WARRANT PURCHASE AGREEMENT
Exhibit
10.3
THIS
WARRANT PURCHASE AGREEMENT (the “Agreement”) is made as of the 24th day of June
2008, by and between Equity Media Holdings Corporation, a Delaware corporation
(“Company”), and Xxxxx Communications, LLC, a Tennessee limited liability
company (“Investor”).
WITNESSETH:
WHEREAS,
the Company proposes to sell warrants (“Warrants”) to purchase up to an
aggregate of 8,050,000 shares of the Company’s common stock, par value $0.0001
per share (the “Common Shares”) in a private placement (the “Warrant Purchase”)
to the Investor;
WHEREAS,
the Company and the Investor are executing and delivering this Agreement
in
reliance upon the exemption from securities registration afforded by Section
4(2) of the Securities Act of 1933, as amended (“Securities Act”), as
promulgated under the Securities Act;
WHEREAS,
concurrently with the consummation of the Offering, the Investor and the
Company
and certain subsidiaries of the Company are entering into a stock purchase
agreement (“RPSI Purchase Agreement”) by which the Investor is purchasing (the
“RPSI Purchase”) all of the outstanding shares common stock of Retro Programming
Services, Inc., a subsidiary of the Company; and
WHEREAS,
concurrently with the consummation of the Offering, the Investor and certain
subsidiaries of the Company are entering into a station purchase agreement
(“Stations Purchase Agreement”) by which the Investor will acquire, upon receipt
of necessary approvals, including those from the Federal Communications
Commission, certain broadcast television stations (“Stations
Purchase”).
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
in
this Agreement, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties do hereby agree
as
follows:
1. Warrant
Purchase.
Subject
to the terms and conditions of this Agreement, the Investor hereby purchases
from the Company, and the Company hereby issues and sells to the Investor,
8,050,000 Warrants for an aggregate purchase price of $1.5 million (“Purchase
Price”). The form of Warrant is attached as Exhibit
A
hereto.
Each Warrant is exercisable through September 7, 2009 for the purchase of
one
Common Share for $1.10.
2. Closing.
The
Warrant Purchase is being consummated concurrently with the execution of
this
Agreement (“Closing”) at the offices of Xxxxxxxx Xxxxxx, The Chrysler Building,
000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the date first
written above. Accordingly, (a) certificates evidencing the Warrants are
being
delivered to the Investor by the Company, and (b) the Purchase Price is being
paid and delivered by the Investor via wire transfer to the Company. The
Company’s wiring instructions are set forth on Exhibit
B
hereto.
3. Representations,
Warranties and Covenants of the Company.
The
Company hereby makes the following representations, warranties and covenants
to
the Investor as of the date hereof:
3.1 Organization,
Organizational Documents.
(a) The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, and has all requisite corporate
power
and authority to carry on its business as now conducted. The Company is duly
qualified and is in good standing in each jurisdiction in which the failure
to
so qualify would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the business, assets, properties,
rights
and results of operations of the Company and its subsidiaries taken as a
whole
(“Material Adverse Effect”).
(b) Complete
and correct copies of the Amended and Restated Certificate of Incorporation
and
the By-laws of the Company, including all amendments thereto, each as in
effect
on the date hereof (collectively, the “Organizational Documents”) have
previously been delivered to the Investor and Investor acknowledges receipt
of
same. No amendments, revisions or waivers of any provisions of any
Organizational Documents are in the process of occurring or otherwise have
been
requested.
3.2 Authorization.
All
corporate action on the part of the Company, its officers, directors, and
shareholders necessary for the (a) authorization, execution, issuance and/or
delivery of (i) this Agreement and (ii) the Warrants (this Agreement and
the
Warrants are hereinafter collectively referred to as the “Transaction
Documents”) and (b) the performance of all obligations of the Company hereunder
and thereunder has been taken. The Transaction Documents constitute valid
and
legally binding obligations of the Company, enforceable against the Company
in
accordance with their respective terms, except (1) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance,
fraudulent transfer and other laws of general application affecting enforcement
of creditors’ rights generally, (2) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies, and (3) to the extent the indemnification and contribution provisions
contained in the Transaction Documents may be limited by applicable federal
or
state laws.
3.3 No
Conflict.
The
execution and delivery by the Company of this Agreement and the other
Transaction Documents, its consummation of the transactions contemplated
hereby
and thereby, and its compliance with the provisions hereof and thereof, will
not
(i) violate or conflict with any of the Organizational Documents, (ii) violate,
conflict with, result in a breach of, constitute a default under, or give
rise
to any right of termination, cancellation, or acceleration (with or without
notice or lapse of time, or both) under any material agreement, lease, security,
license, permit, or instrument to which the Company is a party, or to which
it
or its material assets or businesses are subject, (iii) result in the imposition
of any Encumbrance (as hereinafter defined) on any material asset of the
Company
or (iv) violate or conflict with any Laws (as hereinafter defined) applicable
to
the Company or its properties or assets, except in each case for such
violations, conflicts and Encumbrances which would not reasonably be expected
to
have, either individually or in the aggregate, a Material Adverse Effect.
For
purposes of this Agreement, “Encumbrance” means any security interest, mortgage,
lien, pledge, charge, easement, reservation, equities, rights of way, options,
rights of first refusal and any other encumbrances, whether or not relating
to
the extension of credit or the borrowing of money. For purposes of this
Agreement, “Laws” means all laws, statutes, rules, regulations, ordinances,
bylaws, writs, permits, orders and other legislative, administrative or judicial
restrictions.
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3.4 Capitalization.
The
numbers of all authorized, issued and outstanding shares of capital stock
of the
Company are set forth on Schedule
3.4
hereto.
No holder of the Company’s securities is entitled to preemptive or similar
rights with respect to the Company’s securities. Except as disclosed in
Schedule
3.4
and as
contemplated by the Transaction Documents, there are no (i) outstanding
securities exercisable or convertible into securities of the Company, (ii)
other
outstanding options, warrants, script rights, calls, commitments or similar
rights or obligations relating to the Company’s securities, (iii) any other
agreements, contracts, commitments or understandings giving any person any
right
to subscribe for or acquire any of the Company’s securities, or (iv) any other
agreements, contracts, commitments or understandings by which the Company
is or
may become bound to issue any of its securities.
3.5 Valid
Issuance of Warrants; Underlying Securities.
(a) The
Warrants, when issued, sold, and delivered in accordance with the terms of
this
Agreement, will be duly and validly issued, and, based in part upon the
representations of the Investor in this Agreement, will be issued in compliance
with all applicable federal and state securities laws.
(b) Upon
issuance in accordance with the terms of the Common Shares underlying the
Warrants (“Underlying Securities”) shall be duly and validly issued, fully paid
and nonassessable, and issued in compliance with all applicable Laws, as
presently in effect.
3.6 Filings,
Consents and Approvals.
The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other person
in
connection with the execution, delivery and performance by the Company of
the
Transaction Documents, other than (a) a Form D in accordance with Regulation
D,
(b) a Current Report on Form 8-K disclosing the sale of unregistered securities
and any other event of which disclosure is required, (c) applicable Blue
Sky
filings, (d) the consent of the lenders under the Company’s existing credit
facilities, which consent has been obtained and is in full force and effect
as
of the date hereof, and (e) where the failure to obtain such consent, waiver,
authorization or order, or to give such notice or make such filing or
registration would not reasonably be expected to have, either individually
or in
the aggregate, a Material Adverse Effect.
3.7 Current
in SEC Filings.
The
Company has filed, in a timely fashion with the Securities and Exchange
Commission (the “SEC”), and is current with respect to such filings, all
reports, information statements, forms, correspondences and schedules required
to be filed by it pursuant to (i) Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, amended (“Exchange Act”), (ii) the applicable rules and
regulations thereunder, and (iii) any comments requiring or requesting a
response, directed to the Company by the SEC, and since April 1, 2007, has
maintained full compliance with the current public information requirements
of
Rule 144 and Rule 144A promulgated under the Securities Act or any similar
successor to such rule.
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4. Representations
and Warranties of the Investor.
The
Investor hereby represents and warrants to the Company as of the date hereof
that:
4.1 Organization.
The
Investor is a limited liability company duly organized, validly existing,
and in
good standing under the laws of the State of Tennessee, and has all requisite
corporate power and authority to carry on its business as now conducted.
The
Investor is duly qualified and is in good standing in each jurisdiction in
which
the failure to so qualify would not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the business, assets,
properties, rights and results of operations of the Investor taken as a whole
(“Investor Material Adverse Effect”).
4.2 Authorization.
All
company action on the part of the Investor, its officers, directors, and
members
necessary for the authorization, execution, issuance and/or delivery of the
Transaction Documents and the performance of all obligations of the Investor
hereunder and thereunder has been taken. The Transaction Documents constitute
valid and legally binding obligations of the Investor, enforceable against
the
Investor in accordance with their respective terms, except (1) as limited
by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other laws of general application affecting
enforcement of creditors’ rights generally, (2) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies, and (3) to the extent the indemnification and contribution provisions
contained in the Transaction Documents may be limited by applicable federal
or
state laws.
4.3 No
Conflict.
The
execution and delivery by the Investor of this Agreement and the other
Transaction Documents, its consummation of the transactions contemplated
hereby
and thereby, and its compliance with the provisions hereof and thereof, will
not
(i) violate or conflict with any of the articles of organization or operating
agreement or similar charter documents of the Investor, (ii) violate, conflict
with, result in a breach of, constitute a default under, or give rise to
any
right of termination, cancellation, or acceleration (with or without notice
or
lapse of time, or both) under any material agreement, lease, security, license,
permit, or instrument to which the Investor is a party, or to which it or
its
material assets or businesses are subject, (iii) result in the imposition
of any
Encumbrance on any material asset of the Investor or (iv) violate or conflict
with any Laws applicable to the Investor or its properties or assets, except
in
each case for such violations, conflicts and Encumbrances which would not
reasonably be expected to have, either individually or in the aggregate,
an
Investor Material Adverse Effect.
4.4 Certain
Relationships.
Other
than Xxxxx X. Xxxxx, III, the manager of the Investor and formerly the chairman
of the board and chief executive officer of the Company, no member, manager,
officer, employee or affiliate of, or consultant to, the Investor is or has been
a director, officer, or employee of, or consultant to the Company. Other
than
Xx. Xxxxx, no member, manager, officer, employee or affiliate of the Investor
has had any prior business dealings or relationships, including but not limited
to, partnerships, co-investment relationships or employee-employer relationships
with any of Xxxxxx Xxxxxx, Xxx Xxxxxxxx or Xxxxxxx Xxxxxx, the three persons
who
comprised the Company’s special committee in connection with the RPSI Purchase,
the Stations Purchase and this Warrant Purchase.
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4.5 Purchase
Entirely for Own Account.
The
Warrants and Underlying Securities will be acquired for investment for the
Investor’s own account and not with a view to the resale or distribution of any
part thereof.
4.6 No
Public Market.
The
Investor understands that no public market now exists for the Warrants and
that
the Company has made no assurances that a public market will ever exist for
such
securities. The Investor has substantial experience in evaluating and investing
in private placement transactions of securities in companies in similar stages
as the Company so that it is capable of evaluating the merits and risks of
its
investment in the Company and has the capacity to protect its own interests
and
bear the risk of the investment in the Company.
4.7 Disclosure
of Information.
The
Investor acknowledges that its manager, Xxxxx Xxxxx, in his prior role as
Chairman of the Board, Chief Executive Officer and a member of the board
of
directors of the Company, has had access to all material information relating
to
the Company and its subsidiaries and their respective and combined operations,
financial results and financial condition. In addition, the Investor has
been
given an opportunity to request and has received and reviewed any and all
additional information it deems appropriate and necessary to make the investment
contemplated by this Agreement. The Investor acknowledges that it has received
all the information that it has requested relating to the purchase of the
Warrants. The Investor further represents that it has had an opportunity
to ask
questions and receive answers from the management of the Company regarding
the
Company’s current operations, assets and financial results and terms and
conditions of the Warrant Purchase.
4.8 Accredited
Investor.
The
Investor is an “accredited investor” within the meaning of Rule 501 of
Regulation D under the Securities Act, as presently in effect, and such
Investor, as an entity, is comprised entirely of equity owners that are
accredited investors.
4.9 Restricted
Securities.
The
Investor understands that the Warrants and Underlying Securities are
characterized as “restricted securities” under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act,
only in certain limited circumstances. In this connection, each Investor
represents that it is familiar with Rule 144 under the Securities Act, as
presently in effect, and understands the resale limitations imposed thereby
and
by the Securities Act.
4.10 Legends.
It is
understood that the certificates evidencing the Warrants (and Underlying
Securities) may bear the following (or substantially similar)
legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE, AND THE SHARES OF COMMON STOCK
UNDERLYING SUCH SECURITIES, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “ACT”), AND ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AS SET FORTH IN THIS CERTIFICATE. THE SECURITIES REPRESENTED HEREBY MAY NOT
BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, REASONABLY
ACCEPTABLE TO COUNSEL FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE,
TRANSFER, OR DISPOSITION MAY BE EFFECTUATED WITHOUT REGISTRATION UNDER THE
ACT.”
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5. Certain
Covenants and Obligations.
5.1 Registration
Rights.
(a) As
soon
as practicable after the 180th
day
after the date hereof, the Company shall use commercially reasonable efforts
to
file a registration statement (on Form S-3 if eligible, or Form S-1 if not
eligible) covering the resale of the Underlying Securities by the Investor
and
use its commercially reasonable efforts to (i) respond promptly to all SEC
requests for information and filings and (ii) cause such registration statement
to become effective as soon as possible.
(b) (b) The
Company shall use commercially reasonable efforts to keep any registration
statement which registers the Underlying Securities pursuant hereto effective
and usable for resale of the Underlying Securities for a period ending on
the
first to occur of the following: (i) 120 days after the date on which the
SEC
declares such Registration Statement effective, (ii) the date by which all
the
Underlying Securities have been sold by the Investor and its members
(collectively, the “Holders”), and (iii) the date that the Underlying Securities
may be sold by the Holders pursuant to Rule 144 without any volume restrictions;
provided, however, that the Company’s registration obligations pursuant to this
Section 5 shall cease on the date that all of the Underlying Securities may
be
sold by the Holders pursuant to Rule 144 without any volume
restrictions.
(c) The
Company will promptly notify the Holders, if after delivery of a prospectus
to
the Holders, that, in the judgment of the Company, it is advisable to suspend
use of the prospectus delivered to the Holders due to pending material
developments or other events that have not yet been publicly disclosed and
as to
which the Company believes public disclosure would be detrimental to the
Company. Upon receipt of such notice, each such Holder will immediately
discontinue any sales of Underlying Securities pursuant to such registration
statement until such Holder has received copies of a supplemented or amended
prospectus or until such Holder is advised in writing by the Company that
the
then current prospectus may be used and has received copies of any additional
or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus (such time period being referred to as a “Black-Out Period”).
(d) If
and
whenever the Company is required by the provisions of this Agreement to effect
the registration of any Underlying Securities under the Securities Act, the
Company will:
6
(i) As
expeditiously as possible furnish to each Holder such reasonable numbers
of
copies of the prospectus, including any preliminary prospectus available
for
distribution, in conformity with the requirements of the Securities Act,
and
such other documents as such Holder may reasonably request in order to
facilitate the public sale or other disposition of the Underlying Securities
owned by such Holder; and
(ii) As
expeditiously as possible, notify each Holder, promptly after it receives
notice
thereof, of the time when such registration statement has become effective
or a
supplement to any prospectus forming a part of such registration statement
has
been filed.
(e) In
any
registration statement in which Underlying Securities are included, the Company
will bear all expenses and pay all fees incurred by the Company in connection
therewith, excluding underwriting discounts and commissions payable with
respect
to the Underlying Securities.
(f) The
following indemnification provisions shall apply:
(i)
The
Company shall indemnify each Holder of Underlying Securities to be resold
pursuant to any registration statement hereunder and each person, if any,
who
controls such Holder within the meaning of Section 15 of the Securities Act
or
Section 20(a) of the Exchange Act, against all loss, claim, damage, expense
or
liability (collectively, including all reasonable attorneys’ fees and other
expenses reasonably incurred in defending against any such claim, “Losses”) to
which such Holder may become subject under the Securities Act, the Exchange
Act
or otherwise, arising from such registration statement, insofar as such Losses
(or proceedings in respect thereof) arise out of or are based on any untrue
statement of any material fact contained in such Registration Statement on
the
effective date thereof (including any Prospectus filed under Rule 424 under
the
Securities Act or any amendments or supplements thereto) or arise out of
or are
based upon the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
to
the extent arising (A) from information furnished (or omitted to be furnished)
by or on behalf of the Holder, in writing, for specific inclusion in such
registration statement or (B) because the Holder failed to suspend use of
such
registration statement and discontinue any sales of Underlying Securities
during
a Black-Out Period or failed to timely deliver a final prospectus to the
purchasers of such Holder’s Underlying Securities. Each Holder of Underlying
Securities to be resold pursuant to such registration statement, and its
successors and assigns, shall indemnify the Company, against all Losses to
which
the Company may become subject under the Securities Act, the Exchange Act
or
otherwise, arising (A) from information furnished (or omitted to be furnished)
by or on behalf of such Holder, in writing, for specific inclusion in such
registration statement or (B) because the Holder failed to suspend use of
such
registration statement and discontinue any sales of Underlying Securities
during
a Black-Out Period or failed to timely deliver a final prospectus to the
purchasers of such Holder’s Underlying Securities.
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(ii) If
any
action is brought against a party hereto, (“Indemnified Party”) in respect of
which indemnity may be sought against the other party (“Indemnifying Party”),
such Indemnified Party shall promptly notify Indemnifying Party in writing
of
the institution of such action and Indemnifying Party shall assume the defense
of such action, including the employment and fees of counsel reasonably
satisfactory to the Indemnified Party. Such Indemnified Party shall have
the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless (1) the employment of such counsel shall have been authorized in writing
by Indemnifying Party in connection with the defense of such action, or (2)
Indemnifying Party shall not have employed counsel to defend such action,
or (3)
such Indemnified Party shall have been advised by counsel that there may
be one
or more legal defenses available to it which may result in a conflict between
the Indemnified Party and Indemnifying Party (in which case Indemnifying
Party
shall not have the right to direct the defense of such action on behalf of
the
Indemnified Party), in any of which events, the reasonable fees and expenses
of
not more than one additional firm of attorneys designated in writing by the
Indemnified Party shall be borne by Indemnifying Party. Notwithstanding anything
to the contrary contained herein, if Indemnified Party shall assume the defense
of such action as provided above, Indemnifying Party shall not be liable
for any
settlement of any such action effected without its written consent which
shall
not be unreasonably withheld.
(iii) If
the
indemnification or reimbursement provided for hereunder is finally judicially
determined by a court of competent jurisdiction to be unavailable to an
Indemnified Party (other than as a consequence of a final judicial determination
of willful misconduct, bad faith or gross negligence of such Indemnified
Party),
then Indemnifying Party agrees, in lieu of indemnifying such Indemnified
Party,
to contribute to the amount paid or payable by such Indemnified Party (1)
in
such proportion as is appropriate to reflect the relative benefits received,
or
sought to be received, by Indemnifying Party on the one hand and by such
Indemnified Party on the other or (2) if (but only if) the allocation provided
in clause (1) of this sentence is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in such clause (1) but also the relative fault of Indemnifying Party and
of
such Indemnified Party; provided,
however,
that in
no event shall the aggregate amount contributed by the Holder exceed the
proceeds received by the Holder as a result of the exercise by him of the
Warrants and the sale or resale by him of the Underlying
Securities.
(iv) The
rights accorded to Indemnified Parties hereunder shall be in addition to
any
rights that any Indemnified Party may have at common law, by separate agreement
or otherwise.
(j) The
registration rights granted in this Section shall inure to the benefit of
the
Investor’s successors and heirs and permitted assignees of the Warrants or the
Underlying Securities, as the case may be; provided, however, that if transfer
is made after effectiveness of any registration statement or pursuant to
Rule
144, the only obligation on the part of the Company is to file a post-effective
supplement to indicate such transfer.
5.2 Reservation
of Securities.
The
Company shall take all action necessary to at all times have authorized,
and
reserved for the purpose of issuance, after the Closing, the number of shares
of
Common Stock issuable as Underlying Securities.
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5.3 Press
Releases.
The
parties to this Agreement may not publicly disseminate a press release or
otherwise publicly announce the transactions contemplated by this Agreement,
except upon mutual consent or as may be required by law.
5.4 Securities
Filings.
The
Company shall use commercially reasonable efforts to file in a timely fashion
with the SEC, and shall be current with respect to such filings, all reports,
information statements, forms, correspondences and schedules required to
be
filed by it pursuant to (i) Section 13 or Section 15(d) of the Exchange Act,
(ii) the applicable rules and regulations thereunder, and (iii) any comments
requiring or requesting a response, directed to the Company by the SEC, and
shall maintain full compliance with the current public information requirements
of Rule 144 and Rule 144A promulgated under the Securities Act or any similar
successor to such rule.
5.5 Securities
Exchange Listing.
If
necessary, the Company shall promptly apply for the additional listing of
the
Common Stock comprising the Underlying Securities to be listed on Nasdaq
and use
commercially reasonable efforts to have such application approved as soon
as
practicable.
5.6 List
of Beneficial Ownership.
Schedule
5.6
sets
forth a list of all current beneficial owners in the Investor. The Investor
shall promptly supplement and amend such list and deliver same to the Company
as
beneficial owners are added or removed. The Company shall have the right
to
object to any addition solely in order to comply with applicable regulations
imposed by the Federal Communications Commission.
5.7 Repurchase.
Upon
any Seller Trigger Event (as defined in the RPSI Purchase Agreement), the
Purchaser shall have the right to require the Company to repurchase all,
but not
less than all, of the Warrants sold to Purchaser under the Warrant Purchase
Agreement for a price of $1.5 million. In the event of any repurchase hereunder,
the party having the right to cause such repurchase shall exercise its rights
within 15 days of the event or circumstances giving rise to such right by
written notice to the other party. Such repurchase shall be consummated within
30 days of such notice. In any repurchase, all Warrants shall be delivered
to
the Company by the holders of the Warrants free and clear of all liens,
mortgages and encumbrances of any kind.
5.8 Certain
Rights.
Each of
the Investor and the Company agrees that (i) the Warrants constitute an
“executory contract” (assuming payment of the exercise price thereunder as
required) as such term is used in Title 11 of the United States Code (as
amended, the “Bankruptcy Code”), is not a financial accommodations contract for
purposes of the Bankruptcy Code and is capable of both assumption and/or
assignment pursuant to section 365 of the Bankruptcy Code and (ii) the Warrants
may be exercised (without the necessity of assumption) by the Investor (or
any
of its trustees or successors) under the Bankruptcy Code and any applicable
provisions of bankruptcy or non-bankruptcy law or by an unrelated third party.
the Company agrees that neither it nor any of its affiliates shall, directly
or
indirectly, (i) object to, delay, or take any other action to interfere,
directly or indirectly, in any respect of the exercise, assumption and/or
Transfer of the Warrants pursuant to any provision of the Bankruptcy Code
or any
other provision or principle of bankruptcy or non-bankruptcy law, or (ii)
encourage any person or entity to do any of the foregoing.
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5.9 Further
Assurances.
The
Company will take such actions as may be reasonably required or desirable
to
carry out the provisions of this Agreement and the other Transaction Documents.
6. Company
Deliveries at Closing.
The
Company shall deliver or cause the delivery of each of the following to the
Investor at the Closing:
6.1 Warrant
Purchase Agreement.
Its
signature to this Agreement.
6.2 Secretary’s
Certificate.
A
certificate, dated as of the date of the Closing, executed by the Secretary
of
the Company certifying the resolutions adopted by the Company’s board of
directors relating to the transactions contemplated by the Transaction
Documents.
6.3 Delivery
of Warrants.
Certificates evidencing the Warrants duly executed by the Company.
7. Deliveries
by the Investor at the Closing.
The
Investor shall deliver or cause the delivery of each of the following to
the
Company at the Closing:
7.1 Warrant
Purchase Agreement.
Its
signature to this Agreement.
7.2 Purchase
Price.
The
Purchase Price by wire transfer.
7.3 Beneficial
Owners.
A list
of the beneficial owners of Investor.
8. Indemnification.
8.1 The
Company agrees to indemnify and hold harmless the Investor and any of Investors’
general partners, employees, officers, directors, members, agents and other
representatives (collectively, the “General Indemnitees”), against any
investigations, proceedings, claims or actions and for any expenses, damages,
liabilities or losses (joint or several) arising out of such investigations,
proceedings, claims or actions (collectively, “Actions”), to which the General
Indemnitees may become subject, whether under the Securities Act or any rules
or
regulations promulgated thereunder, the Exchange Act or any rules or regulations
promulgated thereunder, or any state law or regulation, or common law
(collectively, the “Losses”), arising out of any material breach of any
representation, warranty, agreement, obligation or covenant of the Company
contained herein. The Company also agrees to reimburse the General Indemnitees
for any reasonable legal or other reasonable expenses reasonably incurred
in
connection with defending any such investigations, proceedings, claims or
actions.
8.2 The
Investor agrees to indemnify and hold harmless the Company and any of the
Company’s directors, officers, employees, stockholders, agents and other
representatives (collectively, the “Company Indemnitees”), against any
investigations, proceedings, claims or actions and for any Losses, arising
out
of any material breach of any representation, warranty, agreement, obligation
or
covenant of the Investor contained herein. The Investor also agrees to reimburse
the Company Indemnitees for any reasonable legal or other reasonable expenses
reasonably incurred in connection with defending any such investigations,
proceedings, claims or actions.
10
8.3 The
length of the indemnity obligation in this section shall be one year from
the
date of execution of this Agreement; provided that with respect to any Action
commenced during such period, the obligation to provide indemnity with respect
thereto shall remain through the resolution of such Action. No claim for
indemnity shall be made until aggregate Losses exceed $100,000 and thereafter
only with respect to amounts in excess of $100,000. The aggregate liability
for
Losses under either Section 8.1 or 8.2 shall not exceed $500,000.
9. Miscellaneous.
9.1 Survival
of Representation and Warranties.
All of
the representations and warranties made herein shall survive the execution
and
delivery of this Agreement for a period of one year, other than those made
under
Sections 3.1, 3.2, 3.5, 4.1, 4.2 and 4.4, which shall survive indefinitely.
All
of the covenants and other obligations set forth in Section 5 shall survive
the
Closing in accordance with their terms. The Investors are entitled to rely,
and
the parties hereby acknowledge that the Investors have so relied, upon the
truth, accuracy and completeness of each of the representations and warranties
of the Company contained herein, irrespective of any independent investigation
made by the Investors. The Company is entitled to rely, and the parties hereby
acknowledge that the Company has so relied, upon the truth, accuracy and
completeness of each of the representations and warranties of the Investors
contained herein, irrespective of any independent investigation made by the
Company.
9.2 Successors
and Assigns.
This
Agreement is personal to each of the parties and may not be assigned without
the
written consent of the other parties, except together with the assignment
of the
Warrants (or the underlying securities).
9.3 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware.
9.4 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed
an
original, but all of which together shall constitute one and the same
instrument. This Agreement, once executed by a party, may be delivered to
the
other party hereto by facsimile transmission of a copy of this Agreement
bearing
the signature of the party so delivering this Agreement.
9.5 Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only
and
are not to be considered in construing or interpreting this
Agreement.
9.6 Notices.
Unless
otherwise provided, any notice, authorization, request or demand required
or
permitted to be given under this Agreement shall be given in writing and
shall
be deemed effectively given upon personal delivery to the party to be notified
or three (3) days following deposit with the United States Post Office, by
registered or certified mail, postage prepaid, or two days after it is sent
by
an overnight delivery service, or when sent by facsimile with machine
confirmation of delivery addressed as follows:
11
If
to the
Investor:
Xxxxx
Communications, LLC
000
Xxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxxx
Xxxxx
If
to
Company:
Equity
Media Holdings Corporation
#0
Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxxxxxx 00000
Fax:
(000) 000-0000
Attention:
Chairman of the Board
12
In
either
case, with copies to:
Xxxxxx,
Xxxxxx & Xxxxxxxx, PLLC
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
Attention:
Xxxxxxx Xxxxxx, Esq.
and
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxx Xxxx Xxxxxx, Esq.
Any
party
may change its address for such communications by giving notice thereof
to the
other parties in conformity with this Section.
10. Transaction
Expenses; Enforcement of Transaction Documents.
The
Company and the Investors shall pay their respective costs and expenses
incurred
with respect to the negotiation, execution, delivery and performance of
this
Agreement and the other Transaction Documents. If any action at law or
in equity
is necessary to enforce or interpret the terms of any Transaction Document,
the
prevailing party shall be entitled to reasonable attorney’s fees, costs, and
necessary disbursements in addition to any other relief to which such party
may
be entitled.
11. Amendments
and Waivers.
Any
term of this Agreement may be amended and the observance of any term of
this
Agreement may be waived (either generally or in a particular instance and
either
retroactively or prospectively), only with the written consent of the Company
and a majority in interest of the holders of the Warrants. Any amendment
or
waiver affected in accordance with this paragraph shall be binding upon
each
holder of any securities purchased under this Agreement at the time outstanding
(including securities into which such securities are convertible), each
future
holder of all such securities, and the Company.
12. Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and
the
balance of this Agreement shall be interpreted as if such provision were
so
excluded and shall be enforceable in accordance with its terms.
13. Entire
Agreement.
This
Agreement and the documents referred to herein (including the RPSI Purchase
Agreement and Stations Sale Agreement) constitute the entire agreement
among the
parties and no party shall be liable or bound to any other party in any
manner
by any warranties, representations, or covenants except as specifically
set
forth herein or therein.
13
IN
WITNESS WHEREOF, the parties have executed this Securities Purchase Agreement
as
of the date first above written.
|
EQUITY
MEDIA HOLDINGS CORPORATION
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXX
COMMUNICATIONS, LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
14
EXHIBIT
A
FORM
OF WARRANT
15
EXHIBIT
B
WIRING
INSTRUCTIONS
Account
Name: Equity Media Holdings Corporation
Account
Number:
ABA
Routing #
Bank
Name:
Bank
Address:
Contact
info at the bank:
Contact
info at Equity Media:
16
