STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of January 26, 1996, by
and between Concept Communications, Inc., a Delaware corporation
("Concept"), and Allied Cellular Systems, Inc., a Delaware
corporation ("Allied").
WHEREAS, Concept desires to purchase from Allied, and Allied
desires to sell to Concept, 170,000 shares (the "Shares") of the
common stock of The Nostalgia Television Network, Inc.,
("Nostalgia"), par value $.04 per share (the "Nostalgia Stock"),
and grant to Concept options to purchase up to 1,000,000 shares
of Nostalgia Stock (the "Option Shares");
WHEREAS, Concept and Allied are entering into this Agreement
to provide for such purchase and sale and to establish various
rights and obligations in connection therewith; and
WHEREAS, Concept, Allied, M/A Burgers Inc. and Xxxxxxx X.
Xxxxxxx, as Trustee of the Bankruptcy Estate of Gold'N M
Television, Inc., a Delaware corporation, have entered into a
Settlement Agreement and Mutual Release, subject to Bankruptcy
Court approval (the "Bankruptcy Settlement Agreement").
NOW, THEREFORE, the parties hereto agree as follows:
1. Purchase of Stock and Certain Rights.
a. At the Closing, as defined below, Allied will
transfer to Concept the Shares and shall deliver to Concept good
and valid title to the Shares, free and clear of all encumbrances
and restrictions of any character or nature whatsoever, together
with (i) certificates for the Shares, (ii) fully executed stock
powers in the form of Exhibit A attached hereto relating to such
Shares' certificates, and (iii) all other instruments or notices
relating to the Shares as shall be necessary or appropriate to
effect the transfer and reissuance to Concept of the Shares.
b. At the Closing, Concept will deliver to Allied by
wire transfer or cashier's check one hundred fifty three thousand
dollars ($153,000).
c. At the Closing, Concept and Allied will execute an
option agreement in the form attached as Exhibit B.
d. The closing of the transaction contemplated herein
(the "Closing") shall take place at the offices of Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx at 10:00 a.m. on the fifth business
day after approval of the Bankruptcy Settlement Agreement by the
Bankruptcy Court for the Central District of California and the
Order approving the Settlement Agreement becomes a Final Order as
defined in the Bankruptcy Settlement Agreement or at such other
time and place as the parties may agree.
2. Representations and Warranties of Allied. Allied
hereby represents and warrants to Concept as follows:
a. Allied is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware.
b. This Agreement has been duly executed and
delivered by, and is binding and enforceable against Allied, in
accordance with its terms, except that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to the enforcement of creditors'
rights generally and by the application of general principles of
equity. The execution and delivery of this Agreement and other
documents contemplated hereby and the consummation of the
transactions contemplated hereby do not violate or constitute a
breach of or default under (whether after the giving of notice or
lapse of time or both) any provision of the charter, bylaws or
any governing or operating documents of Allied, any existing law
or regulation to which Allied or its respective properties are
subject, or any mortgage, indenture, security agreement,
contract, order, judgment, injunction, decree, license or other
agreement to which Allied is a party or by which it is bound.
c. Allied has the full, absolute and entire
authority, power and legal right to execute, deliver and perform
this Agreement and the other documents and agreements
contemplated hereby and to consummate the transactions
contemplated hereby. The consummation of the transactions
contemplated hereby (i) does not require the consent, approval or
authorization of, or registration, declaration or filing with,
any other affiliate of Allied or any third party, other than the
approval of the Bankruptcy Court which will have been obtained
prior to Closing; (ii) will not result in the creation or
imposition of any lien, charge, pledge, security interest or
other encumbrance upon any property of Allied; and (iii) is in
accordance with all federal and state securities laws.
d. The Shares, and all right, title and interest
therein, were transferred pursuant to a Bankruptcy Court Order
and are owned of record and beneficially by Allied, free and
clear of any option, call, contract, commitment, demand, lien,
charge, security interest, encumbrance or restriction of any kind
or nature whatsoever. Upon delivery of the Shares to Concept at
the Closing, Concept shall receive good and valid title to the
Shares free and clear of any and all option, call, contract,
commitment, demand, lien, charge, security interest, encumbrance
or restrictions of any kind or nature whatsoever.
e. No defaults or other breach by Allied has occurred
under or with respect to any documents referenced herein.
f. There are no brokerage or other commissions which
are payable in connection with the sale of the Shares.
g. Allied is solvent as of the date of Closing.
Accordingly, Allied currently has and has always had the ability
to pay its debts when due and the value of its current assets
exceeds the aggregate amount of its current liabilities. No
creditor of Allied has applied for a receiver, trustee or similar
officer with respect to substantially all of Allied's property
and neither Allied nor its creditors have instituted by petition,
application, answer, consent or otherwise any bankruptcy,
insolvency, reorganization arrangement, readjustment of debts,
liquidation, dissolution or similar proceeding relating to
Allied.
3. Representations and Warranties of Concept. Concept
hereby represents and warrants to Allied as follows:
a. Concept is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware.
b. This Agreement has been duly executed and
delivered by, and is binding and enforceable against, Concept in
accordance with its terms, except that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, or
other similar laws relating to the enforcement of creditors'
rights generally and by the application of general principles of
equity. The execution and delivery of this Agreement and the
other agreements and documents contemplated hereby and the
consummation of the transactions contemplated hereby do not
violate or constitute a breach of or default under (whether after
the giving of notice or lapse of time or both) any provision of
the charter, bylaws or any governing or operating documents of
Concept, respectively, any existing law or regulation to which
Concept or its properties are subject, or any mortgage,
indenture, security agreement, contract, order, judgment,
injunction, decree, license or other agreement to which Concept
is a party or by which it is bound.
c. Concept has the full, absolute and entire
authority, power and legal right to execute, deliver and perform
this Agreement and the other documents and agreements
contemplated hereby and to consummate the transactions
contemplated hereby. The consummation of the transactions
contemplated hereby (i) does not require the consent, approval or
authorization of, or registration, declaration or filing with,
any shareholder of Concept or any third party (other than
approval of the Bankruptcy Court and the filing of an amendment
to its Schedule 13D); and (ii) will not result in a creation or
imposition of any lien, charge, pledge, security interest or
other encumbrance upon any property of Concept.
d. The purchase of the Shares is for investment
purposes only and Concept has no present intention to distribute
the Shares.
4. Conditions to Closing. The obligations of Concept and
Allied to consummate the transactions contemplated by this
Agreement are each subject to the following conditions:
a. Approval of the Bankruptcy Settlement Agreement by
the Bankruptcy Court of the Central District of California and
such order approving the Bankruptcy Settlement Agreement has
become a Final Order as that term is defined in the Bankruptcy
Settlement Agreement.
b. The representations and warranties of the other
party hereto are true in all material respects as if made at the
date of Closing.
c. All covenants of the other party hereto have been
complied with in all material respects.
d. No injunction has been imposed against the
consummation of this transaction.
5. Survival of Representations and Warranties. The
representations and warranties made by Allied and Concept under
this Agreement shall survive the Closing.
6. Further Assurances. Each of the parties hereby
covenants and agrees that, at any time, and from time to time
after the date hereof, it shall execute, or cause to be executed,
such additional documents and instruments (including but not
limited to a factual certificate of the Record Owner) and take,
or cause to be taken, such action as may be reasonably requested
by the other party hereto to confirm or otherwise evidence the
transfer of the Shares being sold hereunder or to otherwise carry
out the intent and purposes of this Agreement. Concept and
Allied agree to coordinate with one another on any public
statements or filings made regarding the transactions which are
the subject of this Agreement.
7. Miscellaneous Provisions.
a. Burden and Benefit. This Agreement shall be
binding upon, and shall inure to the benefit of, each of the
parties, and their respective personal and legal representatives,
successors and assigns.
b. Governing Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of
California, without regard to its principles of conflict of laws.
c. Severability. The provisions of this Agreement
shall be deemed severable, and the invalidity or unenforceability
of any one or more of the provisions hereof shall not affect the
validity or enforceability of the other provisions hereof.
Moreover, to the extent that the enforcement of any provision of
the Agreement may be governed by its "reasonableness," if any
such provision is found unenforceable as provided for herein,
such provision shall be deemed amended so as to permit its
enforcement to the extent deemed reasonable.
d. Entire Agreement. This Agreement and the
agreements contemplated hereby contain the entire Agreements and
understandings by and between the parties hereto with respect to
the matter set forth herein. No change or modification hereof
shall be valid or binding unless the same is in writing and
signed by the parties hereto. No waiver of any provision of this
Agreement shall be valid unless the same is in writing and signed
by the party against whom such waiver is sought to be enforced;
moreover, no valid waiver of any provision of this Agreement
shall be deemed a valid waiver of any other provision of this
Agreement at such time nor will it be deemed valid waiver of such
provision at any other time. No failure by either party to
exercise, and no delay by either party in exercising any right,
power or remedy with respect to the obligations and covenants set
forth herein, shall operate as a waiver of any such right, power
or remedy. Any and all previous agreements between the parties
hereto are superseded hereby except for the provisions in the
Settlement Agreement.
e. Headings. The headings contained herein are for
convenience of reference only and shall not be used in
interpreting, construing or enforcing any of the provisions of
this Agreement.
f. Counterparts. This Agreement may be executed in
counterparts, which together shall be deemed to constitute one
valid and binding agreement.
g. Interpretation. Should any provision of this
Agreement require judicial interpretation, it is agreed that the
court interpreting or considering such provision shall not apply
any presumption that the terms hereof shall be more strictly
construed against the party who itself or through its agent
prepared the same, it being agreed that all parties hereto have
participated in the preparation of this Agreement and that legal
counsel was consulted by each party in connection with the
preparation and execution of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as of the day and year first above written.
CONCEPT COMMUNICATIONS, INC.
By: /s/ XXXX XXXX JOO
Name: Xxxx Xxxx Joo
Title: President
ALLIED CELLULAR SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXXX
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
Exhibit A
STOCK POWER
ASSIGNMENT SEPARATE FROM CERTIFICATE
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto Concept Communications, Inc., an aggregate of
( ) share[s] of the Common Stock of The Nostalgia Network,
Inc., standing in the undersigned's name on the books of said
corporation represented by Certificate No. [ ] delivered
herewith, and does hereby irrevocably constitute
___________________________ as attorney-in-fact, with full power
of substitution, to transfer said stock on the books of said
corporation.
Dated: [COMPANY NAME]
_________________________
Name:
Title:
Exhibit B
OPTION AGREEMENT
AGREEMENT, dated ___________, 199[5], between Concept
Communications, Inc., a Delaware corporation ("Concept") , and
Allied Cellular Systems, Inc., a Delaware corporation ("Allied").
WHEREAS, Concept and Allied are parties to a stock purchase
("Stock Purchase") agreement ("Stock Purchase Agreement"), dated
January 26, 1996, set to close on the fifth day after approval of
the Stock Purchase by the Bankruptcy Court for the Central
District of California (the "Closing");
WHEREAS, the Stock Purchase Agreement provides for
execution of this option agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable
consideration the receipt and sufficiency which are hereby
acknowledged, the parties do hereby agree as follows:
1. Option Grant to Concept.
a. Concept is hereby granted the option to purchase
from Allied, subject to and under the terms and conditions set
forth in this Agreement, all or any part of 1,000,000 shares (the
"Option Shares") of common stock, par value $.04 per share of
Nostalgia Television Network, Inc., ("Nostalgia Stock"), at the
following exercise prices ("Concept Option"):
Time Period Exercise Price per Option Share
[Closing], 199[5] to [6 months $ .90
from Closing], 199[6]
[6 months from Closing], 199[6] $1.00
to [12 months from Closing], 199[6]
[12 months from Closing], 199[6] $1.10
to [18 months from Closing], 199[7]
b. This option shall be exercisable by written notice
(the "Concept Option Exercise Notice") of Concept to Allied.
Concept may purchase all or any part of the Option Shares (but
not fractions of an Option Share), at such time or times as it
may desire, until eighteen months after the date hereof, and any
shares not purchased on or before such date may not thereafter be
purchased hereunder.
c. The Concept Option may only be exercised by
Concept against Allied and not against any other person to which
the Option Shares are transferred during the period of eighteen
months after the date hereof.
2. Option Grant to Allied.
a. Concept hereby grants Allied the option to require
Concept to purchase any Option Shares not purchased pursuant to
the Concept Option at an exercise price of $1.20 per share for a
six month period commencing eighteen months after the date hereof
("Allied Option"). The Allied Option is not transferable.
b. This option shall be exercisable by written notice
(the "Allied Option Exercise Notice") of Allied to Concept.
c. The Allied Option may only be exercised by Allied
against Concept. Any transferee acquiring the Option Shares does
not acquire any right to exercise the Allied Option.
3. Purchase of Option Shares under Concept Option and
Allied Option.
a. Nostalgia Stock purchased pursuant to this
Agreement (the "Shares") shall be paid for in full by wire
transfer or cashier's check at the Option Shares Closing, as
defined below. Upon receipt of a Concept Option Exercise Notice
or Allied Option Exercise Notice, at the Option Shares Closing,
Allied will transfer to Concept the Shares and shall deliver to
Concept good and valid title to the Shares, free and clear of all
encumbrances and restrictions of any character or nature
whatsoever, together with (i) certificates for the Shares, (ii)
fully executed stock powers in the form of Exhibit 1 attached
hereto relating to such Shares' certificates, and (iii) all other
instruments or notices relating to the Shares as shall be
necessary or appropriate to effect the transfer and reissuance to
Concept of the Shares.
b. Each closing of the purchase of Nostalgia Stock
pursuant to this Agreement (an "Option Shares Closing") shall
take place at the offices of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx at 10:00 a.m. on the tenth business day after receipt of
a Concept Option Exercise Notice or Allied Option Exercise Notice
or at such other time and place as the parties may agree.
4. Proxy Grant to Concept. Allied hereby grants Concept
an irrevocable proxy to vote the Option Shares on all matters
submitted to the vote of Nostalgia stockholders until the
expiration of the option granted to Allied. The parties agree
that this proxy is coupled with an interest. The form of the
proxy is attached hereto as Exhibit 2.
5. Representations and Warranties of Allied. Allied
hereby represents and warrants to Concept as follows:
a. Allied is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware.
b. This Agreement has been duly executed and
delivered by, and is binding and enforceable against, Allied in
accordance with its terms, except that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to the enforcement of creditors'
rights generally and by the application of general principles of
equity. The execution and delivery of this Agreement and other
documents contemplated hereby and the consummation of the
transactions contemplated hereby do not violate or constitute a
breach of or default under (whether after the giving of notice or
lapse of time or both) any provision of the charter, bylaws or
any governing or operating documents of Allied, any existing law
or regulation to which Allied or its respective properties are
subject, or any mortgage, indenture, security agreement,
contract, order, judgment, injunction, decree, license or other
agreement to which Allied is a party or by which it is bound.
c. Allied has the full, absolute and entire
authority, power and legal right to execute, deliver and perform
this Agreement and the other documents and agreements
contemplated hereby and to consummate the transactions
contemplated hereby. The consummation of the transactions
contemplated hereby (i) does not require the consent, approval or
authorization of, or registration, declaration or filing with,
any other affiliate of Allied or any third party (including any
governmental authority); (ii) will not result in the creation or
imposition of any lien, charge, pledge, security interest or
other encumbrance upon any property of Allied; and (iii) is in
accordance with all federal and state securities laws.
d. The Shares, and all right, title and interest
therein, are owned of record and beneficially by Allied, free and
clear of any option, call, contract, commitment, demand, lien,
charge, security interest, encumbrance or restriction of any kind
or nature whatsoever. Upon delivery of the Shares to Concept at
the Option Shares Closing, Concept shall receive good and valid
title to the Shares free and clear of any and all option, call,
contract, commitment, demand, lien, charge, security interest,
encumbrance or restrictions of any kind or nature whatsoever.
e. No defaults or other breach by Allied has occurred
under or with respect to any documents referenced herein.
f. There are no brokerage or other commissions which
are payable in connection with the sale of the Shares.
g. Allied is solvent as of the date of the Option
Shares Closing. Accordingly, Allied currently has and has always
had the ability to pay its debts when due and the value of its
current assets exceeds the aggregate amount of its current
liabilities. No creditor of Allied has applied for a receiver,
trustee or similar officer with respect to substantially all of
Allied's property and neither Allied nor its creditors have
instituted by petition, application, answer, consent or otherwise
any bankruptcy, insolvency, reorganization arrangement,
readjustment of debts, liquidation, dissolution or similar
proceeding relating to Allied.
6. Representations and Warranties of Concept. Concept
hereby represents and warrants to Allied as follows:
a. Concept is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware.
b. This Agreement has been duly executed and
delivered by, and is binding and enforceable against, Concept in
accordance with its terms, except that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, or
other similar laws relating to the enforcement of creditors'
rights generally and by the application of general principles of
equity. The execution and delivery of this Agreement and the
other agreements and documents contemplated hereby and the
consummation of the transactions contemplated hereby do not
violate or constitute a breach of or default under (whether after
the giving of notice or lapse of time or both) any provision of
the charter, bylaws or any governing or operating documents of
Concept, respectively, any existing law or regulation to which
Concept or its properties are subject, or any mortgage,
indenture, security agreement, contract, order, judgment,
injunction, decree, license or other agreement to which Concept
is a party or by which it is bound.
c. Concept has the full, absolute and entire
authority, power and legal right to execute, deliver and perform
this Agreement and the other documents and agreements
contemplated hereby and to consummate the transactions
contemplated hereby. The consummation of the transactions
contemplated hereby (i) does not require the consent, approval or
authorization of, or registration, declaration or filing with,
any shareholder of Concept or any third party (including any
governmental authority except for the filing of an amendment to
Schedule 13D); and (ii) will not result in a creation or
imposition of any lien, charge, pledge, security interest or
other encumbrance upon any property of Concept.
d. The purchase of the Shares is for investment
purposes only and Concept has no present intention to distribute
the Shares.
7. Survival of Representations and Warranties. The
representations and warranties made by Allied and Concept under
this Agreement shall survive indefinitely.
8. Further Assurances. Each of the parties hereby
covenants and agrees that, at any time, and from time to time
after the date hereof, it shall execute, or cause to be executed,
such additional documents and instruments and take, or cause to
be taken, such action as may be reasonably requested by the other
party hereto to confirm or otherwise evidence the transfer of the
Shares being sold hereunder or to otherwise carry out the intent
and purposes of this Agreement. Concept and Allied agree to
coordinate with one another on any public statements or filings
made regarding the transactions which are the subject of this
Agreement.
9. Miscellaneous Provisions.
a. Burden and Benefit. This Agreement shall be
binding upon, and shall inure to the benefit of, each of the
parties, and their respective personal and legal representatives,
successors and assigns.
b. Governing Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of
California, without regard to its principles of conflicts of
laws.
c. Severability. The provisions of this Agreement
shall be deemed severable, and the invalidity or unenforceability
of any one or more of the provisions hereof shall not effect the
validity or enforceability of the other provisions hereof.
Moreover, to the extent that the enforcement of any provision of
the Agreement may be governed by its "reasonableness," if any
such provision is found unenforceable as provided for herein,
such provision shall be deemed amended so as to permit its
enforcement to the extent deemed reasonable.
d. Entire Agreement. This Agreement and the
agreements contemplated hereby contain the entire agreements and
understandings by and between the parties hereto with respect to
the matter set forth herein. No change or modification hereof
shall be valid or binding unless the same is in writing and
signed by the parties hereto. No waiver of any provision of this
Agreement shall be valid unless the same is in writing and signed
by the party against whom such waiver is sought to be enforced;
moreover, no valid waiver of any provision of this Agreement
shall be deemed a valid waiver of any other provision of this
Agreement at such time nor will it be deemed valid waiver of such
provision at any other time. No failure by either party to
exercise (except for the specific right to exercise the Concept
Option or Allied Option), and no delay by either party in
exercising any right, power or remedy with respect to the
obligations and covenants set forth herein, shall operate as a
waiver of any such right, power or remedy. Any and all previous
agreements between the parties hereto are superseded hereby
except for the rights and releases contained in the Settlement
Agreement.
e. Headings. The headings contained herein are for
convenience of reference only and shall not be used in
interpreting, construing or enforcing any of the provisions of
this Agreement.
f. Counterparts. This Agreement may be executed in
counterparts, which together shall be deemed to constitute one
valid and binding agreement.
g. Interpretation. Should any provision of this
Agreement require judicial interpretation, it is agreed that the
court interpreting or considering such provision shall not apply
any presumption that the terms hereof shall be more strictly
construed against the party who itself or through its agent
prepared the same, it being agreed that all parties hereto have
participated in the preparation of this Agreement and that legal
counsel was consulted by each party in connection with the
corporation and execution of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as of the day and year first above written.
CONCEPT COMMUNICATIONS, INC.
By:
Name: Xxxx Xxxx Joo
Title: President
ALLIED CELLULAR SYSTEMS, INC.
By:
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
Exhibit 1
STOCK POWER
ASSIGNMENT SEPARATE FROM CERTIFICATE
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto Concept Communications, Inc., an aggregate of
( ) share[s] of the Common Stock of The Nostalgia Network,
Inc., standing in the undersigned's name on the books of said
corporation represented by Certificate No. [ ] delivered
herewith, and does hereby irrevocably constitute
___________________________ as attorney-in-fact, with full power
of substitution, to transfer said stock on the books of said
corporation.
Dated: [COMPANY NAME]
_______________________________
Name:
Title:
Exhibit 2
FORM OF PROXY
The undersigned hereby irrevocably constitutes and appoints
Concept Communications, Inc. ("Concept"), the attorneys and
proxies of the undersigned, each with full power of substitution,
to vote, to the extent permitted by law, in such manner as each
such attorney and proxy or its substitute shall in its sole
discretion deem proper, and otherwise act (including pursuant to
written consent) with respect to all of the 1,000,000 shares of
common stock, par value $.04 per share, of The Nostalgia Network,
Inc. (the "Company") (the "Shares") (and any and all other shares
or securities issued or issuable in respect thereof on or after
the date hereof) which the undersigned or nominees of the
undersigned would be entitled to vote at any meeting of
stockholders (whether annual or special and whether or not an
adjourned meeting) of the Company, or consent in lieu of any such
meeting, or otherwise. This proxy is irrevocable (and coupled
with an interest pursuant to an Option Agreement dated as of
December __, 1995 (the "Agreement") between the undersigned and
the Company). This proxy shall be deemed immediately revoked
with respect to any Shares sold by the undersigned (whether sold
to Concept or on the open market) on the date of closing with
respect to the sale of said Shares. With respect to any Shares
as to which this proxy has not been revoked pursuant to the
immediately preceding sentence, this proxy shall be deemed
immediately revoked with respect to said Shares eighteen (18)
months following the first purchase of Shares by Concept pursuant
to the Stock Purchase Agreement dated as of December ___, 1995.
Dated as of _____________, 1995.
_________________________
Signature
