UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
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Outlet Communications, Inc.
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(Name of Issuer)
Class A Common Stock, par value $.01 per share
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(Title of Class of Securities)
69111109
------------------------------
(CUSIP Number)
Richard F. Cotton, Executive Vice President and General Counsel, National
Broadcasting Company, Inc.
30 Rockefeller Center, New York, New York 10112 (212) 664-4444
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
August 2, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box / /.
Check the following box if a fee is being paid with the statement . /X/ (A
fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five percent
or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 69111109
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NATIONAL BROADCASTING COMPANY, INC.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF, WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
3,483,091 **
NUMBER OF
SHARES ---------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH
REPORTING -0-
PERSON ---------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
3,483,091 **
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,483,091 **
----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.9%
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14 TYPE OF REPORTING PERSON*
CO
----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 69111109
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NATIONAL BROADCASTING COMPANY HOLDING, INC.
----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF, WC
----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
----------------------------------------------------------------------------
7 SOLE VOTING POWER
3,483,091 **
---------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY
OWNED BY -0-
EACH
REPORTING ---------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
3,483,091 **
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,483,091 **
----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.9%
----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 69111109
----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GENERAL ELECTRIC COMPANY
----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
----------------------------------------------------------------------------
3 SEC USE ONLY
----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
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7 SOLE VOTING POWER
3,483,091 **
---------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY
OWNED BY -0-
EACH ---------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH
3,483,091 **
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,483,091 **
----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
52.9%
----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION.
<PAGE>
** Neither the filing of this Schedule 13D nor any of its contents shall
be deemed to constitute an admission that any of General Electric
Company, National Broadcasting Company Holding, Inc. or National
Broadcasting Company, Inc. is the beneficial owner of any of the
Common Stock referred to herein for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, or for any other purpose,
and such beneficial ownership is expressly disclaimed.
<PAGE>
Item 1. Security and Issuer.
-------------------
This Statement on Schedule 13D (this "Schedule 13D") relates to
shares of Class A common stock, $.01 par value per share ("Common Stock"),
of Outlet Communications, Inc., a Delaware corporation (the "Issuer"). The
principal executive offices of the Issuer are located at 23 Kenney Drive,
Cranston, Rhode Island 02920.
Item 2. Identity and Background.
-----------------------
(a)-(c), (f). This Schedule 13D is being filed on behalf of General
Electric Company, a New York corporation ("GE"), National Broadcasting
Company Holding, Inc., a Delaware corporation and a wholly owned subsidiary
of GE ("NBC Holding"), and National Broadcasting Company, Inc., a Delaware
corporation and a wholly owned subsidiary of NBC Holding ("NBC"). Neither
the filing of this Schedule 13D nor the information contained herein shall
be deemed to constitute an affirmation by any of GE, NBC Holding or NBC
that it is the beneficial owner of the Common Stock referred to herein for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or for any other purpose, and such beneficial
ownership is expressly disclaimed.
GE and its consolidated affiliates comprise one of the largest
and most diversified industrial corporations in the world. From the time
of GE's incorporation in 1892, GE and its consolidated affiliates has
principally engaged in developing, manufacturing and marketing a wide
variety of products for the generation, transmission, distribution, control
and utilization of electricity. Over the years, development and
application of related and new technologies have broadened considerably the
scope of activities of
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CUSIP 69111109
GE and its affiliates. The products of GE and its consolidated affiliates
include, but are not limited to, lamps and other lighting products; major
appliances for the home; industrial automation products and components;
motors; electrical distribution and control equipment; locomotives; power
generation and delivery products; nuclear reactors, nuclear power support
services and fuel assemblies; commercial and military aircraft jet engines;
materials, including engineered plastics, silicones and cutting materials;
and a wide variety of high technology products, including products used in
defense and medical diagnostic applications.
GE and its consolidated affiliates also offer a broad variety of
services, including product support services; electrical product supply
houses; electrical apparatus installation, engineering, repair and
rebuilding services; and computer-related information services. Through a
wholly owned subsidiary, General Electric Capital Services, Inc. and its
two principal subsidiaries, GE and its affiliates engage in a broad
spectrum of financial services including consumer financing, commercial and
industrial financing, real estate financing, asset management and leasing,
annuity and mutual fund sales, specialty insurance, and reinsurance. Other
services offered include U.S. satellite communications furnished by GE
Americom. GE also engages in the businesses of NBC described below. GE
also licenses patents and provides technical know-how related to products
developed, but such activities are not material to GE and such affiliates.
GE's principal executive offices are located at 3135 Easton Turnpike,
Fairfield, Connecticut 06431.
<PAGE>
CUSIP 69111109
NBC Holding is a holding company whose principal asset is the
stock of NBC. NBC Holding's principal office is located at 30 Rockefeller
Center, New York, New York 10112.
NBC and its subsidiaries are principally engaged in the
furnishing within the United States of network television services to
affiliated television stations, the production of live and recorded
television programs, the operation, under licenses from the Federal
Communications Commission ("FCC"), of seven television broadcasting
stations, the operation of cable/satellite networks around the world, and
investment and programming activities in multimedia and cable television.
The NBC Television Network is one of the competing major U.S. commercial
broadcast television networks and serves more than 200 affiliated stations
within the United States. NBC's operations include investment and
programming activities in cable television, principally through its
ownership of CNBC and America's Talking and equity investments in Arts and
Entertainment, Court TV, American Movie Classics, Bravo, Prime Network and
regional Sports Channels across the United States. NBC's principal
executive offices are located at 30 Rockefeller Center, New York, New York
10112.
The name, citizenship, residence or business address and
principal occupation or employment (and the name, principal business and
address of any corporation or other organization in which such employment
is conducted) of each director and executive officer of each of GE, NBC
Holding and NBC is set forth in Schedule A hereto.
(d), (e). Except as set forth below, none of GE, NBC Holding or NBC,
or, to the best of GE's, NBC Holding's or NBC's knowledge,
<PAGE>
CUSIP 69111109
any of the directors or executive officers of GE, NBC Holding or NBC, has,
during the past five years: (i) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors); or (ii) been a
party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
On November 15, 1990, an action under the False Claims Act was
brought against GE in the United States District Court for the Southern
District of Ohio. This qui tam action, brought by an organization called
Taxpayers Against Fraud and an employee of GE's Aircraft Engines division
("GEAE"), alleged that GEAE, in connection with its sales of F110 aircraft
engines and support equipment to Israel, made false statements to the
Israeli Ministry of Defense ("MoD"), causing MoD to submit false claims to
the United States Department of Defense under the Foreign Military Sales
Program. Senior GE management became aware of possible misconduct in
GEAE's Israeli F110 program in December 1990. Before learning of the
sealed qui tam suit, GE immediately made a voluntary disclosure to the
Departments of Defense and Justice, promised full cooperation and
restitution, and began an internal investigation. In August 1991, the
federal court action was unsealed, and the Department of Justice intervened
and took over responsibility for the case.
On July 22, 1992, after GE had completed its investigation and
made a complete factual disclosure to the U.S. government as
<PAGE>
CUSIP 69111109
part of settlement discussions, the United States and GE executed a
settlement agreement and filed a stipulation dismissing the civil action.
Without admitting or denying the allegations in the complaint, GE agreed to
pay $59.5 million in full settlement of the civil fraud claims. Also on
July 22, 1992, in connection with the same matter, the United States filed
a four count information charging GE with violations of 18 U.S.C. Section
287 (submitting false claims against the United States), 18 U.S.C. Section
1957 (engaging in monetary transactions in criminally derived property), 15
U.S.C. Subsections 78m(b)(2)(A) and 78ff(a) (inaccurate books and records),
and 18 U.S.C. Section 371 (conspiracy to defraud the United States and to
commit offenses against the United States). The same day, GE and the
United States entered a plea agreement in which GE agreed to waive
indictment, plead guilty to the information, and pay a fine of $9.5
million. GE was that day sentenced by the federal court in accordance with
the plea agreement.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
As more fully described in Item 4 hereof, the persons set forth
in Schedule B hereof (the "Stockholders"), each of whom is a record and/or
beneficial owner of shares of Common Stock, have granted irrevocable
options (the "Options") to NBC to purchase 3,483,091 shares of Common Stock
for $47.25 per share, payable in cash (the "Exercise Price"), pursuant to
the Consent and Voting/Conditional Option Agreements, each dated as of
August 2, 1995 (each, a "Voting Agreement"), entered into by NBC and each
of
<PAGE>
CUSIP 69111109
the Stockholders. If NBC were to exercise the Options and pay the Exercise
Price in cash, the funds required would be approximately $164,576,050. It
is currently anticipated that such funds would be provided from general
working capital funds available to NBC and its affiliates.
The Stockholders entered into their respective Voting Agreements
in connection with the execution and delivery of the Merger Agreement
referred to below.
Item 4. Purpose of Transaction.
----------------------
On August 2, 1995, NBC, CO Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of NBC ("CO"), and the Issuer
entered into a Merger Agreement (the "Merger Agreement") providing for the
merger (the "Merger") of CO with and into the Issuer, whereupon the
separate existence of CO will cease and the Issuer will continue as the
surviving corporation.
At the effective time of the Merger (the "Effective Time"), each
share of Common Stock issued and outstanding immediately prior to the
Effective Time (other than (i) shares of Common Stock owned by the Issuer
or by any subsidiary of the Issuer and (ii) shares of Common Stock subject
to dissenters' rights) will be converted into the right to receive $47.25
in cash, payable to the holder thereof, without interest.
At the Effective Time, the Merger will result in each of GE, NBC
Holding and NBC beneficially owning all of the outstanding shares of common
stock of the Issuer.
The obligations of the parties to the Merger Agreement to effect
the Merger are subject to certain conditions and, prior to
<PAGE>
CUSIP 69111109
the Effective Time, NBC or the Issuer may terminate the Merger Agreement
under certain circumstances, in each case as set forth in the Merger
Agreement.
Approval of the holders of a majority of the outstanding Common
Stock is required by applicable law in order to consummate the Merger.
Immediately following the execution and delivery by the Issuer, NBC and CO
of the Merger Agreement, each of the Stockholders entered into a Voting
Agreement, pursuant to which each such Stockholder agreed to deliver a
written stockholder consent in lieu of a meeting of stockholders of the
Issuer adopting and approving the Merger Agreement (each, a "Stockholder
Consent") in respect of each share of Common Stock owned of record by such
Stockholder. Following execution of the Voting Agreements, the parties to
the Voting Agreements delivered the Stockholder Consents to the Issuer,
which Stockholder Consents covered an aggregate of 3,433,091 shares of
Common Stock (approximately 52.2% of the outstanding shares of Common
Stock), representing the aggregate number of shares of Common Stock owned
of record by the Stockholders.
Pursuant to the Voting Agreements, each Stockholder also agreed
that, until the Expiration Date (defined in the Voting Agreements as the
earlier of the Effective Time and the date which is 360 days following the
date of the Voting Agreements or such shorter period as may be dictated by
applicable law or Federal Communications Commission policy or regulation
(unless extended by the mutual written consent of NBC and the
Stockholder)), at any meeting of the stockholders of the Issuer, however
called, or in connection with any written consent of the stockholders of
the
<PAGE>
CUSIP 69111109
Issuer, and to the extent permitted by applicable law, the Stockholder will
vote (or cause to be voted) or act by written consent with respect to the
shares of Common Stock held by the Stockholder (as to each Stockholder, the
"Shares") (a) in favor of adoption and approval of the Merger Agreement and
the Merger and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement and the Voting Agreement; (b)
against any action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement
of the Issuer contained in the Merger Agreement or of the Stockholder
contained in the Voting Agreement; and (c) against any Competing
Transaction (as defined in the Voting Agreements) or any other action,
agreement or transaction (other than the Merger Agreement or the
transactions contemplated thereby) that is intended, or could reasonably be
expected, to impede, interfere or be inconsistent with, or delay, postpone,
discourage or materially adversely affect the Merger or the Voting
Agreement, including, but not limited to: (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Issuer or its subsidiaries; (ii) a sale, lease or transfer of
a material amount of assets of the Issuer and its subsidiaries or a
reorganization, recapitalization or liquidation of the Issuer or its
subsidiaries; (iii) a material change in the policies or management of the
Issuer, except as otherwise agreed to in writing by NBC; (iv) an election
of new members to the board of directors of the Issuer, except where the
vote is cast in favor of the nominees of a majority of the existing
directors; (v) any material change in the present
<PAGE>
CUSIP 69111109
capitalization or dividend policy of the Issuer or any amendment of the
Issuer's certificate of incorporation; or (vi) any other material change in
the Issuer's corporate structure or business (collectively, the "Merger-
Related Matters"). Each Stockholder also agreed in its Voting Agreement
not to enter into any agreement or understanding with any person or entity
prior to the Expiration Date to vote or give instructions in any manner
inconsistent with clauses (a), (b) or (c) of the preceding sentence. Under
the Voting Agreements, each Stockholder has granted an irrevocable proxy to
a trustee designated by NBC to vote or act by written consent, to the full
extent permitted by applicable law, with respect to the Stockholder's
Shares in accordance with the foregoing provisions of this paragraph.
The Voting Agreements also provide that the Stockholder party
thereto shall not (i) sell, transfer, pledge, assign or otherwise dispose
of, enforce or permit the execution of the provisions of any redemption
agreement with the Issuer or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, pledge, encumbrance, assignment or other disposition
of, any of the Stockholder's Shares, or any shares acquired after August 2,
1995, or any interest in any of the foregoing, except to NBC, (ii) grant
any proxies or powers of attorney, deposit any of such shares into a voting
trust or enter into a voting agreement with respect to any such shares or
any cash or other property received as a dividend or distribution on such
shares by the Stockholder, or any interest in any of the foregoing, except
to NBC, (iii) consent or otherwise
<PAGE>
CUSIP 69111109
agree to any amendment, waiver or other modification of the Stockholders
Agreement to which the Stockholders, certain other stockholders of the Issuer
and the Issuer are parties (the "Stockholders Agreement") or the Certificate
of Incorporation or By-laws of the Issuer or its subsidiaries without the
prior written consent of NBC or (iv) take any action that would make any
representation or warranty of such Stockholder contained in the Stockholder's
Voting Agreement untrue or incorrect or have the effect of preventing or
disabling such Stockholder from performing his obligations under the Voting
Agreement, or that would otherwise hinder or delay NBC from acquiring a
majority of the outstanding shares of Common Stock, determined on a fully
diluted basis.
In addition, each of the Stockholders agreed, except with respect
to NBC and its affiliates, not to initiate, solicit or encourage, directly
or indirectly, any inquiries or the making of any proposal with respect to
any matter described in the previous paragraph or any Competing
Transaction, participate in any negotiations concerning, or provide to any
other person any information or data relating to the Issuer or its
subsidiaries for the purpose of, or have any substantive discussions with,
any person relating to, or otherwise cooperate with or assist or
participate in, or facilitate, any inquiries or the making of any proposal
which constitutes, or would reasonably be expected to lead to, any effort
or attempt by any other person to seek to effect any matter described in
the previous paragraph or any Competing Transaction, or agree to or endorse
any Competing Transaction.
In addition, subject to certain conditions, each Stockholder has
granted NBC Options to purchase all, but not part,
<PAGE>
CUSIP 69111109
of its Shares at any time on or after the earlier of (i) the termination of
the Merger Agreement and (ii) such time as a permanent injunction or other
order, decree or ruling preventing the consummation of the Merger shall
have been issued, provided that under no circumstances may the Option be
exercised more than 60 days after any termination of the Merger Agreement.
The cash purchase price for the Shares under the Options is $47.25 per
share and the Options contain customary anti-dilution protections. In
the event that NBC exercises its Option under any Voting Agreement, the
obligation of NBC to effect the purchase of shares of Common Stock thereunder
would be subject to certain conditions set forth in the Voting Agreements.
If NBC exercises such Option (the "Option Purchase"), NBC must propose to
the Issuer a merger on terms substantially the same as those provided for in
the Merger Agreement. In addition, NBC must extend to the other stockholders
of the Issuer who are parties to the Stockholders Agreement an offer to
acquire for a purchase price equal to the Exercise Price shares of Common
Stock in accordance with the terms of such Stockholders Agreement. The
Stockholders must cause Section 19 of the Stockholders Agreement to be
complied with.
The Voting Agreements provide that in the event that, within one
year from the date of the Voting Agreements, NBC consummates a transaction
pursuant to which it acquires more than 50% of the outstanding Common Stock
or effects a merger or similar business combination with the Issuer
pursuant to which it acquires all of the Common Stock (any such
transaction, an "Alternate Transaction") and, in respect of any Alternate
Transaction, the per
<PAGE>
CUSIP 69111109
share consideration paid to the largest number of stockholders of the
Issuer pursuant to the Alternate Transaction exceeds the Exercise Price
(the amount of such excess per share, the "Excess Consideration"), then NBC
will pay to each of the Stockholders an amount in cash equal to the amount
of the Excess Consideration times the number of such Stockholder's shares
purchased pursuant to the Option Purchase.
If, solely as a result of an acquisition of shares of Common
Stock by NBC or any other subsidiary of GE, the Issuer is required to make
a Change of Control Offer (as defined in the Indenture referred to below)
pursuant to Section 1010 of the Indenture pursuant to which on the date of
the Voting Agreements the Issuer has issued and outstanding $60 million
aggregate principal amount of Senior Subordinated Notes due July 15, 2003
(the "Notes"), as in effect on the date of the Voting Agreements (the
"Indenture"), then NBC will be obligated to offer to purchase or to cause
another person to offer to purchase from the Issuer indebtedness of the
Issuer (i) in an aggregate principal amount equal to the aggregate
Repurchase Price of the Notes repurchased by the Issuer on such Change of
Control Payment Date and (ii) with terms, conditions, covenants and other
provisions substantially the same as the Notes.
Also, each Stockholder has agreed in the Stockholder's Voting
Agreement that if, between the date of the Voting Agreement and the closing
date under any purchase pursuant to the Option, the Issuer declares, pays
or makes any dividend or other distribution of any kind of cash or property
on the Common Stock, the Stockholder shall receive and hold such cash or
property for the benefit of NBC
<PAGE>
CUSIP 69111109
and shall deliver such cash or property, with appropriate instruments of
transfer, if necessary, to NBC on such closing date (or, in the event of a
payment date occurring after the closing date, on the date such payment is
received).
If the Merger is completed as planned, (i) the board of directors
of the Issuer will consist of the directors of CO immediately prior to the
Effective Time, until their successors are duly elected or appointed, and
(ii) the officers of CO immediately prior to the Effective Time will be the
officers of the Issuer until their successors are duly elected or
appointed.
If the Merger is completed as planned, NBC expects to cause the
Issuer to seek to have the shares of Common Stock deregistered under the
Exchange Act and to cease to be authorized to be listed on the Nasdaq
National Market.
The preceding summary of certain provisions of the Merger
Agreement and the Voting Agreements is not intended to be complete and is
qualified in its entirety by reference to the full text of such agreements,
copies of which are filed as Exhibits 1 through 3 hereto, and which are
incorporated herein by reference.
Other than as described above, NBC has no plans or proposals that
relate to or would result in any of the actions described in subparagraphs
(a) through (j) of Item 4 of Schedule 13D (although subject to the
provisions of the Merger Agreement, NBC reserves the right to develop such
plans).
<PAGE>
CUSIP 69111109
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a) and (b) As of August 2, 1995, under the definition of "beneficial
ownership" as set forth in Rule 13d-3 under the Exchange Act, NBC may be
deemed to beneficially own 3,483,091 shares of Common Stock presently
outstanding and subject to the Voting Agreements, constituting in the
aggregate approximately 52.9% of the outstanding shares of Common Stock
(based on 6,579,631 shares of Common Stock outstanding with no other
classes of stock outstanding, the number of shares of Common Stock and of
other classes represented by the Issuer in the Merger Agreement to be
outstanding as of immediately prior to the Effective Time). NBC is a
wholly owned subsidiary of NBC Holding and NBC Holding is a wholly owned
subsidiary of GE. Accordingly, each of NBC Holding and GE may be deemed to
have the power to direct the voting and disposition of any shares of Common
Stock deemed to be beneficially owned by NBC and therefore to beneficially
own any such shares of Common Stock.
If NBC were to exercise the Options, NBC would have the sole
power to vote and dispose of the shares purchased pursuant to the Options.
With respect to the Merger and the other Merger-Related Matters, pursuant
to the terms of the Voting Agreements, NBC has power to vote the 3,483,091
shares of Common Stock subject to the Voting Agreements. Unless and until
the exercise of the Options or the consummation of the Merger in accordance
with the terms and conditions of the Merger Agreement, and except as set
forth above, none of GE, NBC Holding or NBC, nor any of its designees, if
any, has any power to vote or to direct the vote, shared power to vote or
to direct the vote, or sole or shared
<PAGE>
CUSIP 69111109
power to dispose or to direct the disposition of any Common Stock. Neither
the filing of this Schedule 13D nor any of its contents shall be deemed to
constitute an admission that any of GE, NBC Holding or NBC is the
beneficial owner of the Common Stock referred to in this paragraph for
purposes of Section 13(d) of the Exchange Act or for any other purpose, and
such beneficial ownership is expressly disclaimed.
(c) Except as set forth in this Item 5, to the best knowledge of GE,
NBC Holding and NBC, none of GE, NBC Holding or NBC, and no director or
executive officer of GE, NBC Holding or NBC and no other person described
in Item 2 hereof, has beneficial ownership of, or has engaged in any
transaction during the past 60 days in, any shares of Common Stock.
(d) Except as set forth in this Item 5, none of GE, NBC Holding or
NBC, nor any of its designees, has any right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Common Stock which are subject to the Voting Agreements.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
------------------------------------------------------
Except as set forth in this Schedule 13D, to the best knowledge
of any of GE, NBC Holding and NBC, there are no other contracts,
arrangements, understandings or relationships (legal or otherwise) among
the persons named in Item 2 and between such persons and any person with
respect to any securities of the Issuer, including but not limited to,
transfer or voting of any of the
<PAGE>
CUSIP 69111109
securities of the Issuer, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, division of profits or loss, or the giving
or withholding of proxies, or a pledge or contingency the occurrence of
which would give another person voting power or investment power over the
securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
--------------------------------
1. Merger Agreement, dated as of August 2, 1995, among National
Broadcasting Company, Inc., CO Acquisition Corporation and Outlet
Communications, Inc.
2. Conformed Standard Version of Consent and Voting/Conditional
Option Agreement, dated as of August 2, 1995, between National
Broadcasting Company, Inc. and each of The Hartington Trust, The
OCI Trust, Frank E. Richardson III, Hugh J. Byrnes, John D.
Howard, and Manfred L. Steyn.
3. Conformed Consent and Voting/Conditional Option Agreement, dated
as of August 2, 1995, between National Broadcasting Company, Inc.
and MBL Life Assurance Corporation.
4. Joint Filing Agreement.
5. Power of Attorney.
<PAGE>
CUSIP 69111109
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Schedule 13D is
true, complete and correct.
NATIONAL BROADCASTING COMPANY, INC.
By:/s/ Richard Cotten
---------------------------------
Name: Richard Cotton
Title: Executive Vice President
and General Counsel
NATIONAL BROADCASTING COMPANY
HOLDING, INC.
By:/s/ Richard Cotton
---------------------------------
Name: Richard Cotton
Title: Attorney-in-fact
GENERAL ELECTRIC COMPANY
By:/s/ Richard Cotton
---------------------------------
Name: Richard Cotton
Title: Attorney-in-fact
DATED: August 14, 1995
<PAGE>
CUSIP 69111109
SCHEDULE A
Board of Directors and Executive Officers of
--------------------------------------------
National Broadcasting Company, Inc.
-----------------------------------
The directors and executive officers of National Broadcasting
Company, Inc. are identified in the table below. Directors of National
Broadcasting Company, Inc. are indicated by an asterisk. Unless otherwise
indicated, the business address of each person listed below is 30
Rockefeller Center, New York, New York 10112.
Name and Principal
-------- ---------
Business Address Occupation Citizenship
---------------- ---------- -----------
John F. Welch, Jr.* Chairman of the Board United States
3135 Easton Turnpike and Chairman of the
Fairfield, CT 06431 Board and Chief
Executive Officer,
General Electric
Company
Robert C. Wright President and Chief United States
Executive Officer
John J. Agoglia Executive Vice United States
3000 W. Alameda Avenue President
Burbank, CA 91523
Neil S. Braun Executive Vice United States
President
Richard Cotton Executive Vice United States
President
Duncan Ebersol Executive Vice United States
President
Andrew R. Lack Executive Vice United States
President
Warren W. Littlefield Executive Vice United States
3000 W. Alameda Avenue President
Burbank, CA 91523
Donald W. Ohlmeyer, Jr. Executive Vice United States
3000 W. Alameda Avenue President
Burbank, CA 91523
Thomas S. Rogers Executive Vice United States
President
John H. Rohrbeck Executive Vice United States
President
Edward L. Scanlon Executive Vice United States
President
<PAGE>
CUSIP 69111109
Name and Principal
-------- ---------
Business Address Occupation Citizenship
---------------- ---------- -----------
Michael J. Sherlock Executive Vice United States
President
Warren C. Jenson Senior Vice President, United States
Chief Financial Officer
and Treasurer
Judy Smith Senior Vice President United States
H. Brewster Atwater, Jr.* Retired Chairman of the United States
4900 IDS Center Board, Chief Executive
80 South 8th Street Officer and former
Minneapolis, MN 55402 Director, General
Mills, Inc.
D. Wayne Calloway* Chairman of the Board, United States
PepsiCo, Inc. Chief Executive Officer
700 Anderson Hill Road and Director, PepsiCo,
Purchase, NY 10577 Inc.
Silas S. Cathcart* Director and Retired United States
222 Wisconsin Avenue Chairman of the Board,
Suite 103 Illinois Tool Works,
Lake Forest, IL 60045 Inc.
Dennis D. Dammerman* Senior Vice President, United States
General Electric Company Finance, General
3135 Easton Turnpike Electric Company
Fairfield, CT 06431
Lawrence E. Fouraker* Former Dean, Harvard United States
General Electric Company Business School
3135 Easton Turnpike
Fairfield, CT 06431
Robert E. Mercer* Retired Chairman of the United States
General Electric Company Board and former
3135 Easton Turnpike Director, The Goodyear
Fairfield, CT 06431 Tire & Rubber Company
Gertrude G. Michelson* Member of the Board of United States
Federated Department Stores Directors, Federated
151 West 34th Street Department Stores
New York, NY 10001
Roger S. Penske* President, Penske United States
Penske Corporation Corporation
13400 Outer Drive, West
Detroit, MI 48239-4001
<PAGE>
CUSIP 69111109
Name and Principal
-------- ---------
Business Address Occupation Citizenship
---------------- ---------- -----------
Frank H.T. Rhodes* President Emeritus, United States
Cornell University Cornell University
3104 Snee Building
Ithaca, NY 14853
Andrew C. Sigler* Chairman of the Board United States
Champion International and Director, Champion
Corporation International
1 Champion Plaza Corporation
Stamford, CT 06921
Douglas A. Warner III* Chairman of the Board, United States
J.P. Morgan & Co., Inc. President and Chief
& Morgan Guaranty Trust Co. Executive Officer, J.P.
60 Wall Street Morgan & Co. Inc. and
New York, New York 10260 Morgan Guaranty Trust
Company
<PAGE>
CUSIP 69111109
Board of Directors and Executive Officers of
--------------------------------------------
National Broadcasting Company Holding, Inc.
-------------------------------------------
The directors and executive officers of National Broadcasting
Company Holding, Inc. are identified in the table below. Directors of
National Broadcasting Company Holding, Inc. are indicated by an asterisk.
Unless otherwise indicated, the business address of each person listed
below is 30 Rockefeller Center, New York, New York 10112.
Name and Principal
-------- ---------
Business Address Occupation Citizenship
---------------- ---------- -----------
John F. Welch, Jr.* Chairman of the Board United States
3135 Easton Turnpike and Chairman of the
Fairfield, CT 06431 Board and Chief
Executive Officer,
General Electric
Company
Robert C. Wright President and Chief United States
Executive Officer
Warren C. Jenson Treasurer United States
Benjamin W. Heineman, Jr. Secretary United States
Arthur H. Angstreich Assistant Treasurer United States
Eliza W. Fraser Assistant Secretary United States
3135 Easton Turnpike
Fairfield, CT 06431
H. Brewster Atwater, Jr.* Retired Chairman of the United States
4900 IDS Center Board, Chief Executive
80 South 8th Street Officer and former
Minneapolis, MN 55402 Director, General
Mills, Inc.
D. Wayne Calloway* Chairman of the Board, United States
PepsiCo, Inc. Chief Executive Officer
700 Anderson Hill Road and Director, PepsiCo,
Purchase, NY 10577 Inc.
Silas S. Cathcart* Director and Retired United States
222 Wisconsin Avenue Chairman of the Board,
Suite 103 Illinois Tool Works,
Lake Forest, IL 60045 Inc.
<PAGE>
CUSIP 69111109
Dennis D. Dammerman* Senior Vice President, United States
General Electric Company Finance, General
3135 Easton Turnpike Electric Company
Fairfield, CT 06431
Lawrence E. Fouraker* Former Dean, Harvard United States
General Electric Company Business School
3135 Easton Turnpike
Fairfield, CT 06431
Robert E. Mercer* Retired Chairman of the United States
General Electric Company Board and former
3135 Easton Turnpike Director, The Goodyear
Fairfield, CT 06431 Tire & Rubber Company
Gertrude G. Michelson* Member of the Board of United States
Federated Department Stores Directors, Federated
151 West 34th Street Department Stores
New York, NY 10001
Roger S. Penske* President, Penske United States
Penske Corporation Corporation
13400 Outer Drive, West
Detroit, MI 48239-4001
Frank H.T. Rhodes* President Emeritus, United States
Cornell University Cornell University
3104 Snee Building
Ithaca, NY 14853
Andrew C. Sigler* Chairman of the Board United States
Champion International and Director, Champion
Corporation International
1 Champion Plaza Corporation
Stamford, CT 06921
Douglas A. Warner III* Chairman of the Board, United States
J.P. Morgan & Co., Inc. President and Chief
& Morgan Guaranty Trust Co. Executive Officer, J.P.
60 Wall Street Morgan & Co. Inc. and
New York, New York 10260 Morgan Guaranty Trust
Company
<PAGE>
CUSIP 69111109
Board of Directors and Executive Officers of
--------------------------------------------
General Electric Company
------------------------
The directors and executive officers of General Electric Company
are identified in the table below. Directors of General Electric Company
are indicated by an asterisk. Unless otherwise indicated, the business
address of each person listed below is 3135 Easton Turnpike, Fairfield,
Connecticut 06431.
Principal
Name and ---------
Business Address Occupation Citizenship
---------------- ---------- -----------
John F. Welch, Jr.* Chairman of the Board United States
and Chief Executive
Officer
Paolo Fresco* Vice Chairman of the Italy
General Electric Company Board and Executive
(U.S.A.) Officer
3 Shortlands, Hammersmith
London, W6 8BX, England
Frank P. Doyle Executive Vice President United States
P.D. Ameen Vice President and United States
Controller
James R. Bunt Vice President and United States
Treasurer
D.L. Calhoun Vice President, GE United States
General Electric Company Transportation Systems
2901 East Lake Road
Erie, PA 16531
William J. Conaty Senior Vice President, United States
Human Resources
Dennis D. Dammerman* Senior Vice President, United States
Finance
Lewis S. Edelheit Senior Vice President, United States
General Electric Company Corporate Research and
P.O. Box 8 Development
Schenectady, New York 12301
Dale F. Frey Vice President and United States
General Electric Company Chairman and President,
3003 Summer Street GE Investment Corp.
Stamford, Connecticut 06905
Benjamin W. Heineman, Jr. Senior Vice President, United States
General Counsel and
Secretary
<PAGE>
CUSIP 69111109
Principal
Name and ---------
Business Address Occupation Citizenship
---------------- ---------- -----------
W. James McNerney, Jr. Senior Vice President, United States
General Electric Company GE South Asia Area
1204-6 Three Exchange
Square
Hong Kong, Hong Kong
E.F. Murphy Senior Vice President, United States
General Electric Company GE Aircraft Engines
1 Newmann Way
Cincinnati, OH 05215
R.L. Nardelli Senior Vice President, United States
General Electric Company GE Power Systems
1 River Road
Schenectady, NY 12345
Robert W. Nelson Vice President, United States
Financial Planning and
Analysis
J.D. Opie Senior Vice President, United States
General Electric Company GE Lighting
Nela Park
Cleveland, OH 44122
Gary M. Reiner Vice President, United States
Corporate Business
Development
G.L. Rogers Senior Vice President, United States
General Electric Company GE Plastics
1 Plastics Avenue
Pittsfield, MA 01201
J.W. Rogers Vice President, GE United States
General Electric Company Motors
1635 Broadway
Fort Wayne, IN 46801
J.R. Stonesifer Senior Vice President, United States
General Electric Company GE Appliances
Appliance Park
Louisville, KY 40225
J.M. Trani Senior Vice President,
General Electric Company GE Medical Systems
P.O. Box 414
Milwaukee, WI 53201
L.G. Trotter Vice President, GE
General Electric Company Electrical Distribution
41 Woodford Avenue and Control
Plainville, CT 06062
<PAGE>
CUSIP 69111109
Principal
Name and ---------
Business Address Occupation Citizenship
---------------- ---------- -----------
H. Brewster Atwater, Jr.* Retired Chairman of the United States
4900 IDS Center Board, Chief Executive
80 South 8th Street Officer and former
Minneapolis, MN 55402 Director, General Mills,
Inc.
D. Wayne Calloway* Chairman of the Board, United States
PepsiCo, Inc. Chief Executive Officer
700 Anderson Hill Road and Director, PepsiCo,
Purchase, NY 10577 Inc.
Silas S. Cathcart* Director and Retired United States
222 Wisconsin Avenue Chairman of the Board,
Suite 103 Illinois Tool Works
Lake Forest, IL 60045
Lawrence E. Fouraker* Former Dean, Harvard United States
Business School
C.X. Gonzalez* Chairman of the Board Mexico
Kimberly-Clark de Mexico, and Managing Director,
S.A.de C.V. Kimberly-Clark de
Jose Luis Lagrange 103 Mexico, S.A. de C.V.
Tercero Piso
Colonia Los Morales
Mexico, D.F. 11510, Mexico
Robert E. Mercer* Retired Chairman of the United States
Board and former
Director, The Goodyear
Tire & Rubber Company
Gertrude G. Michelson* Member of the Board of United States
Federated Department Stores Directors, Federated
151 West 34th Street Department Stores
New York, NY 10001
Roger S. Penske* President, Penske United States
Penske Corporation Corporation
13400 Outer Drive, West
Detroit, MI 48239-4001
Barbara Scott Preiskel* Former Senior Vice United States
Suite 3125 President, Motion
60 East 42nd Street Picture Associations of
New York, NY 10165 America
Frank H.T. Rhodes* President Emeritus, United States
Cornell University Cornell University
3104 Snee Building
Ithaca, NY 14853
<PAGE>
CUSIP 69111109
Principal
Name and ---------
Business Address Occupation Citizenship
---------------- ---------- -----------
Andrew C. Sigler* Chairman of the Board United States
Champion International and Director, Champion
Corporation International
1 Champion Plaza Corporation
Stamford, CT 06921
Douglas A. Warner III* Chairman of the Board, United States
J.P. Morgan & Co., Inc. President and Chief
& Morgan Guaranty Trust Co. Executive Officer, J.P.
60 Wall Street Morgan & Co. Inc. and
New York, NY 10260 Morgan Guaranty Trust
Company
<PAGE>
CUSIP 69111109
SCHEDULE B
Name of Stockholder
-------------------
1. The Hartington Trust
2. The OCI Trust
3. Frank E. Richardson III
4. Hugh J. Byrnes
5. John D. Howard
6. Manfred L. Steyn
7. MBL Life Assurance Corporation
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit
Number Description of Exhibits Page
------ ----------------------- ----
1. Merger Agreement, dated as of August 2,
1995, among National Broadcasting Company,
Inc., CO Acquisition Corporation and
Outlet Communications, Inc.
2. Conformed Standard Version of Consent and
Voting/Conditional Option Agreement, dated
as of August 2, 1995, between National
Broadcasting Company, Inc. and each of The
Hartington Trust, The OCI Trust, Frank E.
Richardson III, Hugh J. Byrnes, John D.
Howard, Manfred L. Steyn.
3. Conformed Consent and Voting/Conditional
Option Agreement, dated as of August 2,
1995, between National Broadcasting
Company, Inc. and MBL Life Assurance
Corporation.
4. Joint Filing Agreement.
5. Power of Attorney.
EXHIBIT 1
MERGER AGREEMENT dated as of August 2, 1995 (the "Agreement"),
---------
among NATIONAL BROADCASTING COMPANY, INC., a Delaware corporation
("Parent"), CO ACQUISITION CORPORATION, a Delaware corporation ("Parent
------ ------
Sub"), and a wholly owned subsidiary of Parent, and OUTLET COMMUNICATIONS,
---
INC., a Delaware corporation (the "Company").
-------
WHEREAS, Parent Sub, upon the terms and subject to the conditions
of this Agreement and in accordance with the General Corporation Law of the
State of Delaware ("Delaware Law"), will merge with and into the Company
------------
(the "Merger");
------
WHEREAS, the Board of Directors of the Company has (i) determined
that the Merger is fair to, and in the best interests of, the holders of
Common Stock (as hereinafter defined) and (ii) approved this Agreement and
the transactions contemplated hereby and recommended approval and adoption
of this Agreement by the stockholders of the Company;
WHEREAS, the Board of Directors of Parent has determined that the
Merger is in the best interests of Parent and its stockholders and has
approved this Agreement and the transactions contemplated hereby;
WHEREAS, Parent has informed the Company that immediately
following the execution and delivery of this Agreement by the parties
hereto, Parent contemplates that stockholders of the Company holding a
majority of the outstanding shares of its voting common stock will enter
into Consent and Voting/Conditional Option Agreements (collectively, the
"Voting Agreements") with Parent, pursuant to which such stockholders will
-----------------
agree to vote for and/or consent to the adoption and approval of this
Agreement and the Merger, grant to Parent an option to purchase the shares
of the Common Stock owned by such stockholder and take and refrain from
taking certain other actions as set forth therein;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
in this Agreement, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. The Merger. Upon the terms and subject to the
----------
conditions set forth in this Agreement, and in accordance with Delaware
Law, at the Effective Time (as hereinafter defined),
<PAGE>
2
Parent Sub shall be merged with and into the Company. As a result of the
Merger, the separate corporate existence of Parent Sub shall cease and the
Company shall continue as the surviving corporation of the Merger (the
"Surviving Corporation"). The name of the Surviving Corporation shall be
---------------------
Outlet Communications, Inc.
SECTION 1.02. Effective Time. As promptly as practicable after
--------------
the satisfaction or, if permissible, waiver of the conditions set forth in
Article VII, the parties hereto shall cause the Merger to be consummated by
filing a certificate of merger (the "Certificate of Merger") with the
---------------------
Secretary of State of the State of Delaware, in such form as required by,
and executed in accordance with the relevant provisions of, Delaware Law
(the date and time of the filing of the Certificate of Merger or the time
specified therein being the "Effective Time").
--------------
SECTION 1.03. Effect of the Merger. At the Effective Time, the
--------------------
effect of the Merger shall be as provided in the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, except as otherwise provided
herein, all the property, rights, privileges, powers and franchises of
Parent Sub and the Company shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Parent Sub and the Company shall become
the debts, liabilities and duties of the Surviving Corporation.
SECTION 1.04. Certificate of Incorporation; By-Laws. At the
-------------------------------------
Effective Time, the Certificate of Incorporation and By-Laws of the
Company, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation and By-Laws, respectively, of the Surviving
Corporation.
SECTION 1.05. Directors and Officers. The directors of Parent
----------------------
Sub immediately prior to the Effective Time shall be the initial directors
of the Surviving Corporation, each to hold office in accordance with the
Certificate of Incorporation and By-Laws of the Surviving Corporation, and
the officers of Parent Sub immediately prior to the Effective Time shall be
the initial officers of the Surviving Corporation, in each case until their
respective successors are duly elected or appointed and qualified.
SECTION 1.06. Closing. (a) The closing (the "Closing") of the
------- -------
Merger will take place at the offices of Simpson Thacher & Bartlett, New
York, New York at 10:00 a.m., local time, on a date to be mutually agreed
upon by Parent and the Company, which date shall be no later than the fifth
business day following the date upon which the last to occur of the
conditions set forth in Article VII is fulfilled or duly waived.
<PAGE>
3
(b) Subject to the satisfaction or waiver of each of the
conditions set forth in Article VII, at the Closing, (i) the closing
certificates and other documents required by Article VII shall be
delivered, and (ii) the appropriate officers of the Company shall execute
and acknowledge the Certificate of Merger.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01. Conversion of Securities. At the Effective Time,
------------------------
by virtue of the Merger and without any action on the part of Parent,
Parent Sub, the Company or the holders of any of the following securities:
(a) Subject to the other provisions of this Section 2.01, each
share of Class A Common Stock, par value $.01 per share ("Common
------
Stock"), issued and outstanding immediately prior to the Effective
-----
Time (excluding any shares described in Section 2.01(b) and any
Dissenting Shares (as hereinafter defined)) shall be converted into
the right to receive $47.25 in cash, without interest (the "Per Share
---------
Amount"). All such shares of Common Stock shall cease to be
------
outstanding and shall automatically be canceled and retired and shall
cease to exist, and each certificate previously evidencing any such
shares shall thereafter represent only the right to receive the Per
Share Amount as described below. The holders of certificates
previously evidencing such shares of Common Stock outstanding
immediately prior to the Effective Time shall cease to have any rights
with respect to such shares of Common Stock, except as otherwise
provided herein or by law. Each such certificate previously
evidencing shares of Common Stock shall be exchanged for the Per Share
Amount multiplied by the number of shares previously evidenced by the
canceled certificate upon the surrender of such certificate in
accordance with the provisions of Section 2.02, without interest;
(b) Each share of Common Stock held in the treasury of the
Company and each share of Common Stock owned by any direct or indirect
subsidiary of the Company immediately prior to the Effective Time
shall be canceled and extinguished without any conversion thereof and
no payment shall be made with respect thereto; and
(c) Each share of Common Stock, par value $.01 per share, of
Parent Sub ("Parent Sub Common Stock") issued and outstanding
-----------------------
immediately prior to the Effective Time shall be converted into and
exchanged for one duly and validly
<PAGE>
4
issued, fully paid and nonassessable share of common stock of the
Surviving Corporation.
SECTION 2.02. Payment. (a) Paying Agent. As of the Effective
------- ------------
Time, Parent shall deposit, or shall cause to be deposited, with a bank
theretofore designated by the Company and Parent (the "Paying Agent"), for
------------
the benefit of the holders of shares of Common Stock, for payment in
accordance with this Article II, through the Paying Agent, cash in an
amount equal to the Per Share Amount multiplied by the number of shares of
Common Stock outstanding immediately prior to the Effective Time, (such
cash being hereinafter referred to as the "Payment Fund"). The Paying
------------
Agent shall, pursuant to irrevocable instructions, deliver the cash
contemplated to be paid pursuant to Section 2.01(a) out of the Payment
Fund. The Payment Fund shall not be used for any other purpose.
(b) Payment Procedures. Promptly after the Effective Time, the
------------------
Paying Agent shall mail to each record holder, as of the Effective Time, of
an outstanding certificate that immediately prior to the Effective Time
evidenced outstanding shares of Common Stock (the "Certificates") a form
------------
letter of transmittal and instructions for use in effecting the surrender
of the Certificates for payment therefor. Upon surrender to the Paying
Agent of a Certificate, together with such letter of transmittal duly
executed, and any other required documents, the holder of such Certificate
shall be entitled to receive in exchange therefor the consideration set
forth in Section 2.01(a) (the "Merger Consideration"), and such Certificate
--------------------
shall forthwith be cancelled. No interest will be paid or accrued on the
cash payable upon the surrender of the Certificates. Until surrendered in
accordance with the provisions of this Section 2.02, each Certificate shall
represent for all purposes only the right to receive the consideration set
forth in Section 2.01(a), without any interest thereon.
(c) No Further Rights in Common Stock. All cash paid upon
---------------------------------
conversion of the shares of Common Stock in accordance with the terms of
this Article II, and all cash paid pursuant to Section 2.05, shall be
deemed to have been paid in full satisfaction of all rights pertaining to
such shares of Common Stock.
(d) Termination of Payment Fund. Any portion of the Payment
---------------------------
Fund that remains undistributed to the holders of Common Stock for 180 days
after the Effective Time shall be delivered to Parent, upon demand, and any
holders of Common Stock that have not theretofore complied with this
Article II shall thereafter
<PAGE>
5
look only to Parent for the Merger Consideration to which they are
entitled.
(e) No Liability. Neither Parent nor the Surviving Corporation
------------
shall be liable to any holder of shares of Common Stock for any cash
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law.
SECTION 2.03. Options. Parent and the Company shall take all
-------
action necessary to (i) terminate the Company's 1992 Stock Incentive Plan,
as amended to the date of this Agreement (the "1992 Stock Plan"), effective
---------------
as of the close of business on the day after the Effective Time, (ii)
provide that each outstanding employee stock option or "Restricted Share"
award to purchase shares of Common Stock granted under the 1992 Stock Plan
(an "Option") shall become fully vested, whether or not previously vested,
------
immediately prior to the Effective Time and (iii) provide that, with
respect to any such Option that is outstanding immediately prior to the
Effective Time, such Option shall be cancelled as of the close of business
on the day after the Effective Time and the holder shall be entitled to
receive from the Surviving Corporation, immediately after the Effective
Time, an amount in cash in cancellation of such Option equal to the excess,
if any, of the Per Share Amount over the per share exercise price of such
Option, multiplied by the number of shares of Common Stock to which the
Option remains unexercised. Any such payment shall be subject to all
applicable Federal, state and local tax withholding requirements.
SECTION 2.04. Stock Transfer Books. At the Effective Time, the
--------------------
stock transfer books of the Company shall be closed and there shall be no
further registration of transfers of shares of Common Stock thereafter on
the records of the Company. On or after the Effective Time, any
certificates for shares of Common Stock presented to the Paying Agent, the
Surviving Corporation or Parent for any reason shall be converted into the
Merger Consideration.
SECTION 2.05. Dissenting Shares. Notwithstanding any other
-----------------
provisions of this Agreement to the contrary, shares of Common Stock that
are outstanding immediately prior to the Effective Time and that are held
by stockholders who shall not have voted in favor of the Merger or
consented thereto in writing and who shall have demanded properly in
writing appraisal for such shares in accordance with Section 262 of
Delaware Law (collectively, the "Dissenting Shares") shall not be converted
-----------------
into or represent the right to receive the Merger Consideration. Such
stockholders shall be entitled to receive payment of the appraised value of
such shares of Common Stock held by them in
<PAGE>
6
accordance with the provisions of such Section 262, except that all
Dissenting Shares held by stockholders who shall have failed to perfect or
who effectively shall have withdrawn or lost their rights to appraisal of
such shares of Common Stock under such Section 262 shall thereupon be
deemed to have been converted into and to have become exchangeable, as of
the Effective Time, for the right to receive, without any interest thereon,
the Merger Consideration, upon surrender, in the manner provided in Section
2.02, of the certificate or certificates that formerly evidenced such
shares of Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure schedule delivered by the
Company to Parent concurrent with the execution of this Agreement (the
"Company Disclosure Schedule"), the Company hereby represents and warrants
---------------------------
to Parent and Parent Sub that:
SECTION 3.01. Organization and Qualification; Subsidiaries.
--------------------------------------------
(a) The Company and each of its subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as it is now being conducted and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of the
business conducted by it or the ownership or leasing of its properties
makes such qualification necessary, other than where the failure to be so
duly organized, validly existing and in good standing, or to have such
power and authority, or to be duly qualified and in good standing, as the
case may be, would not have a Company Material Adverse Effect (as
hereinafter defined). The term "Company Material Adverse Effect" as used
-------------------------------
in this Agreement means any change or effect (other than a change or effect
relating to the industry of the Company, the financial markets or the
economy generally) that, individually or when taken together with all other
such changes or effects, would be materially adverse to the financial
condition, business, operations, earnings or prospects of the Company and
its subsidiaries, taken as a whole.
(b) Section 3.01 of the Company Disclosure Schedule sets forth a
complete and correct list of all the Company's directly or indirectly owned
subsidiaries, together with (i) the jurisdiction of incorporation of each
subsidiary and the percentage of each subsidiary's outstanding capital
stock owned
<PAGE>
7
by each holder of such stock, and (ii) indication of whether each such
subsidiary is a "Significant Subsidiary" (as hereinafter defined).
SECTION 3.02. Certificates of Incorporation and By-Laws. The
-----------------------------------------
Company has heretofore furnished to Parent complete and accurate copies of
the Certificates of Incorporation and the By-Laws, in each case as amended
or restated to the date of this Agreement, of the Company and each of its
subsidiaries.
SECTION 3.03. Capitalization. (a) The authorized capital stock
--------------
of the Company, as of immediately prior to the Effective Time, will consist
of (i) 10,000,000 shares of Common Stock; (ii) 1,879,375 shares of Class B
Common Stock, par value $.01 per share, and (iii) 1,000,000 shares of
Preferred Stock, no par value. As of the date of this Agreement, (i)
6,579,631 shares of Common Stock (none of which is subject to preemptive
rights created by statute, the Company's Certificate of Incorporation or
By-Laws or any agreement to which the Company is a party or is bound), no
shares of Class B Common Stock, and no shares of Preferred Stock are
issued and outstanding, (ii) no shares of Common Stock are held in the
treasury of the Company; (iii) 272,469 shares of Common Stock are reserved
for issuance pursuant to outstanding Options granted pursuant to the 1992
Stock Plan, (iv) no shares of Common Stock are issued and outstanding as
"Restricted Shares" under the 1992 Stock Plan, and (v) no "Limited Rights"
are issued and outstanding under the 1992 Stock Plan. Each of the
outstanding shares of capital stock of the Company and each of its
subsidiaries is duly authorized and validly issued, fully paid and
nonassessable, and such shares owned by the Company or another subsidiary
of the Company are owned free and clear of all liens, claims, encumbrances,
security interests or other charges ("Encumbrances"), except for such
------------
Encumbrances as would not have a Company Material Adverse Effect.
(b) Immediately prior to the Effective Time, there will be no
options, warrants or other rights (including registration rights),
agreements, arrangements or commitments of any character to which the
Company or any of its subsidiaries is a party relating to the issued or
unissued capital stock of the Company or any of its subsidiaries or
obligating the Company or any of its subsidiaries to grant, issue or sell
any shares of the capital stock of the Company or any of its subsidiaries,
by sale or otherwise. There are no obligations, contingent or otherwise,
of the Company or any of its subsidiaries to (i) repurchase, redeem or
otherwise reacquire any shares of Common Stock or the capital stock of any
subsidiary of the Company; or (ii) (other than advances to subsidiaries in
the ordinary course of business) provide material funds to, or make any
material investment in (in
<PAGE>
8
the form of a loan, capital contribution or otherwise), or provide any
guarantee with respect to the obligations of, any subsidiary of the Company
or any other person. As of the date of this Agreement, none of the Company
or any of its subsidiaries directly or indirectly owns, or has agreed to
purchase or otherwise acquire, the capital stock of, or any interest
convertible into or exchangeable or exercisable for, the capital stock of
any corporation, partnership, joint venture or other business association
or entity. Except for any agreements, arrangements or commitments between
the Company and any of its subsidiaries or between such subsidiaries, there
are no material agreements, arrangements or commitments of any character
(contingent or otherwise) pursuant to which any person is or may be
entitled to receive any payment based on the revenues or earnings, or
calculated in accordance therewith, of the Company or any of its
subsidiaries. There are no voting trusts, proxies or other material
agreements or understandings to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound with respect to the voting of any shares of capital stock of the
Company or any of its subsidiaries.
(c) The Company has made available to Parent complete and
accurate copies of the 1992 Stock Plan and the forms of agreements related
to Options and Restricted Shares awarded pursuant to the 1992 Stock Plan,
including all amendments thereto.
SECTION 3.04. Authority. The Company has all requisite
---------
corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby to be consummated by the Company. The execution and
delivery of this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby have been duly authorized
by all necessary corporate action and no other corporate proceedings on the
part of the Company are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been
validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by Parent and Parent Sub, constitutes
a legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by the availability
of equitable remedies. Prior to the execution of this Agreement, the
Company has taken all necessary corporate action to permit this Agreement
and the Merger to be approved immediately following execution of this
Agreement by the written
<PAGE>
9
consent of the holders of a majority of the outstanding Common Stock.
SECTION 3.05. No Conflict; Required Filings and Consents. (a)
------------------------------------------
The execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company will not, (i) conflict with or
violate the Certificate of Incorporation or By-Laws of the Company or any
of its subsidiaries, (ii) conflict with or violate any Federal, state,
local or foreign law, statute, ordinance, rule, regulation, permit, order,
judgment or decree (collectively, "Laws") applicable to the Company or any
----
of its subsidiaries or by which any of their respective properties is
bound, or (iii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or require payment under, or result in the creation of
any Encumbrance on any of the properties or assets of the Company or any of
its subsidiaries pursuant to, or trigger any right of first refusal under,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties is bound, except for any
thereof that would not have a Company Material Adverse Effect. The Board
of Directors of the Company has taken all actions necessary under Delaware
Law, including approving the transactions contemplated by this Agreement
and by each Voting Agreement, to ensure that Section 203 of Delaware Law
does not, or will not, apply to the transactions contemplated by this
Agreement or by the Voting Agreements.
(b) The execution and delivery of this Agreement by the Company
do not, and the performance of this Agreement by the Company will not,
require the Company to obtain any consent, approval, authorization or
permit of, or to make any filing with or notification to, any governmental
or regulatory authority, domestic or foreign ("Governmental Entity"), based
-------------------
on the Laws of any Governmental Entity, except (i) the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the Communications Act of
------------
1934, as amended (the "Communications Act"), and the Hart-Scott-Rodino
------------------
Antitrust Improvements Act of 1976, as amended (the "HSR Act"); (ii) the
-------
filing and recordation of the Certificate of Merger as required by Delaware
Law; and (iii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would
not prevent the Company from performing its obligations under this
Agreement and would not have a Company Material Adverse Effect.
<PAGE>
10
SECTION 3.06. Reports; Financial Statements. (a) Since June
-----------------------------
30, 1992, (i) the Company and Outlet Broadcasting, Inc., a Rhode Island
corporation ("Broadcasting") have filed all forms, reports, statements,
------------
schedules and other documents required to be filed with (A) the Securities
and Exchange Commission (the "SEC"), including, without limitation, (I) all
---
Annual Reports on Form 10-K, (II) all Quarterly Reports on Form 10-Q, (III)
all Current Reports on Form 8-K, (IV) all other forms, reports, statements,
schedules and other documents required to be filed, and (V) all amendments
and supplements to all such forms, reports, statements, schedules and other
documents (collectively, the "Company SEC Reports"); (B) any other
-------------------
applicable state securities authorities, and (C) the Federal Communications
Commission (the "FCC") and (ii) the Company and Broadcasting and their
---
respective subsidiaries have filed all forms, reports, statements,
schedules and other documents required to be filed with any other
applicable Federal or state regulatory authorities, except where the
failure to file any such forms, reports, statements, schedules or other
documents would not have a Company Material Adverse Effect (all such forms,
reports, statements, schedules and other documents in clauses (i) and (ii)
of this Section 3.06(a) being referred to herein, collectively, as the
"Company Reports"). The Company Reports, including all Company Reports
---------------
filed after the date of this Agreement and prior to the Effective Time, (i)
were or will be prepared in all material respects in accordance with the
requirements of applicable Law (including, with respect to the Company SEC
Reports, the Securities Act of 1933, as amended (the "Securities Act"), the
--------------
Exchange Act, and the rules and regulations of the SEC thereunder
applicable to such Company SEC Reports), and (ii) did not at the time they
were filed, or will not at the time they are filed, contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that, to the extent that the foregoing relates to facts
-------- -------
or omissions regarding persons other than the Company and its affiliates,
such representation and warranty is being made to the Company's knowledge.
(b) Each of the consolidated financial statements (including, in
each case, any related notes thereto) contained in the Company SEC Reports
filed prior to the Effective Time (i) have been or will be prepared in
accordance with the published rules and regulations of the SEC and
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except (A) to the extent required by
changes in generally accepted accounting principles and (B) with respect to
Company SEC Reports filed prior to the date hereof, as
<PAGE>
11
may be indicated in the notes thereto) and (ii) fairly present or will
fairly present the consolidated financial position of the Company and its
subsidiaries, as the case may be, as of the respective dates thereof and
the consolidated results of operations and cash flows for the periods
indicated, except that (x) any unaudited interim financial statements were
or will be subject to normal and recurring year-end adjustments and (y) any
pro forma financial information contained in such consolidated financial
statements is not necessarily indicative of the consolidated financial
position of the Company and its subsidiaries, as the case may be, as of the
respective dates thereof and the consolidated results of operations and
cash flows for the periods indicated.
SECTION 3.07. Undisclosed Liabilities. As of the date of this
-----------------------
Agreement, none of the Company or any of its subsidiaries has, to the
knowledge of the Company, any material liability (whether accrued,
absolute, contingent or otherwise) that is required to be reflected on the
financial statements (or the notes thereto) of the Company in accordance
with generally accepted accounting principles, other than liabilities (a)
reflected or reserved against in the consolidated balance sheets included
in the Company's Form 10-Q for the quarter ended March 31, 1995, and Form
10-K for the year ended December 31, 1994 (the "Balance Sheets") (or in the
--------------
notes thereto), (b) with respect to matters disclosed in the Company
Disclosure Schedule or excluded from the coverage of any of the
representations, warranties or covenants herein, (c) that are covered by
enforceable insurance, indemnification, contribution or comparable
arrangements, (d) under the Laws of any jurisdiction, except for violation
of any such Laws that would have a Company Material Adverse Effect, (e)
under any contract or instrument, other than liabilities arising out of
breaches of such contracts or instruments that would have a Company
Material Adverse Effect, (f) under this Agreement, the Renaissance Merger
Agreement (as hereinafter defined) or any agreement entered into in
connection herewith or therewith, (g) with respect to matters addressed in
Sections 3.13, 3.16 and 3.19 (which shall be governed solely by the terms
of such Sections), and (h) incurred or arising in the ordinary course of
business of the Company or such subsidiary since March 31, 1995.
SECTION 3.08. Material Contracts. Section 3.08 of the Company
-------------------
Disclosure Schedule sets forth a list, as of the date of this Agreement, of
all (a) written employment, severance, termination, consulting (to the
extent any thereof involve annual payments of at least $25,000 or are not
terminable on less than 366 days' notice without material penalty) and
retirement agreements to which the Company or any of its subsidiaries is a
party, (b) written collective bargaining agreements to which the
<PAGE>
12
Company or any of its subsidiaries is a party, (c) written agreements that
require aggregate future payments by or to the Company or any of its
subsidiaries of more than $500,000 that are not terminable by the Company
or any of its subsidiaries on less than 366 days' notice without material
penalty (other than purchase orders and advertising sales contracts entered
into in the ordinary course of business), (d) written agreements containing
covenants limiting the freedom of the Company or any of its subsidiaries to
compete with any person in any line of business or in any area or
territory, (e) license agreements involving annual payments in excess of
$500,000, (f) indentures, mortgages and notes or other debt instruments
evidencing indebtedness (other than purchase money indebtedness) in excess
of $1,000,000, (g) material agreements of the Company or any of its
subsidiaries with any shareholder or director of the Company, (h)
agreements of the Company involving payments in excess of $500,000
containing any provisions with respect to a "change in control" of the
Company, and (i) agreements under which the Company or any of its
subsidiaries has advanced or loaned any amount in excess of $50,000 to any
of its directors, officers or employees (collectively, the "Material
--------
Contracts"). Except as would not have a Company Material Adverse Effect,
---------
(a) the Company and its subsidiaries are not in default under any of the
Material Contracts, and (b) to the Company's knowledge, the other parties
thereto are not in default and the Material Contracts are valid and binding
obligations of the other parties thereto, in accordance with their terms.
SECTION 3.09. FCC Licenses; Station Operation. Except for such
-------------------------------
matters as would not have a Company Material Adverse Effect, (a) to the
Company's knowledge, it is operating the Licensed Stations (as hereinafter
defined) in accordance with generally accepted industry practice, in
compliance with the terms of the FCC Licenses (as hereinafter defined), and
in compliance with the Communications Act and all applicable rules,
regulations and policies of the FCC (collectively, the "FCC Rules and
-------------
Regulations"); (b) the Company has filed or made all applications, reports
-----------
and other disclosures required by the FCC to be filed or made with respect
to the Licensed Stations and has timely paid all FCC regulatory fees with
respect thereto; (c) all FCC Licenses used or useful in connection with the
ownership and operation of the Licensed Stations as commercial broadcast
television stations are valid and in full force and effect; (d) no
application, action or proceeding is pending for the renewal or
modification of any of the FCC Licenses and, to the Company's knowledge,
there is not now before the FCC any investigation or complaint against the
Company relating to the Licensed Stations; (e) there is no proceeding
pending before the FCC (other than proceedings affecting the broadcast
industry generally), and
<PAGE>
13
there is no outstanding notice of violation from the FCC, relating to the
Licensed Stations; (f) to the Company's knowledge, there is no reasonable
basis for the initiation or issuance by the FCC of any investigation,
proceeding or notice of violation with respect to the Licensed Stations and
there is no reasonable basis on which any third party could file such a
complaint, which could reasonably be expected to prevent FCC approval of
the FCC Application (as defined in Section 6.03); (g) to the Company's
knowledge, no event has occurred which, individually or in the aggregate,
and with or without the giving of notice or the lapse of time or both,
would constitute grounds for revocation or termination of any FCC License
or the imposition of any restriction or limitation on the operation of the
Licensed Stations; and (h) no judgment, decree, order or notice of
violation has been issued by any Governmental Entity which permits, or
would permit, revocation, modification or termination of any FCC License or
which results, or could result, in any impairment of any rights thereunder.
SECTION 3.10. Permits. (a) Each of the Company and its
-------
subsidiaries is in possession of all franchises, grants, authorizations,
licenses, permits, easements, variances, exemptions, consents,
certificates, approvals and orders (collectively, the "Company Permits"),
---------------
that are necessary to own, lease and operate the properties of the Company
and its subsidiaries and to carry on their business as they or it are or is
owned, leased, operated or carried on, except, in each case, where the
failure to possess such Company Permits would not have a Company Material
Adverse Effect. The Company Permits are in full force and effect and there
is no action, proceeding or investigation pending or, to the knowledge of
the Company, threatened regarding suspension or cancellation of any of the
Company Permits, except, in each case, where the failure to possess, or the
suspension or cancellation of, such Company Permits would not have a
Company Material Adverse Effect.
SECTION 3.11. Properties. Each of the Company and its
----------
subsidiaries has good, valid and, in the case of real property, marketable
fee simple, title to all the material assets and properties that it owns
and that are reflected on the Balance Sheets (except for assets and
properties sold, consumed or otherwise disposed of by them since the dates
thereof), and such assets and properties are owned free and clear of all
Encumbrances, except for (a) liens for taxes and assessments not yet due
and payable or for taxes the validity of which is being contested in good
faith, (b) Encumbrances to secure indebtedness reflected on the Balance
Sheets or indebtedness (including purchase money indebtedness) incurred in
the ordinary course of business and consistent with past practice after the
date
<PAGE>
14
thereof, (c) mechanic's, materialmen's and other Encumbrances that have
arisen in the ordinary course of business and (d) imperfections of title
and Encumbrances the existence of which do not have a Company Material
Adverse Effect. All the material buildings, structures, equipment and
other tangible assets of the Company and its subsidiaries (whether owned or
leased) are in normal operating condition (normal wear and tear excepted)
and are fit for use in the ordinary course of business of the Company.
SECTION 3.12. Intellectual Property. Section 3.12 of the
---------------------
Company Disclosure Schedule sets forth a complete and accurate list and a
brief description of all patents, patent applications, trademarks, trade
names, service marks and other intellectual property (the "Intellectual
------------
Property") owned, used or licensed by or to the Company and pertaining to
--------
the business of the Company, which is all the Intellectual Property
necessary to conduct the business of the Company, except for Intellectual
Property, the lack of which would not have a Company Material Adverse
Effect. Except as would not have a Company Material Adverse Effect, to the
Company's knowledge, the rights of the Company in or to such Intellectual
Property do not conflict with or infringe on the rights of any other
person, and the Company has not received any claim or notice from any
person to such effect.
SECTION 3.13. Taxes. Except for such matters as would not have
-----
a Company Material Adverse Effect, (a) the Company and its subsidiaries
have filed or will timely file all returns and reports required to be filed
prior to the Effective Time by them with any taxing authority with respect
to Taxes (as hereinafter defined) for any period ending on or before the
Effective Time, (b) all Taxes shown to be payable on such returns or
reports that are due prior to the Effective Time have been paid or will be
paid, (c) no deficiency for any material amount of Tax has been asserted or
assessed by a taxing authority against the Company or its subsidiaries, and
(d) no consent under Section 341(f) of the Internal Revenue Code of 1986,
as amended (the "Code"), has been filed with respect to the Company or any
----
of its subsidiaries. As of the date of this Agreement, there are no
examinations of Federal income tax returns of the Company currently being
conducted by the Internal Revenue Service.
SECTION 3.14. Compliance. To the Company's knowledge, none of
----------
the Company or any of its subsidiaries is in default or violation of (a)
any Law applicable to the Company or any of its subsidiaries or by which
any of their respective properties is bound or (b) any of the Company
Permits, except for any such defaults or violations that would not have a
Company Material
<PAGE>
15
Adverse Effect. None of the Company or any of its subsidiaries has
received from any Governmental Entity any written notification with respect
to possible defaults or violations of Laws by the Company or any of its
subsidiaries, except, in each case, for written notices relating to
possible defaults or violations that would not have a Company Material
Adverse Effect or have been resolved.
SECTION 3.15. Certain Changes or Events. Except as disclosed in
-------------------------
the Company SEC Reports filed prior to the date of this Agreement or as
contemplated by this Agreement, during the period commencing January 1,
1995, and ending on the date of this Agreement, the Company and its
subsidiaries have conducted their respective businesses only in the
ordinary course and in a manner consistent with past practice and there has
not been: (a) any material damage, destruction or loss (not covered by
insurance) with respect to any material assets of the Company or any of its
subsidiaries that has resulted in a Company Material Adverse Effect; (b)
any material change by the Company or its subsidiaries in their accounting
methods, principles or practices; (c) except for dividends by a subsidiary
of the Company to the Company or another subsidiary of the Company or
repurchases of shares of Common Stock from terminated employees pursuant to
the 1992 Stock Plan, any declaration, setting aside or payment of any
dividends or distributions in respect of shares of Common Stock or the
shares of stock of, any subsidiary of the Company or any redemption,
repurchase or other reacquisition of any of the Company's equity securities
or any of the equity securities of any subsidiary of the Company; (d) any
material increase in the benefits under, or the establishment or amendment
of, any material bonus, insurance, severance, deferred compensation,
pension, retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation rights,
performance awards, or restricted stock awards), stock purchase or other
employee benefit plan, or any material increase in the compensation payable
or to become payable to directors, officers or employees of the Company or
its subsidiaries, except for increases in salaries or wages payable or to
become payable in the ordinary course of business and consistent with past
practice; or (e) a Company Material Adverse Effect.
SECTION 3.16. Litigation. As of the date of this Agreement,
----------
there is no claim, action, suit, litigation, proceeding, arbitration or, to
the knowledge of the Company, investigation of any kind, at law or in
equity (including actions or proceedings seeking injunctive relief),
pending or, to the knowledge of the Company, threatened in writing against
the Company or any of its subsidiaries or any properties or rights of
<PAGE>
16
the Company or any of its subsidiaries (except for claims, actions, suits,
litigations, proceedings, arbitrations or investigations that would not
have a Company Material Adverse Effect), and neither the Company nor any of
its subsidiaries is subject to any continuing order of, consent decree,
settlement agreement or other similar written agreement with, or, to the
knowledge of the Company, continuing investigation by, any Governmental
Entity, or any judgment, order, writ, injunction, decree or award of any
Governmental Entity or arbitrator, including, without limitation,
cease-and-desist or other orders, except as disclosed in the Company SEC
Reports filed prior to the date of this Agreement and except for matters
that would not have a Company Material Adverse Effect.
SECTION 3.17. Employee Benefit Plans; Labor Matters. (a)
-------------------------------------
Section 3.17(a) of the Company Disclosure Schedule sets forth a complete
and accurate list of each employee benefit plan, program, arrangement and
contract (including, without limitation, any "employee benefit plan", as
---------------------
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), employment agreements, personnel policies or
-----
fringe benefit plans, policies, programs and arrangements, stock bonus,
deferred compensation, pension, severance, bonus, vacation, travel,
incentive, and health, disability and other welfare plans), maintained or
contributed to by the Company or any of its subsidiaries, or with respect
to which the Company or any of its subsidiaries could incur liability under
Section 4069, 4212(c) or 4204 of ERISA (the "Company Benefit Plans").
---------------------
(b) None of the Company or any of its subsidiaries contributes
to, has any material obligation to contribute to or otherwise has any
material liability or potential material liability with respect to (i) any
"multiemployer plan" (as such term is defined in Section 3(37) of ERISA),
(ii) any plan of the type described in Section 4063 and 4064 of ERISA or
(iii) any plan that provides health, life insurance, accident or other
"welfare-type" benefits to current or future retirees or current or future
former employees, their spouses or dependents, other than in accordance
with Section 4980B of the Code, or applicable state benefit continuation
law. None of the Company or any of its subsidiaries has any liability or,
to the knowledge of the Company, potential liability with respect to any
employee benefit plan subject to Title IV of ERISA or Section 412 of the
Code that is currently or was formerly maintained by any other current or
former member of the controlled group of corporations, trades or businesses
(within the meaning of Sections 414(b), (c), (m) and (o) of the Code) of
which the Company or any of its subsidiaries is or was a member that would
have a Company Material Adverse Effect.
<PAGE>
17
(c) Each Company Benefit Plan has been maintained, funded and
administered in compliance in all material respects with applicable Law,
including, without limitation, ERISA and the Code. None of the Company or
any of its subsidiaries has engaged in any prohibited transaction (within
the meaning of Section 406 of ERISA or Section 4975 of the Code) with
respect to any Company Benefit Plan that has resulted or could reasonably
be expected to result in any material liability to the Company or any of
its subsidiaries. No Company Benefit Plan that is subject to the funding
requirements of Section 412 of the Code or Section 302 of ERISA has
incurred any "accumulated funding deficiency" as such term is defined in
such sections of ERISA and the Code, whether or not waived. No material
liability to the Pension Benefit Guaranty Corporation ("PBGC") (except for
----
payment of premiums in the ordinary course) has been or is reasonably
expected to be incurred with respect to any Company Benefit Plan that is
subject to Title IV of ERISA; no reportable event (as such term is defined
in Section 4043 of ERISA) has occurred with respect to any such Company
Benefit Plan; and the PBGC has not commenced or threatened the termination
of any such Company Benefit Plan. None of the assets of the Company or any
of its subsidiaries is the subject of any lien arising under Section 302(f)
of ERISA or Section 412(n) of the Code; and none of the Company or any of
its subsidiaries has been required to post any security pursuant to Section
307 of ERISA or Section 401(a)(29) of the Code.
(d) Each Company Benefit Plan that is intended to be qualified
under Section 401(a) of the Code, and each trust (if any) forming a part
thereof, has received a favorable determination letter from the Internal
Revenue Service as to the qualification under the Code of such Company
Benefit Plan and the tax-exempt status of such related trust.
(e) With respect to each Company Benefit Plan that is subject to
the funding requirements of Section 412 of the Code and Section 302 of
ERISA, all material required contributions for all periods ending prior to
or as of the Effective Time (including periods from the first day of the
then-current plan year to the Effective Time) have been or will be made or
properly accrued.
(f) With respect to each Company Benefit Plan, the Company has
made available to Parent, complete and accurate copies, to the extent
applicable, of (i) all documents embodying or governing such Company
Benefit Plan and any funding medium for the Company Benefit Plan, (ii) the
1993 annual report (Form 5500 series) filed with the Internal Revenue
Service (with attachments), (iii) the most recent actuarial report, (iv)
the two most recent financial statements and (v) the most recent IRS
<PAGE>
18
determination or approval letter with respect to such Company Benefit Plan
under Section 401 or 501(a)(9) of the Code (and pending requests or
applications for determinations or approvals).
(g) The Company and each of its subsidiaries are in compliance
with all applicable Laws relating to the employment of personnel and labor,
except where a failure to be in compliance would not have a Company
Material Adverse Effect.
(h) Except for such exceptions as do not have a Material Adverse
Effect, as of the date of this Agreement, (i) there are no controversies
pending or, to the knowledge of the Company, threatened between the Company
or any of its subsidiaries and any of their respective employees; (ii) none
of the Company or any of its subsidiaries is a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by the Company or any of its subsidiaries, nor, to the knowledge
of the Company, are there any activities or proceedings of any labor union
to organize any such employees; (iii) there are no grievances outstanding
against the Company or any of its subsidiaries under any such agreement or
contract; (iv) there are no unfair labor practice complaints pending
against the Company or any of its subsidiaries before the National Labor
Relations Board or any current union representation questions involving
employees of the Company or any of its subsidiaries; and (v) there is no
strike, slowdown, work stoppage or lockout, or, to the knowledge of the
Company, threat thereof, by or with respect to any employees of the Company
or any of its subsidiaries.
SECTION 3.18. Insurance. All material insurance policies (the
---------
"Insurance Policies") with respect to the property, assets, operations and
------------------
business of the Company and its subsidiaries are in full force and effect
in all material respects. The coverage amounts set forth in such Insurance
Policies (subject to applicable deductibles) are not less than the
replacement cost of the assets insured by such Insurance Policies. There
are no pending material claims against the Insurance Policies by the
Company or any of its subsidiaries as to which the insurers have denied
material liability.
SECTION 3.19. Environmental Matters. (a) Except as would not
---------------------
have a Company Material Adverse Effect, (i) the Company is in compliance
with all applicable Federal, state, local and foreign laws and regulations
relating to pollution and the discharge of materials into the environment
("Environmental Laws"), (ii) the Company holds all the permits, licenses
------------------
and approvals of governmental authorities and agencies necessary for the
current use, occupancy or operation of its assets and business under
Environmental Laws ("Environmental Permits"), and
---------------------
<PAGE>
19
(iii) the Company is in compliance with all its Environmental Permits.
(b) The Company has not received any written request for
information, or been notified that it is a potentially responsible party,
under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), or any similar state, local or foreign
------
law with respect to any real property owned or leased by it.
(c) The Company has not entered into or agreed to any consent
decree or order and is not subject to any judgment, decree or judicial
order relating to compliance with or the cleanup of regulated substances
under any applicable Environmental Law.
(d) None of the real property owned or leased by the Company is
listed or, to the knowledge of the Company, proposed for listing on the
"National Priorities List" under CERCLA, or on the Comprehensive
Environmental Response, Compensation and Liability Information System
maintained by the United States Environmental Protection Agency, as updated
through the date of this Agreement, or any similar state list of sites
requiring investigation or cleanup.
SECTION 3.20. Brokers. Other than Goldman, Sachs & Co., no
-------
broker, finder or investment banker is entitled to any brokerage, finder's
or other fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of the
Company.
SECTION 3.21. Renaissance Merger Agreement. The Board of
----------------------------
Directors of the Company has recommended to the stockholders of the Company
that the stockholders of the Company approve and adopt this Agreement. The
Company has notified Renaissance Communications Corp., a Delaware
corporation ("Renaissance"), that it has terminated the Merger Agreement
-----------
dated as of June 30, 1995 (as such agreement is in effect on the date
hereof, the "Renaissance Merger Agreement"), among the Company, Renaissance
----------------------------
and Renaissance Communications Acquisition Corp., a Delaware corporation,
pursuant to Section 8.01(h) thereof, and such termination became effective
prior to the execution of this Agreement.
SECTION 3.22. Absence of Certain Other Actions. Between June
--------------------------------
30, 1995, and the date of this Agreement (inclusive), neither the Company
nor any of its subsidiaries has taken, or agreed to take, any action that
would constitute a breach of Section 5.02 (other than Section 5.02(l)) if
taken after the date of this Agreement.
<PAGE>
20
SECTION 3.23. Renaissance Documentation. As of the date of this
-------------------------
Agreement, there are no written agreements between Outlet and Renaissance
other than the Renaissance Merger Agreement and the Confidentiality
Agreement referred to therein.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PARENT SUB
Except as set forth in the disclosure schedule delivered by
Parent and Parent Sub to the Company concurrent with the execution of this
Agreement (the "Parent Disclosure Schedule"), Parent and Parent Sub hereby
--------------------------
jointly and severally represent and warrant to the Company that:
SECTION 4.01. Organization and Qualification; Subsidiaries.
--------------------------------------------
Each of Parent and Parent Sub is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as it is now
being conducted. The term "Parent Material Adverse Effect" as used in this
------------------------------
Agreement means any change or effect (other than a change or effect
relating to the industry of Parent, the financial markets or the economy
generally) that, individually or when taken together with all such other
changes or effects, would be materially adverse to the financial condition,
business, operations, earnings or prospects of Parent and its subsidiaries,
taken as a whole.
SECTION 4.02. Certificate of Incorporation and By-Laws. Parent
----------------------------------------
has heretofore furnished to the Company a complete and accurate copy of the
Certificate of Incorporation and the By-Laws, as amended or restated to the
date of this Agreement, of each of Parent and Parent Sub.
SECTION 4.03. Authority. (a) Parent has all requisite
---------
corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to
consummate the transactions contemplated hereby to be consummated by
Parent. The execution and delivery of this Agreement and the consummation
by Parent of the transactions contemplated hereby have been duly authorized
by all necessary corporate action and no other corporate proceedings on the
part of Parent are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been validly
executed and delivered by Parent and, assuming the due authorization,
execution and delivery by the Company, constitutes
<PAGE>
21
a legal, valid and binding obligation of Parent, enforceable against Parent
in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by the availability of equitable
remedies.
(b) Parent Sub has all requisite corporate power and authority
to execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby to be consummated by
Parent Sub. The execution and delivery of this Agreement by Parent Sub and
the consummation by Parent Sub of the transactions contemplated hereby have
been duly authorized by all necessary corporate action and no other
corporate proceedings on the part of Parent Sub are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been validly executed and delivered by Parent Sub and,
assuming the due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of Parent Sub,
enforceable against Parent Sub in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
by the availability of equitable remedies. Parent, as the sole stockholder
of Parent Sub, has duly approved and adopted this Agreement in accordance
with Delaware Law.
SECTION 4.04. No Conflict; Required Filings and Consents. (a)
------------------------------------------
The execution and delivery of this Agreement by Parent and Parent Sub do
not, and the performance of this Agreement by Parent and Parent Sub will
not, (i) conflict with or violate the Certificate of Incorporation or
By-Laws of Parent, Parent Sub or any of Parent's subsidiaries,
(ii) conflict with or violate any Laws applicable to Parent, Parent Sub or
any of Parent's subsidiaries or by which any of their respective properties
is bound, or (iii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or require payment under, or result in the creation of
any Encumbrance on any of the properties or assets of Parent, Parent Sub or
any of Parent's subsidiaries pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Parent, Parent Sub or any of Parent's
subsidiaries is a party or by which Parent, Parent Sub or any of Parent's
subsidiaries or any of their respective properties is bound, except for any
thereof that would not have a Parent Material Adverse Effect.
<PAGE>
22
(b) The execution and delivery of this Agreement by Parent and
Parent Sub do not, and the performance of this Agreement by Parent and
Parent Sub will not, require Parent or Parent Sub to obtain any consent,
approval, authorization or permit of, or to make any filing with or
notification to, any Governmental Entity based on the Laws of any
Governmental Entity, except (i) for applicable requirements, if any, of the
Exchange Act, the Communications Act and the HSR Act and the filing and
recordation of the Certificate of Merger as required by Delaware Law and
(ii) where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent
Parent or Parent Sub from performing its obligations under this Agreement
and would not have a Parent Material Adverse Effect.
SECTION 4.05. Ownership of Parent Sub; No Prior Activities.
--------------------------------------------
Parent Sub was formed solely for the purpose of engaging in the
transactions contemplated by this Agreement. As of the date of this
Agreement and the Effective Time, except for obligations or liabilities
incurred in connection with its incorporation or organization and the
transactions contemplated by this Agreement and the financing thereof and
except for this Agreement and any other agreements or arrangements
contemplated by this Agreement or related to the financing of the
transactions contemplated hereby, Parent Sub has not and will not have
incurred, directly or indirectly, through any subsidiary or affiliate, any
obligations or liabilities or engaged in any business activities of any
type or kind whatsoever or entered into any agreements or arrangements with
any person.
SECTION 4.06. Vote Required. No vote of the holders of any
-------------
class or series of capital stock of Parent is necessary to approve any of
the transactions contemplated hereby. The affirmative vote of the holders
of a majority of the outstanding shares of common stock of Parent Sub is
the only vote of the holders of any class or series of Parent Sub capital
stock necessary to approve any of the transactions contemplated hereby.
SECTION 4.07. Financing. (a) Parent and its affiliates have,
---------
and at the Effective Time Parent will have, funds in an amount sufficient
to (i) consummate the Merger (and make all the payments contemplated by
Article II), (ii) pay all related fees and expenses, including, without
limitation, the fee of $6.5 million which the Company is required to pay
Renaissance under the Renaissance Merger Agreement upon consummation of the
Merger, (iii) permit Broadcasting to comply with paragraph 4 of the 1988
Agreement (as hereinafter defined), (iv) permit the Company to comply with
Section 5 of the Babb Agreement (as hereinafter defined), and (v) provide
adequate working capital for the operation of the Company as of the
Effective Time.
<PAGE>
23
(b) Parent and Parent Sub have no reason to believe that they
are not financially qualified under applicable FCC requirements to acquire
and exercise control over the Company as contemplated under this Agreement
and are not aware of any matters or relationships involving the Parent or
Parent Sub or any of their affiliates that could reasonably be expected to
cause the FCC to disapprove the transfer of control of the Company
contemplated hereunder or to designate the FCC Application (as defined in
Section 6.03(a)) for evidentiary hearing.
SECTION 4.8. Brokers. Except for Allen & Company Incorporated,
-------
no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of Parent or Parent Sub.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants of the Company. The Company
------------------------------------
hereby covenants and agrees that, prior to the Effective Time, unless
otherwise expressly contemplated by this Agreement or consented to in
writing by Parent, the Company will and will cause its subsidiaries to
(a) operate its business in the usual and ordinary course consistent with
past practices; (b) use its reasonable efforts to preserve substantially
intact its business organization, maintain its rights and franchises,
retain the services of its respective principal officers and key employees
and maintain its relationships with its respective principal customers and
suppliers; (c) use its reasonable efforts to maintain and keep its
properties and assets in as good repair and condition as at present,
ordinary wear and tear excepted; and (d) use its reasonable efforts to keep
in full force and effect insurance comparable in amount and scope of
coverage to that currently maintained; provided, however, that in the
-------- -------
event the Company deems it necessary to take certain actions that would
otherwise be proscribed by clauses (a) - (d) of this Section 5.01, the
Company shall consult with Parent and Parent shall consider in good faith
the Company's request to take such action and not unreasonably withhold or
delay its consent for such action.
SECTION 5.02. Negative Covenants of the Company. Except as
---------------------------------
expressly contemplated by this Agreement and except as set forth in Section
5.02 of the Company Disclosure Schedule, or otherwise consented to in
writing by Parent, from the date hereof
<PAGE>
24
until the Effective Time, the Company will not do, and will not permit any
of its subsidiaries to do, any of the following:
(a) (i) increase the periodic compensation payable to or to
become payable to any director or executive officer of the Company or any
of its subsidiaries, except for increases in salary, wages or bonuses
payable or to become payable in the ordinary course of business and
consistent with past practice; (ii) grant any severance or termination pay
(other than pursuant to existing severance arrangements or policies as in
effect on the date of this Agreement and "stay" bonuses which do not exceed
$200,000 in the aggregate) to, or enter into any employment or severance
agreement with, any director, officer or employee of the Company or any of
its subsidiaries involving an annual payment of more than $100,000 and not
terminable on or before the Closing (other than employment, severance or
similar agreements entered into with the consent of Parent, which consent
shall not be unreasonably withheld or delayed); or (iii) adopt any employee
benefit plan or arrangement, except as may be required by applicable Law or
pursuant to any collective bargaining agreement between the Company or any
of its subsidiaries and their respective employees;
(b) declare or pay any dividend on, or make any other
distribution in respect of, outstanding shares of capital stock of the
Company;
(c) (i) redeem, repurchase or otherwise reacquire any shares of
its or any of its subsidiaries' capital stock or any securities or
obligations convertible into or exchangeable for any shares of its or its
subsidiaries' capital stock (other than any such acquisition directly from
any wholly owned subsidiary of the Company in exchange for capital
contributions or loans to such subsidiary, or any options, warrants or
conversion or other rights to acquire any shares of its or its
subsidiaries' capital stock or any such securities or obligations (except
in connection with the exercise of outstanding Options referred to in
Section 3.03 in accordance with their terms); (ii) effect any
reorganization or recapitalization of the Company; or (iii) split, combine
or reclassify any of the Company's capital stock or issue or authorize or
propose the issuance of any other securities in respect of, in lieu of, or
in substitution for, shares of its capital stock;
(d) (i) issue, deliver, award, grant or sell, or authorize or
propose the issuance, delivery, award, grant or sale (including the grant
of any Encumbrances) of, any shares of any class of its or its
subsidiaries' capital stock (including shares held in treasury), any
securities convertible into or exercisable or exchangeable for any such
shares, or any rights, warrants or options to acquire, any such shares
(except for the issuance of
<PAGE>
25
shares upon the exercise of outstanding Options and except for the issuance
of options to employees with the consent of Parent); or (ii) amend or
otherwise modify the terms of any such rights, warrants or options the
effect of which shall be to make such terms more favorable to the holders
thereof;
(e) acquire or agree to acquire, by merging or consolidating
with, by purchasing an equity interest in or a portion of the assets of, or
by any other manner, any business or any corporation, partnership,
association or other business organization or division (other than a wholly
owned subsidiary) thereof, or otherwise acquire or agree to acquire any
assets of any other person (other than the purchase of assets in the
ordinary course of business and consistent with past practice) in the case
of asset purchases which are material, individually or in the aggregate, to
the Company and its subsidiaries, taken as a whole, or make or commit to
make any capital expenditures other than capital expenditures in the
ordinary course of business consistent with past practice and with the
Company's 1995 Capital Plan;
(f) sell, lease, exchange, mortgage, pledge, transfer or
otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge,
transfer or otherwise dispose of, any of its material assets or any
material assets of any of its subsidiaries except for the grant of purchase
money security interests and dispositions in the ordinary course of
business and consistent with past practice;
(g) propose or adopt any amendments to its Certificate of
Incorporation or, as to its By-Laws, any amendments that would have an
adverse impact on the consummation of the transactions contemplated by this
Agreement or would be adverse to Parent's interests;
(h) (A) change any of its methods of accounting in effect at
March 31, 1995, or (B) make or rescind any express or deemed election
relating to Taxes, settle or compromise any claim, action, suit,
litigation, proceeding, arbitration, investigation, audit or controversy
relating to Taxes (except where the amount of such settlements or
controversies, individually or in the aggregate, does not exceed $250,000),
or change any of its methods of reporting income or deductions for federal
income tax purposes from those employed in the preparation of the federal
income tax returns for the taxable year ending December 31, 1993, except,
in the case of clause (A) or clause (B), as may be required by Law or
generally accepted accounting principles;
(i) incur any obligation for borrowed money other than purchase
money indebtedness, whether or not evidenced by a note,
<PAGE>
26
bond, debenture or similar instrument, except in the ordinary course of
business under existing loan agreements or capitalized leases, or prepay,
before the scheduled maturity thereof, any of its long-term debt;
(k) agree in writing or otherwise to do any of the foregoing;
(l) initiate, solicit or encourage (including by way of
furnishing information or assistance), or take any other action to
facilitate, any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Competing Transaction (as
hereinafter defined), or negotiate with any person or entity in furtherance
of such inquiries or to obtain a Competing Transaction, or agree to or
endorse any Competing Transaction, or authorize or permit any of the
officers, directors or employees of the Company or any of its subsidiaries
or any representative retained by the Company or any of the Company's
subsidiaries to take any such action, and the Company shall promptly notify
Parent of all relevant terms of any such inquiries and proposals received
by the Company or any of its subsidiaries, or by any such officer, director
or representative, relating to any of such matters and if such inquiry or
proposal is in writing, the Company shall deliver or cause to be delivered
to Parent a copy of such inquiry or proposal; provided, however, that prior
-------- -------
to such time as the stockholders of the Company shall have adopted and
approved this Agreement in accordance with Delaware Law, nothing contained
in this subsection (l) shall prohibit the Board of Directors of the Company
from (i) furnishing information to, or entering into discussions or
negotiations with, any person or entity that makes an unsolicited bona fide
proposal to acquire the Company pursuant to a merger, consolidation, share
exchange, business combination or other similar transaction, if, and only
to the extent that, (A) the Board of Directors of the Company, after
consultation with independent legal counsel, determines in good faith that
such action is required for the Board of Directors of the Company to comply
with its fiduciary duties to shareholders imposed by Delaware Law, (B)
prior to furnishing such information to, or entering into discussions or
negotiations with, such person or entity, the Company provides written
notice to Parent to the effect that it is furnishing information to, or
entering into discussions or negotiations with, such person or entity, (C)
prior to furnishing such information to such person or entity, the Company
receives from such person or entity an executed confidentiality agreement
with terms no less favorable to the Company than those contained in the
Confidentiality Agreement (as hereinafter defined), and (D) the Company
keeps Parent informed, on a current basis, of the status of any such
discussions or negotiations; or (ii) complying with Rule 14e-2 promulgated
under the Exchange Act with regard to a Competing Transaction. For
<PAGE>
27
purposes of this Agreement, "Competing Transaction" shall mean any of the
---------------------
following involving the Company or any of its subsidiaries: (a) any
merger, consolidation, share exchange, business combination, or other
similar transaction (other than the transactions contemplated by this
Agreement); (b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition of 25% or more of the assets of the Company and its
subsidiaries, taken as a whole, in a single transaction or series of
transactions; (c) any tender offer or exchange offer for 25% or more of the
outstanding shares of capital stock of the Company; (d) any person shall
have acquired, after the date hereof, beneficial ownership or the right to
acquire beneficial ownership of, or any "group" (as such term is defined
-----
under Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder) shall have been formed that beneficially owns or
has the right to acquire beneficial ownership of, 25% or more of the then
outstanding shares of capital stock of the Company; or (e) any public
announcement of a proposal, plan or intention to do any of the foregoing;
(m) except in the ordinary course of business and consistent
with prior practice or with the consent of Parent (which shall not be
unreasonably withheld or delayed), enter into, renew, renegotiate, modify,
amend or terminate any time sales contracts involving an annual payment of
more than $100,000;
(n) except in the ordinary course of business and consistent
with prior practice or with the consent of Parent (which shall not be
unreasonably withheld or delayed), enter into, amend or modify any contract
involving an annual payment of more than $100,000 under which the Company
is authorized to broadcast programming; or
(o) settle or compromise, or permit any settlement or compromise
of, any claim, action, proceeding or litigation relating to this Agreement,
the Renaissance Merger Agreement or the transactions contemplated hereby or
thereby brought against the Company or any of its subsidiaries, or against
any of its or their respective officers or directors or any other person or
entity indemnified by the Company or any of its subsidiaries, without the
prior written consent of Parent (it being agreed that, in connection with
any such claim, action, proceeding or litigation, the Company shall keep
Parent informed on a current basis and consult with Parent with respect to
the conduct of such litigation).
SECTION 5.03. Access and Information. Subject to
----------------------
confidentiality agreements to which the Company or any of its subsidiaries
is a party, the Company shall, and shall cause its subsidiaries to (i)
afford to Parent and its officers, directors,
<PAGE>
28
employees, accountants, consultants, legal counsel, agents, lenders
(including representatives of any lenders) and other representatives
(collectively, the "Parent Representatives") reasonable access at
----------------------
reasonable times upon reasonable prior notice to the officers, employees,
agents, properties, offices and other facilities of the Company and its
subsidiaries and to the books and records thereof and (ii) furnish promptly
to Parent and the Parent Representatives such information concerning the
business, properties, contracts, records and personnel of the Company and
its subsidiaries (including, without limitation, financial, operating and
other data and information) as may be reasonably requested, from time to
time, by Parent.
SECTION 5.04. Confidentiality. The parties hereto will comply
---------------
or will cause their respective affiliates to comply with all their
respective obligations under the Confidentiality Agreement between the
Company and Parent (the "Confidentiality Agreement"). The Company agrees
-------------------------
to not use, and to keep confidential, any information provided to it by
Parent or its subsidiaries (and cause its employees, lenders and advisors
to do the same) to the same extent and under the same covenants as provided
in the Confidentiality Agreement with respect to Parent's treatment of the
Company's confidential information.
SECTION 5.05. Certain Obligations. (a) At the Effective Time,
-------------------
Parent will cause the Surviving Corporation to discharge its obligations
under Section 5(d) of the Babb Agreement.
(b) The Company shall pay to Renaissance any and all amounts due
to Renaissance pursuant to Section 8.05(b) of the Renaissance Merger
Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Stockholder Approval. Unless this Agreement shall
--------------------
be approved and adopted by the stockholders of the Company by written
consent in lieu of a stockholders' meeting, the Company shall, promptly
after the date of this Agreement, take all action necessary in accordance
with Delaware Law and its Certificate of Incorporation and By-Laws to
convene a meeting of the Company's stockholders (the "Company Stockholders'
---------------------
Meeting"), to approve and adopt this Agreement. Unless this Agreement
-------
shall be approved and adopted by the stockholders of the Company by written
consent in lieu of a stockholders' meeting, the Company shall use its
reasonable efforts to solicit from stockholders of the Company proxies in
favor of the approval and adoption of this Agreement, unless otherwise
required by
<PAGE>
29
applicable fiduciary duties of the directors of the Company, as determined
by such directors in good faith after consultation with independent legal
counsel.
SECTION 6.02. Information or Proxy Statement. (a)(i) If this
------------------------------
Agreement shall be adopted and approved by the stockholders of the Company
by written consent in lieu of a stockholders' meeting, as promptly as
practicable thereafter, the Company shall prepare and file with the SEC an
information statement (the "Company Information Statement") pursuant to
-----------------------------
Rule 14c-2 under the Exchange Act. The Company shall use its reasonable
efforts to cause the Company Information Statement to be "cleared" by the
SEC for mailing to the stockholders of the Company as promptly as
practicable. In addition, as promptly as practicable after such approval
by written consent, the Company shall prepare a notice pursuant to Section
228(d) of Delaware Law (the "Notice"). The Company shall mail the Company
------
Information Statement and the Notice to its stockholders as promptly as
practicable after the Company Information Statement is "cleared" by the SEC
for mailing to the stockholders of the Company. Parent shall furnish all
information concerning it and the holders of its capital stock as the
Company may reasonably request in connection with such actions. Parent
shall have the right to review the Company Information Statement before it
is filed with the SEC.
(ii) Unless this Agreement shall be adopted and approved by the
stockholders of the Company by written consent in lieu of a stockholders'
meeting, as promptly as practicable after the execution of this Agreement,
the Company shall prepare and file with the SEC a proxy statement in
connection with the matters to be considered at the Company Stockholders'
Meeting (the "Company Proxy Statement"). The Company shall use its
-----------------------
reasonable efforts to cause the Company Proxy Statement to be "cleared" by
the SEC for mailing to the stockholders of the Company as promptly as
practicable and shall mail the Company Proxy Statement to its stockholders
as promptly as practicable thereafter. Parent shall furnish all
information concerning it and the holders of its capital stock as the
Company may reasonably request in connection with such actions. The
Company Proxy Statement shall include the recommendation of the Company's
Board of Directors in favor of approval and adoption of this Agreement,
unless otherwise required by applicable fiduciary duties of the directors
of the Company, as determined by such directors in good faith after
consultation with independent legal counsel. Parent shall have the right
to review the Company Proxy Statement before it is filed with the SEC.
(b) The information supplied by Parent for inclusion in the
Company Information Statement or the Company Proxy Statement shall not, at
the date the Company Information
<PAGE>
30
Statement or the Company Proxy Statement (or any supplement thereto) is
first mailed to stockholders, at the time of the Company Stockholders'
Meeting, if any, or at the Effective Time, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading. If at any
time prior to the Effective Time any event or circumstance relating to
Parent or any of its affiliates, or its or their respective officers or
directors, should be discovered by Parent that should be set forth in a
supplement to the Company Information Statement or the Company Proxy
Statement, Parent shall promptly inform the Company.
(c) All information contained in the Company Information
Statement or the Company Proxy Statement (other than information provided
by Parent for inclusion therein) shall not, at the date the Company
Information Statement or the Company Proxy Statement (or any supplement
thereto) is first mailed to stockholders, at the time of the Company
Stockholders' Meeting, if any, or at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not misleading.
If at any time prior to the Effective Time any event or circumstance
relating to the Company or any of its affiliates, or to its or their
respective officers or directors, should be discovered by the Company that
should be set forth in a supplement to the Company Information Statement or
the Company Proxy Statement, the Company shall promptly inform Parent. All
documents that the Company is responsible for filing with the SEC in
connection with the transactions contemplated herein will comply as to form
and substance in all material respects with the applicable requirements of
the Exchange Act and the rules and regulations thereunder.
SECTION 6.03. FCC Application. (a) As promptly as practicable
---------------
after the execution of this Agreement, Parent and the Company shall prepare
an appropriate application for FCC consent, and such other documents as may
be required, with respect to the transfer of control of the Company to
Parent (the "FCC Application"). Not later than the tenth business day
---------------
following execution, Parent shall deliver to the Company its completed
portion of the FCC Application. Not later than the twelfth business day
following the execution, the Company shall file, or cause to be filed, the
FCC Application. Parent and the Company shall prosecute the FCC
Application in good faith and with due diligence in order to obtain such
FCC consent as expeditiously as practicable. If the Closing shall not have
occurred for any reason within the initial effective period of the granting
of approval by the FCC of the FCC Application, and neither Parent
<PAGE>
31
nor the Company shall have terminated this Agreement pursuant to Section
8.01, Parent and the Company shall jointly request one or more extensions
of the effective period of such grant. Neither Parent nor the Company
shall knowingly take, or fail to take, any action the intent or reasonably
anticipated consequence of which action or failure to act would be to cause
the FCC not to grant approval of the FCC Application.
(b) Parent and the Company shall each pay one-half of any FCC
fees that may be payable in connection with the filing or granting of
approval of the FCC Application. Parent and the Company shall each oppose
any request for reconsideration or judicial review of the granting of
approval of the FCC Application. The Company shall pay any cost incurred
in connection with complying with the FCC notice and advertisement
requirements in connection with the transfer of control of the Company.
(c) Prior to FCC grant of the FCC Application, Parent, its
employees and agents, shall not directly or indirectly control, supervise
or direct or attempt to control, supervise or direct the operation of any
of Company's broadcast stations, and such operations shall be the sole
responsibility of and in the complete discretion of the Company.
SECTION 6.04. Other Appropriate Action; Consents; Filings. (a)
-------------------------------------------
The Company and Parent shall each use their reasonable efforts to (i) take,
or cause to be taken, all appropriate action, and do, or cause to be done,
all things necessary, proper or advisable under applicable Law or otherwise
to consummate and make effective the transactions contemplated by this
Agreement, (ii) obtain any consents or approvals with respect to the Merger
the absence of which would result in a Company Material Adverse Effect (it
being understood that obtaining (i) any thereof that are referred to in
Section 7.01(a) or listed on Exhibit 7.02(c) shall be a condition to
Parent's obligation to consummate the Merger, and (ii) any thereof that are
not referred to in Section 7.01(a) or are not listed on Exhibit 7.02(c)
shall not be a condition to Parent's obligation to consummate the Merger),
(iii) make all necessary filings, and thereafter make any other required
submissions, with respect to this Agreement and the Merger required under
(A) the Exchange Act and the rules and regulations thereunder, and any
other applicable federal or state securities laws, (B) the HSR Act, and (C)
any other applicable Law; provided that Parent and the Company shall
--------
cooperate with each other in connection with the making of all such
filings, including providing copies of all such documents (except those
filed in connection with the HSR Act) to the nonfiling party and its
advisors prior to filing and, if requested, to accept all reasonable
additions, deletions or changes suggested in connection therewith. The
Company and
<PAGE>
32
Parent shall furnish all information required for any application or other
filing to be made pursuant to the rules and regulations of any applicable
Law (including all information required to be included in the Company Proxy
Statement) in connection with the transactions contemplated by this
Agreement.
(b) Each of the Company and Parent agree to cooperate and use
their reasonable efforts to contest and resist any action, including
legislative, administrative or judicial action, and to have vacated,
lifted, reversed or overturned any decree, judgment, injunction or other
order (whether temporary, preliminary or permanent) (an "Order") that is in
-----
effect and that restricts, prevents or prohibits the consummation of the
Merger or any other transactions contemplated by this Agreement, including,
without limitation, by pursuing any necessary administrative or judicial
appeal or legislative action.
SECTION 6.05. Public Announcements. Unless otherwise required
--------------------
by applicable Law or stock exchange or NASDAQ requirements, Parent and the
Company shall consult with each other before issuing any press release or
otherwise making any public statements with respect to the Merger and shall
not issue any such press release or make any such public statement prior to
such consultation.
SECTION 6.06. Indemnification. (a) The Certificate of
---------------
Incorporation and By-Laws of the Surviving Corporation shall contain the
provisions with respect to indemnification set forth in the Certificate of
Incorporation and By-Laws of the Company on the date of this Agreement,
which provisions shall not be amended, repealed or otherwise modified for a
period of six years after the Effective Time in any manner that would
adversely affect the rights thereunder of persons who at any time prior to
the Effective Time were identified as prospective indemnitees under the
Certificate of Incorporation or By-laws of the Company in respect of
actions or omissions occurring at or prior to the Effective Time
(including, without limitation, the transactions contemplated by this
Agreement or the Renaissance Merger Agreement), unless such modification is
required by Law.
Parent will not permit the provisions with respect to
indemnification set forth in the Certificate of Incorporation and By-laws
of any of the Company's subsidiaries on the date of this Agreement to be
amended, repealed or otherwise modified for a period of six years after the
Effective Time in any manner that would adversely affect the rights
thereunder of persons who at any time prior to the Effective Time were
identified as prospective indemnitees under any such Certificate of
Incorporation or By-laws in respect of actions or omissions occurring at or
prior to the Effective Time (including, without limitation, the
transactions contemplated by this Agreement or
<PAGE>
33
the Renaissance Merger Agreement), unless such modification is required by
Law.
(b) From and after the Effective Time, the Surviving Corporation
shall indemnify, defend and hold harmless the present and former officers,
directors and employees of the Company (collectively, the "Indemnified
-----------
Parties") against all losses, expenses, claims, damages, liabilities or
-------
amounts that are paid in settlement of, with the approval of Parent and the
Surviving Corporation (which approval shall not be unreasonably withheld),
or otherwise in connection with, any claim, action, suit, proceeding or
investigation (a "Claim"), based in whole or in part on the fact that such
-----
person is or was such a director, officer or employee and arising out of
actions or omissions occurring at or prior to the Effective Time
(including, without limitation, the transactions contemplated by this
Agreement or the Renaissance Merger Agreement), in each case to the fullest
extent permitted under Delaware Law (and shall pay expenses in advance of
the final disposition of any such action or proceeding to each Indemnified
Party to the fullest extent permitted under Delaware Law, upon receipt from
the Indemnified Party to whom expenses are advanced of the undertaking to
repay such advances contemplated by Section 145(e) of Delaware Law).
Parent hereby guarantees the Surviving Corporation's obligations pursuant
to this Section 6.06(b).
(c) Without limiting the foregoing, in the event any Claim is
brought against any Indemnified Party (whether arising before or after the
Effective Time) after the Effective Time (i) the Indemnified Parties may
retain the Company's regularly engaged independent legal counsel as of the
date of this Agreement, or other independent legal counsel satisfactory to
them provided that such other counsel shall be reasonably acceptable to
Parent and the Surviving Corporation, (ii) the Surviving Corporation shall
pay all reasonable fees and expenses of such counsel for the Indemnified
Parties promptly as statements therefor are received and (iii) the
Surviving Corporation will use its reasonable efforts to assist in the
vigorous defense of any such matter, provided that the Surviving
Corporation shall not be liable for any settlement of any Claim effected
without its written consent, which consent shall not be unreasonably
withheld. Any Indemnified Party wishing to claim indemnification under
this Section 6.06, upon learning of any such Claim, shall notify the
Surviving Corporation (although the failure so to notify the Surviving
Corporation shall not relieve the Surviving Corporation from any liability
which the Surviving Corporation may have under this Section 6.06, except to
the extent such failure prejudices the Surviving Corporation), and shall
deliver to the Surviving Corporation the undertaking contemplated by
Section 145(e) of Delaware Law. The Indemnified Parties as a group may
retain one law firm (in addition to local
<PAGE>
34
counsel) to represent them with respect to each such matter unless there
is, under applicable standards of professional conduct (as determined by
counsel to such Indemnified Parties), a conflict on any significant issue
between the positions of any two or more of such Indemnified Parties, in
which event, an additional counsel as may be required may be retained by
such Indemnified Parties.
(d) Parent shall cause to be maintained in effect for not less
than five years after the Effective Time (except to the extent not
generally available in the market) the current policies of directors' and
officers' liability insurance and fiduciary liability insurance maintained
by the Company with respect to matters occurring prior to the Effective
Time; provided, however, that (i) Parent may substitute therefor policies
-------- -------
of substantially the same coverage containing terms and conditions that are
substantially the same for the Indemnified Parties to the extent reasonably
available and (ii) Parent shall not be required to pay an annual premium
for such insurance in excess of 300% of the last annual premium paid prior
to the date of this Agreement, but in such case shall purchase as much
coverage as possible for such amount.
(e) This Section 6.06 is intended to be for the benefit of, and
shall be enforceable by, the Indemnified Parties referred to herein, their
heirs and personal representatives and shall be binding on Parent and
Parent Sub and the Surviving Corporation and their respective successors
and assigns.
SECTION 6.07. Obligations of Parent Sub. Parent shall take all
-------------------------
action necessary to cause Parent Sub to perform its obligations under this
Agreement and to consummate the Merger on the terms and conditions set
forth in this Agreement.
SECTION 6.08. Investigation. Parent acknowledges and agrees
-------------
that it (a) has made its own inquiry and investigation into, and based
thereon has formed an independent judgment concerning, the Company, (b) has
been furnished with or given adequate access to such information about the
Company as it has requested, and (c) it will not assert any claim against
any of the Company's officers, directors, employees, agents, stockholders,
affiliates, advisors or other representatives, or hold any of such persons
liable, for any inaccuracies, misstatements or omissions with respect to
information furnished by the Company or such persons concerning the
Company. Parent acknowledges and agrees that none of the Company's
stockholders, officers, directors, employees, agents, affiliates, advisors
or other representatives have made, or are making, any representations or
warranties with respect to the Company, this Agreement, or any of the
transactions contemplated hereby.
<PAGE>
35
SECTION 6.09. Certain Agreements. Parent agrees to comply with
------------------
paragraph 10 of each Voting Agreement. Parent agrees not to amend, waive,
change or otherwise modify any of the provisions of the Voting Agreements
to the extent that any thereof would adversely affect the Company.
SECTION 6.10. FCC Approval. Parent has determined in good faith
------------
that this Agreement and the Voting Agreements can be entered into and
implemented pursuant to their terms, without filing any application with
the FCC seeking its consent or approval, except as set forth in Section
6.03 or as contemplated by Section 5(b)(iv)(E) of each Voting Agreement.
Parent hereby agrees to indemnify the Company from and against any damages
should the FCC impose any fine, forfeiture or other sanction against the
Company in connection with the implementation of this Agreement and the
Voting Agreements pursuant to their terms and conditions.
ARTICLE VII
CLOSING CONDITIONS
SECTION 7.01. Conditions to Obligations of Each Party Under This
--------------------------------------------------
Agreement. The respective obligations of each party to effect the Merger
---------
shall be subject to the satisfaction at or prior to the Effective Time of
the following conditions, any or all of which may be waived, in whole or in
part, to the extent permitted by applicable Law:
(a) FCC Approval. The FCC shall have issued a Final Order (as
------------
hereinafter defined) approving the FCC application, and such Final Order
shall include the granting of such waivers, if any, of the FCC Rules and
Regulations as may be necessary to permit the consummation of the
transactions contemplated hereby. All the terms and conditions contained
in the Final Order required to be satisfied on or prior to the Closing
shall have been satisfied and performed.
(b) Antitrust. The applicable waiting period under the HSR Act
---------
shall have expired or been terminated.
(c) Litigation, etc. No Governmental Entity or Federal or state
---------------
court of competent jurisdiction shall have enacted, issued, promulgated,
enforced or entered any statute, rule, regulation, executive order, decree,
injunction or other order (whether temporary, preliminary or permanent)
that then remains in effect and that has the effect of making the Merger
illegal or otherwise prohibiting consummation of the Merger.
(d) Stockholder Approval. The holders of a majority of the
--------------------
outstanding shares of Common Stock shall have approved and
<PAGE>
36
adopted this Agreement in accordance with Delaware Law and the rules and
regulations of NASDAQ.
SECTION 7.02. Additional Conditions to Obligation of Parent.
---------------------------------------------
The obligation of Parent to effect the Merger is also subject to the
following conditions:
(a) Representations and Warranties. Each of the representations
------------------------------
and warranties of the Company contained in this Agreement (i) in the case
of any thereof that are expressly qualified by any materiality
qualification, shall be true and correct, subject to such materiality
qualification, and (ii) in the case of all other representations and
warranties, shall be true and correct in all material respects, in each
case as of the Effective Time as though made on and as of the Effective
Time, and except that those representations and warranties that address
matters only as of a particular date shall remain true and correct, subject
to such materiality qualifications or in all material respects, as the case
may be, as of such date. Parent shall have received a certificate of the
Chief Executive Officer of the Company to such effect.
(b) Agreements and Covenants. The Company shall have performed
------------------------
or complied with all agreements and covenants required by this Agreement to
be performed or complied with by it on or prior to the Effective Time,
except where the failure to so comply would not have a Company Material
Adverse Effect. Parent shall have received a certificate of the Chief
Executive Officer of the Company to that effect.
(c) Consents and Approvals. All consents, approvals and
----------------------
authorizations that are described on Exhibit 7.02(c) shall have been
obtained.
SECTION 7.03. Additional Conditions to Obligation of the
------------------------------------------
Company. The obligation of the Company to effect the Merger is also
-------
subject to the following conditions:
(a) Representations and Warranties. Each of the representations
------------------------------
and warranties of Parent and Parent Sub contained in this Agreement (i) in
the case of any thereof that are expressly qualified by any materiality
qualification, shall be true and correct, subject to such materiality
qualification, and (ii) in the case of all other representations and
warranties, shall be true and correct in all material respects, in each
case as of the Effective Time as though made on and as of the Effective
Time, and except that those representations and warranties that address
matters only as of a particular date shall remain true and correct, subject
to such materiality qualifications or in all material respects, as the case
may be,
<PAGE>
37
as of such date. The Company shall have received a certificate of the
Chief Financial Officer of Parent to such effect.
(b) Agreements and Covenants. Parent shall have performed or
------------------------
complied with all agreements and covenants required by this Agreement to be
performed or complied with by it on or prior to the Effective Time, except
where the failure to comply would not have a Parent Material Adverse
Effect. The Company shall have received a certificate of the Chief
Financial Officer of Parent to that effect.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination. This Agreement may be terminated at
-----------
any time prior to the Effective Time:
(a) by mutual consent of Parent and the Company;
(b) by Parent, upon a material breach of any representation,
warranty, covenant or agreement on the part of the Company set forth
in this Agreement, or if any representation or warranty of the Company
shall have become untrue in any material respect, in either case such
that the conditions set forth in Section 7.02(a) or Section 7.02(b)
would not be satisfied (a "Terminating Company Breach"), provided
-------------------------- --------
that, if such Terminating Company Breach is curable by the Company
through the exercise of its reasonable efforts and for so long as the
Company continues to exercise such reasonable efforts, Parent may not
terminate this Agreement under this Section 8.01(b);
(c) by the Company, upon a material breach of any
representation, warranty, covenant or agreement on the part of Parent
set forth in this Agreement, or if any representation or warranty of
Parent shall have become untrue in any material respect, in either
case such that the conditions set forth in Section 7.03(a) or Section
7.03(b) would not be satisfied (a "Terminating Parent Breach"),
-------------------------
provided that, if such Terminating Parent Breach is curable by Parent
--------
through the exercise of its reasonable efforts and for so long as
Parent continues to exercise such reasonable efforts, the Company may
not terminate this Agreement under this Section 8.01(c);
(d) by either Parent or the Company, if there shall be any Order
that is final and nonappealable preventing the consummation of the
Merger, except if the party relying on
<PAGE>
38
such Order has not complied with its obligations under Section 6.03 or
6.04;
(e) by Parent or the Company, if the Merger shall not have been
consummated before the date which is one year from the date hereof,
except if the party seeking to terminate the Agreement shall be in
breach hereof;
(f) by Parent or the Company, if the approval and adoption of
this Agreement by the stockholders of the Company is not obtained by
written consent as provided herein or by the requisite vote by the
stockholders of the Company at the Company Stockholders' Meeting;
(g) by Parent, if (i) the Board of Directors of the Company
withdraws, modifies or changes its recommendation of this Agreement or
the Merger in a manner adverse to Parent or Parent Sub or shall have
resolved to do any of the foregoing, or the Board of Directors of the
Company shall have recommended to the stockholders of the Company any
Competing Transaction or resolved to do so; and
(h) by the Company, if prior to such time as the stockholders of
the Company shall have adopted and approved this Agreement in
accordance with Delaware Law, the Board of Directors of the Company
shall have recommended to the stockholders of the Company any
Competing Transaction or resolved to do so; provided that any
--------
termination of this Agreement by the Company pursuant to this Section
8.01(h) shall not be effective until the close of business on the
second full business day after notice thereof to Parent.
The right of any party hereto to terminate this Agreement
pursuant to this Section 8.01 shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any party
hereto, any person controlling any such party or any of their respective
officers or directors, whether prior to or after the execution of this
Agreement.
SECTION 8.02. Effect of Termination. Except as provided in
---------------------
Section 8.05 or Section 9.01, in the event of the termination of this
Agreement pursuant to Section 8.01, this Agreement shall forthwith become
void, there shall be no liability on the part of Parent, Parent Sub or the
Company or any of their respective officers or directors to the other and
all rights and obligations of any party hereto shall cease, except that
nothing herein shall relieve any party for any breach of this Agreement.
SECTION 8.03. Amendment. This Agreement may be amended by the
---------
parties hereto by action taken by or on behalf of
<PAGE>
39
their respective Boards of Directors at any time prior to the Effective
Time. This Agreement may not be amended except by an instrument in writing
signed by the parties hereto.
SECTION 8.04. Waiver. At any time prior to the Effective Time,
------
any party hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other party hereto, (b) waive any
inaccuracies in the representations and warranties of the other party
contained herein or in any document delivered pursuant hereto and (c) waive
compliance by the other party with any of the agreements or conditions
contained herein. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the party or parties to be
bound thereby.
SECTION 8.05. Expenses. (a) Except as otherwise expressly
--------
provided herein, all expenses incurred by the parties hereto shall be borne
solely by the party that has incurred such expenses.
(b) In the event that this Agreement shall be terminated
pursuant to Section 8.01(h) and within 12 months thereafter a Competing
Transaction shall be consummated, the Company shall pay Parent a fee of
$6.5 million in cash.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Effectiveness of Representations, Warranties and
------------------------------------------------
Agreements. (a) Except as set forth in Section 9.01(b), the
----------
representations, warranties and agreements of each party hereto shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of any other party hereto, any person
controlling any such party or any of their officers or directors, whether
prior to or after the execution of this Agreement.
(b) The representations, warranties and agreements in this
Agreement (and in any certificate delivered in connection with the Closing)
shall terminate at the Effective Time or upon the termination of this
Agreement pursuant to Article VIII, except that the agreements set forth in
Articles I and II and Sections 6.06, 6.07 and 6.08 shall survive the
Effective Time and those set forth in Sections 5.04, 5.05, 6.08, 6.09,
6.10, 8.02, 8.05 and Article IX hereof shall survive termination.
SECTION 9.02. Notices. All notices and other communications
-------
given or made pursuant hereto shall be in writing and shall be deemed to
have been duly given or made as of the
<PAGE>
40
date delivered, mailed or transmitted, and shall be effective upon receipt,
if delivered personally, mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by
like changes of address) or sent by electronic transmission to the
telecopier number specified below:
(a) If to Parent or Parent Sub:
National Broadcasting Company, Inc.
30 Rockefeller Center
New York, New York 10112
Attention: Senior Vice President and Chief
Financial Officer
with copies to:
National Broadcasting Company, Inc.
30 Rockefeller Center
New York, New York 10112
Attention: General Counsel
(b) If to the Company:
23 Kenney Drive
Cranston, R.I. 02920
Attention: Chief Executive Officer
SECTION 9.03. Certain Definitions. For purposes of this
-------------------
Agreement, the term:
(a) "affiliate" means a person that directly or indirectly,
---------
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first mentioned person;
(b) "Babb Agreement" means the Employment Agreement dated
--------------
January 1, 1993, as amended on December 17, 1993, between Outlet
Communications, Inc. and James G. Babb, Jr.
(c) "business day" means any day other than a day on which banks
------------
in the City of New York are authorized or obligated to be closed;
(d) "control" (including the terms "controlled", "controlled by"
------- ---------- -------------
and "under common control with") means the possession, directly or
-------------------------
indirectly or as trustee or executor, of the power to direct or cause the
direction of the management or policies of a person, whether through the
ownership of stock or
<PAGE>
41
as trustee or executor, by contract or credit arrangement or otherwise;
(e) "FCC Licenses" means the licenses described in Section
------------
3.09(a) of the Company Disclosure Schedule;
(f) "Final Order" means an action by the FCC that has not been
-----------
reversed, stayed, enjoined, set aside, annulled or suspended, with respect
to which no timely request for stay, petition for reconsideration or appeal
or sua sponte action of the FCC with comparable effect is pending and as to
--- ------
which the time for filing any such request, petition or appeal or for the
taking of any such sua sponte action by the FCC has expired.
--- ------
(g) "knowledge" or "known" means, with respect to any matter in
--------- -----
question, if an executive officer of the Company or Parent, as the case may
be, has actual knowledge of such matter;
(h) "Licensed Station" means each of (i) WJAR (TV), Providence,
----------------
Rhode Island, (ii) WCMH (TV), Columbus, Ohio, and (iii) WNCN (TV)
Goldsboro, North Carolina;
(i) "1988 Agreement" means the Agreement dated as of July 26,
--------------
1988, among Bruce G. Sundlun, David E. Henderson, the Company, Broadcasting
and the persons and entities listed on the signature pages thereto;
(j) "person" means an individual, corporation, partnership,
------
association, trust, unincorporated organization, other entity or group (as
defined in Section 13(d) of the Exchange Act);
(k) "Significant Subsidiary" or "Significant Subsidiaries" means
---------------------- ------------------------
any subsidiary of the Company that would constitute a Significant
Subsidiary of such party within the meaning of Rule 1-02 of Regulation S-X
of the SEC;
(l) "subsidiary" or "subsidiaries" of the Company, Parent, the
---------- ------------
Surviving Corporation or any other person, means any corporation,
partnership, joint venture or other legal entity of which the Company,
Parent, the Surviving Corporation or such other person, as the case may be
(either alone or through or together with any other subsidiary), owns,
directly or indirectly, 50% or more of the stock or other equity interests
the holders of which are generally entitled to vote for the election of the
board of directors or other governing body of such corporation or other
legal entity; and
(m) "Tax" or "Taxes" shall mean any and all taxes, charges,
--- -----
fees, levies, payable to any federal, state, local or foreign taxing
authority or agency, including, without
<PAGE>
42
limitation, (i) income, franchise, profits, gross receipts, minimum,
alternative minimum, estimated, ad valorem, value added, sales, use, real
-- -------
or personal property, payroll, withholding, employment, social security,
workers compensation, unemployment compensation, utility, severance,
excise, stamp, and transfer and gains taxes, (ii) customs duties, imposts,
charges, levies or other similar assessments of any kind, and (iii)
interest, penalties and additions to tax imposed with respect thereto.
SECTION 9.04. Headings. The headings contained in this
--------
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 9.05. Severability. If any term or other provision of
------------
this Agreement is invalid, illegal or incapable of being enforced by any
rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 9.06. Entire Agreement. This Agreement (together with
----------------
the Exhibits hereto), and the Confidentiality Agreement constitute the
entire agreement of the parties and supersede all prior agreements and
undertakings, both written and oral, between the parties, or any of them,
with respect to the subject matter hereof.
SECTION 9.07. Assignment. This Agreement shall not be assigned
----------
by operation of law or otherwise; provided, however, that Parent may assign
-------- -------
its rights hereunder (but not its obligations) to any wholly owned
subsidiary of General Electric Company, a New York corporation.
SECTION 9.08. Parties in Interest. This Agreement shall be
-------------------
binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied (other than the provisions of
Sections 6.06, 6.07 and 6.08), is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement.
SECTION 9.09. Failure or Indulgence Not Waiver; Remedies
------------------------------------------
Cumulative. No failure or delay on the part of any
----------
<PAGE>
43
party hereto in the exercise of any right hereunder shall impair such right
or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
SECTION 9.10. Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement shall be governed by, and construed in accordance with, the laws
of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law, and each party
hereto hereby submits to the exclusive jurisdiction of the Delaware courts
sitting in chancery for the resolution of all disputes under this
Agreement.
SECTION 9.11. Counterparts. This Agreement may be executed in
------------
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same
agreement.
<PAGE>
44
IN WITNESS WHEREOF, Parent, Parent Sub and the Company have
caused this Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
NATIONAL BROADCASTING COMPANY, INC.
By/s/ Richard Cotton
-----------------------------------
Name: Richard Cotton
Title: Executive Vice President
and General Counsel
CO ACQUISITION CORPORATION
By/s/ Richard Cotton
-----------------------------------
Name: Richard Cotton
Title: Secretary
OUTLET COMMUNICATIONS, INC.
By/s/ James G. Babb
-----------------------------------
Name: James G. Babb
Title: Chairman, President, CEO
Exhibit 2
Conformed Standard Version
CONSENT AND VOTING/
-------------------
CONDITIONAL OPTION AGREEMENT
----------------------------
CONSENT AND VOTING/CONDITIONAL OPTION AGREEMENT, dated as of
August 2, 1995, between NATIONAL BROADCASTING COMPANY, INC., a Delaware
corporation ("Parent"), and the stockholder of Outlet Communications, Inc.,
------
a Delaware corporation (the "Company"), whose name and signature is set
-------
forth on the signature page hereof (the "Stockholder").
-----------
RECITALS
--------
The Company, Parent and CO Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent ("Parent Sub") are
----------
entering into an Agreement and Plan of Merger dated as of the date hereof
(the "Merger Agreement"; capitalized terms used but not defined herein
----------------
shall have the meanings set forth in the Merger Agreement), pursuant to
which, subject to the terms and conditions of the Merger Agreement, Parent
Sub will merge with and into the Company (the "Merger"), and each
------
outstanding share of Company Common Stock, other than shares owned by the
Company or Parent or certain of their respective affiliates, will be
converted into the right to receive $47.25 in cash, all as more fully set
forth in the Merger Agreement.
As of the date hereof, the Stockholder is the record and
beneficial owner of the number of shares of Company Common Stock set forth
on the signature page hereof (the "Existing Shares" and, together with any
---------------
shares of Company Common Stock acquired after the date hereof, whether upon
the exercise of warrants, options, conversion of convertible securities or
otherwise, the "Shares").
------
In accordance with Section 228 of the Delaware Law, the
Stockholder desires to grant the Stockholder's consent to the adoption and
approval of the Merger Agreement and the Merger without a meeting of
stockholders of the Company.
The Stockholder and Parent desire to set forth their agreement
with respect to the voting of the Shares in connection with the Merger and
the Stockholder desires to grant to Parent a conditional option, subject to
FCC consent if necessary, to acquire the Shares, upon the terms and subject
to the conditions set forth herein.
AGREEMENT
---------
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
<PAGE>
2
1. Delivery of Consent. Immediately following the execution and
-------------------
delivery of the Merger Agreement by the parties thereto, the Stockholder
shall execute and deliver to the Secretary of the Company a written consent
in the form of Exhibit A hereto.
2. Agreement to Vote. The Stockholder hereby agrees that, from
-----------------
and after the date hereof and until the Expiration Date (as defined in
Section 4), at any meeting of the stockholders of the Company, however
called, or in connection with any written consent of the stockholders of
the Company, and to the extent permitted by applicable law, the Stockholder
shall vote (or cause to be voted) or act by written consent with respect to
the Shares (a) in favor of adoption and approval of the Merger Agreement
and the Merger and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement and this Agreement; (b)
against any action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement
of the Company contained in the Merger Agreement or of the Stockholder
contained in this Agreement; and (c) against any Competing Transaction or
any other action, agreement or transaction (other than the Merger Agreement
or the transactions contemplated thereby) that is intended, or could
reasonably be expected, to impede, interfere or be inconsistent with,
delay, postpone, discourage or materially adversely affect the Merger or
this Agreement, including, but not limited to: (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (ii) a sale, lease
or transfer of a material amount of assets of the Company and its
subsidiaries or a reorganization, recapitalization or liquidation of the
Company or its subsidiaries; (iii) a material change in the policies or
management of the Company, except as otherwise agreed to in writing by
Parent; (iv) an election of new members to the board of directors of the
Company, except where the vote is cast in favor of the nominees of a
majority of the existing directors; (v) any material change in the present
capitalization or dividend policy of the Company or any amendment of the
Company's certificate of incorporation; or (vi) any other material change
in the Company's corporate structure or business. The Stockholder shall
not enter into any agreement or understanding with any person or entity
prior to the Expiration Date to vote or give instructions in any manner
inconsistent with clauses (a), (b) or (c) of the preceding sentence.
3. PROXY. THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS A
-----
TRUSTEE TO BE DESIGNATED BY PARENT, AND ANY SUCCESSOR TRUSTEE, THE
STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION)
TO VOTE OR ACT BY WRITTEN CONSENT, TO THE FULL EXTENT PERMITTED BY
APPLICABLE LAW, WITH RESPECT TO THE SHARES IN ACCORDANCE WITH SECTION 2
HEREOF. THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE,
AND THE STOCKHOLDER WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER
<PAGE>
3
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY HIM WITH RESPECT TO THE
SHARES.
4. Expiration of Proxy. The proxy set forth in Section 3 hereof
-------------------
shall terminate on the Expiration Date. As used herein, the term
"Expiration Date" means the earlier of the Effective Time and the date
---------------
which is 360 days following the date hereof or such shorter period as may
be dictated by applicable law or FCC policy or regulation (unless extended
by the mutual written consent of Parent and the Stockholder).
5. Conditional Option. (a) The Stockholder hereby grants to
------------------
Parent an irrevocable option to purchase the Shares, on the terms and
subject to the conditions set forth herein, including but not limited to
the consent of the FCC, if required (the "Option").
------
(b) (i) The Option may be exercised by Parent, as a whole and
not in part, at any time on or after the earlier to occur of (A) the
termination, if any, of the Merger Agreement pursuant to the terms thereof
or otherwise and (B) such time as a permanent injunction or other order,
decree or ruling by any United States federal or state court of competent
jurisdiction or by any United States federal or state governmental,
regulatory or administrative agency or authority preventing the
consummation of the Merger shall have been issued, provided that the Option
--------
may not be exercised on any date after the 60th day following the
occurrence of the event specified in clause (A) above.
(ii) If Parent wishes to exercise the Option (the "Option
------
Purchase"), Parent shall send a written notice to the Stockholder of its
--------
intention to exercise the Option, specifying the place, and, if then known,
the time and the date (the "Closing Date") of the closing (the "Closing")
------------ -------
of the purchase. The Closing Date shall not be less than 20 days (or such
longer period as may be required by applicable law or regulation) from the
date on which such notice is delivered or prior to such time as the
condition specified in Section 5(b)(iv)(E) below shall have been satisfied.
(iii) Following delivery of the exercise notice referred to in
Section 5(b)(ii) above, (x) the Stockholder shall promptly forward or cause
to be forwarded a copy of the exercise notice and of the terms of the
proposed Option Purchase to the Company and to the other Stockholders (as
defined in the Stockholders Agreement) in accordance with Section 5 of the
Stockholders Agreement, and (y) Parent shall extend an offer (which
complies with Section 5 of the Stockholders Agreement) to acquire shares of
Company Common Stock to such other Stockholders. The Stockholder further
agrees that, if the Option is exercised, the Stockholder shall cause
Section 19 of the Stockholders Agreement to be complied with prior to the
Closing.
<PAGE>
4
(iv) The obligation of Parent or its designee to consummate the
Closing after exercise of the Option shall be subject to the satisfaction
or waiver by Parent of the following conditions:
(A) The provisions of Sections 5 and 19 of the Stockholders
Agreement, as such agreement is in effect on the date hereof, and the
other provisions of the Stockholders Agreement applicable to the
consummation of the transactions contemplated hereby, shall have been
complied with, and such agreement shall not have been amended,
supplemented or otherwise modified since the date hereof without the
consent of Parent.
(B) After giving effect to the Option Purchase and all other
purchases of shares of Company Common Stock theretofore made or made
concurrently therewith, Parent shall beneficially own a number of
shares of Company Common Stock sufficient to approve (without the
affirmative vote or consent of any stockholder of the Company other
than Parent and/or its designee) or to consummate pursuant to Section
253 of the Delaware Law a merger between Parent or another wholly
owned subsidiary of General Electric Company, a New York corporation
("GE"), and the Company pursuant to which the stockholders of the
--
Company (other than the Company, any direct or indirect subsidiary of
the Company, Parent or any other direct or indirect wholly owned
subsidiary of GE) will receive as consideration an amount of cash
consideration per share of Company Common Stock at least equal to
$47.25.
(C) The acquisitions of shares of Company Common Stock pursuant
to this Agreement and each other similar agreement between Parent and
a stockholder of the Company shall have been approved by the Board of
Directors of the Company for purposes of Section 203 of the Delaware
Law.
(D) The waiting periods applicable to the consummation of the
Option Purchase under the HSR Act shall have expired or been earlier
terminated.
(E) The FCC shall have issued a Final Order approving the FCC
Application, and such Final Order shall include the granting of such
waivers, if any, of the rules and regulations under the Communications
Act, as may be necessary to permit the purchase and sale contemplated
hereby. All the terms and conditions contained in the Final Order
required to be satisfied on or prior to the Closing shall have been
satisfied.
(F) No preliminary or permanent injunction or other order,
decree or ruling by any United States federal or state court of
competent jurisdiction or by any United States federal or state
governmental, regulatory or
<PAGE>
5
administrative agency or authority which prevents the Option Purchase
shall have been issued and remain in effect.
(G) No statute, rule or regulation shall have been enacted by
any United States federal or state governmental, regulatory or
administrative agency or authority that makes the consummation of the
Option Purchase illegal or would otherwise prevent the consummation of
the Option Purchase.
(H) The representations and warranties of the Stockholder
contained herein shall have been true and correct in all material
respects as of the date hereof and shall be true and correct in all
material respects at and as of the Closing Date as if made at and as
of the Closing Date. The Stockholder shall have performed in all
material respects all of its covenants and obligations required to be
performed by it on or prior to the Closing Date hereunder.
(c) At the Closing, the Stockholder shall deliver to Parent (or
its designee) all of the Shares by delivery of a certificate or
certificates evidencing such Shares in the denominations designated by
Parent in its exercise notice delivered pursuant to Section 5(b)(ii), duly
endorsed to Parent or accompanied by stock powers duly executed in favor of
Parent, with all necessary stock transfer stamps affixed.
(d) At the Closing, the Parent shall deliver to the Stockholder
a check or checks payable in New York Clearing House (next-day) funds in an
amount equal to the product of $47.25 and the number of Shares purchased
hereunder.
6. Representation and Warranties of Parent. Parent represents
---------------------------------------
and warrants to the Stockholder as follows:
(a) Parent is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) Parent has the requisite corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by
Parent's Board of Directors and no other corporate proceedings on the
part of Parent are necessary to authorize this Agreement and the
consummation of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Parent and (assuming the valid
authorization, execution and delivery of this Agreement by the
Stockholder) is a valid and binding obligation of Parent, enforceable
in accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting
<PAGE>
6
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by Parent do
not, and the performance of this Agreement by Parent will not, (i)
conflict with or violate the Certificate of Incorporation or By-Laws
of Parent or any of its subsidiaries, (ii) conflict with or violate
any federal, state, local or foreign law, statute, ordinance, rule,
regulation, permit, order, judgment or decree (collectively, "Laws")
----
applicable to Parent or any of its subsidiaries or by which any of
their respective properties is bound, or (iii) conflict with, result
in any breach of or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, or result in the creation
of any lien, claim, security interest or other charge or encumbrance
(collectively, "Encumbrances") on any of the properties or assets of
------------
Parent or any of its subsidiaries pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Parent or any of
its subsidiaries is a party or by which Parent or any of its
subsidiaries or any of their respective properties is bound, except
for any thereof that could not reasonably be expected to materially
impair the ability of Parent to perform its obligations hereunder or
to consummate the transactions contemplated hereby.
(d) The execution and delivery of this Agreement by Parent do
not, and the consummation of the purchase and sale of the Shares
hereunder by Parent will not, require Parent to obtain any consent,
approval, authorization or permit of, or to make any filing with or
notification to, any governmental or regulatory authority, domestic or
foreign ("Governmental Entity"), based on the Laws of any Governmental
-------------------
Entity, except (i) the Communications Act and the HSR Act; and (ii)
where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, could not
reasonably be expected to materially impair the ability of Parent to
perform its obligations hereunder or to consummate the transactions
contemplated hereby.
(e) There is no suit, action, investigation or proceeding
pending or, to the knowledge of the executive officers of Parent,
threatened against Parent or any of its subsidiaries at law or in
equity before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or before any arbitrator of any
kind, that could reasonably be expected to materially impair the
ability of Parent to perform its obligations hereunder or to
<PAGE>
7
consummate the transactions contemplated hereby, and there is no
judgment, decree, injunction, rule or order of any court, governmental
department, commission, board, bureau, agency, instrumentality or
arbitrator to which Parent or any of its subsidiaries is subject that
could reasonably be expected to materially impair the ability of
Parent to perform its obligations hereunder or to consummate the
transactions contemplated hereby.
(f) Parent and its affiliates have, and on the Closing Date
Parent will have, funds in an amount sufficient to consummate the
purchase and sale of the Shares contemplated hereunder and the
purchases and sales of Company Common Stock under each other similar
agreement between Parent and a stockholder of the Company.
7. Representation and Warranties of the Stockholder. The
------------------------------------------------
Stockholder represents and warrants to Parent as follows:
(a) If the Stockholder is a corporation, partnership or trust,
the Stockholder has been duly organized and is validly existing and in
good standing under the laws of the jurisdiction of its organization.
(b) If the Stockholder is a corporation, partnership or trust,
the Stockholder has all necessary corporate, partnership or trust
power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. If the Stockholder is a corporation, partnership or trust,
the execution, delivery and performance of this Agreement by the
Stockholder and the consummation by the Stockholder of the
transactions contemplated hereby have been duly authorized by all
necessary corporate, partnership or trust action on the part of the
Stockholder.
(c) This Agreement has been duly executed and delivered by the
Stockholder and (assuming the valid authorization, execution and
delivery of this Agreement by Parent) is a valid and binding
obligation of the Stockholder, enforceable in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
(d) The execution and delivery of this Agreement by the
Stockholder do not, and the performance of this Agreement by the
Stockholder will not, (i) if the Stockholder is a corporation,
partnership or trust, conflict with or violate the Certificate of
Incorporation or By-Laws, or other organizational documents, of the
Stockholder, (ii) conflict with or violate any Law applicable to the
<PAGE>
8
Stockholder or by which any of its properties is bound, or (iii)
conflict with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or require payment under,
or result in the creation of any Encumbrance on any of the properties
or assets of the Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Stockholder is a party or
by which the Stockholder or any of its properties is bound, except
for any thereof that could not reasonably be expected to materially
impair the ability of the Stockholder to perform its obligations
hereunder or to consummate the transactions contemplated hereby.
(e) The execution and delivery of this Agreement by the
Stockholder do not, and the consummation of the purchase and sale of
the Shares hereunder by the Stockholder will not, require the
Stockholder to obtain any consent, approval, authorization or permit
of, or to make any filing with or notification to, any Governmental
Entity based on the Laws of any Governmental Entity, except (i) the
Communications Act and the HSR Act; and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make
such filings or notifications, could not reasonably be expected to
materially impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated
hereby.
(f) There is no suit, action, investigation or proceeding
pending or, to the knowledge of the Stockholder, threatened against
the Stockholder at law or in equity before or by any federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind, that could reasonably be expected to
materially impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated
hereby, and there is no judgment, decree, injunction, rule or order of
any court, governmental department, commission, board, bureau, agency,
instrumentality or arbitrator to which the Stockholder is subject that
could reasonably be expected to materially impair the ability of the
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby.
(g) The Existing Shares are, and the Shares on the Closing Date
will be, owned beneficially and of record by the Stockholder. The
Existing Shares constitute all of the shares of Company Common Stock
owned of record or beneficially by the Stockholder. All of the
Existing Shares
<PAGE>
9
are issued and outstanding and, except as indicated on the signature
page hereto, the Stockholder does not own, of record or beneficially,
any warrants, options or other rights to acquire any shares of Company
Common Stock. If the Stockholder owns any such warrants, options or
other rights to acquire shares of Company Common Stock, such
Stockholder agrees, to the extent permitted by the terms thereof, to
exercise such warrants, options or other rights prior to Closing. The
Stockholder has sole voting power and sole power of disposition with
respect to all of the Existing Shares and will have sole voting power
and sole power of disposition with respect to all of the Shares on the
Closing Date, with no restrictions, other than those contained in the
Stockholders Agreement and subject to applicable federal securities
laws, on the Stockholder's rights of disposition pertaining thereto.
The Stockholder has good and valid title to the Existing Shares and on
the Closing Date will have good and valid title to the Shares, free
and clear of all Encumbrances, and, upon delivery thereof to Parent
against delivery of the consideration therefor pursuant to this
Agreement, good and valid title thereto, free and clear of all
Encumbrances (other than any arising as a result of actions taken or
omitted by Parent), will pass to Parent.
(h) A true, correct and complete copy of the Stockholders
Agreement has been delivered to the Parent.
8. Investment Representations of the Stockholder. The
---------------------------------------------
Stockholder represents and warrants to, and agrees with, Parent as follows:
(a) The Stockholder has been given the opportunity to obtain any
additional information or documents and to ask questions and receive
answers about such documents, the Company and the business and
prospects of the Company which the Stockholder deems necessary to
evaluate the merits and risks related to the Stockholder's
determination to enter into this Agreement and to consummate the
transactions contemplated hereby.
(b) The Stockholder is an "accredited investor," as such term is
defined in Rule 501 under the Securities Act. If the Stockholder is a
natural person, (A) the Stockholder's individual net worth, or joint
net worth with his or her spouse, at the time of the Closing, will
exceed $1,000,000 or (B) the Stockholder had (x) individual income in
excess of $200,000 in each of the two most recent years or (y) joint
income with his or her spouse in excess of $300,000 in each of those
years, and the Stockholder has a reasonable expectation of reaching
the same income level in the current year.
<PAGE>
10
9. Agreements of the Stockholder. (a) The Stockholder hereby
-----------------------------
agrees, while this Agreement is in effect, and except as contemplated
hereby, not to (i) sell, transfer, pledge, encumber, assign or otherwise
dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of the Existing Shares, or any Shares acquired after
the date hereof, or any interest in any of the foregoing, except to the
Parent, (ii) grant any proxies or powers of attorney, deposit any Shares
into a voting trust or enter into a voting agreement with respect to any
Shares or any cash or other property described in Section 11 hereof, or any
interest in any of the foregoing, except to the Parent, (iii) consent or
otherwise agree to any amendment, waiver or other modification of the
Stockholders Agreement or the Certificate of Incorporation or By-laws of
the Company or its subsidiaries without the prior written consent of Parent
or (iv) take any action that would make any representation or warranty of
the Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing his obligations
under this Agreement, or that would otherwise hinder or delay the Parent
from acquiring a majority of the outstanding Company Common Stock,
determined on a fully diluted basis.
(b) The Stockholder hereby agrees, while this Agreement is in
effect, to notify promptly Parent of the number of any additional shares of
Company Common Stock acquired by the Stockholder, if any, after the date
hereof.
(c) The Stockholder hereby agrees, except with respect to Parent
and its affiliates, on or after the date hereof, that the Stockholder shall
not initiate, solicit or encourage, directly or indirectly, any inquiries
or the making of any proposal with respect to any matter described in
Section 9(a) hereof or any Competing Transaction, participate in any
negotiations concerning, or provide to any other person any information or
data relating to the Company or its subsidiaries for the purpose of, or
have any substantive discussions with, any person relating to, or otherwise
cooperate with or assist or participate in, or facilitate, any inquiries or
the making of any proposal which constitutes, or would reasonably be
expected to lead to, any effort or attempt by any other person to seek to
effect any matter described in Section 9(a) hereof or any Competing
Transaction, or agree to or endorse any Competing Transaction. The
Stockholder agrees immediately to cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any possible Competing Transactions or any
matter described in Section 9(a) hereof.
(d) Promptly following the execution hereof, the Stockholder
shall tender or cause to be tendered a copy of this
<PAGE>
11
Agreement to the Company with a request that it be filed by the Company
with the Secretary of the FCC in conformity with Section 73.3613 of the
FCC's rules.
10. Certain Covenants. (a) Parent hereby agrees that, in the
-----------------
event that Parent purchases shares of Company Common Stock pursuant to the
Option, it will propose to the Company a merger as promptly as reasonably
practicable thereafter, on terms and subject to conditions substantially
the same as those provided for in the Merger Agreement, between itself or
another wholly owned subsidiary of GE and the Company pursuant to which the
stockholders of the Company (other the Company, any direct or indirect
subsidiary of the Company, Parent or any other direct or indirect
subsidiary of the GE) will receive an amount of cash consideration per
share of Company Common Stock at least equal to $47.25.
(b) In the event that Parent exercises the Option pursuant to
Section 5, the Stockholder agrees that it will take all actions reasonably
requested by Parent to seek to cause the Stockholders Agreement to be
amended prior to the Closing, pursuant to a written instrument in form and
substance reasonably satisfactory to Parent, so that the rights of a member
of the Wesray Group (as defined in the Stockholders Agreement) under
Sections 6 and 7 of the Stockholders Agreement shall inure to the benefit
of any purchaser of the Company Common Stock owned by the Stockholder,
including without limitation by executing the foregoing instrument
providing for such amendment.
(c) In the event that, within one year from the date hereof,
Parent or another subsidiary of GE consummates a transaction pursuant to
which it acquires more than 50% of the outstanding Company Common Stock or
effects a merger or similar business combination with the Company pursuant
to which it acquires all of the Company Common Stock (any such transaction,
an "Alternate Transaction") and, in respect of any Alternate Transaction,
---------------------
the per share consideration paid to the largest number of stockholders of
the Company pursuant to the Alternate Transaction exceeds the purchase
price per Share hereunder pursuant to the Option Purchase (the amount of
such excess per share, the "Excess Consideration"), then Parent shall pay
--------------------
to the Stockholder promptly following the consummation of the Alternate
Transaction an amount in cash equal to the amount of the Excess
Consideration times the number of such Stockholder's Shares purchased
hereunder pursuant to the Option Purchase.
(d) If, solely as a result of an acquisition of shares of
Company Common Stock by Parent or any other subsidiary of GE, the Company
is required to make a Change of Control Offer (as defined in the Indenture
referred to below) pursuant to Section 1010 of the Indenture pursuant to
which on the date hereof the Company has issued and outstanding $60 million
aggregate principal amount of Senior Subordinated Notes due July 15, 2003
(the "Notes"), as in effect on the date hereof (the "Indenture"),
----- ---------
<PAGE>
12
then, so long as such Change of Control Offer is made in accordance with
the terms of the Indenture, Parent shall be obligated, within five business
days of the commencement of the Change of Control Offer, to offer to
purchase or to cause another Person to offer to purchase from the Company
on the Change of Control Payment Date (as defined in the Indenture)
indebtedness of the Company (i) in an aggregate principal amount equal to
the aggregate Repurchase Price of the Notes repurchased by the Company on
such Change of Control Payment Date pursuant to Section 1010 of the
Indenture and (ii) with terms, conditions, covenants and other provisions
substantially the same as the Notes.
11. Adjustment. If, between the date of this Agreement and the
----------
Closing, the Company Common Stock shall have been changed into a different
number of shares or a different class by reason of any stock dividend,
subdivision, reclassification, recapitalization, split, combination or
exchange of shares, the purchase price for the Shares hereunder shall be
correspondingly adjusted to reflect such event. If, between the date of
this Agreement and the Closing Date, the Company declares, pays or makes
any dividend or other distribution of any kind of cash or property on the
Company Common Stock, the Stockholder shall receive and hold such cash or
property for the benefit of the Parent and shall deliver such cash or
property, with appropriate instruments of transfer, if necessary, to the
Parent on the Closing Date (or, in the event of a payment date occurring
after the Closing Date, on the date such payment is received).
12. Licensee Control. Notwithstanding anything to the contrary
----------------
contained herein, without first obtaining the consent of the FCC through
grant of the FCC Application, Parent, its employees and agents shall not
directly or indirectly control, manage, supervise or direct, or attempt to
control, manage, supervise or direct, the Company or any of its broadcast
stations, and such control, management, supervision and direction shall be
the sole responsibility of and in the complete discretion of the Company.
13. Further Assurances. From time to time, at the other party's
------------------
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
14. Survival. The covenants of the parties hereto, and the
--------
representations and warranties of the parties hereto, shall survive until
the earlier to occur of the Effective Time and the Closing.
15. Miscellaneous. (a) This Agreement (i) constitutes the
-------------
entire agreement among the parties with respect
<PAGE>
13
to the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof and (ii) shall not be assigned by operation of
law or otherwise, provided that Parent may assign its rights and
--------
obligations hereunder to any direct or indirect wholly owned subsidiary of
GE, but no such assignment shall relieve Parent of its obligations
hereunder. Subject to the foregoing, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by the parties hereto and their
respective successors (including any successor in interest by merger, sale
of all or substantially all of the assets or otherwise) and assigns.
(b) This Agreement may not be amended or supplemented, except
upon the execution and delivery of a written agreement executed by the
parties hereto. The Parent or the Stockholder may, from time to time,
waive, on such terms and conditions as the Parent or the Stockholder, as
the case may be, may specify in such instrument, any of the requirements of
this Agreement. Any such amendment shall be binding upon the parties
thereto and any such waiver shall be binding upon the Parent or the
Stockholder, as the case may be, executing the same. No such waiver shall
extend to any subsequent or other event or circumstance or impair any right
consequent thereon.
(c) All notices and other communications hereunder shall be in
writing and shall be deemed given (i) on the date delivered, if delivered
personally, (ii) on the first Business Day following the deposit thereof
with Federal Express, if sent by Federal Express, and (iii) on the fourth
Business Day following the mailing thereof with postage prepaid, if mailed
by registered or certified mail (return receipt requested), in each case to
the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) if to the Stockholder, to it at its address set forth on the
signature page hereof; and
(ii) if to the Parent, to it at:
National Broadcasting Company, Inc.
30 Rockefeller Center
New York, New York 10112
Attention: Senior Vice President and Chief
Financial Officer
with copies to:
National Broadcasting Company, Inc.
30 Rockefeller Center
New York, New York 10112
Attention: General Counsel
and
<PAGE>
14
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Charles I. Cogut, Esq.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of
laws thereof.
(e) The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York or in the Chancery Courts of
the State of Delaware (and any appellate courts therefrom), this being in
addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of (i) the United States District Court
for the Southern District of New York in the event any dispute arises out
of this Agreement or any of the transactions contemplated by this Agreement
to the extent such court would have subject matter jurisdiction with
respect to such dispute and (ii) the Chancery Courts of the State of
Delaware otherwise, and (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction or venue by motion or other request for
leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than such courts.
(f) This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original, but both of which shall constitute
one and the same Agreement.
(g) The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(h) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy,
all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
<PAGE>
15
(i) If the FCC should determine that this Agreement is
inconsistent with Company's licensee obligations or is otherwise contrary
to FCC policies, rules and regulations, the parties shall reform this
Agreement in good faith and recast them in terms that are likely to cure
the defects perceived by the FCC and return a balance of benefits to both
parties comparable to the balance of benefits provided by this Agreement in
its current terms. If, after such good faith negotiations, either party
determines that recasting this Agreement to meet the defects perceived by
the FCC is impracticable, either party may terminate this Agreement without
further liability on 30 days' prior written notice. If termination shall
occur pursuant to this paragraph, such termination shall extinguish and
cancel this Agreement without further liability on the part of either party
to the other.
[Signatures appear on next page.]
<PAGE>
16
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
NATIONAL BROADCASTING COMPANY,
INC.
By:/s/ Richard Cotton
---------------------------
Name: Richard Cotton
Title: Executive Vice
President and
General Counsel
THE STOCKHOLDER:
The Hartington Trust
------------------------------
(Print Name)
By:/s/ Kurt T. Borowsky
--------------------
Name: Kurt T. Borowsky
Title: Trustee
Number of Existing Shares:
626,764
---------------
Options, Warrants or other
Rights:
______________________________
______________________________
______________________________
______________________________
(Insert Number and Describe)
Address:
330 South Street
------------------------------
P.O. Box 1975
------------------------------
Morristown, NJ 07962-1975
------------------------------
______________________________
<PAGE>
16
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
NATIONAL BROADCASTING COMPANY,
INC.
By:/s/ Richard Cotton
---------------------------
Name: Richard Cotton
Title: Executive Vice
President and
General Counsel
THE STOCKHOLDER:
The OCI Trust
------------------------------
(Print Name)
By:/s/ Jeffrey R. Walsh
---------------------------
Name: Jeffrey R. Walsh
Title: Trustee
Number of Existing Shares:
331,625
---------------
Options, Warrants or other
Rights:
______________________________
______________________________
______________________________
______________________________
(Insert Number and Describe)
Address:
330 South Street
------------------------------
P.O. Box 1975
------------------------------
Morristown, NJ 07962-1975
------------------------------
______________________________
<PAGE>
16
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
NATIONAL BROADCASTING COMPANY,
INC.
By:/s/ Richard Cotton
---------------------------
Name: Richard Cotton
Title: Executive Vice
President and
General Counsel
THE STOCKHOLDER:
Frank E. Richardson III
------------------------------
(Print Name)
By:/s/ Frank E. Richardson III
---------------------------
Name: Frank E. Richardson III
Title:
Number of Existing Shares:
256,228
---------------
Options, Warrants or other
Rights:
______________________________
______________________________
______________________________
______________________________
(Insert Number and Describe)
Address:
245 Park Avenue, 41st Floor
------------------------------
New York, New York 10167
------------------------------
______________________________
______________________________
<PAGE>
16
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
NATIONAL BROADCASTING COMPANY,
INC.
By:/s/ Richard Cotton
---------------------------
Name: Richard Cotton
Title: Executive Vice
President and
General Counsel
THE STOCKHOLDER:
Hugh J. Byrnes
------------------------------
(Print Name)
By:/s/ Hugh J. Byrnes
---------------------------
Name: Hugh J. Byrnes
Title:
Number of Existing Shares:
64,816
---------------
Options, Warrants or other
Rights:
______________________________
______________________________
______________________________
______________________________
(Insert Number and Describe)
Address:
330 South Street
------------------------------
P.O. Box 1975
------------------------------
Morristown, NJ 07962-1975
------------------------------
______________________________
<PAGE>
16
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
NATIONAL BROADCASTING COMPANY,
INC.
By:/s/ Richard Cotton
---------------------------
Name: Richard Cotton
Title: Executive Vice
President and
General Counsel
THE STOCKHOLDER:
John D. Howard
------------------------------
(Print Name)
By:/s/ John D. Howard
---------------------------
Name: John D. Howard
Title:
Number of Existing Shares:
44,158
---------------
Options, Warrants or other
Rights:
______________________________
______________________________
______________________________
______________________________
(Insert Number and Describe)
Address:
245 Park Avenue, 41st Floor
------------------------------
New York, New York 10167
------------------------------
______________________________
______________________________
<PAGE>
16
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
NATIONAL BROADCASTING COMPANY,
INC.
By:/s/ Richard Cotton
---------------------------
Name: Richard Cotton
Title: Executive Vice
President and
General Counsel
THE STOCKHOLDER:
Manfred L. Steyn
------------------------------
(Print Name)
By:/s/ Manfred L. Steyn
---------------------------
Name: Manfred L. Steyn
Title:
Number of Existing Shares:
24,500
---------------
Options, Warrants or other
Rights:
______________________________
______________________________
______________________________
______________________________
(Insert Number and Describe)
Address:
330 South Street
------------------------------
P.O. Box 1975
------------------------------
Morristown, NJ 07962-1975
------------------------------
______________________________
<PAGE>
EXHIBIT A
---------
STOCKHOLDER CONSENT
-------------------
Action Taken by the Written
Consent of Stockholders
of
Outlet Communications, Inc.
August 2, 1995
The undersigned stockholder of Outlet Communications, Inc., a
Delaware corporation (the "Corporation"), acting by written consent in lieu
-----------
of a meeting pursuant to Section 228 of the General Corporation Law of the
State of Delaware, hereby consents to the adoption of and adopts the
following resolution with respect to each share of the capital stock of the
Corporation owned of record by such stockholder on the date hereof:
RESOLVED, that the Merger Agreement, dated as of August 2, 1995
(the "Merger Agreement"), among the Corporation, National Broadcasting
----------------
Company, Inc., a Delaware corporation ("NBC"), and CO Acquisition
---
Corporation, a Delaware corporation and a wholly owned subsidiary of
NBC, a copy of which has been furnished to the stockholder, be, and it
hereby is, adopted and approved by the stockholder, and that the
Merger (as defined in the Merger Agreement) and the other transactions
contemplated by the Merger Agreement be, and they hereby are, approved
and ratified in all respects.
The Hartington Trust
------------------------------
(Print Name)
By:/s/ Kurt T. Borowsky
---------------------------
Name: Kurt T. Borowsky
Title: Trustee
Number of Shares: 626,764
-----------
Address of the stockholder:
330 South Street
------------------------------
P.O. Box 1975
------------------------------
Morristown, NJ 07962-1975
------------------------------
<PAGE>
EXHIBIT A
---------
STOCKHOLDER CONSENT
-------------------
Action Taken by the Written
Consent of Stockholders
of
Outlet Communications, Inc.
August 2, 1995
The undersigned stockholder of Outlet Communications, Inc., a
Delaware corporation (the "Corporation"), acting by written consent in lieu
-----------
of a meeting pursuant to Section 228 of the General Corporation Law of the
State of Delaware, hereby consents to the adoption of and adopts the
following resolution with respect to each share of the capital stock of the
Corporation owned of record by such stockholder on the date hereof:
RESOLVED, that the Merger Agreement, dated as of August 2, 1995
(the "Merger Agreement"), among the Corporation, National Broadcasting
----------------
Company, Inc., a Delaware corporation ("NBC"), and CO Acquisition
---
Corporation, a Delaware corporation and a wholly owned subsidiary of
NBC, a copy of which has been furnished to the stockholder, be, and it
hereby is, adopted and approved by the stockholder, and that the
Merger (as defined in the Merger Agreement) and the other transactions
contemplated by the Merger Agreement be, and they hereby are, approved
and ratified in all respects.
The OCI Trust
------------------------------
(Print Name)
By:/s/ Jeffrey R. Walsh
---------------------------
Name: Jeffrey R. Walsh
Title: Trustee
Number of Shares: 331,625
-----------
Address of the stockholder:
330 South Street
------------------------------
P.O. Box 1975
------------------------------
Morristown, NJ 07962-1975
------------------------------
<PAGE>
EXHIBIT A
---------
STOCKHOLDER CONSENT
-------------------
Action Taken by the Written
Consent of Stockholders
of
Outlet Communications, Inc.
August 2, 1995
The undersigned stockholder of Outlet Communications, Inc., a
Delaware corporation (the "Corporation"), acting by written consent in lieu
-----------
of a meeting pursuant to Section 228 of the General Corporation Law of the
State of Delaware, hereby consents to the adoption of and adopts the
following resolution with respect to each share of the capital stock of the
Corporation owned of record by such stockholder on the date hereof:
RESOLVED, that the Merger Agreement, dated as of August 2, 1995
(the "Merger Agreement"), among the Corporation, National Broadcasting
----------------
Company, Inc., a Delaware corporation ("NBC"), and CO Acquisition
---
Corporation, a Delaware corporation and a wholly owned subsidiary of
NBC, a copy of which has been furnished to the stockholder, be, and it
hereby is, adopted and approved by the stockholder, and that the
Merger (as defined in the Merger Agreement) and the other transactions
contemplated by the Merger Agreement be, and they hereby are, approved
and ratified in all respects.
Frank E. Richardson III
------------------------------
(Print Name)
By:/s/ Frank E. Richardson III
---------------------------
Name: Frank E. Richardson III
Title:
Number of Shares: 256,228
-----------
Address of the stockholder:
245 Park Avenue, 41st Floor
------------------------------
New York, New York 10167
------------------------------
______________________________
<PAGE>
EXHIBIT A
---------
STOCKHOLDER CONSENT
-------------------
Action Taken by the Written
Consent of Stockholders
of
Outlet Communications, Inc.
August 2, 1995
The undersigned stockholder of Outlet Communications, Inc., a
Delaware corporation (the "Corporation"), acting by written consent in lieu
-----------
of a meeting pursuant to Section 228 of the General Corporation Law of the
State of Delaware, hereby consents to the adoption of and adopts the
following resolution with respect to each share of the capital stock of the
Corporation owned of record by such stockholder on the date hereof:
RESOLVED, that the Merger Agreement, dated as of August 2, 1995
(the "Merger Agreement"), among the Corporation, National Broadcasting
----------------
Company, Inc., a Delaware corporation ("NBC"), and CO Acquisition
---
Corporation, a Delaware corporation and a wholly owned subsidiary of
NBC, a copy of which has been furnished to the stockholder, be, and it
hereby is, adopted and approved by the stockholder, and that the
Merger (as defined in the Merger Agreement) and the other transactions
contemplated by the Merger Agreement be, and they hereby are, approved
and ratified in all respects.
Hugh J. Byrnes
------------------------------
(Print Name)
By:/s/ Hugh J. Byrnes
---------------------------
Name: Hugh J. Byrnes
Title:
Number of Shares: 64,816
-----------
Address of the stockholder:
330 South Street
------------------------------
P.O. Box 1975
------------------------------
Morristown, NJ 07962-1975
------------------------------
<PAGE>
EXHIBIT A
---------
STOCKHOLDER CONSENT
-------------------
Action Taken by the Written
Consent of Stockholders
of
Outlet Communications, Inc.
August 2, 1995
The undersigned stockholder of Outlet Communications, Inc., a
Delaware corporation (the "Corporation"), acting by written consent in lieu
-----------
of a meeting pursuant to Section 228 of the General Corporation Law of the
State of Delaware, hereby consents to the adoption of and adopts the
following resolution with respect to each share of the capital stock of the
Corporation owned of record by such stockholder on the date hereof:
RESOLVED, that the Merger Agreement, dated as of August 2, 1995
(the "Merger Agreement"), among the Corporation, National Broadcasting
----------------
Company, Inc., a Delaware corporation ("NBC"), and CO Acquisition
---
Corporation, a Delaware corporation and a wholly owned subsidiary of
NBC, a copy of which has been furnished to the stockholder, be, and it
hereby is, adopted and approved by the stockholder, and that the
Merger (as defined in the Merger Agreement) and the other transactions
contemplated by the Merger Agreement be, and they hereby are, approved
and ratified in all respects.
John D. Howard
------------------------------
(Print Name)
By:/s/ John D. Howard
---------------------------
Name: John D. Howard
Title:
Number of Shares: 44,158
-----------
Address of the stockholder:
245 Park Avenue, 41st Floor
------------------------------
New York, New York 10167
------------------------------
______________________________
<PAGE>
EXHIBIT A
---------
STOCKHOLDER CONSENT
-------------------
Action Taken by the Written
Consent of Stockholders
of
Outlet Communications, Inc.
August 2, 1995
The undersigned stockholder of Outlet Communications, Inc., a
Delaware corporation (the "Corporation"), acting by written consent in lieu
-----------
of a meeting pursuant to Section 228 of the General Corporation Law of the
State of Delaware, hereby consents to the adoption of and adopts the
following resolution with respect to each share of the capital stock of the
Corporation owned of record by such stockholder on the date hereof:
RESOLVED, that the Merger Agreement, dated as of August 2, 1995
(the "Merger Agreement"), among the Corporation, National Broadcasting
----------------
Company, Inc., a Delaware corporation ("NBC"), and CO Acquisition
---
Corporation, a Delaware corporation and a wholly owned subsidiary of
NBC, a copy of which has been furnished to the stockholder, be, and it
hereby is, adopted and approved by the stockholder, and that the
Merger (as defined in the Merger Agreement) and the other transactions
contemplated by the Merger Agreement be, and they hereby are, approved
and ratified in all respects.
Manfred L. Steyn
------------------------------
(Print Name)
By:/s/ Manfred L. Steyn
---------------------------
Name: Manfred L. Steyn
Title:
Number of Shares: 24,500
-----------
Address of the stockholder:
330 South Street
------------------------------
P.O. Box 1975
------------------------------
Morristown, NJ 07962-1975
------------------------------
Exhibit 3
Conformed MBL Version
CONSENT AND VOTING/
-------------------
CONDITIONAL OPTION AGREEMENT
----------------------------
CONSENT AND VOTING/CONDITIONAL OPTION AGREEMENT, dated as of
August 2, 1995, between NATIONAL BROADCASTING COMPANY, INC., a Delaware
corporation ("Parent"), and the stockholder of Outlet Communications, Inc.,
------
a Delaware corporation (the "Company"), whose name and signature is set
-------
forth on the signature page hereof (the "Stockholder").
-----------
RECITALS
--------
The Company, Parent and CO Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent ("Parent Sub") are
----------
entering into an Agreement and Plan of Merger dated as of the date hereof
(the "Merger Agreement"; capitalized terms used but not defined herein
----------------
shall have the meanings set forth in the Merger Agreement), pursuant to
which, subject to the terms and conditions of the Merger Agreement, Parent
Sub will merge with and into the Company (the "Merger"), and each
------
outstanding share of Company Common Stock, other than shares owned by the
Company or Parent or certain of their respective affiliates, will be
converted into the right to receive $47.25 in cash, all as more fully set
forth in the Merger Agreement.
As of the date hereof, except as set forth on the signature page
hereof, the Stockholder is the record and beneficial owner of the number of
shares of Company Common Stock set forth on the signature page hereof (the
"Existing Shares" and, together with any shares of Company Common Stock
---------------
acquired after the date hereof, whether upon the exercise of warrants,
options, conversion of convertible securities or otherwise, the "Shares").
------
In accordance with Section 228 of the Delaware Law, the
Stockholder desires to grant the Stockholder's consent to the adoption and
approval of the Merger Agreement and the Merger without a meeting of
stockholders of the Company.
The Stockholder and Parent desire to set forth their agreement
with respect to the voting of the Shares in connection with the Merger and
the Stockholder desires to grant to Parent a conditional option, subject to
FCC consent if necessary, to acquire the Shares, upon the terms and subject
to the conditions set forth herein.
AGREEMENT
---------
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Delivery of Consent. Immediately following the execution and
-------------------
delivery of the Merger Agreement by the parties
<PAGE>
2
thereto, the Stockholder shall execute and deliver to the Secretary of the
Company a written consent in the form of Exhibit A hereto.
2. Agreement to Vote. The Stockholder hereby agrees that, from
-----------------
and after the date hereof and until the Expiration Date (as defined in
Section 4), at any meeting of the stockholders of the Company, however
called, or in connection with any written consent of the stockholders of
the Company, and to the extent permitted by applicable law, the Stockholder
shall vote (or cause to be voted) or act by written consent with respect to
the Shares (a) in favor of adoption and approval of the Merger Agreement
and the Merger and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement and this Agreement; (b)
against any action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement
of the Company contained in the Merger Agreement or of the Stockholder
contained in this Agreement; and (c) against any Competing Transaction or
any other action, agreement or transaction (other than the Merger Agreement
or the transactions contemplated thereby) that is intended, or could
reasonably be expected, to impede, interfere or be inconsistent with,
delay, postpone, discourage or materially adversely affect the Merger or
this Agreement, including, but not limited to: (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (ii) a sale, lease
or transfer of a material amount of assets of the Company and its
subsidiaries or a reorganization, recapitalization or liquidation of the
Company or its subsidiaries; (iii) a material change in the policies or
management of the Company, except as otherwise agreed to in writing by
Parent; (iv) an election of new members to the board of directors of the
Company, except where the vote is cast in favor of the nominees of a
majority of the existing directors; (v) any material change in the present
capitalization or dividend policy of the Company or any amendment of the
Company's certificate of incorporation; or (vi) any other material change
in the Company's corporate structure or business. The Stockholder shall
not enter into any agreement or understanding with any person or entity
prior to the Expiration Date to vote or give instructions in any manner
inconsistent with clauses (a), (b) or (c) of the preceding sentence.
3. PROXY. THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS A
-----
TRUSTEE TO BE DESIGNATED BY PARENT, AND ANY SUCCESSOR TRUSTEE, THE
STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION)
TO VOTE OR ACT BY WRITTEN CONSENT, TO THE FULL EXTENT PERMITTED BY
APPLICABLE LAW, WITH RESPECT TO THE SHARES IN ACCORDANCE WITH SECTION 2
HEREOF. THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE,
AND THE STOCKHOLDER WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
<PAGE>
3
PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY HIM WITH RESPECT
TO THE SHARES.
4. Expiration of Proxy. The proxy set forth in Section 3 hereof
-------------------
shall terminate on the Expiration Date. As used herein, the term
"Expiration Date" means the earlier of the Effective Time and the date
---------------
which is 360 days following the date hereof or such shorter period as may
be dictated by applicable law or FCC policy or regulation (unless extended
by the mutual written consent of Parent and the Stockholder).
5. Conditional Option. (a) The Stockholder hereby grants to
------------------
Parent an irrevocable option to purchase the Shares, on the terms and
subject to the conditions set forth herein, including but not limited to
the consent of the FCC, if required (the "Option").
------
(b) (i) The Option may be exercised by Parent, as a whole and
not in part, at any time on or after the earlier to occur of (A) the
termination, if any, of the Merger Agreement pursuant to the terms thereof
or otherwise and (B) such time as a permanent injunction or other order,
decree or ruling by any United States federal or state court of competent
jurisdiction or by any United States federal or state governmental,
regulatory or administrative agency or authority preventing the
consummation of the Merger shall have been issued, provided that the Option
--------
may not be exercised on any date after the 60th day following the
occurrence of the event specified in clause (A) above.
(ii) If Parent wishes to exercise the Option (the "Option
------
Purchase"), Parent shall send a written notice to the Stockholder of its
--------
intention to exercise the Option, specifying the place, and, if then known,
the time and the date (the "Closing Date") of the closing (the "Closing")
------------ -------
of the purchase. The Closing Date shall not be less than 20 days (or such
longer period as may be required by applicable law or regulation) from the
date on which such notice is delivered or prior to such time as the
condition specified in Section 5(b)(iv)(E) below shall have been satisfied.
(iii) Following delivery of the exercise notice referred to in
Section 5(b)(ii) above, (x) the Stockholder shall promptly forward or cause
to be forwarded a copy of the exercise notice and of the terms of the
proposed Option Purchase to the Company and to the other Stockholders (as
defined in the Stockholders Agreement) in accordance with Section 5 of the
Stockholders Agreement, and (y) Parent shall extend an offer (which
complies with Section 5 of the Stockholders Agreement) to acquire shares of
Company Common Stock to such other Stockholders. The Stockholder further
agrees that, if the Option is exercised, the Stockholder shall cause
Section 19 of the Stockholders Agreement to be complied with prior to the
Closing.
<PAGE>
4
(iv) The obligation of Parent or its designee to consummate the
Closing after exercise of the Option shall be subject to the satisfaction
or waiver by Parent of the following conditions:
(A) The provisions of Sections 5 and 19 of the Stockholders
Agreement, as such agreement is in effect on the date hereof, and the
other provisions of the Stockholders Agreement applicable to the
consummation of the transactions contemplated hereby, shall have been
complied with, and such agreement shall not have been amended,
supplemented or otherwise modified since the date hereof without the
consent of Parent.
(B) After giving effect to the Option Purchase and all other
purchases of shares of Company Common Stock theretofore made or made
concurrently therewith, Parent shall beneficially own a number of
shares of Company Common Stock sufficient to approve (without the
affirmative vote or consent of any stockholder of the Company other
than Parent and/or its designee) or to consummate pursuant to Section
253 of the Delaware Law a merger between Parent or another wholly
owned subsidiary of General Electric Company, a New York corporation
("GE"), and the Company pursuant to which the stockholders of the
--
Company (other than the Company, any direct or indirect subsidiary of
the Company, Parent or any other direct or indirect wholly owned
subsidiary of GE) will receive as consideration an amount of cash
consideration per share of Company Common Stock at least equal to
$47.25.
(C) The acquisitions of shares of Company Common Stock pursuant
to this Agreement and each other similar agreement between Parent and
a stockholder of the Company shall have been approved by the Board of
Directors of the Company for purposes of Section 203 of the Delaware
Law.
(D) The waiting periods applicable to the consummation of the
Option Purchase under the HSR Act shall have expired or been earlier
terminated.
(E) The FCC shall have issued a Final Order approving the FCC
Application, and such Final Order shall include the granting of such
waivers, if any, of the rules and regulations under the Communications
Act, as may be necessary to permit the purchase and sale contemplated
hereby. All the terms and conditions contained in the Final Order
required to be satisfied on or prior to the Closing shall have been
satisfied.
(F) No preliminary or permanent injunction or other order,
decree or ruling by any United States federal or state court of
competent jurisdiction or by any United States federal or state
governmental, regulatory or
<PAGE>
5
administrative agency or authority which prevents the Option Purchase
shall have been issued and remain in effect.
(G) No statute, rule or regulation shall have been enacted by
any United States federal or state governmental, regulatory or
administrative agency or authority that makes the consummation of the
Option Purchase illegal or would otherwise prevent the consummation of
the Option Purchase.
(H) The representations and warranties of the Stockholder
contained herein shall have been true and correct in all material
respects as of the date hereof and shall be true and correct in all
material respects at and as of the Closing Date as if made at and as
of the Closing Date. The Stockholder shall have performed in all
material respects all of its covenants and obligations required to be
performed by it on or prior to the Closing Date hereunder.
(c) At the Closing, the Stockholder shall deliver to Parent (or
its designee) all of the Shares by delivery of a certificate or
certificates evidencing such Shares in the denominations designated by
Parent in its exercise notice delivered pursuant to Section 5(b)(ii), duly
endorsed to Parent or accompanied by stock powers duly executed in favor of
Parent, with all necessary stock transfer stamps affixed.
(d) At the Closing, the Purchaser shall deliver to the
Stockholder a wire transfer in immediately available funds to an account
designated by the Stockholder at least two business days prior to the
Closing Date (or, if such account is not so designated, by check or checks
in New York Clearing House (next-day funds)) in an amount equal to the
product of $47.25 and the number of Shares purchased hereunder.
6. Representation and Warranties of Parent. Parent represents
---------------------------------------
and warrants to the Stockholder as follows:
(a) Parent is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) Parent has the requisite corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by
Parent's Board of Directors and no other corporate proceedings on the
part of Parent are necessary to authorize this Agreement and the
consummation of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Parent and (assuming the valid
authorization, execution and delivery of this Agreement by the
Stockholder) is a valid and binding obligation of Parent, enforceable
in accordance with its terms, except as affected by bankruptcy,
<PAGE>
6
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law).
(c) The execution and delivery of this Agreement by Parent do
not, and the performance of this Agreement by Parent will not, (i)
conflict with or violate the Certificate of Incorporation or By-Laws
of Parent or any of its subsidiaries, (ii) conflict with or violate
any federal, state, local or foreign law, statute, ordinance, rule,
regulation, permit, order, judgment or decree (collectively, "Laws")
----
applicable to Parent or any of its subsidiaries or by which any of
their respective properties is bound, or (iii) conflict with, result
in any breach of or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, or result in the creation
of any lien, claim, security interest or other charge or encumbrance
(collectively, "Encumbrances") on any of the properties or assets of
------------
Parent or any of its subsidiaries pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Parent or any of
its subsidiaries is a party or by which Parent or any of its
subsidiaries or any of their respective properties is bound, except
for any thereof that could not reasonably be expected to materially
impair the ability of Parent to perform its obligations hereunder or
to consummate the transactions contemplated hereby.
(d) The execution and delivery of this Agreement by Parent do
not, and the consummation of the purchase and sale of the Shares
hereunder by Parent will not, require Parent to obtain any consent,
approval, authorization or permit of, or to make any filing with or
notification to, any governmental or regulatory authority, domestic or
foreign ("Governmental Entity"), based on the Laws of any Governmental
-------------------
Entity, except (i) the Communications Act and the HSR Act; and (ii)
where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, could not
reasonably be expected to materially impair the ability of Parent to
perform its obligations hereunder or to consummate the transactions
contemplated hereby.
(e) There is no suit, action, investigation or proceeding
pending or, to the knowledge of the executive officers of Parent,
threatened against Parent or any of its subsidiaries at law or in
equity before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or before any arbitrator of any
kind,
<PAGE>
7
that could reasonably be expected to materially impair the ability of
Parent to perform its obligations hereunder or to consummate the
transactions contemplated hereby, and there is no judgment, decree,
injunction, rule or order of any court, governmental department,
commission, board, bureau, agency, instrumentality or arbitrator to
which Parent or any of its subsidiaries is subject that could
reasonably be expected to materially impair the ability of Parent to
perform its obligations hereunder or to consummate the transactions
contemplated hereby.
(f) Parent and its affiliates have, and on the Closing Date
Parent will have, funds in an amount sufficient to consummate the
purchase and sale of the Shares contemplated hereunder and the
purchases and sales of Company Common Stock under each other similar
agreement between Parent and a stockholder of the Company.
7. Representation and Warranties of the Stockholder. The
------------------------------------------------
Stockholder represents and warrants to Parent as follows:
(a) If the Stockholder is a corporation, partnership or trust,
the Stockholder has been duly organized and is validly existing and in
good standing under the laws of the jurisdiction of its organization.
(b) If the Stockholder is a corporation, partnership or trust,
the Stockholder has all necessary corporate, partnership or trust
power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby. If the Stockholder is a corporation, partnership or trust,
the execution, delivery and performance of this Agreement by the
Stockholder and the consummation by the Stockholder of the
transactions contemplated hereby have been duly authorized by all
necessary corporate, partnership or trust action on the part of the
Stockholder.
(c) This Agreement has been duly executed and delivered by the
Stockholder and (assuming the valid authorization, execution and
delivery of this Agreement by Parent) is a valid and binding
obligation of the Stockholder, enforceable in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
(d) The execution and delivery of this Agreement by the
Stockholder do not, and the performance of this Agreement by the
Stockholder will not, (i) if the Stockholder is a corporation,
partnership or trust, conflict with or violate the Certificate of
Incorporation or By-Laws,
<PAGE>
8
or other organizational documents, of the Stockholder, (ii) conflict
with or violate any Law applicable to the Stockholder or by which any
of its properties is bound, or (iii) conflict with, result in any
breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of,
or require payment under, or result in the creation of any Encumbrance
on any of the properties or assets of the Stockholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the
Stockholder is a party or by which the Stockholder or any of its
properties is bound, except for any thereof that could not reasonably
be expected to materially impair the ability of the Stockholder to
perform its obligations hereunder or to consummate the transactions
contemplated hereby.
(e) The execution and delivery of this Agreement by the
Stockholder do not, and the consummation of the purchase and sale of
the Shares hereunder by the Stockholder will not, require the
Stockholder to obtain any consent, approval, authorization or permit
of, or to make any filing with or notification to, any Governmental
Entity based on the Laws of any Governmental Entity, except (i) the
Communications Act and the HSR Act; and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make
such filings or notifications, could not reasonably be expected to
materially impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated
hereby.
(f) There is no suit, action, investigation or proceeding
pending or, to the knowledge of the Stockholder, threatened against
the Stockholder at law or in equity before or by any federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind, that could reasonably be expected to
materially impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated
hereby, and there is no judgment, decree, injunction, rule or order of
any court, governmental department, commission, board, bureau, agency,
instrumentality or arbitrator to which the Stockholder is subject that
could reasonably be expected to materially impair the ability of the
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby.
(g) Except as set forth on the signature page hereof, the
Existing Shares are, and the Shares on the Closing Date will be, owned
beneficially and of record by the
<PAGE>
9
Stockholder. The Existing Shares constitute all of the shares of
Company Common Stock owned of record or beneficially by the
Stockholder. All of the Existing Shares are issued and outstanding
and, except as indicated on the signature page hereto, the Stockholder
does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of Company Common Stock. If the
Stockholder owns any such warrants, options or other rights to acquire
shares of Company Common Stock, such Stockholder agrees, to the extent
permitted by the terms thereof, to exercise such warrants, options or
other rights prior to Closing. The Stockholder has sole voting power
and sole power of disposition with respect to all of the Existing
Shares and will have sole voting power and sole power of disposition
with respect to all of the Shares on the Closing Date, with no
restrictions, other than those contained in the Stockholders Agreement
and subject to applicable federal securities laws, on the
Stockholder's rights of disposition pertaining thereto. The
Stockholder has good and valid title to the Existing Shares and on the
Closing Date will have good and valid title to the Shares, free and
clear of all Encumbrances, and, upon delivery thereof to Parent
against delivery of the consideration therefor pursuant to this
Agreement, good and valid title thereto, free and clear of all
Encumbrances (other than any arising as a result of actions taken or
omitted by Parent), will pass to Parent.
8. Investment Representations of the Stockholder. The
---------------------------------------------
Stockholder represents and warrants to, and agrees with, Parent as follows:
(a) The Stockholder has been given the opportunity to obtain any
additional information or documents and to ask questions and receive
answers about such documents, the Company and the business and
prospects of the Company which the Stockholder deems necessary to
evaluate the merits and risks related to the Stockholder's
determination to enter into this Agreement and to consummate the
transactions contemplated hereby.
(b) The Stockholder is an "accredited investor," as such term is
defined in Rule 501 under the Securities Act.
9. Agreements of the Stockholder. (a) The Stockholder hereby
-----------------------------
agrees, while this Agreement is in effect, and except as contemplated
hereby, not to (i) sell, transfer, pledge, encumber, assign or otherwise
dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of the Existing Shares, or any Shares acquired after
the date hereof, or any interest in any of the
<PAGE>
10
foregoing, except to the Parent, (ii) grant any proxies or powers of
attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares or any cash or other property
described in Section 11 hereof, or any interest in any of the foregoing,
except to the Parent, (iii) consent or otherwise agree to any amendment,
waiver or other modification of the Stockholders Agreement or the
Certificate of Incorporation or By-laws of the Company or its subsidiaries
without the prior written consent of Parent or (iv) take any action that
would make any representation or warranty of the Stockholder contained
herein untrue or incorrect or have the effect of preventing or disabling
the Stockholder from performing his obligations under this Agreement, or
that would otherwise hinder or delay the Parent from acquiring a majority
of the outstanding Company Common Stock, determined on a fully diluted
basis.
(b) The Stockholder hereby agrees, while this Agreement is in
effect, to notify promptly Parent of the number of any additional shares of
Company Common Stock acquired by the Stockholder, if any, after the date
hereof.
(c) The Stockholder hereby agrees, except with respect to Parent
and its affiliates, on or after the date hereof, that the Stockholder shall
not initiate, solicit or encourage, directly or indirectly, any inquiries
or the making of any proposal with respect to any matter described in
Section 9(a) hereof or any Competing Transaction, participate in any
negotiations concerning, or provide to any other person any information or
data relating to the Company or its subsidiaries for the purpose of, or
have any substantive discussions with, any person relating to, or otherwise
cooperate with or assist or participate in, or facilitate, any inquiries or
the making of any proposal which constitutes, or would reasonably be
expected to lead to, any effort or attempt by any other person to seek to
effect any matter described in Section 9(a) hereof or any Competing
Transaction, or agree to or endorse any Competing Transaction; provided
--------
that the foregoing provisions of this Section 9(c) shall not prohibit the
Stockholder from responding to requirements of, or requests from, any
governmental authority or regulatory body having authority over the
business or operations of the Stockholder. The Stockholder agrees
immediately to cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with
respect to any possible Competing Transactions or any matter described in
Section 9(a) hereof.
(d) Promptly following the execution hereof, the Stockholder
shall tender or cause to be tendered a copy of this Agreement to the
Company with a request that it be filed by the Company with the Secretary
of the FCC in conformity with Section 73.3613 of the FCC's rules.
10. Certain Covenants. (a) Parent hereby agrees that, in the
-----------------
event that Parent purchases shares of Company Common
<PAGE>
11
Stock pursuant to the Option, it will propose to the Company a merger as
promptly as reasonably practicable thereafter, on terms and subject to
conditions substantially the same as those provided for in the Merger
Agreement, between itself or another wholly owned subsidiary of GE and the
Company pursuant to which the stockholders of the Company (other the
Company, any direct or indirect subsidiary of the Company, Parent or any
other direct or indirect subsidiary of the GE) will receive an amount of
cash consideration per share of Company Common Stock at least equal to
$47.25.
(b) In the event that Parent exercises the Option pursuant to
Section 5, the Stockholder agrees that it will take all actions reasonably
requested by Parent to seek to cause the Stockholders Agreement to be
amended prior to the Closing, pursuant to a written instrument in form and
substance reasonably satisfactory to Parent, so that the rights of a member
of the Wesray Group (as defined in the Stockholders Agreement) under
Sections 6 and 7 of the Stockholders Agreement shall inure to the benefit
of any purchaser of the Company Common Stock owned by the Stockholder,
including without limitation by executing the foregoing instrument
providing for such amendment.
(c) In the event that, within one year from the date hereof,
Parent or another subsidiary of GE consummates a transaction pursuant to
which it acquires more than 50% of the outstanding Company Common Stock or
effects a merger or similar business combination with the Company pursuant
to which it acquires all of the Company Common Stock (any such transaction,
an "Alternate Transaction") and, in respect of any Alternate Transaction,
---------------------
the per share consideration paid to the largest number of stockholders of
the Company pursuant to the Alternate Transaction exceeds the purchase
price per Share hereunder pursuant to the Option Purchase (the amount of
such excess per share, the "Excess Consideration"), then Parent shall pay
--------------------
to the Stockholder promptly following the consummation of the Alternate
Transaction an amount in cash equal to the amount of the Excess
Consideration times the number of such Stockholder's Shares purchased
hereunder pursuant to the Option Purchase.
(d) If, solely as a result of an acquisition of shares of
Company Common Stock by Parent or any other subsidiary of GE, the Company
is required to make a Change of Control Offer (as defined in the Indenture
referred to below) pursuant to Section 1010 of the Indenture pursuant to
which on the date hereof the Company has issued and outstanding $60 million
aggregate principal amount of Senior Subordinated Notes due July 15, 2003
(the "Notes"), as in effect on the date hereof (the "Indenture"), then, so
----- ---------
long as such Change of Control Offer is made in accordance with the terms
of the Indenture, Parent shall be obligated, within five business days of
the commencement of the Change of Control Offer, to offer to purchase or to
cause another Person to offer to purchase from the Company on the Change of
Control Payment Date (as defined in the Indenture) indebtedness
<PAGE>
12
of the Company (i) in an aggregate principal amount equal to the aggregate
Repurchase Price of the Notes repurchased by the Company on such Change of
Control Payment Date pursuant to Section 1010 of the Indenture and (ii)
with terms, conditions, covenants and other provisions substantially the
same as the Notes.
11. Adjustment. If, between the date of this Agreement and the
----------
Closing, the Company Common Stock shall have been changed into a different
number of shares or a different class by reason of any stock dividend,
subdivision, reclassification, recapitalization, split, combination or
exchange of shares, the purchase price for the Shares hereunder shall be
correspondingly adjusted to reflect such event. If, between the date of
this Agreement and the Closing Date, the Company declares, pays or makes
any dividend or other distribution of any kind of cash or property on the
Company Common Stock, the Stockholder shall receive and hold such cash or
property for the benefit of the Parent and shall deliver such cash or
property, with appropriate instruments of transfer, if necessary, to the
Parent on the Closing Date (or, in the event of a payment date occurring
after the Closing Date, on the date such payment is received).
12. Licensee Control. Notwithstanding anything to the contrary
----------------
contained herein, without first obtaining the consent of the FCC through
grant of the FCC Application, Parent, its employees and agents shall not
directly or indirectly control, manage, supervise or direct, or attempt to
control, manage, supervise or direct, the Company or any of its broadcast
stations, and such control, management, supervision and direction shall be
the sole responsibility of and in the complete discretion of the Company.
13. Further Assurances. From time to time, at the other party's
------------------
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
14. Survival. The covenants of the parties hereto, and the
--------
representations and warranties of the parties hereto, shall survive until
the earlier to occur of the Effective Time and the Closing.
15. Miscellaneous. (a) This Agreement (i) constitutes the
-------------
entire agreement among the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof and (ii) shall not be assigned by operation of law or otherwise,
provided that Parent may assign its rights and obligations hereunder to any
--------
direct or indirect wholly owned subsidiary of GE, but no such
<PAGE>
13
assignment shall relieve Parent of its obligations hereunder. Subject to
the foregoing, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by the parties hereto and their respective
successors (including any successor in interest by merger, sale of all or
substantially all of the assets or otherwise) and assigns.
(b) This Agreement may not be amended or supplemented, except
upon the execution and delivery of a written agreement executed by the
parties hereto. The Parent or the Stockholder may, from time to time,
waive, on such terms and conditions as the Parent or the Stockholder, as
the case may be, may specify in such instrument, any of the requirements of
this Agreement. Any such amendment shall be binding upon the parties
thereto and any such waiver shall be binding upon the Parent or the
Stockholder, as the case may be, executing the same. No such waiver shall
extend to any subsequent or other event or circumstance or impair any right
consequent thereon.
(c) All notices and other communications hereunder shall be in
writing and shall be deemed given (i) on the date delivered, if delivered
personally, (ii) on the first Business Day following the deposit thereof
with Federal Express, if sent by Federal Express, and (iii) on the fourth
Business Day following the mailing thereof with postage prepaid, if mailed
by registered or certified mail (return receipt requested), in each case to
the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) if to the Stockholder, to it at its address set forth on the
signature page hereof; and
(ii) if to the Parent, to it at:
National Broadcasting Company, Inc.
30 Rockefeller Center
New York, New York 10112
Attention: Senior Vice President and Chief
Financial Officer
with copies to:
National Broadcasting Company, Inc.
30 Rockefeller Center
New York, New York 10112
Attention: General Counsel
and
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Charles I. Cogut, Esq.
<PAGE>
14
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of
laws thereof.
(e) The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York or in the Chancery Courts of
the State of Delaware (and any appellate courts therefrom), this being in
addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of (i) the United States District Court
for the Southern District of New York in the event any dispute arises out
of this Agreement or any of the transactions contemplated by this Agreement
to the extent such court would have subject matter jurisdiction with
respect to such dispute and (ii) the Chancery Courts of the State of
Delaware otherwise, and (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction or venue by motion or other request for
leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than such courts.
(f) This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original, but both of which shall constitute
one and the same Agreement.
(g) The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(h) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy,
all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
(i) If the FCC should determine that this Agreement is
inconsistent with Company's licensee obligations or is otherwise contrary
to FCC policies, rules and regulations, the parties shall reform this
Agreement in good faith and recast them in
<PAGE>
15
terms that are likely to cure the defects perceived by the FCC and return a
balance of benefits to both parties comparable to the balance of benefits
provided by this Agreement in its current terms. If, after such good faith
negotiations, either party determines that recasting this Agreement to meet
the defects perceived by the FCC is impracticable, either party may
terminate this Agreement without further liability on 30 days' prior
written notice. If termination shall occur pursuant to this paragraph,
such termination shall extinguish and cancel this Agreement without further
liability on the part of either party to the other.
[Signatures appear on next page.]
<PAGE>
16
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
NATIONAL BROADCASTING COMPANY, INC.
By:/s/ Richard Cotton
--------------------------------
Name: Richard Cotton
Title: Executive Vice
President and
General Counsel
THE STOCKHOLDER:
MBL LIFE ASSURANCE CORPORATION
-----------------------------------
(Print Name)
By:/s/ Robert Budwick
--------------------------------
Name: Robert Budwick
Title: Executive Vice President
Number of Existing Shares:
2,135,000
---------------
Number of Existing Shares owned of
record by Stockholder:
2,085,000
---------------
Number of Existing Shares
beneficially owned by Stockholder:
2,135,000
---------------
Options, Warrants or other Rights:
___________________________________
___________________________________
___________________________________
___________________________________
(Insert Number and Describe)
Address:
520 Broad Street
-----------------------------------
Newark, New Jersey 07102-3111
-----------------------------------
___________________________________
______
<PAGE>
EXHIBIT A
---------
STOCKHOLDER CONSENT
-------------------
Action Taken by the Written
Consent of Stockholders
of
Outlet Communications, Inc.
August 2, 1995
The undersigned stockholder of Outlet Communications, Inc., a
Delaware corporation (the "Corporation"), acting by written consent in lieu
-----------
of a meeting pursuant to Section 228 of the General Corporation Law of the
State of Delaware, hereby consents to the adoption of and adopts the
following resolution with respect to each share of the capital stock of the
Corporation owned of record by such stockholder on the date hereof:
RESOLVED, that the Merger Agreement, dated as of August 2, 1995
(the "Merger Agreement"), among the Corporation, National Broadcasting
----------------
Company, Inc., a Delaware corporation ("NBC"), and CO Acquisition
---
Corporation, a Delaware corporation and a wholly owned subsidiary of
NBC, a copy of which has been furnished to the stockholder, be, and it
hereby is, adopted and approved by the stockholder, and that the
Merger (as defined in the Merger Agreement) and the other transactions
contemplated by the Merger Agreement be, and they hereby are, approved
and ratified in all respects.
MBL LIFE ASSURANCE CORPORATION
------------------------------
(Print Name)
By:/s/ Robert Budwick
---------------------------
Name: Robert Budwick
Title: Executive Vice
President
Number of Shares owned of
record: 2,085,000
-------------
Address of the stockholder:
502 Broad Street
------------------------------
Newark, New Jersey 07102-3111
------------------------------
------------------------------
EXHIBIT 4
AGREEMENT
---------
By this Agreement, the undersigned agree that the Statement on
Schedule 13D being filed on or about this date, with respect to the
ownership of shares of Class A common stock of Outlet Communications, Inc.,
and any subsequent amendment to such Schedule 13D filed by any of the
undersigned, is being filed on behalf of each of us.
Dated: August 14, 1995
NATIONAL BROADCASTING COMPANY, INC.
By:/s/ Richard Cotton
---------------------------------
Name: Richard Cotton
Title: Executive Vice President
and General Counsel
NATIONAL BROADCASTING COMPANY
HOLDING, INC.
By:/s/ Richard Cotton
--------------------------------
Name: Richard Cotton
Title: Attorney-in-fact
GENERAL ELECTRIC COMPANY
By:/s/ Richard Cotton
--------------------------------
Name: Richard Cotton
Title: Attorney-in-fact
EXHIBIT 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of General Electric
Company ("GE") and National Broadcasting Company Holding, Inc. ("NBC
Holding"), and each person signing this Power of Attorney on behalf of GE
or NBC Holding, constitutes and appoints Richard Cotton its and his true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for and on behalf of each of them and in each of their
respective names, places and steads, in any and all capacities, to sign any
Statements on Schedule 13D, Form 3, Form 4 or Form 5 under the Securities
Exchange Act of 1934, and any and all amendments to any thereof, and other
documents in connection therewith (including, without limitation, any joint
filing agreement with respect to any Statement on Schedule 13D or amendment
thereto), and to file the same, with all exhibits thereto, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully and to all intents and purposes as they might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent,
or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: August 10, 1995
GENERAL ELECTRIC COMPANY
By:/s/ B.W. Heineman, Jr.
--------------------------------
Name: B.W. Heineman, Jr.
Title: Senior Vice President,
General Counsel and
Secretary
NATIONAL BROADCASTING COMPANY
HOLDING, INC.
By:/s/ B.W. Heineman, Jr.
-----------------------------------
Name: B.W. Heineman, Jr.
Title: Secretary
