemnified Party shall be entitled to recover promptly from the
Indemnifying Party the amount of such Claim. If the Indemnifying Party
asserts that it has an indemnification obligation in a lesser amount
than the Claim, the Indemnified Party shall nevertheless be entitled to
recover promptly from the Indemnifying Party the lesser amount, without
prejudice to the Indemnified Party's right to receive the difference.
(c) The Indemnified Party shall provide to the Indemnifying Party
such information with respect to the Claim as the Indemnifying party
shall reasonably request.
10.6 Arbitration. Any dispute over the validity or amount of a Claim
shall be resolved by binding arbitration after written demand from either party
to the other. If the parties cannot agree on a single arbitrator within thirty
(30) days after written demand for arbitration, the arbitrator shall be selected
pursuant to the rules and regulations of the American Arbitration Association
governing commercial transactions. The arbitration proceeding shall be conducted
within ninety (90) days of any demand for arbitration. If reasonable, as
determined by the arbitrator, it shall be conducted on a single day with each
party being allowed an equal amount of time to present its case. No discovery
shall be allowed except that each party shall submit to the other and to the
arbitrator, no later than thirty (30) days prior to the proceeding, copies of
all documents to be presented, the names and occupations of all proposed
witnesses, and a written summary of the substance of their proposed testimony.
The arbitrator shall exclude any evidence not presented to the other party and
the arbitrator as required by this Section within such time period. The parties
shall submit such legal briefing or other statements of position as the
arbitrator may request. Buyer and Seller shall share equally the costs of any
such arbitrator, and any arbitration decision or award shall be final and not be
subject to appeal to any court of law, except in the case of a manifest error in
the application of law. Buyer and Seller specifically covenant to one another
that they shall not commence litigation against one another with respect to any
dispute subject to arbitration hereunder for any reason except as may be
necessary to enforce this provision or an arbitrator's decision or award.
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10.7 Remedies. The sole and exclusive damage remedy for either party
under this Agreement for any breach of any covenant, representation or warranty
hereunder shall be to seek indemnification under this Article 10, except that
the parties hereto acknowledge that irreparable damage would result if this
Agreement is not specifically enforced. Therefore, the rights and obligations of
the parties under this Agreement, including but not limited to, their respective
rights and obligations to sell and to purchase the Assets, shall be enforceable
by a decree of specific performance issued by any court of competent
jurisdiction, and appropriate injunctive relief may be applied for and granted
in connection therewith.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date: (a) by the written consent of Seller and Buyer; (b) by written
notice to Buyer from Seller if any of the conditions in Article 8 have not been
met by March 1, 2000, or have not been waived by Seller in writing; or (c) by
written notice to Seller from Buyer if any of the conditions in Article 9 have
not been met by March 1, 2000, or have not been waived by Buyer in writing. In
the event of any termination pursuant to this Section 11.1, each party shall
either (i) upon request deliver to the other all documents, work papers and
other written information furnished by the other relating to the transaction
contemplated hereby, or (ii) destroy all such materials. A termination pursuant
to this Section 11.1 shall not relieve either party of liability it would
otherwise have for a breach of this Agreement prior to termination hereof. If
this Agreement is terminated as provided herein, the provisions of Sections 6.4
and 7.3 above (relating to confidentiality), Section 6.12 and 7.5 above
(relating to expenses) shall remain in full force and effect.
11.2 Risk of Loss. Material risk of loss or damage to Seller's Business
or to any of the Assets from any cause whatsoever prior to the Closing Date
shall be borne by Seller, and on and after the Closing Date shall be borne by
Buyer. If on the Closing Date, any of the Assets has suffered damage from any
cause whatsoever, Buyer shall have the right to complete the purchase hereunder
and to collect and receive the proceeds of any insurance otherwise payable to
Seller on account of such damage.
11.3 Further Assurances and Consents. From time to time after the
Closing Date, without further consideration, Seller shall use reasonable efforts
to cooperate with Buyer to obtain any necessary third party consents or
approvals to the assignment to Buyer of any contracts, leases, licenses and
permits included in the Assets.
11.4 Waiver of Compliance. Any failure of either party to comply with
any obligation, representation, warranty, covenant, agreement or condition set
forth in this Agreement may be waived by the other party only by a written
instrument signed by the party granting the waiver. Any such waiver or failure
to insist upon strict compliance with a term of this Agreement shall not operate
as a waiver of, or estoppel with respect to, any subsequent or other failure to
comply.
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11.5 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given when delivered by hand, facsimile
transmission, overnight courier, or mailed by registered or certified mail
(return receipt requested), postage prepaid, to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) If to Seller, to:
Denis M. Curley, Co-President and
Chief Financial Officer
The Ackerley Group, Inc.
1301 Fifth Avenue
Seattle, Washington 98101
Fax No. (206) 623-7853
With a copy to:
Eric M. Rubin, Esq.
RUBIN, WINSTON, DIERCKS, HARRIS & COOKE, LLP
1155 Connecticut Avenue, N.W.
Sixth Floor
Washington, District of Columbia 20036
Fax No. (202) 429-0657
(b) If to Buyer, to:
Paul J. Meyer, President
and Chief Operating Officer
ELLER MEDIA COMPANY
2850 East Camelback Road, Suite 300
Phoenix, Arizona 85016
Fax No. (602) 381-5740
With a copy to:
Laura C. Toncheff, Senior Corporate Counsel
ELLER MEDIA COMPANY
2850 East Camelback Road, Suite 300
Phoenix, Arizona 85016
Fax No. (602) 308-0796
11.6 Assignment. This Agreement and all of its terms shall be binding
upon and inure to the benefit of the parties and their successors and permitted
assigns. This Agreement shall not be
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assigned by either party without the consent of the other party, except that
Buyer shall be free to assign this Agreement to Clear Channel, or to any of its
subsidiaries. In the event of any permitted assignment hereunder, any assignee
shall be bound by all the terms and conditions set forth in this Agreement, and
no such assignment shall release Seller or Buyer from its obligations and
liabilities hereunder.
11.7 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Florida and not by choice
of law principles or the laws of any other state.
11.8 Third Party Rights. Nothing in this Agreement shall be deemed to
create any right with respect to any person or entity not a party to this
Agreement.
11.9 Entire Agreement and Amendments. This Agreement, including the
Exhibits and Schedules hereto and the documents delivered pursuant hereto,
embodies the entire agreement and understanding of the parties with respect to
the subject matter hereof and supersedes all prior agreements and understandings
between the parties, except the Non-Disclosure Agreement. This Agreement may not
be amended except in a writing signed by both parties.
11.10 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
11.11 Counterparts. This Agreement (or the signature pages hereof) may
be executed in any number of counterparts; all such counterparts shall be deemed
to constitute one and the same instrument; and each of said counterparts shall
be deemed an original hereof.
[SIGNATURE PAGE TO FOLLOW]
Seller and Buyer have caused this Agreement to be signed by their duly
authorized officers as of the date first above written.
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Seller:
AK MEDIA GROUP, INC.,
a Washington corporation
By:
Its:
Buyer:
ELLER MEDIA COMPANY,
a Delaware corporation
Paul J. Meyer, President
and Chief Operating Officer
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<PAGE> 1
EXHIBIT 10.2
AMENDMENT NO. ONE TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. ONE TO ASSET PURCHASE AGREEMENT ("Amendment") is
dated as of December 28, 1999, and is between AK MEDIA GROUP, INC., a Washington
corporation ("Seller"), AK FLORIDA OUTDOOR, INC. ("AKFO"), a Washington
corporation, and ELLER MEDIA COMPANY, a Delaware corporation ("Buyer").
RECITALS
A. Seller and Buyer are parties to an Asset Purchase Agreement (the
"Agreement") dated as of November 10, 1999.
B. Seller wishes to assign certain of its rights under the Agreement to
AKFO.
In consideration of the mutual representations, warranties, covenants
and agreements, and upon the terms and conditions set forth below, the parties
agree as follows:
1. Assignment of Assets. Seller has assigned the following Assets to
AKFO:
the Structures;
the Leases;
the Permits;
all prepaid expenses of Seller as of the Closing Date relating to the
Assets, subject to proration at Closing pursuant to Section 2.2(a) of
the Agreement; any Intangible Property used in connection with the
Assets and not otherwise described in Section 3.2 of the Agreement; To
the extent assignable, all rights (including any benefits arising
therefrom), causes of action, choses of action, claims and demands of
whatever nature (whether or not liquidated) of Seller relating to the
Assets, including, without limitation, condemnation rights and
proceeds, and all rights against suppliers under warranties covering
any of the Assets; all unbuilt Structure related inventory,
construction in progress and related materials including, without
limitation, those described on Schedule 3.2(i) to the Agreement; all
inventory, supplies, and materials held for use by Seller, including,
without limitation, those assets listed on Schedule 3.2(m); all
furniture, office equipment and furnishings, as listed or described on
Schedule 3.2(o) to the Agreement.
2. Assumption of Liabilities. AKFO hereby assumes all liabilities
associated with the Agreement, including, but not limited to, each of Seller's
covenants, representations and warranties therein. Notwithstanding such
assumption, Seller also remains liable for all covenants, representations and
warranties made by it and AKFO under the Agreement.
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3. Excluded Liabilities. This Amendment is entered into pursuant to,
and is subject to, Section 11.6 of the Agreement.
4. Capitalized Terms. Capitalized terms used herein shall have the
meanings ascribed to them in the Agreement.
5. 1031 Exchange. Buyer agrees to cooperate with Seller and AKFO in a
tax-deferred or like kind exchange under Section 1031 of the Internal Revenue
Code; provided, however, that Seller and AKFO shall indemnify Eller for, from
and against any tax consequences or other damages to Eller resulting from AKFO's
or Seller's deferred tax exchange or like kind exchange, if any, in accordance
with Section 1031 of the Internal Revenue Code.
[SIGNATURE PAGE TO FOLLOW]
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Seller, AKFO and Buyer have caused this Amendment No. One to be signed by their
duly authorized officers as of the date first above written.
Seller:
AK MEDIA GROUP, INC.,
a Washington corporation
-----------------------------
Denis M. Curley
Secretary and Treasurer
AK FLORIDA OUTDOOR, INC.,
a Washington corporation
-----------------------------
Denis M. Curley
Secretary and Treasurer
Buyer:
ELLER MEDIA COMPANY,
a Delaware corporation
-----------------------------
Paul J. Meyer, President
and Chief Operating Officer
3
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EXHIBIT 99
FOR IMMEDIATE RELEASE
FROM: THE ACKERLEY GROUP, INC., (206) 624-2888
Media Contact: Christina Prather of The MWW Group, (206) 689-8505
Analyst Contact: Dan Evans, Jr., Vice President Public Affairs
Denis Curley, Co-President and Chief Financial Officer
Leon Berman, The MWW Group, 1-800-724-7602
THE ACKERLEY GROUP COMPLETES SALE OF AK MEDIA/FLORIDA TO CLEAR CHANNEL
COMMUNICATIONS, INC.
SEATTLE, Jan. 6 /PRNewswire/ -- The Ackerley Group (NYSE: AK - news),
announced today that the company has completed the sale of its Miami/Ft.
Lauderdale and West Palm Beach outdoor billboard business to Eller Media
Company, a subsidiary of Clear Channel Communications, Inc. (NYSE: CCU - news)
for $300 million in cash. The amount paid represents 34 times The Ackerley
Group's Florida outdoor division's 1999 operating cash flow.
The company used $199 million of the proceeds to eliminate its current
outstanding senior bank debt. The remainder, as well as a $325 million unused
revolver, is available to fuel future acquisitions in the outdoor, television,
radio and sports and entertainment markets that benefit The Ackerley Group's
existing media properties.
The Ackerley Group is comprised of four operating segments, which
contain a total of 23 independent media and entertainment operations. The
Outdoor Media segment includes outdoor advertising in Seattle/Tacoma, Boston and
Portland, Ore. The Television Broadcasting segment owns, operates under
management agreements, or has applications pending with the FCC for 13 stations
in California, New York, Washington, Oregon and Alaska. The Radio Broadcasting
segment owns and operates four radio stations in the Seattle- Tacoma market. The
Sports & Entertainment segment includes Full House Sports & Entertainment, the
NBA's Seattle SuperSonics and a new WNBA expansion team. For more information,
visit The Ackerley Group web site at www.ackerley.com.
