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EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of August 6,
1996, by and among American Telecasting, Inc., a Delaware corporation (the
"Company"), Museum Assets Ltd., a corporation organized under the laws of the
Republic of Ireland, and Xxxxxxx Ltd., a corporation organized under the laws
of the Republic of Ireland (each a "Purchaser").
ARTICLE I
Purchase and Sale of Preferred Stock
I.1 Purchase and Sell. Upon the basis of the representations,
warranties and covenants, for the consideration, and subject to the terms and
conditions set forth in this Agreement, the Company hereby sells to each
Purchaser, and each Purchaser purchases from the Company, 50,000 shares of a
series of preferred stock, $.01 par value per share, of the Company (the
"Preferred Stock") designated as the Series B Convertible Preferred Stock and
having the preferences and rights set forth in the form of Certificate of
Designation attached as Exhibit A hereto (the "Certificate"), free and clear of
all claims, liens, charges and encumbrances of any nature whatsoever, and, in
consideration of the sale of the shares of Preferred Stock by the Company to
each Purchaser, such Purchaser is hereby paying cash to the Company in the
aggregate amount of $5,000,000. Each Purchaser hereby acknowledges receipt of
the certificate evidencing the Preferred Stock purchased by it and the Company
hereby acknowledges receipt from each Purchaser of its purchase price.
ARTICLE II
Representations, Warranties and Covenants of the Company
The Company hereby represents, warrants and covenants to each Purchaser
as follows:
II.1 Incorporation and Organization. The Company is a corporation
duly formed, validly existing and in good standing under the laws of the State
of Delaware and has full corporate power and authority to own and operate its
assets and properties and carry on its businesses as presently conducted and is
duly qualified to do business and is in good standing in all jurisdictions in
which the ownership or occupancy of its properties or its activities presently
makes such qualification necessary, except where the failure to so qualify or
be in good standing would not have a material adverse effect upon the
businesses, properties or assets of the Company and its subsidiaries taken as a
whole.
II.2 Authority and Validity. The Company has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, including without limitation the sale and
issuance of the Preferred Stock hereunder and the issuance of shares of the
Company's Class A Common Stock, $.01 par value per share (the "Common Stock"),
upon conversion of the Preferred Stock. The execution and delivery by the
Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action of the Company. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought. The shares of Preferred Stock are,
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and any shares of Common Stock when issued upon conversion of the Preferred
Stock in accordance with this Agreement and the Preferred Stock will be, duly
and validly issued, fully paid and nonassessable and free of pre-emptive rights
by any shareholders of the Company.
II.3 Consents and Approvals. Assuming the accuracy of the
representation of each Purchaser set forth in Section 3.5 hereof and except as
may be required pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), in connection with the Company's registration
obligation under Article V hereof, all authorizations, approvals and consents,
if any, required to be obtained from, and all registrations, declarations and
filings, if any, required to be made with all governmental authorities and
regulatory bodies to permit the Company to execute and deliver, and to perform
its obligations under, this Agreement have been obtained or made, as the case
may be, and all such authorizations, approvals, consents, registrations,
declarations and filings (collectively, "Company consents and filings") are in
full force and effect, except where failure to obtain and/or maintain in full
force and effect such Company consents and filings would not have a material
adverse effect upon the execution and delivery of, and upon the performance of
the Company's obligations under, this Agreement.
II.4 No Violations. Neither the execution or delivery by the Company,
nor the consummation by the Company of the transactions herein contemplated,
nor the fulfillment by the Company of the terms and provisions hereof (other
than the requirement that the Company repurchase securities under the
circumstances contemplated by Section 4.1(b) hereof) (i) will conflict with,
violate or result in a breach of, any of the terms, conditions or provisions of
any law, regulation, order, writ, injunction, decree, determination or award of
any court, governmental department, board, agency or instrumentality or any
arbitrator, applicable to the Company, (ii) will conflict with, violate or
result in a breach of, or constitute a default under, any of the terms,
conditions or provisions of the Company's certificate of incorporation,
certificates of designations and by-laws, or (iii) will conflict with, violate
or result in a breach of, or constitute a default under, any of the terms,
conditions or provisions of any material loan agreement, indenture, trust, deed
or other agreement or instrument to which the Company is a party or by which it
is bound, except where such conflict, violation or breach will not have a
material adverse effect on the Company's execution, delivery, consummation or
fulfillment of this Agreement.
II.5 Public Documents. As of the dates on which they were filed, none
of the Company's filings with the Securities and Exchange Commission (the
"SEC") since January 1, 1995 contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company has registered the Common
Stock pursuant to Section 12 of the Exchange Act and the Common Stock is
included for trading on the NASDAQ Stock Market. The Company has filed in a
timely manner all material required to be filed pursuant to all applicable
reporting obligations under either Section 13(a) or 15(d) of the Exchange Act
for a period of at least 12 months prior to the date hereof.
II.6 Full Disclosure. There is no fact known to the Company (other
than general economic conditions known to the public generally) that has not
been disclosed in the Company's filings with the SEC that (i) is likely to have
a material adverse effect on the condition (financial or otherwise) or in the
earnings, business affairs, business prospects, properties or assets of the
Company and its subsidiaries taken as a whole or (ii) is likely to materially
and adversely affect the ability of the Company to perform its obligations
pursuant to this Agreement.
II.7 Exemption from Securities Act. Assuming that the
representations, warranties and acknowledgments of each Purchaser provided for
in Article III hereof are true and correct, the sale of the shares of Preferred
Stock to such Purchaser pursuant to this Agreement will be exempt from the
registration provisions of the Securities Act and the registration provisions
of any blue sky or other state securities law or regulation (hereinafter
collectively referred to as "blue sky laws") of any applicable jurisdiction.
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II.8 Conversion. Subject to compliance by each Purchaser with its
representations, warranties and covenants hereunder, the Company will permit
such Purchaser to exercise its right to convert shares of Preferred Stock by
telecopying an executed and completed Notice of Conversion (as defined in the
Certificate) to the Company and delivering the original Notice of Conversion
and the certificate representing the shares of Preferred Stock to the Company
by express courier. Each date on which a Notice of Conversion is telecopied to
and received by the Company in accordance with the provisions hereof shall be
deemed a Conversion Date (as defined in the Certificate). Subject to
compliance by the Purchaser with its representations, warranties and covenants
hereunder, the Company will transmit the certificates representing shares of
Common Stock issuable upon conversion of any shares of Preferred Stock
(together with the certificates representing the shares of Preferred Stock not
so converted) to the Purchaser via express courier or otherwise within three
business days after the date on which the Company receives the original Notice
of Conversion and certificate for the shares of Preferred Stock being so
converted. In addition to any other remedies which may be available to each
Purchaser, in the event that the Company fails for any reason to transmit such
certificates within such three-business day period, each Purchaser will be
entitled to revoke any relevant Notice of Conversion sent by it by delivering
by telecopy a notice to such effect to the Company not later than the time at
which such Purchaser actually receives such certificates, whereupon the Company
and such Purchaser shall each be restored to their respective positions
immediately prior to delivery of such Notice of Conversion and the Company
shall not be liable in any manner for such failure.
ARTICLE III
Representations, Warranties and Covenants of the Purchasers
Each Purchaser hereby represents, warrants and covenants to the Company
solely with respect to itself as follows:
III.1 Organization. Such Purchaser has been duly organized and is
subsisting as a corporation under the laws of the Republic of Ireland and has
full power and authority to own and operate its assets and properties and carry
on its businesses as presently conducted.
III.2 Authority. Such Purchaser has all requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by such Purchaser of this Agreement and the
consummation by such Purchaser of the transactions contemplated hereby have
been duly authorized by all necessary action of such Purchaser. This Agreement
has been duly and validly executed and delivered by such Purchaser and
constitutes a valid and binding obligation of such Purchaser enforceable
against such Purchaser in accordance with its terms, except as enforcement may
be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be brought.
III.3 Consents and Approvals. Assuming the accuracy of the
representation of the Company set forth in Section 2.3 hereof, all
authorizations, approvals and consents, if any, required to be obtained from,
and all registrations, declarations and filings, if any, required to be made
with, all governmental authorities and regulatory bodies to permit such
Purchaser to execute and deliver, and to perform its obligations under, this
Agreement have been obtained or made, as the case may be, and all such
authorizations, approvals, consents, registrations, declarations and filings
(collectively, "Purchaser consents and filings") are in full force and effect,
except where failure to obtain and/or maintain in full force and effect the
Purchaser consents and filings would not have a material adverse effect upon
the execution and delivery of, and upon the performance of the Purchasers'
obligations
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under, this Agreement.
III.4 No Violations. Neither the execution or delivery by such
Purchaser of this Agreement, nor the consummation by such Purchaser of the
transactions herein contemplated, nor the fulfillment by such Purchaser of the
terms and provisions hereof (i) will conflict with, violate or result in a
breach of, any of the terms, conditions or provisions of any law, regulation,
order, writ, injunction, decree, determination or award of any court,
governmental department, board, agency or instrumentality or any arbitrator,
applicable to such Purchaser, (ii) will conflict with, violate or result in a
breach of, or constitute a default under, any of the terms, conditions or
provisions of such Purchaser's organizational documents or (iii) will conflict
with, violate or result in a breach of, or constitute a default under, any of
the terms, conditions or provisions of any material loan agreement, indenture,
trust, deed or other agreement or instrument to which such Purchaser is a party
or by which it or he is bound, except where such conflict, violation or breach
will not have a material adverse effect on such Purchaser's execution,
delivery, consummation or fulfillment of this Agreement.
III.5 Investment Representation. Such Purchaser is an accredited
investor within the meaning of Regulation D promulgated under the Securities
Act and is acquiring the shares of Preferred Stock and any shares of Common
Stock issuable upon conversion thereof (collectively, the "Company Securities")
for its own account for investment purposes, and not with a view to, or for
resale in connection with, any distribution thereof within the meaning of the
Securities Act. Such Purchaser understands that the Company Securities have
not been registered under the Securities Act or any blue sky laws in reliance,
in part, upon the representations, warranties and covenants contained herein.
Such Purchaser also understands that it cannot offer for sale, sell or transfer
the Company Securities except as provided below.
III.6 Transfer Restrictions. Such Purchaser agrees that the following
restrictive legend will be placed on certificates representing any or all of
the Company Securities and that transfer of any or all of the Company
Securities may be refused by the Company's transfer agent unless the Company
Securities for which transfer is sought are registered under the Securities Act
and all other applicable federal securities or blue sky laws or unless such
Purchaser provides information satisfactory to the Company that such
registration is not required:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED OTHER THAN (1) TO THE COMPANY, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES."
Such Purchaser agrees that the Company Securities being delivered
pursuant to this Agreement shall not be transferred by such Purchaser except
(i) pursuant to an effective registration statement under the Securities Act,
or (ii) pursuant to an exemption from registration under the Securities Act.
Each Purchaser represents and warrants that it has (i) such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of an investment in the Company Securities, (ii) all
information deemed by it to be necessary or appropriate to evaluate the risks
and merits of an investment in the Company Securities, (iii) received all
information requested from the Company and (iv) had the opportunity to ask
questions of and receive answers from representatives of the Company concerning
the Company.
III.7 Trading in Securities of the Company; Conversion. For so long
as a Purchaser shall hold
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shares of Preferred Stock which remain convertible into shares of Common Stock,
such Purchaser nor any of its affiliates will not directly or indirectly (i)
establish or maintain any short position in any securities of the Company, it
being agreed that its ownership of the Company Securities shall be disregarded
for purposes of determining whether there is a short position, or (ii) within
three business days prior to the giving of a "Conversion Notice" with respect
to the Preferred Stock, sell or otherwise dispose of any shares of Common Stock
or securities convertible into or exercisable for shares of Common Stock.
ARTICLE IV
Registration
IV.1 Registration. (a) The Company agrees to effect the registration
under the Securities Act and relevant blue sky laws of the shares of Common
Stock issuable upon conversion of the Preferred Stock (the "Registration
Shares") in order to permit their resale by the Purchaser, it being agreed for
such purposes that the Company will have complied with its agreement to
register shares hereunder if such registration statement covers the resale of
that number of Registration Shares equal to twice the number of shares of
Common Stock that would be issued if all of the Preferred Stock were to be
converted on the day prior to the initial filing of such registration
statement. The Company and the Purchaser shall cooperate in good faith in
connection with the furnishing of information required for such registration
and the taking of such other actions as may be legally or commercially
necessary in order to effect such registration. Within 20 days following the
date hereof, the Company shall file a registration statement on Form S-3 with
respect to the resale of the Registration Shares and shall use its best efforts
to cause such registration statement to become effective as soon as practicable
thereafter. Such best efforts shall include, but not be limited to, (i)
promptly responding to all comments received from the staff of the SEC, (ii)
providing the Purchasers' counsel with a contemporaneous copy of all written
communications from and to the staff of the SEC with respect to such
registration statement, (iii) promptly preparing and filing amendments to such
registration statement which are responsive to the comments received from the
staff of the SEC, (iv) furnishing to each Purchaser such number of copies of
each prospectus included in the registration statement for the Registration
Shares, including each preliminary prospectus, each of which shall be in
conformity with the requirements of the rules and regulations of the SEC, (v)
notifying each Purchaser at any time when a prospectus relating to such
Registration Shares is required to be delivered under rules and regulations of
the SEC of the happening of any event as a result of which the prospectus
included in the registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of circumstances then existing, and at each Purchaser's request,
preparing and furnishing to it a reasonable number of copies of a supplement to
or amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registration Shares, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, (vi) using its
reasonable commercial efforts to cause all Registration Shares to be included
for trading on the NASDAQ Stock Market and (vii) in instances where an
exemption from such qualification is not available, using its reasonable best
efforts to register or qualify the Registration Shares under the securities or
blue sky laws of such jurisdictions as each Purchaser shall reasonably request;
provided, that the Company shall not be required to register or qualify under
the blue sky laws in states where the Company is already cleared. Once
declared effective by the SEC, the Company shall cause such registration
statement to remain effective until the earlier of (i) the sale by the
Purchaser of all shares of Common Stock so registered or (ii) the end of the
period during which shares of Preferred Stock remain convertible. In the event
that the Company has not effected the registration of the Registration Shares
within 90 days after the date hereof, the Company shall pay to each Purchaser
by wire transfer, as liquidated damages for such failure and not as a penalty,
an amount in cash equal to $100,000 for each period of 30 consecutive days (or
portion thereof) following the expiration of such 90-day period, such amounts
to be due and payable on the last day of each such period. The payment of such
liquidated damages shall not relieve the
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Company from its obligations to register the Registration Shares pursuant to
this Article IV except as hereinafter provided. In addition to the payment of
such liquidated damages, if the registration of the Registration Shares has not
been effected within 180 days of the date hereof the Company shall, within five
business days of a written request therefor from a Purchaser, repurchase all of
the shares of Preferred Stock or all of the Registration Shares issued upon the
conversion thereof held by such Purchaser, in each case for a cash purchase
price equal to $5,000,000 (ratably reduced to the extent such Purchaser shall
have disposed of shares of Preferred Stock or Registration Shares prior to such
purchase) by wire transfer of immediately available funds to an account
designated by such Purchaser. Upon payment of such amount to such Purchaser,
the obligation of the Company to pay liquidated damages to such Purchaser as a
consequence of the failure to effect the registration of the Registration
Shares shall be terminated prospectively.
(b) In anticipation of the registration of the Registration Shares
under the Securities Act and the rules and regulations promulgated thereunder
pursuant to this Agreement, the Company will: (i) indemnify and hold harmless
each Purchaser and each other person, if any, who controls each Purchaser
within the meaning of the Securities Act (each such party, an "Indemnified
Party"), to the fullest extent permitted by law, against any losses, claims,
damages or liabilities, joint or several, to which any such Indemnified Party
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the registration statement under which the
Registration Shares were registered under the Securities Act and the rules and
regulations promulgated thereunder, any preliminary prospectus or final
prospectus contained therein or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and (ii) reimburse each Indemnified Party for any legal or any
other expenses reasonably incurred thereby in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in said registration statement, said preliminary prospectus, said
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Indemnified Party
specifically for use in the preparation thereof.
(c) Each Purchaser will (i) indemnify and hold harmless the Company
and each other person, if any, who controls the Company within the meaning of
the Securities Act, to the fullest extent permitted by law, against any losses,
claims, damages or liabilities, joint or several, to which the Company or such
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement under
which the Registration Shares were registered under the Securities Act and the
rules and regulations promulgated thereunder, any preliminary prospectus or
final prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (ii) reimburse the Company and each other person, if any,
who controls the Company within the meaning of the Securities Act for any legal
or any other expenses reasonably incurred thereby in connection with
investigating or defending any such loss, claim, damage, liability or action,
in each case to the extent and only to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in said
registration statement, said preliminary prospectus or said prospectus or said
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Purchaser specifically for use in
the preparation thereof, provided, however, that the aggregate liability of
each Purchaser to the Company or such controlling person shall be limited
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to the net proceeds received by such Purchaser from the sale of Registration
Shares covered by such registration statement.
(d) In addition to the indemnification and remedies provided above,
each of the Company, on the one hand, and the Purchasers, on the other hand,
agrees to indemnify the other and hold the other harmless from and against any
and all losses, damages, liabilities, costs and expenses (including reasonable
attorneys' fees) which the other party may sustain or incur in connection with
the breach by the indemnifying party of any representation, warranty or
covenant made by it in this Agreement.
ARTICLE V
Miscellaneous
V.1 Collateral Agreements, Amendments and Waivers. This Agreement
supersedes all prior documents, understandings and agreements, oral or written,
relating to this transaction and constitutes the entire understanding between
the parties with respect to the subject matter hereof. Any modification or
amendment to, or waiver of, any provision of this Agreement may be made only by
an instrument in writing executed by the party against whom enforcement thereof
is sought.
V.2 Successors and Assigns. Neither the Purchaser's nor the Company's
rights or obligations under this Agreement may be assigned, except that each
Purchaser may assign its rights hereunder to an affiliate, provided that (i)
such affiliate is deemed an "accredited investor" within the meaning of
Regulation D of the Securities Act, (ii) the affiliate certifies to the Company
that it is an "accredited investor" and (iii) the affiliate shall execute and
deliver such documentation as the Company deems necessary to be bound by the
terms of this Agreement. Any assignment in violation of the foregoing shall be
null and void. Subject to the preceding sentences of this Section 5.2, the
provisions of this Agreement (and, unless otherwise expressly provided therein,
of any document delivered pursuant to this Agreement) shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
V.3 Expenses. Each party shall pay all costs and expenses incurred by
it in connection with the negotiation, execution and delivery of this Agreement
and the transactions contemplated hereby. The Company shall pay all costs and
expenses incurred in connection with the registration of the Registration
Shares pursuant to Article IV hereof, except that the Company will not be
responsible for paying either Purchaser's legal costs or brokerage commissions
incurred in connection therewith.
V.4 Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, then, if
possible, such illegal, invalid or unenforceable provision will be modified to
such extent as is necessary to comply with such present or future laws and such
modification shall not affect any other provision hereof, provided that if such
provision may not be so modified such illegality, invalidity or
unenforceability will not affect any other provision, but this Agreement will
be reformed, construed and enforced as if such invalid, illegal or
unenforceable provision had never been contained herein.
V.5 Notices. In any case where any notice or other communication is
required or permitted to be given hereunder (including, without limitation, any
change in the information set forth in this Section 5.5) such notice or
communication shall be in writing and (a) personally delivered, (b) sent by
registered United States mail,, postage prepaid, return receipt requested, (c)
transmitted by telecopy or (d) sent by way of a recognized overnight courier
service, postage prepaid, return receipt requested with instructions to deliver
on the next business day, in each case as follows:
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If to the Company, to:
American Telecasting, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
If to the Purchasers, to:
Museum Assets Ltd.
00 Xxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxx
Xxxxxx X0X0X0
Telecopy: (000) 000-0000
Xxxxxxx Ltd.
00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx
Xxxxxx X0X0X0
Telecopy: (000) 000-0000
with a copy to:
Patterson, Belknap, Xxxx & Tyler LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. XxXxxxx, Esq.
Telecopy: (000) 000-0000
V.6 Public Announcement. Neither the Company nor the Purchaser shall
issue or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by this Agreement
without the consent of the other party, which consent shall not be unreasonably
withheld, provided that the Company may make such disclosure as it deems
appropriate pursuant to its reporting obligations under the Exchange Act and
that each party may issue such press releases or public announcements as shall
be required by law.
V.7 No Third-Party Beneficiaries. No person or entity not a party to
this Agreement shall be deemed to be a third-party beneficiary hereunder or
entitled to any rights hereunder.
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V.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OR CHOICE OF LAW. EACH OF THE PARTIES CONSENTS TO THE
JURISDICTION OF THE FEDERAL COURTS WHOSE DISTRICTS ENCOMPASSES ANY PART OF THE
STATE OF NEW YORK OR THE STATE COURTS OF THE STATE OF NEW YORK IN CONNECTION
WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT AND HEREBY WAIVES, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION BASED ON FORUM
NON CONVENIENS, TO THE BRINGING OF ANY SUCH PROCEEDING IN SUCH JURISDICTIONS.
EACH PARTY HEREBY AGREES THAT IF ANOTHER PARTY TO THIS AGREEMENT OBTAINS A
JUDGMENT AGAINST IT IN SUCH A PROCEEDING, THE PARTY WHICH OBTAINED SUCH
JUDGMENT MAY ENFORCE SAME BY SUMMARY JUDGMENT IN THE COURTS OF ANY COUNTRY
HAVING JURISDICTION OVER THE PARTY AGAINST WHOM SUCH JUDGMENT WAS OBTAINED, AND
EACH PARTY HEREBY WAIVES ANY DEFENSES AVAILABLE TO IT UNDER LOCAL LAW AND
AGREES TO THE ENFORCEMENT OF SUCH A JUDGMENT. EACH PARTY TO THIS AGREEMENT
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
SUCH PARTY AT ITS ADDRESS SET FORTH HEREIN. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
V.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which may be executed by one or more of the parties
hereto, but all of which, when taken together, shall constitute but one
agreement binding upon each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
AMERICAN TELECASTING, INC.
By:
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Name:
Title:
MUSEUM ASSETS LTD.
By:
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Name:
Title:
XXXXXXX LTD.
By:
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Name:
Title:
