1
EXHIBIT 10.53(a)
FIRST AMENDMENT
This FIRST AMENDMENT TO ASSET AND STOCK PURCHASE AND OPTION GRANT
AGREEMENT ("First Amendment") is made and entered into as of February 27, 1998,
by and among ValueVision International, Inc., a Minnesota corporation
("ValueVision"); VVI Seattle, Inc., a Minnesota corporation ("VVI Seattle");
VVILPTV, Inc., a Minnesota corporation ("VVILP" and together with ValueVision
and VVI Seattle, the "Sellers" and each individually a "Seller"); VVI Spokane,
Inc., a Minnesota corporation ("VVI Spokane"); VVI Tallahassee, Inc., a
Minnesota corporation ("VVI Tallahassee"), and Xxxxxx Communications
Corporation, a Delaware corporation ("Buyer").
PRELIMINARY STATEMENT
WHEREAS, the parties hereto have entered into that certain Asset and Stock
Purchase and Option Grant Agreement (the "Purchase Agreement"), dated as of
November 14, 1997, pursuant to which and subject to the terms and conditions
thereof the Sellers desire to sell certain assets, shares, and an option to
Buyer, and Buyer desires to purchase such assets, shares and an option from
Sellers, for the consideration and on the terms and conditions therein provided;
WHEREAS, the parties now desire to make certain amendments and
modifications to the Purchase Agreement; and
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meaning set forth in the Purchase Agreement.
AGREEMENT
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, the parties hereto, intending to be
bound legally, agree that the Purchase Agreement shall be amended as follows:
1. Spokane Option and Spokane Option Shares. The parties hereto hereby
agree that ValueVision shall not sell to Buyer at Closing the VVI Spokane
Shares and the Spokane Option.
2. Purchase Price. The first sentence of Section 2.4(a) of the Purchase
Agreement shall be deleted in its entirety and replaced with the following:
"Subject to Sections 2.4(b), (c), (e) and (g) below, the aggregate
purchase price for the Assets, the VVI Tallahassee Shares, and the
Tallahassee Option (the "Purchase Price") shall be Thirty-Four Million
Four Hundred Eight-Four Thousand Dollars ($34,484,000), payable as
follows: (i) Twenty-Four Million Four Hundred Eight-Four Thousand
Dollars ($24,484,000) in cash by wire transfer of immediately available
funds at Closing, plus (ii) Ten Million Dollars ($10,000,000) in cash
by wire transfer within thirty (30) days of the earliest of (A) March 31,
1998, if Buyer shall not have filed the
2
301 Application on or before March 31, 1998, pursuant to Section 7.1(c);
(B) the date on which Buyer files or is required to File Form 302
(License Application) for Station KBGE-TV (the "302 Application"), as
provided in Section 7.1(f) below; or (C) the Improved Coverage Date (as
defined in Section 7.1(d))."
3. To reflect the amendment in Section 2 hereof, Schedule 2.4 to the
Purchase Agreement is hereby deleted and replaced with the Schedule 2.4
attached hereto.
4. Sections 2.4(d) and 2.4(f) of the Purchase Agreement is hereby
deleted in their entirety.
5. Section 3 of the Purchase Agreement is hereby deleted in its entirety
and replaced with the following:
3.1 Grant. ValueVision shall grant to Buyer at Closing the
Tallahassee Option to purchase the Tallahassee Option Shares.
3.2 Tallahassee Option Exercise. Buyer may exercise the Tallahassee
Option to purchase the Tallahassee Option Shares only by giving written
notice of ValueVision of its election to exercise the Tallahassee Option
(the "Notice of Election") no earlier than thirty (30) days after a
construction permit has been granted by the FCC (the "Construction
Permit") in connection with the Tallahassee Application (the "Tallahassee
Option Exercise Date") and no later than ninety (90) days after the
Tallahassee Option Exercise Date, as the same may be extended as set forth
below (the "Tallahassee Option Expiration Date") (the period during which
the Tallahassee Option is exercisable by Buyer shall be referred to herein
as the "Option Exercise Period"). Such Notice of Election shall be
accompanied by payment of One Hundred Thousand Dollars ($100,000) to
ValueVision in cash, by wire transfer of immediately available funds or by
certified or cashier's check. To the extent that Buyer is not permitted to
actually exercise the Tallahassee Option on the first day of the Option
Exercise Period pursuant to applicable FCC rules and regulations, the
Option Exercise Period shall begin on the first day on which Buyer is
permitted under applicable FCC rules and regulations to actually exercise
the Tallahassee Option and shall expire 90 days thereafter; provided,
however, that the $100,000 payment referred to above shall nevertheless be
paid no later than 120 days after the grant of the Construction Permit if
the Option Exercise Period is extended as provided above; and provided
further that in no event shall the Option Exercise Period be extended
beyond the original expiration date of the Construction Permit. If Buyer
shall not have timely exercised the Tallahassee Option on or before the
Tallahassee Option Expiration Date as such date may have been extended as
provided above or shall not have timely made the $100,000 payment as
provided above, the Tallahassee Option shall automatically be and become
null and void and of no further force or effect. Such notice shall specify
a date not more than thirty (30) days after any necessary FCC approval
shall have become a Final Order, on which the closing of the Tallahassee
Option shall occur and Buyer shall pay on such closing date to ValueVision
an amount of cash, by wire
2
3
transfer of immediately available funds, equal to the Exercise Price for
the Tallahassee Option.
3.3 Exercise Price. The Exercise Price for the Tallahassee Option
shall be the Fair Market Value of the Tallahassee Option Shares on the date
Buyer gives ValueVision written notice of its election to exercise the
Tallahassee Option.
3.4 Determination of Fair Market Value. The Fair Market Value of the
Tallahassee Option Shares shall be determined (a) by mutual agreement of
ValueVision and Buyer or (b) if no such agreement is reached within ten
(10) days of the relevant date of determination, by arbitration pursuant to
Section 13.3 of this Agreement.
6. The first sentence of Section 7.1(c) of the Purchase Agreement shall
be deleted in its entirety and replaced with the following:
"Buyer, at its sole expense, shall prepare and shall, on or before
March 31, 1998, file with the FCC a Form 301 construction permit
application for Station KBGE-TV (the "301 Application")."
7. Section 7.17 of the Purchase Agreement shall be amended to delete any
and all references to the Spokane Application, VVI Spokane, the VVI Spokane
Shares, and the Spokane Option.
8. Start of Programming. Subject to satisfaction of all of the terms and
conditions set forth in the Purchase Agreement, the Closing Date shall be
deemed to occur on February 27, 1998 for all purposes of the Purchase
Agreement, provided, however, that Buyer shall begin programming the Stations
at 12:01 a.m. on February 28, 1998 and up until such time, Sellers shall
continue to provide its programming to the Stations.
9. Section 13.4(a) shall be deleted in its entirety, inserting the
following in lieu thereof:
13.4 Benefits and Binding Effect. (a) No party may assign any of its
rights, interests or obligations under this Agreement without the prior
written consent of the other parties hereto, except that (i) without the
consent of any Seller, Buyer may assign its rights and interests (but not
its obligations) under this Agreement to a Qualified Intermediary, as such
term is defined under Treasury Regulation section 1.103(k)-I(g) for
purposes of effecting a like-kind exchange under section 1031 of the
Internal Revenue Code of 1986, as amended and applicable Treasury
Regulations, (ii) without the consent of any Seller, Buyer may collaterally
assign its rights, interests and obligations under this Agreement to its
lenders, (iii) without the consent of any Seller, Buyer may assign its
rights, interests and obligations under this Agreement to a wholly owned
subsidiary or subsidiaries of Buyer, and (iv) without the consent of Buyer,
any Seller may assign its rights, interests and obligations under this
Agreement to ValueVision in connection with the assignment of all its
assets and liabilities to ValueVision. If any Seller assigns all its assets
to the other or to ValueVision as contemplated by the preceding sentence
and, in
3
4
connection therewith, ValueVision assumes all obligations and liabilities
of such Seller under this Agreement, Buyer and Sellers agrees to amend this
Agreement so as to eliminate such Seller as a party hereto and to reflect
the assumption by ValueVision of all obligations and liabilities of Seller
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted
assigns. If Buyer assigns its rights, interests and obligations under this
Agreement to a wholly owned subsidiary or subsidiaries, Buyers shall
contemporaneously execute in writing a guarantee of such party's or
parties' obligations hereunder.
10. Miscellaneous.
a. Other Provisions. Except where inconsistent with the express terms of
this First Amendment, all provisions of the Purchase Agreement as originally
entered into shall remain in full force and effect.
b. Governing Law. This First Amendment shall be governed, construed, and
enforced in accordance with the laws of the State of Delaware (without regard
to the choice of law provisions thereof).
c. Rules of Construction. The rules of construction set forth in the
Purchase Agreement shall apply to this First Amendment.
d. Successors and Assigns. This First Amendment shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns.
e. Further Assurances. The parties shall take any actions and execute
any other documents that may be reasonably necessary or desirable to the
implementation and consummation of this First Amendment.
[SIGNATURE PAGES FOLLOW]
4
5
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Purchase Agreement to be executed on their behalf all as of the day and year
first above mentioned.
VALUEVISION INTERNATIONAL, INC.
By: ___________________________
Name: _________________________
Title: ________________________
VVI SEATTLE, INC.
By: ___________________________
Name: _________________________
Title: ________________________
VVILPTV, INC.
By: ___________________________
Name: _________________________
Title: ________________________
VVI SPOKANE, INC.
By: ___________________________
Name: _________________________
Title: ________________________
5
6
VVI TALLAHASSEE, INC.
By: ___________________________
Name: _________________________
Title: ________________________
XXXXXX COMMUNICATIONS
CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
6
