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EXHIBIT 99(a)
DOJ/Antitrust
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. Civil Action No.:
CLEAR CHANNEL JUDGE:
COMMUNICATIONS, INC.
Filed:
and
AMFM INC.,
Defendants.
FINAL JUDGMENT
WHEREAS, plaintiff, United States of America, filed its Complaint on August 29,
2000, plaintiff and defendants, Clear Channel Communications, Inc. ("Clear
Channel") and AMFM Inc. ("AMFM"), by their respective attorneys, have consented
to the entry of this Final Judgment without trial or adjudication of any issue
of fact or law, and without this Final Judgment constituting any evidence
against or admission by any party regarding any issue of fact or law;
AND WHEREAS, defendants agree to be bound by the provisions of this Final
Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prompt and certain
divestiture of certain rights or assets by the defendants to assure that
competition is not substantially lessened;
AND WHEREAS, plaintiff requires defendants to make certain divestitures for the
purpose of remedying the loss of competition alleged in the Complaint;
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AND WHEREAS, defendants have represented to the United States that the
divestitures required below can and will be made and that defendants will later
raise no claim of hardship or difficulty as grounds for asking the Court to
modify any of the divestiture provisions contained below;
NOW, THEREFORE, before any testimony is taken, without trial or adjudication of
any issue of fact or law, and upon consent of the parties, it is ORDERED,
ADJUDGED, AND DECREED:
I. JURISDICTION
This Court has jurisdiction over the subject matter of and each of the parties
to this action. The Complaint states a claim upon which relief may be granted
against defendants under Section 7 of the Clayton Act, as amended (15 U.S.C.
Section 18).
II. DEFINITIONS
As used in this Final Judgment:
A. "Clear Channel" means defendant Clear Channel Communications, Inc., a Texas
corporation with its headquarters in San Antonio, Texas, its successors and
assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and
joint ventures, and their directors, officers, managers, agents, and employees.
B. "AMFM" means defendant AMFM Inc., a Delaware corporation with its
headquarters in Austin, Texas, its successors and assigns, and its subsidiaries,
divisions, groups, affiliates, partnerships and joint ventures, and their
directors, officers, managers, agents, and employees.
C. "Lamar" means Lamar Advertising Company, a Delaware corporation with its
principal place of business in Baton Rouge, Louisiana, its successors and
assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and
joint ventures, and their directors, officers, managers, agents, and employees.
D. "Divestiture Assets" means Radio Assets and Lamar Holdings.
E. "Radio Assets" means all of the assets, tangible or intangible, used in the
operation of each of the radio stations listed in Schedule A attached hereto,
including all real property (owned or leased) used in the operation of the
station, all broadcast equipment, office equipment, office furniture, fixtures,
materials, supplies, and other tangible property used in the operation of the
station; all licenses, permits, authorizations, and applications therefor issued
by the Federal Communications Commission ("FCC") and other government agencies
related to the station; all contracts (including programming contracts and
rights), agreements, leases and commitments of Clear Channel or AMFM relating to
its operation; all trademarks, service marks, trade names, copyrights, patents,
slogans, programming materials, and promotional materials relating to the
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station; and all logs and other records maintained by Clear Channel or AMFM or
that station in connection with its business.
F. "Lamar Holdings" means the 26,227,273 shares of Lamar Advertising Company's
Class A stock owned by AMFM when the Complaint in this matter was filed to be
acquired by Clear Channel in its merger with AMFM.
G. "Divestiture Cities" means the Metropolitan Survey Areas defined as "Arbitron
Markets" in the BIA Investing In Radio Market Report 2000 (2d edition) set forth
in Schedule B attached hereto.
H. "Acquirer" means the entity or entities to whom defendants divest any
Divestiture Assets.
III. APPLICABILITY
A. This Final Judgment applies to Clear Channel and AMFM, as defined above, and
all other persons in active concert or participation with either of them who
receive actual notice of this Final Judgment by personal service or otherwise.
B. Defendants shall require, as a condition of the sale or other disposition of
all or substantially all of their assets or of lesser business units that
include any of the Divestiture Assets, that the acquiring party or parties agree
to be bound by the provisions of this Final Judgment.
IV. DIVESTITURE OF RADIO ASSETS
A. Defendants are ordered and directed, within one hundred and fifty (150) days
after the filing of the Complaint in this matter, or five (5) days after notice
of the entry of this Final Judgment by the Court, whichever is later, to divest
the Radio Assets in a manner consistent with this Final Judgment to an Acquirer
or Acquirers acceptable to the United States in its sole discretion. The United
States, in its sole discretion, may agree to an extension of this time period of
up to two thirty (30) day time periods, not to exceed sixty (60) calendar days
in total, and shall notify the Court in such circumstances. Defendants agree to
use their best efforts to divest the Radio Assets, and to obtain all regulatory
approvals necessary for such divestitures, as expeditiously as possible.
B. In accomplishing the divestitures of the Radio Assets ordered by the Final
Judgment, defendants promptly shall make known, by usual and customary means,
the availability of the Radio Assets. Defendants shall inform any person making
an inquiry regarding a possible purchase of the Radio Assets that the sale is
being made pursuant to this Final Judgment and provide each person with a copy
of this Final Judgment. Defendants shall offer to furnish to all prospective
Acquirers, subject to customary confidentiality assurances, all information and
documents regarding the Radio Assets customarily provided in a due diligence
process, except such information or documents subject to the attorney-client or
work product privileges. Defendants shall make available such information to the
United States at the same time that such information is made available to any
other person.
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C. Defendants shall provide the Acquirer(s) and the United States information
relating to the personnel involved in the operation of the Radio Assets to
enable the Acquirer(s) to make offers of employment. Defendants will not
interfere with any negotiations by the Acquirer(s) to employ any defendant
employee whose primary responsibility relates to the operation of the Radio
Assets.
D. Defendants shall permit prospective Acquirers of the Radio Assets to have
reasonable access to personnel and to make inspections of the physical
facilities of the radio stations to be divested; access to any and all
environmental, zoning, and other permit documents and information; and access to
any and all financial, operational, or other documents and information
customarily provided as part of a due diligence process.
E. Defendants shall warrant to any and all Acquirers of the Radio Assets that
each asset will be operational on the date of sale.
F. Defendants shall not take any action that will impede in any way the
permitting, operation, or divestiture of the Radio Assets.
G. Defendants shall warrant to the Acquirer(s) of the Radio Assets that there
are no material defects in the environmental, zoning or other permits pertaining
to the operation of each asset, and that following the sale of the Radio Assets,
defendants will not undertake, directly or indirectly, any challenges to the
environmental, zoning or other permits relating to the operation of the Radio
Assets.
H. Unless the United States otherwise consents in writing, the divestitures
pursuant to Section IV, or by trustee appointed pursuant to Section VIII(A) and
IX, of this Final Judgment, shall include the entire Radio Assets, and shall be
accomplished in such a way to satisfy the United States, in its sole discretion,
that the Radio Assets can and will be used by the Acquirer(s) as part of a
viable, ongoing commercial radio broadcasting business. Divestiture of the Radio
Assets may be made to one or more Acquirers, provided that in each instance it
is demonstrated to the sole satisfaction of the United States that the
divestiture assets will remain viable and the divestiture of such assets will
remedy the competitive harm alleged in the Complaint. The divestitures, whether
pursuant to Section IV or IX of this Final Judgment,
i. shall be made to an Acquirer (or Acquirers) that, in the
United States's sole judgment, has the intent and capability
(including the necessary managerial, operational, and
financial capability) of competing effectively in the
commercial radio broadcasting business in the Divestiture
Cities; and
ii. shall be accomplished so as to satisfy the United States, in
its sole discretion, that none of the terms of any agreement
between an Acquirer or Acquirers and Clear Channel or AMFM
give Clear Channel or AMFM the ability unreasonably to raise
the Acquirer's costs, to lower the
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Acquirer's efficiency, or otherwise to interfere in the
ability of the Acquirer to compete effectively.
V. PRESERVATION OF RADIO ASSETS/HOLD SEPARATE
Until the divestiture of all the Radio Assets required by this Final Judgment
have been accomplished:
A. Defendants shall preserve, hold and continue to operate the Radio Assets as
separate, independent, ongoing, economically viable and active competitors to
the other stations in the Divestiture Cities, with their assets, management and
operations separate, distinct and apart from defendants' other radio stations.
Except as necessary to comply with Sections V(B) and (D) of this Final Judgment,
the management of said stations, including the performance of decision-making
functions regarding marketing and pricing, will be kept separate and apart from,
and not influenced by, defendant Clear Channel in the case of AMFM stations, and
defendant AMFM in the case of Clear Channel stations. The books, records, and
competitively sensitive sales, marketing and pricing information associated with
the divestiture assets shall be kept separate and apart from defendants' other
businesses.
B. Defendants shall use all reasonable efforts to maintain and increase sales of
advertising time by the Radio Assets and shall maintain at 1999 or previously
approved levels for 2000, whichever are higher, promotional, advertising, sales,
marketing and merchandising support for such Radio Assets.
C. Defendants shall provide sufficient working capital to maintain the Radio
Assets as economically viable and competitive ongoing businesses.
D. Defendants shall take all steps necessary to ensure that the Radio Assets are
fully maintained in operable condition and shall maintain and adhere to normal
repair and maintenance schedules for the Radio Assets.
E. Defendants shall not, except as part of a divestiture approved by the United
States in accordance with the terms of this Final Judgment, remove, sell, lease,
assign, transfer, license, pledge for collateral or otherwise dispose of any of
the Radio Assets.
F. Defendants shall maintain, in accordance with sound accounting principles,
separate, accurate and complete financial ledgers, books and records that report
on a periodic basis (such as the last business day of every month), consistent
with past practices, the assets, liabilities, expenses, revenues and income of
the Radio Assets.
G. Defendants' employees with primary responsibility for sales, marketing and
programming of the Radio Assets to be divested pursuant to this Final Judgment
shall not be transferred or reassigned to any other station, except for transfer
bids initiated by employees pursuant to each defendant's regular, established
job posting policies. Defendants shall provide the United States with ten (10)
days' notice of such transfer.
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H. Defendants shall appoint a person or persons to oversee the Radio Assets who
will be responsible for defendants' compliance with this section. Such person
shall have complete managerial responsibility for the Radio Assets, subject to
the provisions of this Final Judgment. In the event that individual is unable to
perform his or her duties, defendants shall appoint, subject to the approval of
the United States, a replacement within ten (10) working days. Should defendants
fail to appoint a replacement acceptable to the United States within this time
period, the United States shall appoint a replacement.
VI. DIVESTITURE OF THE LAMAR HOLDINGS
A. Defendants are ordered and directed to divest completely the Lamar Holdings
on or before December 31, 2002, in a manner consistent with this Final Judgment.
A divestiture is not considered complete until the Acquirer(s) takes ownership
and possession of all rights and interests held by Clear Channel in the relevant
portion of the Lamar Holdings and Clear Channel has irrevocably relinquished to
the Acquirer ownership and possession of, and all rights and interests in, the
relevant portion of the Lamar Holdings.
B. The divestitures required by this Section may be made by public offering,
private sale, or a combination thereof. Such divestitures, whether pursuant to
Sections VI or IX shall not be made: (i) to any person who provides outdoor
advertising services unless the United States shall otherwise agree in writing;
or (ii) in a manner that, in the sole judgment of the United States, could
significantly impair Lamar as an effective competitor in the sale of outdoor
advertising.
C. In accomplishing the divestitures ordered by this Final Judgment, defendants
shall make known the availability of the Lamar Holdings by usual and customary
means, consistent with state and federal securities laws and in sufficient time
so as to allow the divestitures to be completed within the time periods
specified in Section VI(A) above. Defendants shall inform any person making
inquiry regarding the purchase of the Lamar Holdings that they are being
divested pursuant to this Final Judgment. Defendants shall permit prospective
Acquirer(s) in a private sale access to any and all financial, operational, or
other documents and information customarily provided as part of a due diligence
process, except such information or documents subject to the attorney-client or
work product privileges. Defendants shall make available such information to the
United States at the same time that such information is made available to any
other person.
VII. LAMAR GOVERNANCE AND ECONOMIC INTEREST
A. Defendants shall abide by the First Amendment to Stockholders Agreement
between Lamar, AMFM, and the controlling shareholders of Lamar ("First Amendment
to Stockholders Agreement") and the Amended And Restated Registration Rights
Agreement between Lamar, AMFM, and Clear Channel ("Amended And Restated
Registration Rights Agreement"), attached hereto as
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Schedules C and D, respectively. No amendment or revision of the Amendment to
Stockholders Agreement or Amended And Restated Registration Rights Agreement
shall become effective unless approved in writing by a representative of the
United States.
B. Until the divestiture of the Lamar Holdings required by the Final Judgment
has been completed, defendants shall treat the Lamar Holdings as a passive
investment, and shall hold the Lamar Holdings separate and apart from the
activities and interests of Clear Channel. Neither the defendants nor their
designees may exercise any rights relating to the governance of Lamar, including
but not limited to: (i) exercising any voting rights associated with the Lamar
holdings in a manner inconsistent with the First Amendment to Stockholders
Agreement; (ii) electing, nominating, appointing or otherwise designating or
participating as officers or directors; (iii) participating, as a member of the
Board of Directors or otherwise, in any meetings of the Board of Directors; (iv)
participating in any committees; (v) exercising any veto rights with respect to
the business of Lamar, including veto power over changes in control of Lamar,
over significant asset purchases or sales, over change in majority of board
membership, or over changes in majority ownership of Lamar; or (vi) obtaining
any financial or business information with respect to Lamar that is not
otherwise publicly available. In no event shall defendants influence or attempt
to influence the decision-making, management, or policies of Lamar.
C. Within two (2) business days after Clear Channel acquires AMFM, Thomas O.
Hicks and R. Steven Hicks shall resign from the Board of Directors of Lamar and
from any committees of the Board of Directors.
D. Except as necessary to carry out the provisions of this Final Judgment, the
trustee shall not exercise any voting rights associated with the Lamar Holdings
for so long as they are held in trust in a manner inconsistent with the First
Amendment to Stockholders Agreement.
E. Defendants shall not acquire, directly or indirectly, additional shares of
Lamar Advertising Company stock, except pursuant to a stock split, stock
dividend, rights offering, recapitalization, reclassification, or merger,
consolidation, corporate reorganization, or other similar transaction that does
not increase defendants' proportion of the outstanding equity of Lamar. Any
additional equity of Lamar that defendants acquire by such means shall be
treated as part of the Lamar Holdings and be subject to the divestiture
obligations of Section VI(A) of this Final Judgment. Notwithstanding anything to
the contrary contained in this Final Judgment, nothing in this Final Judgment
shall prohibit a transaction in which Clear Channel would acquire a majority of
the voting securities of Lamar, provided that such transaction is subject to the
reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, 15 U.S.C. Section 18a).
F. Defendants shall appoint a person or persons to oversee the Lamar Holdings
who will be responsible for defendants' compliance with this section. In the
event that individual is unable to perform his or her duties, defendants shall
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appoint, subject to the approval of the United States, a replacement within ten
(10) working days. Should defendants fail to appoint a replacement acceptable to
the United States within this time period, the United States shall appoint a
replacement.
G. Defendants shall not take any action that will impede in any way the
divestiture of the Lamar Holdings.
VIII. APPOINTMENT OF TRUSTEES
A. Appointment of a Trustee to Divest Radio Assets: If defendants have not
divested the Radio Assets within the time period specified in Section IV(A) of
this Final Judgment, defendants shall notify the United States of that fact in
writing. Upon application of the United States, the Court shall appoint a
trustee selected by the United States ("Radio Trustee") to effect the
divestiture of the Radio Assets.
B. Appointment of a Trustee to Divest Lamar Holdings: Clear Channel shall notify
the United States, no less than sixty (60) calendar days prior to the expiration
of the time period for divestiture specified in Section VI(A) of this Final
Judgment whether it has arranged to complete the divestiture of the Lamar
Holdings in a timely fashion. In the event that Clear Channel has not made an
arrangement which, in the sole discretion of the United States, will result in
completion of the divestiture within the time limit specified in Section VI(A),
or in the event that Clear Channel has not completed the divestiture within the
appropriate time limit, the Court shall appoint, upon application of the United
States, a trustee selected by the United States to effect the divestiture of the
Lamar Holdings ("Lamar Stock Trustee"). The United States may request, and the
Court may appoint, a trustee before the time period for divestiture specified in
Section VI(A) expires.
IX. GENERAL POWERS AND DUTIES OF THE TRUSTEES
The following provisions apply to the Radio Trustee and the Lamar Stock Trustee:
A. After the appointment of a trustee becomes effective, only that trustee shall
have the right to sell the Divestiture Assets. The trustee(s) shall have the
power and authority to accomplish the divestitures to an Acquirer(s) acceptable
to the United States at such price and on such terms as are then obtainable upon
the best reasonable effort by the trustee(s), subject to the provisions of
Sections IV, VI, IX, and X of this Final Judgment, and shall have such other
powers as the Court shall deem appropriate. Subject to Section IX(C) of this
Final Judgment, the trustee(s) may hire at the cost and expense of defendants
any investment bankers, attorneys, or other agents, who shall be solely
accountable to the trustee, reasonably necessary in the trustee's judgment to
assist in the divestitures.
B. Defendants shall not object to a sale by the trustee(s)on any grounds other
than the trustee's malfeasance. Any such objections by defendants must be
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conveyed in writing to the United States and the trustee within ten (10)
calendar days after the trustee has provided the notice required under Section
X.
C. The trustee(s) shall serve at the cost and expense of defendants, on such
terms and conditions as the United States approves, and shall account for all
monies derived from the sale of the assets sold by the trustee(s) and all costs
and expenses so incurred. After approval by the Court of the trustee's
accounting, including fees for its services and those of any professionals and
agents retained by the trustee(s), all remaining money shall be paid to
defendants and the trust shall then be terminated. The compensation of the
trustee(s) and any professionals and agents retained by the trustee(s) shall be
reasonable in light of the value of the Divestiture Assets and based on a fee
arrangement providing the trustee(s) with incentives based on the price and
terms of the divestitures and the speed with which they are accomplished, but
timeliness is paramount.
D. Defendants shall use their best efforts to assist the trustee(s) in
accomplishing the required divestitures. The trustee(s) and any consultants,
accountants, attorneys, and other persons retained by the trustee(s) shall have
full and complete access to the personnel, books, records, and facilities
related to any of the Divestiture Assets. Defendants shall develop financial and
other information relevant to the Divestiture Assets as the trustee(s) may
reasonably request, subject to reasonable protection for trade secret or other
confidential research, development or commercial information. Defendants shall
take no action to interfere with or to impede the trustee's accomplishment of
the divestitures.
E. After his or her appointment becomes effective, the trustee(s) shall file
monthly reports with the United States and the Court, setting forth the
trustee's efforts to accomplish the divestitures ordered under this Final
Judgment. To the extent that such reports contain information that the trustee
deems confidential, such reports shall not be filed in the public docket of the
Court. Such reports shall include the name, address and telephone number of each
person who, during the preceding month, made an offer to acquire, expressed an
interest in acquiring, entered into negotiations to acquire, or was contacted or
made an inquiry about acquiring, any interest in the Divestiture Assets, and
shall describe in detail each contact with any such person. The trustee(s) shall
maintain full records of all efforts made to divest the Divestiture Assets.
F. If the trustee(s) has not accomplished such divestitures within six (6)
months after his or her appointment, the trustee(s) shall promptly file with the
Court a report setting forth: (i) the trustee's efforts to accomplish the
required divestitures, (ii) the reasons, in the trustee's judgment, why the
required divestitures have not been accomplished, and (iii) the trustee's
recommendations. To the extent such reports contain information that the trustee
deems confidential, such reports shall not be filed in the public docket of the
Court. The trustee at the same time shall furnish such reports to the United
States, who shall have the right to make additional recommendations consistent
with the purpose of the trust. The Court thereafter shall enter such orders as
it deems appropriate to carry out the purpose of this Final Judgment, which may,
if necessary, include extending the trust and the term of the trustee's
appointment by a period requested by the United States.
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X. NOTICE OF PROPOSED DIVESTITURES OF RADIO ASSETS
A. Within two (2) business days following execution of a definitive agreement,
defendants or the Radio Trustee, whichever is then responsible for effecting the
divestiture of the Radio Assets required herein, shall notify the United States
of any proposed divestiture required by Section IV or IX of this Final Judgment.
If the Radio Trustee is responsible, it shall similarly notify defendants. The
notice shall set forth the details of the proposed transaction and list the
name, address, and telephone number of each person not previously identified who
offered or expressed an interest in or desire to acquire any ownership interest
in the Radio Assets, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United States of such
notice, the United States may request from defendants, the proposed Acquirer or
Acquirers, any other third party, or the Radio Trustee if applicable, additional
information concerning the proposed divestiture, the proposed Acquirer or
Acquirers, and any other potential Acquirer. Defendants and the Radio Trustee
shall furnish any additional information requested within fifteen (15) calendar
days of the receipt of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or within twenty
(20) calendar days after the United States has been provided the additional
information requested from defendants, the proposed Acquirer or Acquirers, any
third party, and the Radio Trustee, whichever is later, the United States shall
provide written notice to defendants and the Radio Trustee, if there is one,
stating whether or not it objects to any proposed divestiture. If the United
States provides written notice that it does not object, then the divestiture may
be consummated, subject only to defendants' limited right to object to the sale
under Section IX(B) of this Final Judgment. Absent written notice that the
United States does not object to the proposed Acquirer or upon objection by the
United States, a divestiture proposed under Section IV or IX shall not be
consummated. Upon objection by defendants under Section IX(B), a divestiture
proposed under Section IX shall not be consummated unless approved by the Court.
XI. FINANCING
Defendants shall not finance all or any part of any purchase made pursuant to
this Final Judgment.
XII. NOTIFICATION OF FUTURE RADIO TRANSACTIONS
A. Clear Channel shall provide advance notification to the United States if it
intends, directly or indirectly, to acquire any assets of or any interest
(including any financial, security, loan, equity or management interest) in any
broadcast radio station that sells advertising time in any of the Divestiture
Cities, or intends to enter into any joint sales agreement or any cooperative
selling arrangement between a Clear Channel radio station and any other operator
of
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radio stations serving listeners in that same City. This obligation to provide
notice is met under this section when a transaction is subject to the reporting
and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, 15 U.S.C. Section 18a.
B. Notification under this section shall be provided to the United States in the
same format as, and per the instructions relating to, the Notification and
Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of
Federal Regulations as amended, except that the information requested in Items 5
through 9 of the instructions must be provided only about the sales of radio
advertising time in the relevant Divestiture Cities. Notification shall be
provided at least thirty (30) days prior to the acquisition of any such
interest, and shall include, beyond what may be required by the applicable
instructions, the names of the principal representatives of the parties to the
agreement who negotiated the agreement, and any management or strategic plans
discussing the proposed transaction. If within the 30-day period after
notification, representatives of the Department of Justice Antitrust Division
make a written request for additional information, defendants shall not
consummate the proposed transaction or agreement until twenty (20) days after
submitting all such additional information. Early termination of the waiting
periods in this paragraph may be requested and, where appropriate, granted in
the same manner as is applicable under the requirements and provisions of the
HSR Act and rules promulgated thereunder. This Section shall be broadly
construed, and any ambiguity or uncertainty regarding the filing of notice under
this Section shall be resolved in favor of filing notice.
XIII. AFFIDAVITS
A. Within twenty (20) calendar days of the filing of the Complaint and every
thirty (30) calendar days thereafter until all the divestitures have been
completed, whether pursuant to Section IV, VI, or IX of this Final Judgment,
defendants shall deliver to the United States an affidavit as to the fact and
manner of their compliance with Sections IV, VI, or IX of this Final Judgment.
Each such affidavit shall include the name, address and telephone number of each
person who, during the preceding thirty (30) days, made an offer to acquire,
expressed an interest in acquiring, entered into negotiations to acquire, or was
contacted or made an inquiry about acquiring, any interest in the Divestiture
Assets, and shall describe in detail each contact with any such person during
that period. Each such affidavit shall also include a description of the efforts
that Defendants have taken to solicit buyers for the Divestiture Assets and to
provide required information to prospective purchasers, including the
limitations, if any, on such information.
B. Within twenty (20) calendar days of the filing of the Complaint in this
matter, defendants shall deliver to the United States an affidavit that
describes in reasonable detail all actions defendants have taken and all steps
defendants have implemented on an on-going basis to comply with Section V of
this Final Judgment.
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C. Defendants shall keep all records of all efforts made to preserve and divest
the Divestiture Assets until one year after such divestiture has been completed.
XIV. COMPLIANCE INSPECTION
For the purposes of determining or securing compliance with this Final Judgment,
or of determining whether the Final Judgment should be modified or vacated, and
subject to any legally recognized privilege, from time to time duly authorized
representatives of the United States Department of Justice, including
consultants and other persons retained by the United States, shall, upon the
written request of a duly authorized representative of the Assistant Attorney
General in charge of the Antitrust Division, and on reasonable notice to
defendants, be permitted:
i. access during defendants' office hours to inspect and copy or,
at plaintiff's option, to demand that defendants provide
copies of, all books, ledgers, accounts, records and documents
in the possession or control of the defendants, who may have
counsel present, relating to any matters contained in this
Final Judgment; and
ii. to interview, either informally or on the record, defendants'
officers, employees, or agents, who may have their individual
counsel present, regarding such matters. The interviews shall
be subject to the interviewee's reasonable convenience and
without restraint or interference by defendants.
B. Upon the written request of the Assistant Attorney General in charge of the
Antitrust Division, defendants shall submit such written reports, under oath if
requested, relating to any of the matters contained in this Final Judgment as
may be requested.
C. No information or documents obtained by the means provided in this section
shall be divulged by the United States to any person other than a duly
authorized representative of the Executive Branch of the United States, except
in the course of legal proceedings to which the United States is a party
(including grand jury proceedings), or for the purpose of securing compliance
with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by defendants to the
United States, defendants represent and identify in writing the material in any
such information or documents to which a claim of protection may be asserted
under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and defendants mark
each pertinent page of such material, "Subject to claim of protection under Rule
26(c)(7) of the Federal Rules of Civil Procedure," then the United States shall
give defendants ten (10) calendar days' notice prior to divulging such material
in any legal proceeding (other than a grand jury proceeding).
XV. NO REACQUISITION
Defendants may not reacquire any part of the Divestiture Assets or the assets
used in the operation of the radio stations listed in Schedule E during the term
of this Final Judgment.
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XVI. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this Final Judgment to
apply to this Court at any time for further orders and directions as may be
necessary or appropriate to carry out or construe this Final Judgment, to modify
its provisions, to enforce compliance, and to punish violations of its
provisions.
XVII. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall expire ten
years from the date of its entry.
XVIII. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest.
Court Approval Subject to Procedures
of
Antitrust Procedures and Penalties Act,
15 U.S.C. Section 16
Date: August 30, 2000 /s/ THOMAS PENFIELD JACKSON
------------------- ----------------------------
United States District Judge
<PAGE> 14
DOJ/Antitrust Page 14 of 18
SCHEDULE A
RADIO STATIONS ORDERED TO BE DIVESTED
1. ALLENTOWN-BETHLEHEM, PA
WEEX-AM
WODE-FM
2. DENVER, CO
KVOD-AM
3. HARRISBURG-LEBANON-CARLISLE, PA
WNCE-FM
WNNK-FM
WTCY-AM
WTPA-FM
4. HOUSTON-GALVESTON, TX
KJOJ-AM
KJOJ-FM
KQUE-AM
KSEV-AM
KTJM-FM
5. PENSACOLA, FL
WMEZ-FM
WXBM-FM
<PAGE> 15
DOJ/Antitrust Page 15 of 18
SCHEDULE B
DIVESTITURE CITIES
1. ALLENTOWN-BETHLEHEM, PA
2. DENVER, CO
3. HARRISBURG-LEBANON-CARLISLE, PA
4. HOUSTON-GALVESTON, TX
5. PENSACOLA, FL
<PAGE> 16
DOJ/Antitrust Page 16 of 18
SCHEDULE C
FIRST AMENDMENT TO STOCKHOLDERS AGREEMENT
[Filed herewith as Exhibit 99(b)]
<PAGE> 17
DOJ/Antitrust Page 17 of 18
SCHEDULE D
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
[Filed herewith as Exhibit 99(c)]
<PAGE> 18
DOJ/Antitrust Page 18 of 18
SCHEDULE E
OTHER RADIO STATIONS THAT CANNOT BE REACQUIRED
1. DENVER, CO
KXPK-FM
KDJM-FM
KIMN-FM
KXKL-FM
KALC-FM
2. HOUSTON-GALVESTON, TX
KKBQ-FM
KKTL-FM
KLDE-FM
KBXX-FM
KMJQ-FM
