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Exhibit 10.2
PREFERRED STOCK PURCHASE AGREEMENT
THIS PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of December 30, 1999, by and between Sunrise Television Corp.,
a Delaware corporation ("Purchaser"), and STC Broadcasting, Inc. a Delaware
corporation and a subsidiary of Purchaser ("Seller").
R E C I T A L S:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
25,000 shares (the "Shares") of Preferred Stock, Series B, par value $0.01 per
share (the "Series B Preferred Stock"), of Seller for an aggregate purchase
price of $25 million, upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
PURCHASE OF SHARES
1.1 Purchase and Sale of Shares. Concurrently herewith and upon the
terms set forth herein, Seller is selling and delivering the Shares to
Purchaser, and Purchaser is purchasing and accepting the Shares, free and clear
of all mortgages, liens, pledges, security interests, charges, claims,
restrictions, and encumbrances of any nature whatsoever (collectively,
"Liens").
1.2 Purchase Price. In consideration of the transfer of the Shares
pursuant to Section 1.1, concurrently herewith Purchaser is paying to Seller,
by wire transfer of immediately available funds to the account of Seller, an
aggregate cash purchase price of Twenty Five Million Dollars ($25,000,000) (the
"Purchase Price").
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Seller. Seller makes the
following representations and warranties to Purchaser, each of which is true
and correct as of the date hereof and shall be unaffected by an investigation
heretofore made by Purchaser:
2.1.1 Corporate Organization. Seller is a corporation duly
organized and validly existing under the laws of the State of
Delaware, and has the requisite corporate power and authority to own,
lease, or otherwise hold its properties and assets and to carry on its
business as presently conducted.
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2.1.2 Authorization and Effect of Agreement. Seller has the
requisite corporate power to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery by Seller of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action of Seller. This Agreement has been duly
executed and delivered by Seller and, assuming the due execution and
delivery of this Agreement by Purchaser, constitutes a valid and
binding obligation of Seller, enforceable against Seller in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the
enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2.1.3 No Restriction Against Sale of the Shares; Required
Consents. The execution and delivery of this Agreement by Seller does
not, the performance by Seller of the transactions contemplated hereby
to be performed by it will not, and the transfer of the Shares by
Seller pursuant to this Agreement will not (a) conflict with, or
result in any violation of, or constitute a default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation, or acceleration of any obligation or to
loss of a benefit under, any contract, permit, order, judgment, or
decree to which Seller is a party, (b) conflict with or result in a
violation of, or constitute a default under, the Certificate of
Incorporation or Bylaws of Seller, (c) constitute a violation of any
domestic or foreign law, statute, ordinance, rule, or regulation
("Law") applicable to Seller, or (d) result in the creation of any
Liens upon any of the Shares. No consent, approval, order, or
authorization of, or registration, declaration, or filing with, any
third person or domestic or foreign court, government or governmental
agency, authority, entity, or instrumentality (each a "Governmental
Entity") is required to be obtained or made by or with respect to
Seller in connection with the execution and delivery of this Agreement
by Seller, the performance by Seller of the transactions contemplated
hereby, or the transfer of the Shares by Seller pursuant to this
Agreement, other than those that have already been obtained or made.
2.1.4 Capital Stock. The authorized capital stock of Seller
consists of: (a) 1,000 shares of common stock, par value $0.01 per
share, of which all such shares are issued and outstanding and (b)
1,000,000 shares of preferred stock, of which (i) 600,000 shares are
designated as 14% Redeemable Preferred Stock ("Series A Preferred
Stock"), par value $0.01 per share, of which 300,000 shares are issued
and outstanding and (ii) 100,000 Shares will be designated as Series B
Preferred Stock as of the date hereof, of which 25,000 Shares will be
issued and outstanding upon consummation of the transactions
contemplated hereby. All of the issued and outstanding shares of
capital stock of Seller have been duly authorized and validly issued,
are fully paid and nonassessable with no personal liability attaching
thereto and were not issued in violation of any preemptive
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rights or securities Laws. Except for rights contained in the Series A
Preferred, there are no outstanding securities, rights (preemptive or
other), subscriptions, calls, warrants, options, or other agreements
(except for this Agreement) that give any person the right to
purchase, subscribe for, or otherwise receive or be issued any shares
of capital stock of Seller or any security convertible into or
exchangeable or exercisable for any shares of capital stock of Seller.
Except for rights contained in (a) the certificate of designation for
the Series A Preferred Stock and (b) the Certificate of Designation,
there are no proxies, stockholder agreements, voting trusts, or other
agreements or understandings to which Seller is a party or by which it
is bound relating to the voting of any shares of capital stock of
Seller and there are no rights to participate in the equity, income,
or election of directors or officers of Seller.
2.1.5 Authorization of Shares. The issuance, sale and delivery of
the Shares have been duly authorized by all requisite corporate action
of Seller; and the Shares will, upon the filing of the Certificate of
Designation (as defined herein) with the Secretary of State of the
State of Delaware, be duly authorized and duly reserved for issuance
pursuant to this Agreement, and when issued, sold and delivered in
accordance with the terms of this Agreement and the Certificate of
Designation the Shares will be validly issued and outstanding, fully
paid and nonassessable and will not be subject to preemptive or other
similar rights of the stockholders of Seller or others and, except as
set forth in this Agreement, will be free and clear of all Liens.
2.1.6 Securities Offerings.
(a) Subject to the accuracy of Purchaser's representations
and warranties made in Section 2.2 hereof to Seller, the offer, sale and
issuance of the Shares to Purchaser in conformity with the terms of this
Agreement, constitutes a transaction exempt from the registration requirements
of Section 5 of the Securities Act of 1933, as amended (the "Securities Act")
and the registration or qualification requirements of any applicable state
securities or "blue sky" laws.
(b) With respect to each offering, sale and issuance of
securities heretofore made by Seller, each such offering, sale and issuance of
securities constituted a transaction exempt from the registration requirements
of Section 5 of the Securities Act, and the registration or qualification
requirements of any applicable state securities or "blue sky" laws. Each such
offering, sale and issuance was undertaken in compliance with all applicable
securities laws.
2.2 Representations and Warranties of Purchaser. Purchaser makes the
following representations and warranties to Seller, each of which is true and
correct as of the date hereof and shall be unaffected by any investigation
heretofore made by Seller:
2.2.1 Corporate Organization. Purchaser is a corporation duly
organized and validly existing under the laws of the State of Delaware
and has the requisite
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corporate power and authority to own, lease, or otherwise hold its
properties and assets and to carry on its business as presently
conducted.
2.2.2 Authorization and Effect of Agreement. Purchaser has the
requisite corporate power to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery by Purchaser of this Agreement and the consummation by it of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action of Purchaser. This Agreement has been duly
executed and delivered by Purchaser and, assuming the due execution
and delivery of this Agreement by Seller, constitutes a valid and
binding obligation of Purchaser, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar
laws affecting the enforcement of creditors' rights in general and
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
2.2.3 No Conflicts. The execution and delivery of this Agreement
by Purchaser does not, and the performance by it of the transactions
contemplated hereby to be performed by it will not (a) conflict with
its Certificate of Incorporation or Bylaws, (b) conflict with, or
result in any violation of, or constitute a default (with or without
notice or lapse of time, or both) under, any contract, permit, order,
judgment, or decree to which it is a party or by which any of its
material properties is bound, or (c) constitute a violation of any
domestic or foreign Law applicable to it. No consent, approval, order,
or authorization of, or registration, declaration, or filing with, any
Governmental Entity is required to be obtained or made by or with
respect to Purchaser in connection with the execution and delivery of
this Agreement by Purchaser or the performance by Purchaser of the
transactions contemplated hereby, other than those that have already
been obtained or made.
2.2.4 Investment Intent. Purchaser is acquiring the Shares for
investment and not with a view to, or for resale in connection with,
any distribution thereof, nor with any present intention of
distributing or reselling the same or any part thereof.
2.2.5 Restricted Securities. Purchaser understands (i) that the
Shares have not been and will not be registered under the Securities
Act or registered or qualified under any applicable state or
securities or "blue-sky" laws by reason of their issuance in
transactions exempt from the registration requirements of the
Securities Act or registration or qualification requirements any
applicable state securities or "blue-sky" laws, (ii) that the Shares
must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or registered or qualified under
any applicable state securities or "blue-sky" laws or is exempt from
such registration, (iii) that Seller is under no obligation to so
register any Shares and (iv) that the certificate(s) evidencing the
Shares will be
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imprinted with a legend that prohibits the transfer thereof unless
they are registered or such registration is not required.
2.2.6 Access to Information; Experience. Purchaser has been
furnished with or has had access during the course of this transaction
to all information necessary to enable Purchaser to evaluate the
merits and risks of a prospective investment in Seller and Purchaser
has had an opportunity to discuss with representatives of Seller the
business and financial affairs of Seller and the terms and conditions
of the offering and to obtain such additional information, to the
extent that Seller possesses such information or could acquire it
without unreasonable effort or expense, necessary to verify the
accuracy of the information to which Purchaser has had access and all
questions raised by Purchaser have been answered to the full
satisfaction of Purchaser. Purchaser has conducted its own
investigation and analysis of the business and its investment in the
Shares. Purchaser has substantial experience in evaluating and
investing in private placement transactions of securities in companies
similar to so that it is capable of evaluating the merits and the
risks of its investment in and has the capacity to protect its own
interests in making its investment in Seller. Purchaser can afford to
suffer a complete loss of the cash consideration paid in respect of
its investment in the Shares.
2.2.7 Rule 144. Purchaser understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known
to such person) promulgated under the Securities Act ("Rule 144")
depends on the satisfaction of various conditions and that, if
applicable, Rule 144 may only afford the basis for sales under certain
circumstances only in limited amounts.
2.2.8 Accredited Investor. Purchaser is an "accredited investor"
(as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act).
ARTICLE III
DOCUMENTS DELIVERED UPON EXECUTION OF THIS AGREEMENT
3.1 Documents Delivered by Seller. Concurrently with the execution of
this Agreement, Seller shall deliver to Purchaser the following documents:
3.1.1 Stock Certificate. A stock certificate evidencing the
Shares.
3.1.2 Officer's Certificate. An Officer's Certificate (or other
evidence acceptable to Purchaser) certifying that the STC
Broadcasting, Inc. Certificate of Designation of the Powers,
Preferences and Relative, Participating, Optional and Other Special
Rights of Preferred Stock, Series B, and Qualifications, Limitations
and Restrictions thereof (the "Certificate of Designation"), has been
filed with the Secretary of State of the State of Delaware.
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3.2 Documents Delivered by Purchaser. Concurrently with the execution
of this Agreement, Purchaser shall deliver to Seller the following:
3.2.1 Purchase Price. Evidence of a wire transfer of immediately
available funds in the amount of the Purchase Price.
ARTICLE IV
SURVIVAL AND INDEMNIFICATION
4.1 Survival of Representations, Warranties and Covenants. The
representations and warranties contained in this Agreement shall survive the
execution of this Agreement and remain in effect indefinitely.
4.2 Definitions. For purposes of this Agreement, (i) "Indemnity
Payment" means any amount of Indemnifiable Losses required to be paid pursuant
to this Agreement, (ii) "Indemnitee" means any person entitled to
indemnification under this Agreement, (iii) "Indemnifying Party" means any
person required to provide indemnification under this Agreement, (iv)
"Indemnifiable Losses" means any and all damages, losses, liabilities,
obligations, costs, and expenses, and any and all claims, demands, or suits (by
any person), including the costs and expenses of any and all actions, suits,
proceedings, demands, assessments, judgments, settlements, and compromises
relating thereto and including reasonable attorneys' fees and expenses in
connection therewith, and (v) "Third Party Claim" means any claim, action, or
proceeding made or brought by any person who is not a party to this Agreement
or an Affiliate of a party to this Agreement.
4.3 Indemnification.
(a) Seller shall (with respect to Indemnifiable Losses
described in this Section 4.3) indemnify, defend, and hold harmless Purchaser,
its affiliates, and their respective directors, officers, partners, employees,
agents, and representatives from and against any and all Indemnifiable Losses
to the extent relating to, resulting from, or arising out of any breach of any
representation or warranty of Seller under the terms of this Agreement and any
certificate or other document delivered pursuant hereto.
(b) Purchaser shall indemnify, defend, and hold harmless
Seller, its affiliates, and their respective directors, officers, partners,
employees, agents, or representatives from and against any and all
Indemnifiable Losses to the extent relating to, resulting from, or arising out
of any breach of any representation or warranty of Purchaser under the terms of
this Agreement and any certificate or other document delivered pursuant hereto.
4.4 Defense of Claims.
(a) If any Indemnitee receives notice of assertion or
commencement of any Third Party Claim against such Indemnitee with respect to
which
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an Indemnifying Party is obligated to provide indemnification under this
Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt
written notice thereof, but in any event not later than 15 calendar days after
receipt of such notice of such Third Party Claim. Such notice will describe the
Third Party Claim in reasonable detail, will include copies of all material
written evidence thereof and will indicate the estimated amount, if reasonably
practicable, of the Indemnifiable Loss that has been or may be sustained by the
Indemnitee. The Indemnifying Party will have the right to participate in, or,
by giving written notice to the Indemnitee, to assume, the defense of any Third
Party Claim at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel (reasonably satisfactory to the Indemnitee), and the
Indemnitee will cooperate in good faith in such defense.
(b) If, within 10 calendar days after giving notice of a
Third Party Claim to an Indemnifying Party pursuant to Section 4.4(a), an
Indemnitee receives written notice from the Indemnifying Party that the
Indemnifying Party has elected to assume the defense of such Third Party Claim
as provided in the last sentence of Section 4.4(a), the Indemnifying Party will
not be liable for any legal expenses subsequently incurred by the Indemnitee in
connection with the defense thereof; provided, however, that if the
Indemnifying Party fails to take reasonable steps necessary to defend
diligently such Third Party Claim within 10 calendar days after receiving
written notice from the Indemnitee that the Indemnitee believes the
Indemnifying Party has failed to take such steps or if the Indemnifying Party
has not undertaken fully to indemnify the Indemnitee in respect of all
Indemnifiable Losses relating to the matter, the Indemnitee may assume its own
defense, and the Indemnifying Party will be liable for all reasonable costs or
expenses paid or incurred in connection therewith. Without the prior written
consent of the Indemnitee, the Indemnifying Party will not enter into any
settlement of any Third Party Claim which would lead to liability or create any
financial or other obligation on the part of the Indemnitee for which the
Indemnitee is not entitled to indemnification hereunder.
(c) A failure to give timely notice or to include any
specified information in any notice as provided in Section 4.4(a) or 4.4(b)
will not affect the rights or obligations of any party hereunder except and
only to the extent that, as a result of such failure, any person which was
entitled to receive such notice was deprived of its right to recover any
payment under its applicable insurance coverage or was otherwise materially
damaged as a result of such failure.
(d) The Indemnifying Party will have a period of 30 calendar
days within which to respond in writing to any claim by an Indemnitee on
account of an Indemnifiable Loss which does not result from a Third Party Claim
(a "Direct Claim"). If the Indemnifying Party does not so respond within such
30 calendar day period, the Indemnifying Party will be deemed to have rejected
such claim, in which event the Indemnitee will be free to pursue such remedies
as may be available to the Indemnitee on the terms and subject to the
conditions of this Article IV.
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4.5 Exclusive Remedy. Following the execution of this Agreement, the
remedies provided in this Article IV shall be the sole and exclusive remedies
of the parties with respect to the breach of any representation, warranty,
covenant, or agreement of any party under this Agreement except as otherwise
provided in this Agreement.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Notices. All notices and other communications required or
permitted hereunder shall be in writing and, unless otherwise provided in this
Agreement, shall be deemed to have been duly given when delivered in person or
when dispatched by electronic facsimile transfer or one business day after
having been dispatched by a nationally recognized overnight courier service to
the appropriate party at the address specified below:
(a) If to Seller, to:
STC Broadcasting, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, Chief Financial Officer
with a copy to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
(b) If to Purchaser, to:
Sunrise Television Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, Chief Financial Officer
with a copy to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
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or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
5.2 Expenses. Seller shall pay any expenses incurred by it and
Purchaser, incidental to this Agreement and in preparing to consummate and
consummating the transactions provided for herein.
5.3 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, but shall not be assignable or delegable by any party
without the prior written consent of the other party, which shall not be
unreasonably withheld; provided, however, that nothing in this Agreement is
intended to limit Purchaser's ability to sell or to transfer any or all of the
Shares acquired hereunder or any assets of the Company following the execution
of this Agreement; provided further, however, that Purchaser shall not assign
or otherwise transfer any of its rights, duties or obligations hereunder if
such assignment or transfer (i) would violate any of the rules, regulations or
policies of the Federal Communications Commission (the "FCC") or (ii) could
reasonably be expected to cause adverse consequences for any of the parties
hereto under the ownership attribution rules of the FCC.
5.4 Entire Agreement. This Agreement (including any of the Exhibits
and Schedules hereto) supersedes any other agreement, whether written or oral,
that may have been made or entered into by any party or any of their respective
affiliates (or by any director, officer, or representative thereof) relating to
the matters contemplated hereby. This Agreement (together with any of the
Exhibits) constitutes the entire agreement by and among the parties hereto and
there are no agreements or commitments by or among such parties or their
affiliates except as expressly set forth herein.
5.5 Amendments and Supplements. This Agreement may be amended or
supplemented at any time by additional written agreements signed by the parties
hereto.
5.6 Rights of the Parties. Except as provided in Sections 5.3 and
Article IV, nothing expressed or implied in this Agreement is intended or shall
be construed to confer upon or give any person other than the parties hereto
and their respective affiliates any rights or remedies under or by reason of
this Agreement or any transaction contemplated hereby.
5.7 Brokers. Each party hereto acknowledges and agrees that any fees
or commissions owed to any broker, finder, or financial advisor in connection
with the negotiation or execution of this Agreement or the consummation of the
transactions contemplated hereby shall be the sole liability of the party
retaining such broker, finder, or financial advisor.
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5.8 Further Assurances. From time to time, as and when requested by
either party, the other party will execute and deliver, or cause to be executed
and delivered, all such documents and instruments as may be reasonably
necessary to consummate the transactions contemplated by this Agreement.
5.9 Governing Law. This Agreement shall be governed by, and construed
in accordance, with the laws of the State of NEW YORK, without regard to the
Conflicts of laws of principals thereof.
5.10 Severability. In the event that one or more provisions of this
Agreement shall be deemed or held to be invalid, illegal, or unenforceable in
any respect under any applicable Law, this Agreement shall be construed with
the invalid, illegal, or unenforceable provision deleted, and the validity,
legality, and enforceability of the remaining provisions contained herein shall
not be affected or impaired thereby.
5.11 Execution in Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
5.12 Titles and Headings. Titles and headings to articles and sections
hereof are inserted for convenience of reference only, and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.
5.13 Certain Interpretive Matters and Definitions.
(a) Unless the context otherwise requires, (i) all
references to Sections or Articles are to Section or Articles of or to this
Agreement, (ii) each term defined in this Agreement has the meaning assigned to
it, (iii) "or" is disjunctive but not necessarily exclusive, (iv) words in the
singular include the plural and vice versa, (v) the term "Affiliate" has the
meaning given to such term in Rule 12b-2 of Regulation 12B under the Securities
Exchange Act of 1934, as amended, (vi) "including" and "includes" shall mean
"including, without limitation," and (vii) "person" or "Person" shall mean any
individual, partnership, joint venture, limited liability company, corporation,
trust, unincorporated association, Governmental Entity, or other entity.
(b) No provision of this Agreement will be interpreted in
favor of, or against, any of the parties hereto by reason of the extent to
which any such party or its counsel participated in the drafting thereof or by
reason of the extent to which any such provision is inconsistent with any prior
draft hereof or thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
SELLER:
STC Broadcasting Inc.
By: /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
PURCHASER:
Sunrise Television Corp.
By: /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
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EXHIBIT A
(Series B Preferred Stock Certificate of Designations)
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