Exhibit 99.1
PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 20th day of November, 1995, by and between
StarSight Telecast, Inc., a California corporation (the "Company"), with its
principal offices at 00000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, and the
purchaser whose name and address is set forth on the signature page hereof (the
"Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale and issuance
of as many shares of Common Stock, no par value (the "Shares"), of the Company
as will result in gross proceeds to the Company of $5,000,000.
SECTION 2. Agreement to Sell and Purchase the Shares. At the Closing (as
defined in Section 3), the Company will sell to the Purchaser, and the Purchaser
will buy from the Company at a purchase price of $7.50 per share and upon the
terms and conditions hereinafter set forth, for an aggregate purchase price of
$3,587,745.00, 478,366 Shares.
The Company proposes to enter into this same form of purchase agreement
with certain other investors (the "Other Purchasers") and expects to complete
sales of the Shares to them. The Purchaser and the Other Purchasers are
hereinafter sometimes collectively referred to as the "Purchasers," and this
Agreement and the agreements executed by the Other Purchasers are hereinafter
sometimes collectively referred to as the "Agreements."
SECTION 3. Delivery of the Shares at the Closing. The completion of the
purchase and sale of the Shares (the "Closing") shall occur at the offices of
Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Palo Alto, California (the "Escrow Agent"),
at 10:00 a.m. (local time), on or before November 20, 1995 (the "Closing Date").
At the Closing, the Company shall deliver to the Purchaser, through the Escrow
Agent, one or more stock certificates registered in the name of the Purchaser,
or in such nominee name(s) as designated by the Purchaser, representing the
number of Shares set forth in Section 2 above. The Company's obligation to
complete the purchase and sale of the Shares and deliver such stock
certificate(s) to the Purchaser at the Closing shall be subject to the following
conditions, any one or more of which may be waived by the Company: (a) receipt
by the Company of funds in the full amount of the purchase price as set forth in
Section 2 above for the Shares being purchased hereunder; (b) completion of the
purchases and sales under the Agreements with Other Purchasers aggregating
$5,000,000; and (c) the accuracy of the representations and warranties made by
the Purchasers and the fulfillment of those undertakings of the Purchasers to be
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fulfilled prior to the Closing. The Purchaser's obligation to accept delivery of
such stock certificate(s) and to pay for the Shares evidenced thereby shall be
subject to the following conditions, any one or more of which may be waived by
the Purchaser: (a) the accuracy in all material respects of the representations
and warranties made by the Company herein; (b) the fulfillment in all material
respects of those undertakings of the Company to be fulfilled prior to Closing;
and (c) completion of the purchases and sales under the Agreements with Other
Purchasers aggregating $5,000,000.
SECTION 4. Representations, Warranties and Covenants of the Company. The
Company hereby represents and warrants to, and covenants with, the Purchaser as
follows:
4.1 Organization and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California and has all requisite corporate power and authority to conduct its
business as currently conducted. The Company is qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on the operations of
the Company. The Company is in compliance with all applicable material laws and
other legal requirements applicable to its business, has obtained all
authorizations, consents, approvals, orders, licenses and permits, or has
obtained exemptions from any of the foregoing, necessary for the transaction of
its business, except where the failure to do so does not constitute a material
adverse effect on the condition (financial or otherwise), business, operations
or prospects of the Company.
4.2 Authorized Capital Stock. As of the date hereof, the authorized
capital stock of the Company consists of 50,000,000 shares of Common Stock, no
par value, and 5,000,000 shares of Preferred Stock, no par value. As of November
15, 1995, 21,156,719 shares of Common Stock were validly issued and outstanding,
in compliance with all applicable laws and were fully paid and non-assessable,
and no shares of Preferred Stock were outstanding. Upon consummation of the sale
and purchase of the Shares, the Shares will be validly issued and outstanding in
compliance with all applicable laws and will be fully paid and nonassessable.
4.3 Due Execution, Delivery and Performance of the Agreements. The
Company's execution, delivery and performance of the Agreements (a) have been
duly authorized under California law by all requisite corporate action by the
Company, and (b) will not violate any law or the Certif of Incorporation or
Bylaws of the Company or any provision of any material indenture, mortgage,
agreement, contract or other material instrument to which the Company is a party
or by which the Company or any of its properties or assets is bound as of the
date hereof, or result in a breach of or constitute (upon notice or lapse of
time or both) a default under any such material indenture, mortgage, agreement,
contract or other material instrument or result in the creation or imposition of
any lien, security interest, mortgage, pledge, charge or other encumbrance, of
any material nature whatsoever, upon any properties or assets of the Company.
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Upon their execution and delivery, and assuming the valid execution thereof by
the respective Purchasers, the Agreements will constitute valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.4 Additional Information. The Company represents and warrants that
the information contained in the following documents which the Company has
furnished to the Purchaser, or will furnish prior to the Closing, is or will be
true and correct in all material respects, and will no omit any material fact
necessary to make the information contained therein not misleading in light of
all the circumstances existing, as of their respective filing dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994 (without exhibits);
(b) the Company's Quarterly Report on Form 10-Q for the three
months ended September 30, 1995;
(c) all other documents, if any, filed by the Company with the
Securities and Exchange Commission (the "Commission") since September
30, 1995 pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
4.5 No Material Change. As of the date hereof, there has been no
material adverse change in the financial condition, business or results of
operations of the Company since September 30, 1995, other than with respect to
the Company's cash position. The Company has not incurred, other than in the
ordinary course of its business, any material liabilities or obligations, direct
or contingent, nor has the Company purchased any of its outstanding capital
stock, nor paid or declared any dividends or other distributions on its capital
stock; the Company has not entered into any transactions not in the ordinary
course of business; and there has been no change in the capital stock, or
consolidated long-term debt, or any increase in the short-term borrowings (other
than in the ordinary course) of the Company or any material adverse change to
the business, properties, assets, net worth, condition (financial or other),
results of operations or prospects of the Company, other than with respect to
the Company's cash position.
SECTION 5. Representations, Warranties and Covenants of the Purchaser. (a)
The Purchaser represents and warrants to, and covenants with, the Company that:
(i) the Purchaser is knowledgeable, sophisticated and experienced in making, and
is qualified to make, decisions with respect to investments in shares presenting
an investment decision like that involved in the purchase of the Shares,
including investments in securities issued by the Company, and has requested,
received, reviewed and considered all information it deems relevant in making an
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informed decision to purchase the Shares; (ii) the Purchaser is acquiring the
number of Shares set forth in Section 2 above in the ordinary course of its
business and for its own account (or that of Viacom, Inc.) for investment (as
defined for purposes of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976
and the regulations thereunder) only and with no present intention of
distributing any of such Shares or any arrangement or understanding with any
other persons regarding the distribution or purchase of such Shares; (iii) the
Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Shares except in compliance with the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder; (iv) the Purchaser has not, in connection
with its decision to purchase the number of Shares set forth in Section 2 above,
relied upon any statements, representations, warranties, covenants or assurances
of the Company other than as contained in writing herein or the additional
information delivered pursuant to Section 4.4 hereof; (v) the Purchaser is an
"accredited investor" within the meaning of Rule 501 of Regulation D promulgated
under the Securities Act; and (vi) the Purchaser understands that the Shares
will contain a legend substantially to the following effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THESE SECURITIES UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR AN OPINION OF THE COMPANY'S COUNSEL THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
(b) The Purchaser hereby covenants with the Company not to make any
sale of the Shares other than in accordance with all applicable securities laws.
(c) The Purchaser further represents and warrants to, and covenants
with, the Company that (i) the Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Purchaser enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
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covenants, agreements, representations and warranties made by the Company and
the Purchaser in writing herein and in the closing certificates delivered
pursuant hereto shall survive the execution of this Agreement, the delivery to
the Purchaser of the Shares being purchased and the payment therefor.
SECTION 7. Broker's Fee. Each of the parties hereto hereby represents that,
on the basis of any actions and agreements by it, there are no brokers or
finders entitled to compensation in connection with the sale of the Shares to
the Purchaser.
SECTION 8. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, or nationally recognized overnight express
courier postage prepaid, and shall be deemed given when so mailed and shall be
delivered as addressed as follows:
(a) if to the Company, to:
StarSight Telecast, Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: President
with a copy so mailed to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
or to such other person at such other place as the
Company shall designate to the Purchaser in
writing;
(b) if to the Purchaser, at its address as set
fort at the end of this Agreement, or at such
other address or addresses as may have been
furnished to the Company in writing.
SECTION 9. Changes. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Purchaser.
SECTION 10. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 11. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California and the federal
law of the United States of America.
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SECTION 13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
SECTION 14. Right of Assignment.
(a) This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors and assigns.
None of the parties may assign or delegate this Agreement or any of its rights
or duties under this Agreement without the prior written consent of the other
parties except as expressly set forth herein or to a person or entity into which
it has merged or which has otherwise succeeded to all or substantially all of
the business and assets of the assignor, and which has assumed in writing or by
operation of law its obligations under this Agreement. Nothing herein is
intended to confer on any person other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, with the exceptions of
individuals indemnified hereunder.
(b) Notwithstanding the foregoing, the Purchaser may, without the
written consent of the Company or the Founders, assign its rights and
obligations under this Agreement to any corporation, other than the Purchaser,
whether in existence at the time of execution of this Agreement or formed
hereafter which, directly or indirectly through one or more intermediaries,
wholly owns, or is wholly owned by the Purchaser (or "Affiliate of the
Purchaser") or to Viacom, Inc. or an affiliate thereof defined for purposes
hereof as an Affiliate of the Purchaser; provided, however, that any such
Affiliate of the Purchaser assumes, in writing or by operation of law, all
applicable terms and provisions of this Agreement. The rights of any such
Affiliate of the Purchaser shall terminate upon such affiliate ceasing to be an
Affiliate of the Purchaser. In the event of any such termination, the Purchaser
shall cause the Affiliate of the Purchaser to reassign all rights and
obligations under this Agreement to the Purchaser. In the event of any
assignment, the assigning party shall remain secondarily liable for the
performance of all of its obligations hereunder and, as a condition to such
assignment shall, upon the request of the other party, guaranty, in writing, the
performance of the assignee and shall cause the assignee to sign a separate
written agreement with the other party, in form reasonably satisfactory to the
other party, confirming the rights and obligations so assigned.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
STARSIGHT TELECAST, INC.
By:
Name:
Title:
PURCHASER
By:
Name: PVI Transmission Inc.
--------------------------
Title:
Address:
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