Quarterly Report — Form 10-Q
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-Q Paxson Communications, Inc. Form 10-Q 21 142K
13: EX-10.100 Asset Purchase Agreement 40 175K
14: EX-10.101 Asset Purchase Agreement 41 177K
15: EX-10.102 Asset Purchase Agreement 45 190K
16: EX-10.103 Construction Agreement 9 37K
17: EX-10.104 Loan Agreement 29 120K
18: EX-10.105 Asset Purchase Agreement 44 184K
19: EX-10.106 Asset Purchase Agreement 42 176K
20: EX-10.107 Agreement and Plan of Merger 34 110K
21: EX-10.107.01 First Amendment to Agreement and Plan of Merger 3 17K
22: EX-10.108 Asset Purchase Agreement 41 174K
23: EX-10.109 Option Agreement 9 35K
24: EX-10.110 Subordinated Note 13 50K
25: EX-10.111 Asset Purchase Agreement 40 142K
26: EX-10.112 Asset Purchase Agreement 40 169K
27: EX-10.113 Time Brokerage Agreement 28 96K
28: EX-10.114 Purchase Agreement 17 63K
29: EX-10.115 Asset Purchase Agreement 32 138K
30: EX-10.116 Asset Purchase Agreement 32 148K
31: EX-10.117 Asset Purchase Agreement 32 144K
32: EX-10.118 Asset Purchase Agreement 33 147K
33: EX-10.119 Time Brokerage Agreement 16 70K
34: EX-10.120 Loan Agreement 28 109K
35: EX-10.121 Second Amendment to Asset Purchase Agreement 6 22K
36: EX-10.122 Asset Purchase Agreement 41 180K
37: EX-10.123 Asset Purchase Agreement 94 303K
38: EX-10.124 Loan Agreement 52 170K
39: EX-10.125 Time Brokerage Agreement 28 98K
40: EX-10.126 Option Agreement 18 64K
2: EX-10.89 Amended as Restated Promissory Note 6 25K
3: EX-10.90 First Anemdment to Loan Agreement 2 15K
4: EX-10.91 Asset Purchase Agreement 15 73K
5: EX-10.92 Asset Purchase Agreement 41 174K
6: EX-10.93 The Brokerage Agreement 29 97K
7: EX-10.94 Asset Purchase Agreement 38 173K
8: EX-10.95 First Amendment 2 15K
9: EX-10.96 Promissory Note 4 21K
10: EX-10.97 Stock Purchase Agreement 42 199K
11: EX-10.98 Asset Purchase Agreement 42 178K
12: EX-10.99 Asset Purchase Agreement 42 177K
41: EX-27 Financial Data Schedule (For SEC Use Only) 1 12K
EX-10.107 — Agreement and Plan of Merger
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EXHIBIT 10.107
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER is dated as of April 12, 1996, by
and among Devon W. Paxson ("Devon"), Todd L. Paxson ("Todd" and together with
Devon, individually, a "Stockholder" and collectively, the "Stockholders"), Pax
Jax, Inc., a Florida corporation (the "PCC Subsidiary"), Paxson Communications
Corporation, a Delaware corporation ("PCC"), and Todd Communications, Inc., a
Florida corporation (the "Company").
RECITALS
A. The respective Boards of Directors of the Company, PCC and the
PCC Subsidiary have approved the merger of the Company with and into the PCC
Subsidiary, upon the terms and subject to the conditions set forth in this
Agreement (the "Merger"), whereby each issued and outstanding share of Common
Stock, par value $1.00 per share, of the Company (the "Company Common Stock"),
will be converted into the right to receive Class A Common Stock, par value of
$.001 per share, of PCC.
B. For Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Sections
368(a)(1)(A) and 368(a)(2)(D) of the Internal Revenue Code of 1986, as amended
(the "Code").
C. The Company is the licensee of and owns and operates radio
station WFSJ(FM), St. Augustine, Florida (the "Station").
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, the parties hereto intending to be
legally bound, agree as follows:
1. THE MERGER
1.1. The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Florida Business
Corporation Act (the "FBCA"), the Company shall be merged with and into the PCC
Subsidiary at the Effective Time (as defined below). Following the Merger, the
separate corporate existence of the Company shall cease and the PCC Subsidiary
shall continue as the surviving corporation (the "Surviving Corporation") and
shall succeed to and assume all the rights and obligations of the Company in
accordance with the FBCA.
1.2 Effective Time. At the time of the Closing (as defined
below), the Surviving Corporation shall file articles of merger or other
appropriate documents (in any such case, the "Articles
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of Merger") executed in accordance with the relevant provisions of the FBCA and
shall make all other filings or recordings required under the FBCA. The Merger
shall become effective upon the filing of the Articles of Merger with the
Department of State of the State of Florida (the "Effective Time").
1.3 Effects of the Merger. The Merger shall have the effects set
forth in Section 1106 of the FBCA.
1.4 Articles of Incorporation and By-laws.
(a) The articles of incorporation of the PCC Subsidiary as in
effect immediately prior to the Effective Time shall become the articles of
incorporation of the Surviving Corporation at the Effective Time until
thereafter changed or amended as provided therein or by applicable law.
(b) The By-laws of the PCC Subsidiary as in effect
immediately prior to the Effective Time shall become the By-laws of the
Surviving Corporation at the Effective Time until thereafter changed or amended
as provided therein or by applicable law.
1.5 Directors. The directors of the PCC Subsidiary immediately
prior to the Effective Time shall become the directors of the Surviving
Corporation at the Effective Time, until the earlier of their resignation or
removal or until their respective successors are duly elected and qualified, as
the case may be.
1.6 Officers. The officers of the PCC Subsidiary immediately
prior to the Effective Time shall become the officers of the Surviving
Corporation at the Effective Time, until the earlier of their resignation or
removal or until their respective successors are duly elected and qualified, as
the case may be.
1.7 Effect on Capital Stock. As of the Effective Time, by virtue
of the merger and without any action on the part of any holder of any shares of
the Company, the PCC Subsidiary or any other party:
(a) Capital Stock of PCC Subsidiary. Each share of the
capital stock of the PCC Subsidiary issued and outstanding immediately prior to
the Effective Time shall be converted into and become one share of Common Stock
of the Surviving Corporation.
(b) Cancellation of Treasury Stock. Any share of Company
Common Stock held in treasury by the Company immediately prior to the Effective
Time shall be automatically canceled and
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retired and shall cease to exist, and no consideration shall be delivered in
exchange therefor.
(c) PCC Shares. The shares of Company Common Stock
issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive an aggregate number of shares of the Class
A Common Stock, par value $.001 per share, of PCC (the "PCC Shares") equal to
(i) $5,000,000, minus the principal amount outstanding of all indebtedness of
the Company as of the Effective Time together with any unpaid interest or other
unpaid charges accrued on such indebtedness on or before the Effective Time,
divided by (ii) $16.00. The PCC Shares shall be apportioned between the
Stockholders pro rata in accordance with their respective ownership interest in
the Company immediately prior to the Effective Time. As of the Effective Time,
all shares of Company Common Stock shall be no longer outstanding and shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such share of Company Common Stock shall
cease to have any rights with respect thereto except the right to receive the
PCC Shares in the amount set forth herein.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS.
Each Stockholder jointly and severally represents and warrants to the
PCC Subsidiary and PCC as follows:
2.1 Organization, Standing and Authority. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of Florida and authorized to transact business in each jurisdiction where
the conduct of the business or operations of the Company require the Company to
qualify to conduct its business as presently conducted. The Company has all
requisite power and authority to conduct the business operations of the Station
as now conducted. The Company is not a participant in any joint venture or
partnership with any person or entity with respect to any part of the
operations of the Station. The Company does not own any equity interest in any
corporation, partnership or other entity. The Stockholders and the Company
have the legal power and authority to execute, deliver and perform this
Agreement. This Agreement has been authorized by all necessary corporate
actions on the part of the Company and its stockholders.
2.2 Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth on Exhibit A hereto and is owned
by the Stockholders beneficially and of record as set forth on Exhibit A
hereto. The Company Common Stock constitutes all of the issued and outstanding
capital stock of
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the Company. The Company Common Stock has been duly authorized, is validly
issued, fully paid and nonassessable and was issued in accordance with all
federal and state securities laws. There are no outstanding or authorized
options, warrants, rights, contracts, calls, puts, voting trusts, shareholders
agreements, proxies or other agreements or commitments which relate to the
issuance, disposition or acquisition of the capital stock of the Company, the
voting of the capital stock or the conduct of the affairs of the Company or
otherwise to the capital stock of the Company.
2.3 Binding Obligation. This Agreement has been duly executed and
delivered by the Stockholders and the Company and constitutes the legal, valid,
and binding obligation of the Stockholders and the Company, enforceable against
them in accordance with its terms except as the enforceability of this
Agreement may be affected by bankruptcy, insolvency, or similar laws affecting
creditors' rights generally, and by judicial discretion in the enforcement of
equitable remedies.
2.4 Absence of Conflicting Agreements. Subject to obtaining the
consents listed on Exhibit B hereto (the "Consents"), the execution, delivery
and performance of this Agreement and the documents contemplated hereby (with
or without the giving of notice, the lapse of time, or both): (i) do not
require the consent of any third party; (ii) will not conflict with, result in
a breach of, or constitute a default under, any law, judgment, order,
ordinance, injunction, decree, rule, regulation, or ruling of any court or
governmental instrumentality; (iii) will not conflict with, constitute grounds
for termination of, result in a breach of, constitute a default under, or
accelerate or permit the acceleration of any performance required by the terms
of, any agreement, instrument, license or permit to which the Company or any
Stockholder is a party or by which the Company or any Stockholder may be bound;
and (iv) will not conflict with any provision of the Company's Certificate of
Incorporation or By-laws.
2.5 Licenses. All licenses, permits and other authorizations
issued to the Company by any federal, state or local governmental authority,
including by the FCC (the "Licenses") constitute all of the licenses, permits
and authorizations necessary for the conduct of the business or operation of
the Station in accordance with applicable laws and in the manner and to the
extent presently operated. Such Licenses have been validly issued and the
Company is the authorized legal holder thereof. None of the Licenses is
subject to any restriction or condition which would limit the full operation of
the Station as presently operated. The Licenses are in full force and effect.
The business and operations of the
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Station are being conducted in accordance with the Licenses. The Stockholders
have no reason to believe that the Licenses issued by the FCC will not be
renewed by the FCC in the ordinary course.
2.6 Title to and Condition of Real Property. The Company has good
fee simple title or a valid leasehold interest to all of its real property and
such real property constitutes all of the real property necessary for the
conduct of the business or operation of the Station in the manner and to the
extent presently operated. Such real property is held by the Company free and
clear of any security interest, mortgage, pledge or other lien or encumbrance
other than liens for taxes not yet due. The buildings, improvements and
fixtures that are included in such real property are in all material respects
in good operating order (ordinary wear and tear excepted) and available for
immediate use in the ordinary course of the Station's business.
2.7 Title to and Condition of Tangible Personal Property. The
Company owns and has good title to all of the tangible personal property of the
Station, free and clear of any security interest, mortgage, pledge, conditional
sales agreement or other lien or encumbrance, except for liens for taxes not
yet due. Such personal property constitutes all of the personal property
necessary for the conduct of the business or operation of the Station in the
manner and to the extent presently conducted. Each item of material personal
property is in good operating condition and repair (ordinary wear and tear
excepted), and is available for immediate use in the business or operations of
the Station.
2.8 Contracts. The Stockholders have delivered to the PCC
Subsidiary true and complete copies of all contracts to which the Company is a
party or is bound. Other than such contracts, the Company requires no contract
or agreement to enable it to carry on its business as presently conducted. All
of such contracts are in full force and effect and are valid, binding and
enforceable in accordance with their terms. The Company is not in breach, nor
to the Stockholders' knowledge is any other party in breach, of the terms of
any such contracts.
2.9 Financial Statements. The Company has no indebtedness or
liabilities other than as set forth in financial statements previously
delivered to the PCC Subsidiary and other than liabilities incurred in the
ordinary course of business in an aggregate amount at any one time outstanding
not in excess of $10,000.
2.10 Reports. All returns, reports and statements which the Company
is currently required to file with the FCC and any other
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governmental agency have been filed. All of such reports, returns and
statements are complete and correct in all material respects as filed.
2.11 Employee Benefit Plans. All employee benefit plans or
compensation arrangements of the Company were established and have been
executed, managed and administered without material exception in accordance
with all applicable requirements of the Code, the Employee Retirement Income
Security Act of 1974, as amended, and other applicable laws. The Stockholders
are not aware of the existence of any governmental audit or examination of any
of the Company's employee benefit plans or compensation arrangements or of any
facts which would leave them to believe that any such audit or examination is
pending or threatened. There exists no action, suit or claim (other than
routine claims for benefits) with respect to any employee benefit plans or
compensation arrangements sponsored by the Company pending or, to the knowledge
of the Stockholders, threatened against any of such employee benefit plans or
compensation arrangements. The Stockholders have delivered to the PCC
Subsidiary true and correct copies of all such employee benefit plans and
compensation arrangements.
2.12 Labor Relations. The Company is not a party to or subject to
any collective bargaining agreements. No controversies, union disputes or
proceedings are pending or, to the knowledge of the Stockholders, threatened,
between the Company and employees (singly or collectively) of the Company. No
labor union or other collective bargaining representative represents or, to the
best knowledge of the Stockholders, claims to represent any of the employees of
the Company. To the knowledge of the Stockholders, there is no union campaign
being conducted to solicit cards from employees to authorize a union to request
a National Labor Relations Board certification election with respect to any of
the Company's employees.
2.13 Taxes. The Company has filed or caused to be filed all
federal income tax returns and all other federal, state, county, local or city
tax returns which are required to be filed and it has paid or caused to be paid
all taxes shown on said returns or on any tax assessment received by it to the
extent that such taxes have become due.
2.14 Claims and Legal Actions. There is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in
progress or pending, or to the knowledge of the Stockholders, threatened,
against or relating to the Company, the Company Common Stock or the business or
operations of the Station.
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2.15 Investment Purpose. The Stockholders are acquiring the PCC
Shares for investment for their own account and not with a view to the sale or
distribution of any part thereof, and the Stockholders have no present
intention of selling or otherwise distributing the PCC Shares. Each
Stockholder is an "accredited investor" within the meaning of Rule 501
promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), has sufficient knowledge of and experience in financial and business
matters so as to be capable of evaluating the risks and merits of his
investment in PCC, and is capable of bearing the economic risks of such
investment. The Stockholders understand that the PCC Shares must be held
indefinitely unless the sale thereof is registered under the Securities Act or
is exempt from such registration and that the PCC Shares will bear a legend to
that effect.
2.16 Dissenters' Rights. Each Stockholder has received a copy of
Sections 1301, 1302 and 1320 of the FBCA which are attached hereto as Exhibit C
and each Stockholder has decided not to exercise his dissenters' rights under
such Sections. The Company is in compliance with such Sections.
3. REPRESENTATIONS AND WARRANTIES OF THE PCC SUBSIDIARY AND PCC.
The PCC Subsidiary and PCC represent and warrant to the Stockholders
as follows:
3.1 Organization, Standing and Authority. Each of the PCC
Subsidiary and PCC is a corporation duly organized, validly existing, and in
good standing under the laws of its state of incorporation. The PCC Subsidiary
and PCC have all requisite corporate power and authority to execute and deliver
this Agreement and the documents contemplated hereby, and to perform and comply
with all of the terms, covenants and conditions to be performed and complied
with by the PCC Subsidiary and PCC hereunder and thereunder.
3.2 Authorization and Binding Obligation. The execution, delivery
and performance of this Agreement by the PCC Subsidiary and PCC have been duly
authorized by all necessary corporate actions of the part of the PCC Subsidiary
and PCC. This Agreement has been duly executed and delivered by the PCC
Subsidiary and PCC and constitutes the legal, valid and binding obligation of
the PCC Subsidiary and PCC, enforceable against the PCC Subsidiary and PCC in
accordance with its terms except as the enforceability of this Agreement may be
affected by bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and by judicial discretion in the enforcement of equitable remedies.
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3.3 Absence of Conflicting Agreements. Subject to obtaining the
consent of the FCC, the execution, delivery and performance by the PCC
Subsidiary and PCC of this Agreement and the documents contemplated hereby
(with or without the giving of notice, the lapse of time or both): (i) will not
conflict with any organizational documents of the PCC Subsidiary or PCC; and
(ii) will not conflict with, result in a breach of, or constitute a default
under, any law, judgment, order, injunction, decree, rule, regulation or ruling
of any court or governmental instrumentality applicable to the PCC Subsidiary
or PCC; and (iii) will not conflict with, constitute grounds for termination
of, result in a breach of, constitute a default under, or accelerate or permit
the acceleration of any performance required by the terms of, any agreement,
instrument, license, or permit to which the PCC Subsidiary or PCC is party or
by which the PCC Subsidiary or PCC may be bound.
3.4 PCC Shares. The PCC Shares will be, upon issuance to the
Stockholders, validly issued, fully paid and non-assessable, free and clear of
any liens, claims and encumbrances.
4. OPERATIONS OF THE COMPANY PRIOR TO CLOSING.
The Stockholders shall cause the Company to operate in accordance with
the following covenants during the period beginning on the date of this
Agreement and ending on the Closing Date:
4.1 Generally. The Stockholders agree that, between the date of
this Agreement and the Closing Date, they shall cause the Company to operate in
the ordinary course of business in accordance with its past practices.
4.2 Contracts. The Stockholders shall cause the Company not to
enter into any contract or commitment or incur any obligation (including
obligations relating to the borrowing of money or the guaranteeing of
indebtedness) that will be binding on the Company after Closing.
4.3 Disposition of Assets. The Stockholders shall cause the
Company not to sell, assign, lease, or otherwise transfer or dispose of any of
its assets, except in connection with the acquisition of replacement property
of equivalent kind and value.
4.4 Encumbrances. The Stockholders shall cause the Company not to
create, assume or permit to exist any claim, liability, mortgage, lien, pledge,
condition, charge, or encumbrance of any nature whatsoever upon its assets,
except for (i) liens which shall be removed prior to the Closing Date and (ii)
liens for current taxes not yet due and payable.
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4.5 Licenses. The Stockholders shall cause the Company not to
cause or permit, by any act or failure to act, any of the Licenses issued by
the FCC to expire or to be revoked, suspended, or modified or take any action
that could cause the FCC or any other governmental authority to institute
proceedings for the suspension, revocation, or adverse modification of any of
the Licenses.
4.6 Access to Information. The Stockholders shall cause the
Company to give the PCC Subsidiary and its counsel, accountants, engineers and
other authorized representatives reasonable access during normal business hours
to the Company's assets, properties, equipment, books, records, contracts and
documents for the purpose of audit and inspection and will furnish or cause to
be furnished to the PCC Subsidiary or its authorized representatives all
material information with respect to the affairs and business of the Company
that the PCC Subsidiary may reasonably request (including any operations
reports produced with respect to the affairs and business of the Station).
4.7 Maintenance of Assets. The Stockholders shall cause the
Company to maintain all of its assets in good condition (ordinary wear and tear
excepted) with inventories of spare parts and expendable supplies being
maintained at levels consistent with past practices.
4.8 Insurance. The Stockholders shall cause the Company to
maintain substantially the same insurance coverage provided by the existing
insurance policies on the Company and its assets.
4.9 Consents. The Stockholders shall use their best efforts to
obtain the Consents without any change in the terms or conditions of any
contract or License as in effect on the date of this Agreement.
4.10 Books and Records. The Stockholders shall cause the Company
to maintain its books and records in accordance with past practices.
4.11 Notification. The Stockholders shall promptly notify the PCC
Subsidiary in writing of any material change in any of the information
contained in the Stockholders' representations and warranties contained in
Section 2 of this Agreement.
4.12 Compliance with Laws. The Stockholders shall cause the Company
to comply in all material respects with all laws, rules and regulations.
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4.13 Corporate Matters. The Stockholders shall cause the Company
(i) not to merge or consolidate with any other entity, (ii) to preserve its
corporate existence, (iii) not to amend its articles of incorporation or
by-laws, (iv) not to dissolve or liquidate, (v) not to do any act which would
have an adverse effect on the rights of the PCC Subsidiary or PCC hereunder or
(vi) to comply with Sections 1301, 1302 and 1320 of the FBCA.
4.14 Securities. The Stockholders shall cause the Company not to
issue, sell or otherwise dispose of any of its shares of capital stock or other
equity interest in the Company, including any options, warrants or other rights
to acquire any of the shares of the capital stock or other equity interest of
the Company and the Stockholders shall cause the Company not to redeem any such
shares or equity interests in the Company.
4.15 Restrictions relating to Shares. The Stockholders shall not
(i) sell, transfer, pledge or grant any lien or other encumbrance with respect
to their shares of the Company Common Stock or (ii) do any act which would have
an adverse effect on the rights of the PCC Subsidiary or PCC hereunder.
5. SPECIAL COVENANTS AND AGREEMENTS.
5.1 FCC Consent.
(a) The consummation of the Merger pursuant to this Agreement
shall be subject to the prior consent and approval of the FCC (the "FCC
Consent").
(b) The parties hereto shall promptly prepare appropriate
applications for the FCC Consent and shall file the applications with the FCC
within five (5) business days of the execution of this Agreement. The parties
hereto shall prosecute the applications with all reasonable diligence and
otherwise use their reasonable commercial efforts to obtain a grant of the
applications as expeditiously as practicable. Each party agrees to comply with
any condition imposed on it by the FCC Consent, except that no party shall be
required to comply with a condition if (1) the condition was imposed on it as
the result of a circumstance the existence of which does not constitute a
breach by such party of any of its representations, warranties, or covenants
under this Agreement, and (2) compliance with the condition would have a
material adverse effect upon it. The parties hereto shall oppose any requests
for reconsideration or judicial review of the FCC Consent, provided, however,
that the parties shall continue to have all rights available to them pursuant
to Section 8 hereof. If the Closing shall not have occurred for any reason
within the original effective period of the FCC Consent, and no party shall
have terminated this
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Agreement under Section 8, the parties hereto shall jointly request an
extension of the effective period of the FCC Consent. No extension of the FCC
Consent shall limit the exercise by any party of its rights under Section 8.
5.2 Control of the Station. Prior to Closing, the PCC Subsidiary
and PCC shall not, directly or indirectly, control, supervise, direct, or
attempt to control, supervise, or direct, the operations of the Station; such
operations, including complete control and supervision of all of the Station's
programs, employees, and policies, shall be the sole responsibility of the
Company and the Stockholders until the Closing.
5.3 Risk of Loss. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the assets of the Company from any
cause whatsoever shall be borne by the Stockholders at all times prior to the
Closing.
5.4 Confidentiality. Except as necessary for the consummation of
the transaction contemplated by this Agreement and except as and to the extent
required by law, including, without limitation, disclosure requirements of
federal or state securities laws and rules and regulations of securities
markets, each party will keep confidential any information of a confidential
nature obtained from the other party in connection with the transactions
contemplated by this Agreement. If this Agreement is terminated, each party
will return to the other party all copies of all documents obtained by such
party from the other party in connection with the transactions contemplated by
this Agreement.
5.5 Cooperation. The parties hereto shall cooperate fully with
each other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and the parties hereof shall execute from time to time such other
documents as may be necessary and desirable to the implementation and
consummation of this Agreement, and otherwise use their reasonable commercial
efforts to consummate the transaction contemplated hereby and to fulfill their
obligations under this Agreement.
5.6 Access to Books and Records. The Stockholder shall provide
the Surviving Corporation and PCC access and the right to copy for a period of
four (4) years from the Closing Date any books and records relating to the
Company which remain in the possession of the Stockholders. The Surviving
Corporation shall provide the Stockholders access and the right to copy for a
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period of four (4) years from the Closing Date any books and records relating
to the Company.
5.7 Broker. Each of the parties hereto represents and warrants
that neither they nor any person or entity acting on their behalf have incurred
any liability for any finders' or brokers' fees or commissions in connection
with the transactions contemplated by this Agreement.
5.8 Tax Matters.
(a) As used in this Agreement, "Taxes" means all federal,
state, local and foreign income, franchise, sales, use, occupation, property,
excise, alternative or add-on minimum, social security, employees' withholding,
unemployment, disability, transfer, capital stock, and other taxes (including,
without limitation, any estimated taxes, and any interest and penalties), and
"Tax" means any one of such Taxes. "Tax Returns" means all federal, state,
local and foreign income, franchise, sales, use, occupation, property, excise,
alternative or add-on minimum, social security, employees' withholding,
unemployment, disability, transfer, capital stock and other tax returns and tax
reports, and "Tax Return" means any one of such Tax Returns.
(b) Taxes of the Company with respect to the period
ending on (and including) the Closing Date shall be the responsibility of the
Stockholders. Taxes of the Surviving Corporation with respect to the period
after the Closing Date shall be the responsibility of the Surviving
Corporation.
(c) The Stockholders agree to pay and to indemnify,
reimburse and hold harmless the Surviving Corporation and PCC (and other
members of the affiliated group of which the Surviving Corporation and PCC are
or will be members (the "PCC Consolidated Group")) and their successors, and
their officers, directors, employees, agents and representatives, from and
against any and all Taxes of the Company payable with respect to, and any and
all claims, liabilities, losses, damages, penalties, interest, costs and
expenses (including without limitation court costs and reasonable professional
fees incurred in the investigation, defense or settlement of any claims covered
by this indemnity) (herein referred to as "Indemnifiable Tax Damages") arising
out of or in any manner incident, relating or attributable to Taxes of the
Company payable with respect to, (i) any taxable year (or other applicable
reporting period) ("Reporting Period") of the Company ending on or before the
Closing Date; and (ii) any period beginning on the first day of any Reporting
Period that is not completed as of the Closing Date and ending on and including
the Closing Date (a "Short Period"), whether such Taxes are imposed directly on
the Company or as a result of including the Company
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in consolidated or combined returns filed by the affiliated group of which the
Company is a member (the "Stockholders Consolidated Group"). The Stockholders
shall be entitled to any credits or refunds of Taxes of the Company payable
with respect to (i) any Reporting Period of the Company ending on or before the
Closing Date, and (ii) any Short Period. The Surviving Corporation shall cause
the amount of any credits or refunds of Taxes to which the Stockholders are
entitled under this Section, but which are received by or credited to the
Surviving Corporation after the Closing Date, to be delivered to the
Stockholders within ten (10) days following such receipt or crediting, provided
that the Stockholders shall reimburse the Surviving Corporation to the extent
of any required subsequent repayment of, or reduction in, the amount of such
credits or refunds of Taxes so received or credited.
(d) The Stockholders shall also indemnify and hold
harmless the Surviving Corporation and PCC (and members of the PCC Consolidated
Group) from and against any and all Taxes of the Stockholders and members of
the Stockholders Consolidated Group other than the Company for any and all
periods, whether before or after the Closing Date, and from and against any and
all Indemnifiable Tax Damages arising out of or in any manner incident,
relating, or attributable to such Taxes or to Tax Returns filed or required to
be filed by the Stockholders and members of the Stockholders Consolidated Group
other than the Company.
(e) The Surviving Corporation agrees to pay and to
indemnify, reimburse and hold harmless the Stockholders (and other members of
the Stockholders Consolidated Group) and their successors, and their officers,
directors, employees, agents and representatives, from and against any and all
Taxes of the Surviving Corporation payable with respect to, and any and all
Indemnifiable Tax Damages, arising out of or in any manner incident, relating
or attributable to Taxes of the Surviving Corporation payable with respect to,
or Tax Returns required to be filed by the Surviving Corporation with respect
to, (i) any Reporting Period of the Surviving Corporation beginning after the
Closing Date; and (ii) any Reporting Period that includes the Closing Date but
only for that portion of such period commencing the day after the Closing Date,
whether such Taxes are imposed directly on the Surviving Corporation or as a
result of including the Surviving Corporation in consolidated or combined
returns filed by the PCC Consolidated Group.
(f) The Surviving Corporation shall also indemnify and
hold harmless the Stockholders (and members of the Stockholders Consolidated
Group) from and against any and all Taxes of the members of the PCC
Consolidated Group other than the Company and
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the Surviving Corporation for any and all periods, whether before or after the
Closing Date, and from and against any and all Indemnifiable Tax Damages
arising out of or in any manner incident, relating, or attributable to such
Taxes or to Tax Returns filed or required to be filed by members of the PCC
Consolidated Group other than the Company and the Surviving Corporation.
(g) Any amounts owed by the Stockholders to any party
under this Section 5.8 shall be paid within ten (10) days of notice from such
party; provided that if such party has not paid such amounts and such amounts
are being contested before the appropriate governmental authorities in good
faith, the Stockholders shall not be required to make payment until it is
determined finally by an appropriate governmental authority that payment is due
if the Stockholders posts appropriate security if necessary to protect such
party from (A) the immediate imposition of a lien that arises or attaches from
nonpayment after assessment and demand of such amounts, or (B) seizures of
assets. Any amounts owed by the Surviving Corporation to any party under this
Section 5.8 shall be paid within ten (10) days of notice from such party;
provided that if such party has not paid such amounts and such amounts are
being contested before the appropriate governmental authorities in good faith,
the Surviving Corporation shall not be required to make payment until it is
determined finally by an appropriate governmental authority that payment is due
if the Surviving Corporation posts appropriate security if necessary to protect
such party from (A) the immediate imposition of a lien that arises or attaches
from nonpayment after assessment and demand of such amounts, or (B) seizures of
assets.
(h) The tax liabilities for each Short Period for the
Company shall be determined by closing the books and records of the Company as
of the close of business on the Closing Date, by treating each such Short
Period as if it were a separate Reporting Period, and by employing accounting
methods which are consistent with those employed in preparing the Tax Returns
for the Company in prior Reporting Periods and which do not have the effect of
distorting income or expenses, except that Taxes based on items other than
income or sales shall be computed for the Reporting Period beginning on the
first day of the applicable Short Period and prorated on a time basis between
the Short Period and the period beginning on the first day after the Closing
Date and ending on the last day of the Reporting Period which includes the
Closing Date.
(i) Within one hundred twenty (120) days after the
Closing Date, the Stockholders will provide the Surviving Corporation with a
schedule setting forth: (i) a computation of
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accrued Taxes of the Company for each applicable Short Period; (ii) the tax
basis of the assets of the Company as of the Closing Date; (iii) the net
operating loss carryover, investment tax credit carryover and the capital loss
carryover available, if any, to the Surviving Corporation (x) for federal
income tax purposes (and for purposes of any other Taxes for which the
applicable Reporting Period ends on the Closing Date), as of the Closing Date,
and (y) for purposes of other Taxes, as of the first day of the applicable
Short Period; and (iv) all federal, state and local tax elections in effect for
the Company as of the Closing Date.
(j) The Surviving Corporation shall promptly notify the
Stockholders in writing of any notice, letter, correspondence, claim,
determination, decision or decree ("Tax Claim") received by the Surviving
Corporation that might raise a claim for indemnification hereunder. The
Stockholders, at their cost and expense, shall have the sole and exclusive
right to (and shall promptly notify the Surviving Corporation as to whether or
not they will) handle, answer, defend, compromise or settle such Tax Claim and
any tax examination, audit, contest or litigation in connection therewith. If
the Stockholders fails within a reasonable time after notice to defend or
handle any Tax Claim or any examination, audit, contest or litigation as
provided herein, the Stockholders shall be bound by the results obtained by the
Surviving Corporation or their respective successors or assigns in connection
with such Tax Claim and such examination, audit, contest or litigation. The
Surviving Corporation shall give to the Stockholders any relevant information
relating to such Tax Claim which may be particularly within the knowledge of
the Surviving Corporation and otherwise to cooperate with the Stockholders in
good faith with respect to such Tax Claim. Notwithstanding the foregoing, the
Stockholders shall not agree, without the consent of the Surviving Corporation
(which will not be unreasonably withheld or delayed), to any adjustment for any
period ending on or prior to the Closing Date which will legally bind the
Surviving Corporation for any period after the Closing Date.
(k) The Stockholders shall be responsible for preparing
and filing on behalf of the Company all Tax Returns for Reporting Periods of
the Company ending on or prior to the Closing Date, including Tax Returns of
the Company for such periods which are due after the Closing Date, and the
Stockholders shall be responsible for the contents of such returns; provided,
however, that the Stockholders shall furnish the Surviving Corporation with
copies of such returns at least thirty (30) days prior to the filing date for
the Surviving Corporation's review and consent. The Surviving Corporation
shall be responsible for preparing and filing all Tax Returns of
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the Company and the Surviving Corporation for Reporting Periods ending after
the Closing Date (including for Reporting Periods beginning prior to and ending
after the Closing Date).
(l) Each of the parties hereto will provide the other
with such assistance as may reasonably be requested by any of them in
connection with the preparation of any Tax Return, any audit or other
examination by any taxing authority, or any judicial or administrative
proceedings relating to liability for Taxes, and each will retain and provide
the other, at all reasonable times, with any work papers, records or other
information which may be relevant to such return, audit or examination,
proceeding or determination. The party requesting assistance hereunder shall
reimburse the other parties for reasonable expenses incurred in providing such
assistance.
(m) The indemnification provided for hereunder shall not
be subject to the provisions of Section 9 and shall constitute a separate and
distinct indemnification obligation of the parties hereto.
6. CONDITIONS TO OBLIGATIONS OF THE STOCKHOLDERS, THE COMPANY, THE PCC
SUBSIDIARY AND PCC AT CLOSING.
6.1 Conditions to Obligations of the PCC Subsidiary and PCC. All
obligations of the PCC Subsidiary and PCC at the Closing are subject at the
option of the PCC Subsidiary and PCC to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations
and warranties of the Stockholders contained in Section 2 of this Agreement
shall be true and complete in all material respects at and as of the Closing
Date as though made at and as of that time.
(b) Covenants and Conditions. The Stockholders and the
Company shall have performed and complied in all material respects with all
covenants, agreements, and conditions required by this Agreement to be
performed or complied with by them prior to or on the Closing Date.
(c) Consents. All Consents shall have been obtained and
delivered to the PCC Subsidiary and PCC without any material adverse change in
the terms or conditions of any agreement or any governmental license, permit,
or other authorization.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on the PCC Subsidiary, PCC or the
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Surviving Corporation of any material conditions that need not be complied with
by the PCC Subsidiary or PCC under Section 5.1 hereof, the Stockholders shall
have complied with any conditions imposed on them by the FCC Consent, and the
FCC Consent shall have become a Final Order. For purposes of this Agreement, a
"Final Order" shall mean an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
(e) Material Adverse Change. There shall not have been a
material adverse change in the condition (financial or otherwise), business,
assets or prospects of the Company.
(f) Deliveries. The Stockholders shall have made or
stand willing to make all the deliveries to the PCC Subsidiary and PCC set
forth in Section 7.2.
(g) Release of Liens; No Indebtedness. The Stockholders
shall have delivered to the PCC Subsidiary and PCC evidence reasonably
satisfactory to the PCC Subsidiary and PCC that there are no security
interests, mortgages, encumbrances, and liens on the assets of the Company
other than liens for taxes not yet due and payable and that the only
indebtedness of the Company is indebtedness which is payable to PCC and Lowell
W. Paxson.
(h) No Substantial Interruption. No substantial
interruption shall have occurred in the broadcast operations of the Station.
(i) Corporate Authorizations. PCC shall have received
all necessary authorizations to issue the PCC Shares hereunder.
6.2 Conditions to Obligations of the Stockholders and the Company.
All obligations of the Stockholders and the Company at the Closing are subject
at the option of the Stockholders and the Company to the fulfillment prior to
or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations
and warranties of the PCC Subsidiary and PCC contained in Section 3 of this
Agreement shall be true and complete in all material respects at and as of the
Closing Date as though made at and as of that time.
(b) Covenants and Conditions. The PCC Subsidiary and PCC
shall have performed and complied in all material respects
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with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by them prior to or on the Closing Date.
(c) Deliveries. The PCC Subsidiary and PCC shall have
made or stand willing to make all the deliveries set forth in Section 7.3.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on the Stockholders of any material conditions that need
not be complied with by the Stockholders under Section 5.1 hereof and the PCC
Subsidiary and PCC shall have complied with any conditions imposed on them by
the FCC Consent.
7. CLOSING AND CLOSING DELIVERIES
7.1 Closing.
(a) Closing Date. The Closing of the transactions
contemplated hereby (the "Closing") shall take place at 10:00 a.m. on a date to
be set by the PCC Subsidiary on at least five days' written notice to the
Stockholders, that is (1) not earlier than the first business day after the FCC
Consent is granted, and (2) not later than ten business days following the date
upon which the FCC Consent has become a Final Order. The date of such Closing
shall be referred to herein as the Closing Date. If the PCC Subsidiary fails
to specify the date for Closing pursuant to the preceding sentence prior to the
fifth business day after the date upon which the FCC Consent becomes a Final
Order, the Closing shall take place on the tenth business day after the date
upon which the FCC Consent becomes a Final Order.
(b) Closing Place. The Closing shall be held at the
offices of Dow, Lohnes & Albertson, 1200 New Hampshire Avenue, NW, Suite 800,
Washington, D.C. 20036, or such other place that is agreed upon by the PCC
Subsidiary and the Stockholders.
7.2 Deliveries by the Stockholders. Prior to or on the Closing
Date, the Stockholders and the Company shall deliver to the PCC Subsidiary and
PCC the following, in form and substance reasonably satisfactory to the PCC
Subsidiary and PCC:
(a) Consents. An executed copy of any instrument
evidencing receipt of any Consent;
(b) Certificates. A certificate, dated as of the Closing
Date, executed by the Stockholders certifying (1) that the representations and
warranties of the Stockholders contained in this Agreement are true and
complete in all material respects
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as of the Closing Date as though made on and as of that date; and (2) that the
Stockholders and the Company have in all material respects performed and
complied with all of their obligations, covenants, and agreements set forth in
this Agreement to be performed and complied with on or prior to the Closing
Date;
(c) Corporate Records. All corporate records of the
Company including minute books and stock books and registers;
(d) Merger Documents. Any and all documents duly
executed by the Company and the Stockholders that may be necessary to
consummate the Merger; and
(e) Other Instruments. Such other instruments and
certificates or other documentation as the PCC Subsidiary or PCC may reasonably
request.
7.3 Deliveries by the PCC Subsidiary and PCC. Prior to or on the
Closing Date, the PCC Subsidiary and PCC shall deliver to the Stockholders the
following, in form and substance reasonably satisfactory to the Stockholders:
(a) Stock Certificates. Certificates representing the
PCC Shares;
(b) Certificate. A certificate, dated as of the Closing
Date, executed by the PCC Subsidiary and PCC certifying (1) that the
representations and warranties of the PCC Subsidiary and PCC contained in this
Agreement are true and complete in all material respects as of the Closing Date
as though made on and as of that date, and (2) that the PCC Subsidiary and PCC
have in all material respects performed and complied with all of their
obligations, covenants, and agreements set forth in this Agreement to be
performed and complied with on or prior to the Closing Date; and
(c) Other Instruments. Such other instruments and
certificates or other documentation as the Stockholders may reasonably request.
8. TERMINATION
8.1 Termination by the Stockholders. This Agreement may be
terminated by the Stockholders, if the Stockholders and the Company are not
then in material default, upon written notice to the PCC Subsidiary and PCC,
upon the occurrence of any of the following:
(a) Conditions. If, on the date that would otherwise be
the Closing Date, any of the conditions precedent to the
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obligations of the Stockholders and the Company set forth in this Agreement
have not been satisfied or waived in writing by the Stockholders and the
Company.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by the Stockholders or the Company, that would prevent or make unlawful
the Closing.
(c) Upset Date. If the Closing shall not have occurred
by December 31, 1996.
8.2 Termination by the PCC Subsidiary and PCC. This Agreement may
be terminated by the PCC Subsidiary and PCC, if the PCC Subsidiary and PCC are
not then in material default, upon written notice to the Stockholders, upon the
occurrence of any of the following:
(a) Conditions. If on the date that would otherwise be
the Closing Date any of the conditions precedent to the obligations of the PCC
Subsidiary and PCC set forth in this Agreement have not been satisfied or
waived in writing by the PCC Subsidiary and PCC.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by the PCC Subsidiary or PCC, that would prevent or make unlawful the
Closing.
(c) Upset Date. If the Closing shall not have occurred
by December 31, 1996.
8.3 Rights on Termination. If this Agreement is terminated
pursuant to Section 8.1 or 8.2 and no party is in material breach of any
provision of this Agreement, the parties hereto shall not have any further
liability to each other with respect to the subject matter of this Agreement.
If this Agreement is terminated by the Stockholders due to the material breach
by the PCC Subsidiary or PCC of this Agreement and the Stockholders and the
Company are not in material breach of any provision of this Agreement, then the
Stockholders shall have all rights and remedies available under Section 10.3
hereof. If this Agreement is terminated by the PCC Subsidiary and PCC due to
any material breach by the Stockholders or the Company of any provision of this
Agreement, and the PCC Subsidiary and PCC are not in material breach of any
provision of this Agreement, the PCC Subsidiary and PCC shall have all rights
and remedies available under Section 10.3 hereof, including the right to seek
specific performance of this Agreement.
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9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN
REMEDIES
9.1 Representations and Warranties. All representations and
warranties contained in this Agreement, other than with respect to Taxes which
shall survive for the applicable statute of limitations, shall be deemed
continuing representations and warranties and shall survive the Closing for a
period of six (6) months.
9.2 Indemnification by Stockholders. The Stockholders hereby
jointly and severally agree to indemnify and hold the Surviving Corporation and
PCC harmless against and with respect to, and shall reimburse the Surviving
Corporation and PCC for:
(a) Any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or omission or
nonfulfillment of any covenant by the Stockholders or the Company contained in
this Agreement or in any certificate, document, or instrument delivered to the
PCC Subsidiary or PCC under this Agreement.
(b) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses, including reasonable
legal fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
9.3 Indemnification by the Surviving Corporation. The Surviving
Corporation hereby agrees to indemnify and hold the Stockholders harmless
against and with respect to, and shall reimburse the Stockholders for:
(a) Any and all losses, liabilities, or damages
resulting from any untrue representation, breach of warranty, or omission or
nonfulfillment of any covenant by the PCC Subsidiary or PCC contained in this
Agreement or in any certificate, document, or instrument delivered to the
Stockholders under this Agreement.
(b) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
9.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
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(a) The party claiming indemnification (the "Claimant")
shall promptly give notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant as soon as
practicable after written notice of such action, suit, or proceeding was given
to Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying
Party shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty- day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity or under the arbitration
provisions of this Agreement, as applicable.
(c) With respect to any claim by a third party as to
which the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in
or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party subject to reimbursement for
reasonable actual out-of-pocket expenses incurred by the Claimant as the result
of a request by the Indemnifying Party. If the Indemnifying Party elects to
assume control of the defense of any third-party claim, the Claimant shall have
the right to participate in the defense of such claim at its own expense. If
the Indemnifying Party does not elect to assume control or otherwise
participate in the defense of any third party claim, it shall be bound by the
results obtained by the Claimant with respect to such claim.
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The Indemnification rights provided in Section 9.2
and 9.3 shall extend to the shareholders, directors, officers,
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employees and representatives of any Claimant although for the purpose of the
procedures set forth in this Section 9.4, any indemnification claims by such
parties shall be made by and through the Claimant.
10. MISCELLANEOUS
10.1 Attorneys' Fees. In the event of a default by any party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
10.2 Fees and Expenses. Any federal, state, or local sales or
transfer tax arising in connection with the Merger shall be paid by the
Stockholders. The Stockholders and the PCC Subsidiary shall each pay one-half
of the fee payable to the FCC in connection with the filing of the application
for the FCC Consent. Except as otherwise provided in this Agreement, each
party shall pay its own expenses incurred in connection with the authorization,
preparation, execution, and performance of this Agreement, including all fees
and expenses of counsel, accountants, agents, and representatives, and each
party shall be responsible for all fees or commissions payable to any finder,
broker, advisor, or similar person retained by or on behalf of such party.
10.3 Arbitration. Except as otherwise provided to the contrary
below, any dispute arising out of or related to this Agreement that the parties
hereto are unable to resolve by themselves shall be settled by arbitration in
the District of Columbia by a panel of three arbitrators. The Stockholders as a
group and the PCC Subsidiary or, if applicable, the Surviving Corporation and
PCC as a group shall each designate one disinterested arbitrator, and the two
arbitrators so designated shall select the third arbitrator. Before
undertaking to resolve the dispute, each arbitrator shall be duly sworn
faithfully and fairly to hear and examine the matters in controversy and to
make a just award according to the best of his or her understanding. The
arbitration hearing shall be conducted in accordance with the commercial
arbitration rules of the American Arbitration Association. The written
decision of a majority of the arbitrators shall be final and binding on the
parties hereto. The costs and expenses of the arbitration proceeding shall be
assessed among the parties in a manner to be decided by a majority of the
arbitrators, and the assessment shall be set forth in the decision and award of
the arbitrators. Judgment on the award, if it is not paid within thirty days,
may be entered in any court having jurisdiction over the matter. No action at
law or suit in equity based upon any claim arising out of or
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related to this Agreement shall be instituted in any court by any party hereto
against any other party hereto except (i) an action to compel arbitration
pursuant to this Section, (ii) an action to enforce the award of the
arbitration panel rendered in accordance with this Section, or (iii) a suit for
specific performance under Section 8.3 of this Agreement.
10.4 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) sent by telecopy (with receipt personally confirmed by telephone),
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
[Download Table]
If to the PCC Mr. Lowell W. Paxson
Subsidiary, PCC or Paxson Communications Corporation
the Surviving 601 Clearwater Park Road
Corporation: West Palm Beach, Florida 33401-6233
Telecopy: (407) 659-4252
Telephone: (407) 659-4122
With a copy to: John R. Feore, Jr., Esq.
Dow, Lohnes & Albertson
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036
Telecopy: (202) 776-2222
Telephone: (202) 776-2786
If to the Stockholders Mr. Todd L. Paxson
or prior to the Mr. Devon W. Paxson
Closing, the Company: 1756 North Congress Avenue
Suite 101
West Palm Beach, Florida 33409
Telecopy: (407) 684-1851
Telephone: (407) 684-1707
With a copy to: Richard F. Swift, Esq.
Tierney & Swift
1001 22nd Street, N.W.
Suite 350
Washington, D.C. 20037
Telecopy: (202) 659-5711
Telephone: (202) 293-7979
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or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
10.4.
10.5 Benefit and Binding Effect. No party hereto may assign this
Agreement without the prior written consent of the other parties hereto;
provided, however, that the PCC Subsidiary may assign its rights and
obligations under this Agreement to a wholly-owned subsidiary or commonly
controlled affiliate without seeking or obtaining the other parties' prior
approval. Upon any permitted assignment by a party hereto in accordance with
this Section 10.5, all references to such party herein shall be deemed to be
references to such party's assignee. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
10.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
10.7 Headings. The headings in this Agreement are included for
ease of reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
10.8 Gender and Number. Words used in this Agreement, regardless
of the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
10.9 Entire Agreement. This Agreement, the exhibits hereto, and
all documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
among the parties hereto with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
10.10 Waiver of Compliance; Consents. Except as otherwise provided
in this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement or
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condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits
consent by or on behalf of any party hereto, such consent shall be given in
writing in a manner consistent with the requirements for a waiver of compliance
as set forth in this Section 10.10.
10.11 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
10.12 Press Releases. No party hereto shall publish any press
release, make any other public announcement or otherwise communicate with any
news media concerning this Agreement or the transactions contemplated hereby
without the prior written consent of the other parties; provided, however, that
nothing contained herein shall prevent any party from promptly making all
filings with governmental authorities as may, in its judgment, be required or
advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, in which case the
other parties shall be first notified in writing.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
[Download Table]
PAX JAX, INC.
By: /s/ Lowell W. Paxson
------------------------------------------
Name: Lowell W. Paxson
Title: Chairman
/s/ Todd L. Paxson
-----------------------------------------------
Todd L. Paxson
/s/ Devon W. Paxson
-----------------------------------------------
Devon W. Paxson
PAXSON COMMUNICATIONS CORPORATION
By: /s/ Lowell W. Paxson
--------------------------------------------
Name: Lowell W. Parson
Title: Chairman
TODD COMMUNICATIONS, INC.
By: /s/ Devon Paxson
-------------------------------------------
Name: Devon Paxson
Title: President
List of Exhibits
[Download Table]
Exhibit A Capitalization of Todd Communications, Inc.
Exhibit B Consents
Exhibit C Sections 1301, 1302 and 1320 of FBCA
Exhibit A
[Download Table]
Stockholder Number of Outstanding Shares
----------- ----------------------------
Todd L. Paxson 49 shares of Common Stock, par value $1.00 per share
Devon W. Paxson 51 shares of Common Stock, par value $1.00 per share
Number of Authorized Shares: 1,000 shares of Common Stock, par value $1.00 per
share
Exhibit B
The FCC Consent.
Exhibit C
See attached.
EXHIBIT 10.107.1
FIRST AMENDMENT TO AGREEMENT AND
PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment"), is
dated as of June 27, 1996, by and among Devon W. Paxson ("Devon"), Todd L.
Paxson ("Todd" and together with Devon, individually, a "Stockholder" and
collectively, the "Stockholders"), Pax Jax, Inc., a Florida corporation (the
"PCC Subsidiary"), Paxson Communications Corporation, a Delaware corporation
("PCC"), and Todd Communications, Inc., a Florida corporation (the "Company").
RECITALS
A. The parties hereto are parties to an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of April 12, 1996, which provides for the merger
of the Company with and into the PCC Subsidiary with the PCC Subsidiary being
the surviving corporation. As part of such merger, all of the issued and
outstanding shares of Common Stock, par value $1.00 per share, of the Company
will be converted into the right to receive Class A Common Stock, par value
$.001 per share, of PCC.
B. The parties hereto desire to amend the Merger Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Amendment and in the Merger Agreement, the parties
hereto, intending to be bound legally, agree as follows:
1. Amendment. Section 1.7(c) of the Merger Agreement is hereby amended
in its entirety to read as follows:
"(c) PCC Shares. The shares of Company Common Stock issued
and outstanding immediately prior to the Effective Time shall be
converted into the right to receive an aggregate number of shares
of the Class A Common Stock, par value $.001 per share, of PCC (the
"PCC Shares") equal to (i) $5,000,000, minus the principal amount
outstanding of all indebtedness of the Company as of the Effective
Time together with any unpaid interest or other unpaid charges
accrued on such indebtedness on or before the Effective Time,
divided by (ii) $11. The PCC Shares shall be apportioned between
the Stockholders pro rata in accordance with their respective
ownership interest in the Company immediately prior to the
Effective Time. As of the Effective Time, all shares of Company
Common Stock
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shall be no longer outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a
certificate representing any such share of Company Common Stock
shall cease to have any rights with respect thereto except the right
to receive the PCC Shares in the amount set forth herein.
2. Governing Law. This Amendment shall be governed, construed and
enforced in accordance with the laws of the State of Florida (without regard to
the choice of law provisions thereof).
3. Counterparts. This Amendment may be signed in counterparts with the
same effect as if the signature on each counterpart were upon the same
instrument.
4. Effect of Amendment. Except as expressly modified hereby, the
provisions of the Merger Agreement shall remain unchanged and shall remain in
full force and effect.
5. Reference to Merger Agreement. It shall not be necessary to refer
to this Amendment in any reference to the Merger Agreement. Any reference to
the Merger Agreement shall be a reference to the Merger Agreement as amended
hereby.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
as of the day and year first above written.
PAX JAX, INC.
By: /s/ Lowell W. Paxson
-----------------------------------
Name: Lowell W. Paxson
Title: Chairman
/s/ Todd L. Paxson
---------------------------------------
Todd L. Paxson
/s/ Devon W. Paxson
--------------------------------------
Devon W. Paxson
PAXSON COMMUNICATIONS CORPORATION
By: /s/ Lowell W. Paxson
----------------------------------
Name: Lowell W. Paxson
Title: Chairman
TODD COMMUNICATIONS, INC.
By: /s/ Devon W. Paxson
----------------------------------
Name: Devon W. Paxson
Title: President
Dates Referenced Herein and Documents Incorporated by Reference
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