Exhibit 10.1





Exhibit 10.1




EXECUTION VERSION




INDEMNITY AND CONTRIBUTION AGREEMENT




THIS INDEMNITY AND CONTRIBUTION AGREEMENT (this “Agreement”) is made as of this 30th
day of July, 2011, by and among Westwood One, Inc., a Delaware corporation (“WWON”), Gores
Radio Holdings, LLC, a Delaware limited liability company (“Gores”), Verge Media Companies,
Inc., a Delaware corporation (“Verge”), and Triton Media Group, LLC, a Delaware limited
liability company (the “DG Shareholder”), and shall become effective automatically and
without any further action by any party hereto immediately upon consummation of the WWON Merger (as
defined below). Capitalized terms used herein, but not otherwise defined, shall have the meanings
ascribed to them in the Merger Agreement, dated as of July 30, 2011, by and between WWON, Radio
Network Holdings, LLC and Verge (the “Merger Agreement”).



WHEREAS, in connection with its sale of Metro Networks, Inc., Smart Route Systems, Inc. and
TLAC, Inc. (collectively, the “Metro Business”) to Clear Channel Acquisition LLC
(“Clear Channel”), Clear Channel and WWON agreed to certain mutual indemnification and
other potential payment obligations pursuant to that certain Stock Purchase Agreement, dated as of
April 29, 2011, between Clear Channel and WWON (the “Metro Agreement”);



WHEREAS, in connection with its sale of Triton Media Group, LLC (the “Digital
Business”) to Triton Digital Inc., a Delaware corporation (“TDI”), Verge Media, Inc., a
Delaware corporation and indirect wholly owned subsidiary of Verge (“VMI”), agreed to
certain indemnification obligations in favor of TDI and its direct and indirect subsidiaries, as
more fully described in Section 6 of the Unit Purchase Agreement, dated as of
July 29, 2011, between TDI and VMI (the “Digital Agreement”);



WHEREAS, in connection with and in furtherance of the merger of Verge with and into a
subsidiary of WWON (the “WWON Merger”), and the substantial benefits that the DG
Shareholder will derive from the WWON Merger, the DG Shareholder desires to provide, subject to the
terms and conditions contained in this Agreement, certain indemnification rights in favor of WWON
with respect to the Digital Business; and



WHEREAS, in connection with and in furtherance of the WWON Merger, and the substantial
benefits that Gores shall derive from the WWON Merger, Gores desires to provide, subject to the
terms and conditions contained in this Agreement, certain contribution rights in favor of the DG
Shareholder.


 


 









 





NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
other good and valuable consideration, the parties hereby agree as follows:




	1.	 	DG SHAREHOLDER INDEMNITY







	 	(a)	 	Subject to the limitations contained in this Agreement, the DG Shareholder
shall indemnify and hold harmless WWON and each subsidiary of WWON (each an
“Indemnified Party”) against any Losses (as defined below) suffered by such
Indemnified Party to the extent arising from or directly related to the Digital
Business; provided that, for the avoidance of doubt, the DG Shareholder shall have
no obligation hereunder with respect to up to $166,667 of U.S. federal, state, local
and foreign tax liabilities imposed on any Indemnified Party with respect to the
sale of the Digital Business pursuant to the Digital Agreement, or with respect to
the distribution of the consideration received thereunder to DG Shareholder through
one or more Indemnified Parties.







	 	(b)	 	“Losses” means any and all losses, costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages, expenses,
deficiencies or other charges, in each case paid to a third party (which, for the
avoidance of doubt, shall (a) include, in the case of Section 2(a) below, any payments
made by WWON or any of its subsidiaries to Gores or any of its members or any of its or
their respective Affiliates pursuant to that certain Reimbursement Agreement, dated as
of July 22, 2011, made by WWON in favor of Gores Capital Partners II, L.P. and Gores
Co-Invest Partnership II, L.P., or otherwise as a result of Gores or any of its members
or any of its or their respective Affiliates making a payment pursuant to the Guaranty,
dated as of April 29, 2011, between Gores Capital Partners II, L.P. and Gores Co-Invest
Partnership II, L.P. in favor of Clear Channel, and (b) exclude the allocable time of
personnel of any party hereto or their affiliates, or the internal overhead (e.g.,
rent, office supplies, etc.) incurred in connection with handling a claim that is
subject to indemnification hereunder).







	 	(c)	 	All payments owed under this Section 1 by the DG Shareholder shall be payable
by the DG Shareholder solely from 53.161% of the net cash proceeds received from time
to time by the DG Shareholder in respect of the shares of Class B Common Stock of WWON
issued to the DG Shareholder upon consummation of the WWON Merger (and/or received by
the DG Shareholder in respect of any security, asset or other property received in
respect of such shares) (collectively, the “Class B WWON Stock”), whether
received as a result of a sale or other disposition of such Class B WWON Stock or as a
dividend or other distribution in respect of such Class B WWON Stock (the “DG
Shareholder Limit”), and shall be due within 10 business days after the later of
(y) the DG Shareholder’s receipt of any such net cash proceeds (to the extent not used
to satisfy other amounts owed hereunder) and (z) the DG Shareholder becoming obligated
to make such payment hereunder. No interest shall accrue with respect to amounts owed
hereunder pending the date on which any payments hereunder shall have become due and
payable.





 


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	 	(d)	 	Notwithstanding the foregoing, (i) the DG Shareholder’s obligations under this
Section 1 shall not apply with respect to any claim made against an Indemnified Party
after (or any claim made against an Indemnified Party before but not communicated to
the DG Shareholder in writing until after (or in the case of claims received within
five business days of such date, not communicated within 10 days following)) the
earlier to occur of (y) April 30, 2013, and (z) the date on which the record
stockholders of WWON immediately prior to the Effective Time
(excluding any nominees) cease to own at least 30% of the WWON Stock held by such
Persons immediately after the Effective Time (the earlier to occur of (y) and (z),
the “DG Shareholder Expiration Date”), and (ii) the DG Shareholder shall not
be obligated to make any payment, individually or in the aggregate, in excess of the
DG Shareholder Limit.







	 	(e)	 	For purposes of this Agreement, “net cash proceeds” shall mean, cash proceeds
actually received, less actual out-of-pocket costs to non-affiliates related to the
sale or transfer of WWON Stock (e.g., brokerage commissions, underwriter commissions or
discounts, legal fees, etc., but specifically excluding any taxes associated with such
sale or transfer other than stamp taxes, sales tax, ad valorem tax or other non-income
taxes incurred by the seller of such WWON stock).







	2.	 	GORES CONTRIBUTION







	 	(a)	 	Subject to the limitations contained in this Agreement, if WWON or any of its
subsidiaries makes any payment(s) from time to time pursuant to the Metro Agreement
(whether pursuant to an indemnification obligation, a purchase price adjustment
mechanism or otherwise) or otherwise suffers any Losses (as defined in Section 1(b)
above) to the extent arising from or directly related to to the Metro Business (each a
“Covered Payment”), then, for each such Covered Payment, Gores shall pay an
amount to the DG Shareholder equal to the Gores Contribution Amount (as defined below)
for such Covered Payment.







	 	(b)	 	For purposes of this Agreement, “Gores Contribution Amount” shall mean,
for each Covered Payment, an amount equal to:







	 	(i)	 	For the first $5,000,000 of Covered Payments, the product of
(y) the excess, if any, of (A) the amount of such Covered Payment (or portion
thereof as applicable), over (B) the aggregate of all amounts received by WWON
from Clear Channel under the Metro Agreement following the consummation of the
WWON Merger (“Clear Channel Payments”) but only to the extent such
Clear Channel Payments are not then being applied, and have not been previously
applied, against any other Covered Payment pursuant to this clause (B) or
clause (c) below, and (z) 45.135%; and







	 	(ii)	 	For Covered Payments in excess of $5,000,000, the product of
(y) the excess, if any, of (A) the amount of such Covered Payment (or portion
thereof as applicable), over (B) all Clear Channel Payments received by WWON in
excess of $5,000,000 but only to the extent such Clear Channel Payments in
excess of $5,000,000 are not then being applied, and have not been previously
applied, against any other Covered Payment under this clause (B) or clause (c)
below, and (z) 50.820%.




 


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	 	(c)	 	If, subsequent to any payment(s) made by Gores pursuant to Section 2(a)
above, WWON receives a Clear Channel Payment that is not then being applied, and had
not otherwise been previously applied, to any other Covered Payment under
clause (i)(B) or (ii)(B) above and that would have reduced the amount Gores would
have been required to pay pursuant to the formula(s) set forth in Section 1(b) above
had such Clear Channel Payment been received prior to such payment(s), the DG
Shareholder shall promptly return to Gores the amount necessary to reduce Gores’
total payment(s) to the amount which would have been required to be paid by Gores
had such Clear Channel Payment (or portion thereof as applicable) been received
prior to such payment(s).







	 	(d)	 	All payments owed under this Section 2 by Gores shall be payable by Gores
solely from the net cash proceeds received by Gores from time to time after the date
hereof in respect of shares of common stock of WWON (and/or received by Gores in
respect of any security, asset or other property received directly or indirectly in
respect of such shares of common stock, including but not limited to the shares of
Class A Common Stock to be issued to Gores upon consummation of the Reclassification)
(collectively, the “Class A WWON Stock” and, together with the Class B WWON
Stock, the “WWON Stock”), whether received as a result of a sale or other
disposition of such Class A WWON Stock or as a dividend or other distribution in
respect of such Class A WWON Stock, and shall be due within 10 business days after the
later of (y) Gores’ receipt of any such net cash proceeds (to the extent not used to
satisfy other amounts owed hereunder) and (z) Gores becoming obligated to make such
payment hereunder. No interest shall accrue with respect to amounts owed hereunder
pending the date on which any payments hereunder shall have become due and payable.







	 	(e)	 	Notwithstanding the foregoing, Gores’ obligations under this Section 2 shall
not apply with respect to any claim made against WWON or any of its subsidiaries after
(or any claim made against WWON or any of its subsidiaries before but not communicated
to Gores in writing until after (or in the case of claims received within five business
days of such date, not communicated within 10 days following)) the earlier to occur of
(y) April 30, 2013, and (z) the date on which the DG Shareholder, its members and their
respective Affiliates, collectively, cease to own at least 30% of the common stock of
WWON owned by such persons upon the closing of the WWON Merger (the earlier to occur of
(y) and (z), the “Gores Expiration Date”).







	3.	 	COVENANTS OF EACH OF GORES AND THE DG SHAREHOLDER







	 	(a)	 	From and after the date hereof until the Gores Expiration Date (or, if any
claims against WWON or any of its subsidiaries for which Gores could be required to
make a payment pursuant to Section 2 hereof remain pending, or for any reason
any payment owed hereunder by Gores remains unpaid, as of the Gores Expiration Date,
then until all such claims have been resolved and Gores has paid all amounts owed
hereunder), Gores shall (i) not sell or otherwise voluntarily dispose of any Class A
WWON Stock other than in a transaction solely for cash consideration, (ii) not use,
encumber, distribute or otherwise transfer any net cash proceeds received by Gores from
time to time after the date hereof in respect of Class A WWON Stock, whether received
as a result of a sale or other disposition
 of such Class A WWON Stock or as a dividend or other distribution in respect of such
Class A WWON Stock (“Gores Restricted Cash Proceeds”), (iii) not incur any
Indebtedness or other obligation other than the payment obligations under this
Agreement, (iv) deposit all Gores Restricted Cash Proceeds into an account with a
United States banking institution or invest such cash in Cash Equivalents and cause
such deposit or investment to be held solely in the name of Gores, and (iv) not
co-mingle the Gores Restricted Cash Proceeds with any other cash or Cash Equivalents
of Gores or of any other Person.







 


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	 	(b)	 	From and after the date hereof until the DG Shareholder Expiration Date (or, if
any claims against an Indemnified Party for which the DG Shareholder could be required
to make a payment pursuant to Section 1 hereof remain pending, or for any
reason any payment owed hereunder by the DG Shareholder remains unpaid, as of the DG
Shareholder Expiration Date, then until all such claims have been resolved and the DG
Shareholder has paid all amounts owed hereunder), the DG Shareholder shall (i) not sell
or otherwise voluntarily dispose of any Class B WWON Stock other than in a transaction
solely for cash consideration, (ii) not use, encumber, distribute or otherwise transfer
any net cash proceeds received by the DG Shareholder from time to time in respect of
Class B WWON Stock, whether received as a result of a sale or other disposition of such
Class B WWON Stock or as a dividend or other distribution in respect of such Class B
WWON Stock (the “DG Shareholder Restricted Cash Proceeds”), provided
that the DG Shareholder shall be permitted to use, encumber, distribute or
otherwise transfer from time to time 46.839% of such net cash proceeds, and,
notwithstanding any implication herein to the contrary, such unrestricted portion of
such net cash proceeds shall not be considered DG Shareholder Restricted Cash Proceeds
for any purpose hereunder, (iii) deposit all DG Shareholder Restricted Cash Proceeds
into an account with a United States banking institution or invest such cash in Cash
Equivalents and cause such deposit or investment to be held solely in the name of the
DG Shareholder, and (iv) not co-mingle the DG Shareholder Restricted Cash Proceeds with
any other cash or Cash Equivalents of the DG Shareholder or of any other Person. For
the avoidance of doubt, nothing herein shall restrict the DG Shareholder’s ability to
use, encumber, distribute or otherwise transfer any other assets of the DG Shareholder,
including but not limited to the shares of TDI held from time to time by the DG
Shareholder and any net cash proceeds received from time to time in respect thereof.







	4.	 	Miscellaneous







	 	(a)	 	Any failure of a party to comply with any obligation, covenant, agreement or
condition herein may be waived, but only if such waiver is in writing and is signed by
the party against whom the waiver is to be effective. Such waiver or failure to insist
upon strict compliance with such obligation, covenant, agreement or 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 clause (b) of this Section 4.




 


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	 	(b)	 	All notices and other communications hereunder shall be in writing (including
by fax) and shall be deemed to have been duly given (i) when delivered in person, (ii)
one (1) Business Day after being sent by reputable overnight courier, (iii) when faxed
during business hours (with confirmation of transmission having been received) or (iv)
three (3) Business Days after being mailed by registered or certified mail (postage
prepaid, return receipt requested), in each case to the respective parties at the
following addresses (or at such other address for a party as shall be specified by like
notice):







	 	(i)	 	If to WWON:

	 
	 	 	 	Westwood One, Inc.

1166 Avenue of the Americas, 10th Floor

New York, NY 10036

Attention: General Counsel

Fax: (212) 641-2198

	 
	 	 	 	with copies to:

	 
	 	 	 	Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue, Suite 3400

Los Angeles, CA 90071-3144

Attention: Rick C. Madden, Esq.

Fax: (213) 621-5379

	 
	 	 	 	and

	 
	 	 	 	Kirkland & Ellis LLP

300 North LaSalle

Chicago, IL 60654

Attention: Christopher J. Greeno, P.C.


Tana M. Ryan

Fax: (312) 862-2200

	 
	 	(ii)	 	If to Gores:

	 
	 	 	 	The Gores Group, LLC

10877 Wilshire Blvd, 18th Floor

Los Angeles, CA 90024

Attention: General Counsel

Fax: (310) 443-2149




 


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	 	 	 	with a copy to:

	 
	 	 	 	Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue, Suite 3400

Los Angeles, CA 90071-3144

Attention: Rick C. Madden, Esq.

Fax: (213) 621-5379

	 
	 	(iii)	 	If to Verge:

	 
	 	 	 	Verge Media Companies, Inc.

15303 Ventura Boulevard, Suite 1500

Sherman Oaks, CA 91403

Attention: Chief Executive Officer

Fax: (818) 990-0930


	 
	 	 	 	with copies to:

	 
	 	 	 	Oaktree Capital Management, L.P.

333 S. Grand Ave., 28th Floor

Los Angeles, CA 90071

Attention: Andrew Salter

Fax: (213) 830-6394

	 
	 	 	 	and

	 
	 	 	 	Kirkland & Ellis LLP

300 North LaSalle

Chicago, IL 60654

Attention: Christopher J. Greeno, P.C.

Tana M. Ryan

Fax: (312) 862-2200

	 
	 	(iv)	 	If to the DG Shareholder:

	 
	 	 	 	Triton Media Group LLC

c/o Oaktree Capital Management, L.P.

333 S. Grand Ave., 28th Floor

Los Angeles, CA 90071

Attention: Andrew Salter

Fax: (213) 830-6394

	 
	 	 	 	with a copy to:

	 
	 	 	 	Kirkland & Ellis LLP

300 North LaSalle

Chicago, IL 60654

Attention: Christopher J. Greeno, P.C.

Tana M. Ryan

Fax: (312) 862-2200




 


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	 	(c)	 	This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or obligations
hereunder may be assigned by any of the parties hereto without the prior written
consent of the other parties hereto.







	 	(d)	 	This Agreement and all other agreements executed pursuant to the terms of this
Agreement will be governed by and construed in accordance with the laws of the State of
Delaware without reference to the choice of law principles thereof. The parties hereby
irrevocably and unconditionally submit to the exclusive jurisdiction of the Chancery
Court of Delaware and, in the absence of such jurisdiction, the United States District
Court for the District of Delaware, and, in the absence of such federal jurisdiction,
the parties consent to be subject to the exclusive jurisdiction of any Delaware state
court sitting in New Castle County and hereby waive the right to assert the lack of
personal or subject matter jurisdiction or improper venue in connection with any such
suit, action or other proceeding. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT SUCH PARTIES MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
ANY SUIT OR ACTION ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE). EACH PARTY HEREBY CERTIFIES
THAT NO OTHER PARTY HERETO NOR ANY OF THEIR REPRESENTATIVES HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THEY WOULD NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL.
FURTHER, EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTIES RELIED ON THIS WAIVER OF RIGHT
TO JURY TRIAL AS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT.







	 	(e)	 	This Agreement may be executed by the parties hereto individually or in any
combination, in counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same instrument. In the event that any
signature to this Agreement or any amendment hereto is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof. No party hereto shall raise the use of a
facsimile machine or e-mail delivery of a “.pdf” format data file to deliver a
signature to this Agreement or any amendment hereto or the fact that such signature was
transmitted or communicated through the use of a facsimile machine or e-mail delivery
of a “.pdf” format data file as a defense to the formation or enforceability of a
contract, and each party hereto forever waives any such defense.




 


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	 	(f)	 	If any provision or provisions of this Agreement or of any of the documents or
instruments delivered pursuant hereto, or any portion of any provision hereof or
thereof, shall be deemed invalid or unenforceable pursuant to a final determination of
any court of competent jurisdiction or as a result of future legislative action, then
such provision or portion thereof shall be construed to give effect to the parties’
intent regarding such provision or portion thereof to the maximum extent permitted by
applicable Law, and such determination or action shall be construed so as not to affect
the validity, enforceability or effect of any other portion hereof or thereof.







	 	(g)	 	With regard to all dates and time periods set forth or referred to in this
Agreement, time is of the essence.







	 	(h)	 	This Agreement, and the documents and instruments referred to herein, embody
the entire agreement and understanding of the parties hereto in respect of the subject
matter hereof and supersede all prior agreements and understandings between the parties
with respect to the subject matter hereof. There are no restrictions, promises,
representations, warranties, covenants or undertakings of the parties hereto in respect
of the subject matter hereof, other than those expressly set forth or referred to
herein or therein.






[Signature Pages Follow]



 


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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and date
first above written.



	 	 	 	 	 	 	 	 	 
	 	 	WESTWOOD ONE, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David Hillman	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	David Hillman	 	 
	 

	 	 	 	Title:
	 	CAO and GC	 	 






[Signature Page to Indemnity and Contribution Agreement]



 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	GORES RADIO HOLDINGS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By: THE GORES GROUP, LLC, its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jon Gimbel	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Jon Gimbel	 	 
	 

	 	 	 	Title:	 	Principal	 	 







Solely for the purpose of agreeing to the last sentence of Section 3(a):



	 	 	 	 	 	 	 	 	 
	 	 	GORES CAPITAL PARTNERS II, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	GORES CAPITAL ADVISORS II, LLC,	 	 
	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	THE GORES GROUP, LLC, its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jon Gimbel	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jon Gimbel	 	 
	 

	 	 	 	Title:	 	Principal	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	GORES CO-INVEST PARTNERSHIP II, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	GORES CAPITAL ADVISORS II, LLC,	 	 
	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	THE GORES GROUP, LLC, its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Jon Gimbel	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jon Gimbel	 	 
	 

	 	 	 	Title:	 	Principal	 	 






[Signature Page to Indemnity and Contribution Agreement]



 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	VERGE MEDIA COMPANIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David Quick	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	David Quick	 	 
	 

	 	 	 	Title:
	 	Assistant Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TRITON MEDIA GROUP, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David Quick	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	David Quick	 	 
	 

	 	 	 	Title:
	 	Assistant Secretary	 	 






[Signature Page to Indemnity and Contribution Agreement]