EXHIBIT 20
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
February 9, 2005, between GE Capital Equity Investments, Inc., a Delaware
corporation ("Seller"), and Delta Onshore, LP, Delta Institutional, LP and Delta
Pleiades, LP (each of which is a Delaware limited partnership) and Delta
Offshore, Ltd., a Cayman Islands exempted company(collectively, the "Purchaser"
or the "Purchasers").
WHEREAS, Seller is the beneficial owner of shares of common stock, par
value $0.01 per share (the "Common Stock"), of ValueVision Media, Inc., a
Minnesota corporation (the "Company"); and
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to
purchase from Seller, 2,000,000 shares of Common Stock (the "Shares") on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
Sale and Purchase of Shares
---------------------------
1.1 Sale and Purchase of Shares. At Closing (as defined below) and on
the terms set forth herein, Seller shall sell and deliver to Purchaser, and
Purchaser shall purchase and accept from Seller, all right, title, and interest
of Seller in and to the Shares, free and clear of all mortgages, liens, pledges,
security interests, charges, restrictions, and other encumbrances ("Liens"). The
closing of the purchase and sale of the Shares shall take place on February 15,
2005 at the offices of the Seller in New York City ("Closing").
1.2 Purchase Price. At Closing, Purchaser shall pay to Seller an
aggregate amount equal to $27,500,000 for the Shares (the "Purchase Price") by
wire transfer of immediately available funds to a bank account designated in
writing by Seller.
1.3 Deliveries. At Closing, (i) Seller shall deliver to Purchasers the
certificate or certificates evidencing the Shares (to be allocated among the
Purchasers in the amounts as designated in EXHIBIT C), together with stock
powers in the form of EXHIBIT A duly executed by Seller; and (ii) Purchaser
shall deliver (A) to Seller, the Purchase Price in accordance with Section 1.2
and (B) to Seller, the Company and NBC Universal, , Inc. ("NBC"), a Joinder (as
defined in Section 4.1 below) duly executed by Purchaser.
ARTICLE II
Representations and Warranties of Seller
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Seller hereby represents and warrants to Purchaser as follows:
2.1 Organization. Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
2.2 Authorization. Seller has the requisite corporate power to execute
and deliver this Agreement and to perform the transactions contemplated hereby
to be performed by it. The execution and delivery by Seller of this Agreement
and the performance by it of the transactions contemplated hereby to be
performed by it have been duly authorized by all necessary corporate action on
the part of Seller. This Agreement has been duly executed and delivered by the
duly authorized officer of Seller and, assuming the due execution and delivery
of this Agreement by Purchaser, constitutes a valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
2.3 Consents and Approvals. No consent, approval, waiver, order, or
authorization of, or registration, declaration, or filing with, or notice to,
any federal, state, or foreign court or governmental agency, authority, or body
or any instrumentality or political subdivision thereof ("Governmental Entity")
or any other person or entity, or (except for the consent provided herein)
pursuant to the terms of the Registration Rights Agreement, is required to be
obtained or made by Seller in connection with the execution and delivery of this
Agreement by Seller, the performance by Seller of the transactions contemplated
hereby to be performed by it, or the consummation of the transactions
contemplated hereby.
2.4 No Conflicts. The execution and delivery of this Agreement does
not, and neither the performance by Seller of the transactions contemplated
hereby to be performed by it, nor the consummation of the transactions
contemplated hereby, will, (i) conflict with the certificate of incorporation or
bylaws of Seller, (ii) conflict with, result in any violation of, or constitute
a default under any agreement to which Seller is a party, (iii) violate any
order, judgment, decree, writ, or injunction ("Order") of any Governmental
Entity applicable to Seller, (iv) violate any domestic or foreign law, statute,
rule, or regulation ("Law") applicable to Seller, or (v) conflict with the terms
and provisions of the Registration Rights Agreement.
2.5 Title to Shares. Seller is the record and beneficial owner of the
Shares, free and clear of all Liens except as set forth in a Shareholder
Agreement between the Seller and the Company (which agreement will not bind the
Purchaser). The delivery by Seller to Purchaser of the certificate or
certificates representing the Shares in accordance with this Agreement will vest
Purchaser with good and valid title to the Shares, free and clear of all Liens.
2.6 Exempt from Registration. Based in part on the representations of
the Purchaser contained in Section 3.5 and 3.6 of this Agreement, the sale of
the Shares hereunder is exempt from registration under the Securities Act of
1933, as amended (the "Securities Act").
2.7 Information. In the course of discussions relating to this
Agreement and the transaction contemplated hereby, Seller has not conveyed to
Purchaser any material non-public information in respect of the Company and/or
the Company's business, operations, pending transactions, financial condition,
results of operations, or prospects (collectively, "Non-Public Information").
ARTICLE III
Representations and Warranties of Purchaser
-------------------------------------------
Purchaser hereby represents and warrants to Seller as follows:
3.1 Organization. The Purchasers are organizations of the type referred
to in the first paragraph of this Agreement and are duly organized, validly
existing, and in good standing under the applicable laws of the jurisdictions
specified.
3.2 Authorization. Purchaser has the requisite power to execute and
deliver this Agreement and to perform the transactions contemplated hereby to be
performed by it. The execution and delivery by Purchaser of this Agreement and
the performance by it of the transactions contemplated hereby to be performed by
it have been duly authorized by all necessary action on the part of Purchaser.
This Agreement has been duly executed and delivered by a duly authorized officer
of Purchaser and, assuming the due execution and delivery of this Agreement by
Seller, constitutes a valid and binding obligation of Purchaser.
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3.3 Consents and Approvals. No consent, approval, waiver, order, or
authorization of, or registration, declaration, or filing with, or notice to,
any Governmental Entity is required to be obtained or made by Purchaser in
connection with the execution and delivery of this Agreement by Purchaser, the
performance by Purchaser of the transactions contemplated hereby to be performed
by it, or the consummation of the transactions contemplated hereby, provided
that a filing may be required under Section 13(d) of the Securities Exchange Act
of 1934.
3.4 No Conflicts. The execution and delivery of this Agreement does
not, and neither the performance by Purchaser of the transactions contemplated
hereby to be performed by it, nor the consummation of the transactions
contemplated hereby, will, (i) conflict with the Limited Partnership Agreements
or the Articles of Association, as applicable, of Purchaser, (ii) conflict with,
result in any violation of, or constitute a default under any agreement to which
Purchaser is a party, or (iii) violate any Order of any Governmental Entity or
any Law applicable to Purchaser.
3.5 Securities Law Matters. Purchaser understands and acknowledges that
the Shares have not been registered under the Securities Act, or the securities
laws of any state or foreign jurisdiction, and, unless so registered, may not be
offered, sold, transferred, or otherwise disposed of except pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and any applicable securities laws of any
state or foreign jurisdiction. Purchaser acknowledges that appropriate legends
restricting the transfer of the Shares as aforesaid shall be placed on the stock
certificates representing such Shares. Purchaser is an "accredited investor" (as
defined in Rule 501(a) of Regulation D under the Securities Act). Purchaser (i)
has knowledge and experience in financial and business matters such that it is
capable of evaluating the merits and risks of purchasing the Shares, and (ii) is
able to bear the economic risk of an investment in the Shares for an indefinite
period, including the risk of a complete loss of any such investment. The Shares
were not offered to Purchaser in any form of general solicitation or general
advertisement and Purchaser is acquiring the Shares for investment for its own
account, and not with a view to, or for sale in connection with, any
distribution thereof. Purchaser understands and acknowledges that Seller may be
deemed an "affiliate" of the Company (as defined in Rule 144(a)(1) under the
Securities Act).
3.6 Investigation. Purchaser believes that it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Shares. Purchaser further represents that it has had an opportunity
to ask questions and receive answers from officers and other personnel of the
Company regarding the Company, its business and financial condition. Purchaser
acknowledges that (i) it is a sophisticated financial institution engaged in the
business of assessing and assuming investment risks in respect of securities,
including securities such as the Shares and is hereby voluntarily assuming the
risks relating to the transactions contemplated hereby, (ii) it is fully
satisfied with the Purchase Price it is paying hereunder to Seller for the
Shares, (iii) Seller may in the future enter into discussions with holders of
the Company's common stock regarding the sale of all or a portion of its other
shares of the Company's Common Stock for consideration greater or lesser than or
different from the Purchase Price, and/or on terms and conditions different from
the terms and conditions set forth herein, (iv) Seller is consummating this
transaction with Purchaser in reliance on the Purchaser's acknowledgements and
representations contained in this Agreement and with Purchaser's understanding
and agreement that Seller is privy to Non-Public Information that may be
material to a reasonable investor, such as Purchaser, and has not been provided
to Purchaser by Seller or the Company, (v) Seller is under no duty or other
obligation to disclose any Non-Public Information to the Purchaser, and (vi) as
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of the date hereof, the Company has neither publicly announced its financial
results for the year ended January 31, 2005 nor filed its Annual Report on Form
10-K for such period. Purchaser hereby waives and releases to the fullest extent
permitted by applicable law any claim or potential claim it has or may have
against Seller or its officers, directors, stockholders, partners, successors,
and assigns, relating to any such person's possession of Non-Public Information.
ARTICLE IV
Registration Rights
-------------------
4.1 Joinder. Purchaser, by executing the "Registration Rights Agreement
Counterpart and Acknowledgement" attached as EXHIBIT B hereto (the "Joinder"),
shall, upon the consummation of the transactions contemplated hereby, be granted
registration rights to register the Shares under, and shall become a party and
considered a Holder for all intents and purposes (except as set forth in Section
4.2 below) pursuant to, the Registration Rights Agreement, dated April 15, 1999
(the "Registration Rights Agreement"), by and among the Company, Seller and NBC.
The registration rights granted under this Article IV shall apply only to the
Shares and any stock dividends with respect to the Shares and any shares issued
with regard to the Shares as part of any recapitalizations or stock splits and
not to any other shares or other security of the Company currently held or
hereinafter acquired or received by the Purchaser. The parties to the
Registration Rights Agreement (i) confirm to the Purchaser that said agreement
has not been amended and remains in full force and effect in accordance with its
terms and (ii) agree that said agreement shall not be amended in any way which
would have a material adverse effect on the rights of Purchaser under this
Agreement, without the prior written consent of Purchaser.
4.2 Demand Registration. Notwithstanding the provisions of Section 2(a)
of the Registration Rights Agreement, Seller and/or NBC shall have the right to
require the Company to effect up to four (4) Demand Registrations (as defined in
the Registration Rights Agreement) and Purchaser shall have the right to require
the Company to effect only one (1) Demand Registration.
4.3 Stock Certificate Legend. Promptly following the Closing, the
Company agrees to provide the Purchaser with stock certificates representing the
Shares such that the appropriate legends restricting the transfer of the Shares
shall not reference the Shareholder Agreement between the Seller and the
Company.
ARTICLE V
Miscellaneous
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5.1 Binding Effect. Except as otherwise expressly provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
5.2 Counterparts. This Agreement may be executed in multiple
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
5.3 Entire Agreement: Survival; Indemnity. This Agreement (including
the Exhibits attached hereto) constitutes the entire agreement of the parties
hereto in respect of the subject matter hereof, and supersedes all prior
agreements or understandings between the parties hereto in respect of the
subject matter hereof. The representations and warranties of the parties will
survive the Closing. Seller and Purchaser will each indemnify the other against
any loss, liability or expense arising out of any material breach of any of its
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representations and warranties in this Agreement, provided that total liability
under this indemnity will not exceed the Purchase Price A party intending to
make a claim under this indemnity will provide the other party with prompt
notice of its claim and, to the extent possible, the opportunity to defend and
dispose of the claim.
5.4 Expenses. Except as otherwise expressly provided in this Agreement,
each of Seller and Purchaser shall bear all of the expenses (including fees and
disbursements of its counsel) incurred by or on behalf of it in connection with
the preparation, negotiation, execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby.
5.5 Further Assurances. Each party hereto shall execute and deliver all
such further and additional instruments and agreements and shall take such
further and additional actions, as may be reasonably requested by the other
party in order to evidence or carry out the provisions of this Agreement or to
consummate the transactions contemplated hereby.
5.6 Governing Law. This Agreement shall be enforced, governed, and
construed in all respects in accordance with the laws of the State of New York
applicable to contracts made and performed in such State.
5.7 Jurisdiction; Venue. Any action, suit, or proceeding seeking to
enforce any provision of, or based on any matter arising out of or relating to,
this Agreement or the transactions contemplated hereby can be brought
exclusively in federal court sitting in the Southern District of New York or, if
such court does not have jurisdiction, any district court sitting in the Borough
of Manhattan, the County of New York, New York, and each of the parties hereto
hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such action, suit, or proceeding
and irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such action, suit, or proceeding in any such court or that any such action,
suit, or proceeding that is brought in any such court has been brought in an
inconvenient forum.
5.8 Notices. Any notice, request, demand, or other communication
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if sent by hand delivery, mail (first class,
certified mail, postage prepaid), facsimile, or overnight courier if to any
party hereto, at the address or facsimile number set forth below such party's
name on the signature pages hereto or to such other address or facsimile number
as such party shall have last designated by notice to the other parties hereto
in accordance with this Section. Notices sent by hand delivery shall be deemed
to have been given when received or delivery is refused; notices mailed in
accordance with this Section shall be deemed to have been given three days after
the date so mailed; notices sent by facsimile shall be deemed to have been given
when electronically confirmed; and notices sent by overnight courier shall be
deemed to have been given on the next business day after the date so sent.
5.9 Severability. If any provision of this Agreement or the application
of such provision to any person or circumstance shall be held by a court of
competent jurisdiction to be invalid, illegal, or unenforceable under the
applicable law of any jurisdiction, (i) the remainder of this Agreement or the
application of such provision to other persons or circumstances or in other
jurisdictions shall not be affected thereby, and (ii) such invalid, illegal, or
unenforceable provision shall not affect the validity or enforceability of any
other provision of this Agreement.
5.10 No Third-Party Beneficiaries. Nothing express or implied in this
Agreement, is intended or shall be construed to confer upon or give any person
other than the parties hereto and their respective successors and permitted
assigns any right, benefit, or remedy under or by reason of this Agreement.
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5.11 WAIVER OF TRIAL BY JURY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY
APPLICABLE LAW, EACH PARTY HERETO, HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, SUIT, OR PROCEEDING, DIRECTLY OR INDIRECTLY, AT ANY TIME ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
* * * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
SELLER:
GE CAPITAL EQUITY INVESTMENTS, INC.
By: Xxxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
Address: 000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
PURCHASERS:
Delta Onshore, LP Delta
Institutional, LP Delta
Pleiades, LP Delta
Offshore, Ltd.
By: Xxxxxxxx & Company, LLC, in its capacity
as Investment Manager to each of the above
listed Purchasers
By: Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Operating Officer
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Attention:
We hereby consent to the transactions contemplated by this Agreement and agree
to the provisions of Article IV of this Agreement.
VALUEVISION MEDIA, INC.
By: Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President and
General Counsel
NBC UNIVERSAL, INC.
By: Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
EXHIBIT A
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STOCK POWER
FOR VALUE RECEIVED, GE Capital Equity Investments, Inc., a Delaware
corporation, does hereby sell, assign, and transfer to Delta Onshore, LP, Delta
Institutional, LP and Delta Pleiades, LP (each of which is a Delaware limited
partnership) and Delta Offshore, Ltd., a Cayman Islands exempted company, an
aggregate of 2,000,000 shares of Common Stock, par value $0.01 per share (the
"Shares"), of ValueVision Media, Inc., a Minnesota corporation (the "Company"),
standing in its name on the books of the Company, represented by Certificate No.
___ herewith, and does hereby irrevocably constitute and appoint
__________________ attorney to transfer the Shares on the books of the Company
with full power of substitution in the premises.
Dated: February ___], 2005.
GE CAPITAL EQUITY INVESTMENTS, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
EXHIBIT B
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Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: ValueVision Media, Inc.
RE: The Registration Rights Agreement (the
"Agreement") dated as of April 15, 1999, by
and among the Company and the Holders (as
defined in the Agreement)
The undersigned hereby agrees to be bound by the terms of the Agreement as a
party to the Agreement, and shall be entitled to all benefits of the Holders (as
defined in the Agreement) (subject to the provisions of Section 4.2 of the Stock
Purchase Agreement, dated February [ ], 2005, between GE Capital Equity
Investments, Inc. and the undersigned) and shall be subject to all obligations
and restrictions of the Holders pursuant to the Agreement, as fully and
effectively as though the undersigned had executed a counterpart of the
Agreement together with the other parties to the Agreement. The undersigned
hereby acknowledges having received and reviewed a copy of the Agreement.
DATED this day of February, 2005
Delta Onshore, LP
Delta Institutional, LP
Delta Pleiades, LP
Delta Offshore, Ltd.
By: Xxxxxxxx & Company, LLC, in its capacity as
Investment Manager to each of the above listed
Purchasers
By:
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Operating Officer
Number of
Shares of
Registrable Securities: 2,000,000
EXHIBIT C
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Number of Shares
Delta Onshore, LP 138,900
c/x Xxxxxxxx & Company, LLC, as investment
manager
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Delta Institutional, LP 769,500
c/x Xxxxxxxx & Company, LLC, as investment
manager
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Delta Pleiades, LP 128,000
c/x Xxxxxxxx & Company, LLC, as investment
manager
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Delta Offshore, Ltd. 963,600
c/x Xxxxxxxx & Company, LLC, as investment
manager
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
