Exhibit 10.33
AGREEMENT
THIS AGREEMENT is made as of June 1, 1995, by and among KOPLAR
COMMUNICATIONS, INC., a Missouri corporation ("Koplar"), XXXXXXX BROADCASTING
COMPANY, a Delaware corporation ("Company"), XXXXXXX X. XXXXXXX ("Xxxx") and
XXXXXX X. XXXXXXX ("Xxxxx") (Company, Xxxx and Xxxxx are collectively referred
to herein as "Xxxxxxx").
RECITALS
A. Company is the licensee of television station WHSL-TV, East St.
Louis, Illinois (the "Station"), pursuant to licenses issued by the Federal
Communications Commission ("FCC").
B. Xxxx and Xxxxx collectively own a majority of the capital stock of
the Company which is entitled to vote.
C. The parties, all having experience in the television broadcast
industry, desire to set forth certain rights which the Company shall grant to
Koplar and certain restrictions, covenants and agreements with respect to the
Company and its Station and with respect to the potential acquisition of
additional television broadcast properties by Xxxxxx, Xxxx and Xxxxx.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual covenants and agreements contained herein, the parties, intending to be
legally bound, agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth below:
1.1 "AFFILIATE" means any Person controlling, controlled by, or under
common control with Koplar, Company, Xxxx or Xxxxx, as applicable. For purposes
hereof, "control" means the possession, direct or indirect, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting interests, by contract or otherwise.
1.2 "ENCUMBER" OR "ENCUMBRANCE" means any mortgage, deed of trust,
pledge, assignment, security interest, encumbrance, lien (statutory or other),
preference, priority or other agreement having substantially the same economic
effect as any of the forgoing and the filing of any financing statement under
the Uniform Commercial Code of the State of Missouri or comparable laws of any
jurisdiction, but excluding conditional sale contracts for equipment, financing
leases for equipment, and mechanic's liens or tax liens being contested in good
faith.
1.3 "GOVERNMENTAL AUTHORITY" means any federal, state, or local
government or regulatory body, or subdivision, agency, instrumentality,
authority, department, commission, court, tribunal, board or bureau thereof,
including without limitation the FCC.
1.4 "HSN" means Home Shopping Network, Inc., a Delaware corporation.
1.5 "INFOMERCIALS" means a television program which is primarily for the
purpose of selling a product or a service and within which no spot commercial
advertising time is sold or displayed to or on behalf of a third Person.
1.6 "KOPLAR INVESTMENT" means the total Capital Contributions (as
defined in the Newco Operating Agreement) invested by Koplar in Newco.
1.7 "LAWS" means any law, statute, code, ordinance, rule or regulation
of any Governmental Authority.
1.8 "NEWCO" means Xxxxxxx Media, L.L.C., a Missouri limited liability
company owned by Xxxxxx, Xxxx and Xxxxx.
1.9 "NEWCO OPERATING AGREEMENT" means the Operating Agreement of Newco
in substantially the same form as attached hereto as EXHIBIT A.
1.10 "ORDER" means any order, judgment, injunction, award, decree or
writ of any Governmental Authority.
1.11 "PERMITTED PROGRAMMING" means the commitment of Station programming
time (i) pursuant to the Television Affiliation Agreement; (ii) for up to four
(4) hours of Sunday morning and any other broadcast programming to the extent
presently permitted without the necessity of any further consent or agreement
from HSN, pursuant to the Television Affiliation Agreement as existing on the
date of this Agreement; (iii) for Infomercials; and (iv) for the sole purpose of
compliance with applicable Laws.
1.12 "PERSON" means any individual, corporation, partnership, firm,
joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability company, Governmental Authority or other entity.
1.13 "PRE-TAX CASH FLOW" means the total revenue less all programming
costs, sales costs, capital costs, traffic costs and other operational
expenditures; provided that any payments to or charges by Koplar shall be on an
arm's length, competitive market rate basis.
1.14 "PURCHASE PRICE" means a price equal to Koplar's Adjusted Capital
Contribution (as defined in the Newco Operating Agreement).
1.15 "RIGHT OF FIRST REFUSAL PERIOD" means the period commencing as of
the date of this Agreement and ending on the later of (i) the fifth anniversary
date of this Agreement, and (ii) the date the Koplar Investment has been paid or
returned in full to Koplar, and Koplar is no longer required or committed to
make any further capital contribution to Newco, pursuant to Section 7.01 of the
Newco Operating Agreement.
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1.16 TELEVISION BROADCAST PROPERTY" means any television broadcast over
the air station licensed (or applying for a license) by the Federal
Communications Commission.
1.17 "TELEVISION AFFILIATION AGREEMENT" means that certain Television
Affiliation Agreement by and between HSN and Company, dated as of August 27,
1989 as amended by agreements dated December 18, 1992 and November 26, 1993.
2. RESTRICTIONS, COVENANTS AND AGREEMENTS
2.1 In consideration for the compensation described in Paragraph 4
hereof, Xxxxxxx, jointly and severally, covenant and agree that for a period of
three (3) years following the date of this Agreement:
(a) Company shall not sell, assign, or transfer (or enter into
any agreement to sell, assign or transfer) the FCC broadcast license for the
Station.
(b) Except for the Permitted Programming, Company shall not
commit any Station programming time for commercial programming or advertising,
or enter into any local marketing agreement, time brokerage agreement, or any
other agreement by which Company could commit any Station programming time to
another Person. Notwithstanding the above, Koplar and Company may, upon their
mutual agreement, enter into said agreements with one another.
(c) Xxxx and Xxxxx shall not, directly or indirectly, sell,
assign, transfer, or Encumber (other than to a commercial lender, for the
purpose of securing debt owing to such commercial lender) any of their capital
stock in Company, or permit any such sale, assignment, transfer or Encumbrance
(other than to a commercial lender, for the purpose of securing debt owing to
such commercial lender).
2.2 Xxxxxxx shall have the option to extend the restrictions contained
in Section 2.1 above for an additional two (2) years (i.e., for a total of 5
years), by giving a written notice, executed by each of Xxxx, Xxxxx and the
Company, agreeing to extend the restrictions contained in Section 2.1 for such
additional two (2) year period; provided, however, in the event any Law
concerning duopolies, local marketing agreements, time brokerage agreements or
any other agreements relating to the provision of programming or sale of
advertising by a third party become materially more restrictive than those in
place as of the date of this Agreement, then Koplar shall have the absolute
right to reject the aforementioned two (2) year option by giving notice within
ten (10) days of receipt of notice from Xxxxxxx of such intent to extend, which
notice shall specify, in reasonable detail, the reason for such rejection.
2.3 Xxxxxxx agree to use its best efforts to maintain the Television
Affiliation Agreement in full force and effect. Notwithstanding anything
contained in Section 2.1 to the contrary, in the event the Television
Affiliation Agreement is terminated by HSN, through no fault and without the
compliance or cooperation of Xxxxxxx (the "HSN Termination"), the restrictions
contained in Section 2.1 above shall no longer be applicable, subject to the
following provisions of
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this Section 2.3. If the restrictions contained in Section 2.1 are no longer
applicable because an HSN Termination has occurred during the three (3) year
period following the date of this Agreement or during the additional two (2)
year period if the option to extend is exercised by Xxxxxxx pursuant to Section
2.2 above, Xxxxxxx shall have the right to substitute another home shopping
format or an Infomercial format, so long as such substitute format is
substantially similar to HSN's scheduling and format; but, if Xxxxxxx does not
substitute HSN with such substantially similar home shopping or Infomercial
scheduling and format, then Koplar and the Company shall enter into a time
brokerage arrangement, which will provide for the following:
(i) Company shall receive monthly payments from Koplar which
shall be on the same basis as the payments Company would have received from HSN
pursuant to the Television Affiliation Agreement, for the same applicable time
period, and such payments shall be at the current rate of One Hundred Ninety
Dollars ($190) per hour for One Hundred Sixty Four (164) hours per week or the
rate in effect immediately prior to such termination, whichever is greater.
(ii) Koplar shall provide and schedule all programming to be
carried on the Station except to the extent that programming is required to be
controlled by the Company in order to avoid a "change of control" under
applicable FCC regulations.
(iii) Koplar, in consultation with Xxxxxxx, shall sell all
commercial time and receive all revenues as a result of the sale of commercial
advertising and operations of the Station.
(iv) The Company shall do all things necessary to maintain its FCC
license with respect to the Station, and the Company shall be responsible to
maintain its broadcast signal for the Station and do all other things necessary
to continuously broadcast in a manner similar to its current broadcast, subject
only to such changes made necessary as a result of the time brokerage
arrangement with Koplar.
(v) In addition to the amounts to be paid by Koplar to Xxxxxxx
pursuant to (i) above, Koplar shall pay to the Company an amount equal to fifty
percent (50%) of the Pre-Tax Cash Flow of Koplar as a result of the time
brokerage arrangement (the "Cash Flow Payment"), as follows: (A) on or before
July 31st of each applicable year, Koplar shall pay to the Company sixty percent
(60%) of the Cash Flow Payment for the period January 1st through June 30th of
such year; (B) on or before March 31st of the following year, Koplar shall pay
to the Company the balance of the Cash Flow Payment for the period January 1st
through December 31st of the prior calendar year. Xxxxxxx shall have the right
to review and audit the books and records of Koplar relevant to the
determination of the Pre-Tax Cash Flow as a result of the time brokerage
arrangement.
(vi) Koplar and the Company may enter into such further agreements
regarding the time brokerage arrangement which are consistent with the
provisions provided for in this Section 2.3 and containing such other provisions
which are customary for time brokerage arrangements.
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3. RIGHT OF FIRST REFUSAL
3.1 During the Right of First Refusal Period, Xxxxxxx covenant and agree
that, if Company receives a BONA FIDE offer ("Company Offer"), from a third
party ("an Outsider") for the purchase of Company's FCC broadcast license for
the Station, or to enter into any agreements as contemplated under Section
2.1(b) above, or if Xxxx and/or Xxxxx receive a bona FIDE offer ("Shareholder
Offer") (Company Offer and Shareholder Offer are collectively referred to as
"Offer") from an Outsider for the purchase of the Station or for the purchase of
any capital stock in the Company, before accepting such Offer, the Company, Xxxx
and/or Xxxxx, as applicable, shall offer the right to purchase such property or
to enter into such agreements, as applicable, in writing to Koplar (or its
designated Affiliate), upon the same terms and conditions set forth in the
Offer. Xxxxxxx shall give Koplar written notice which shall set forth (i) the
name and address of the Outsider, and (ii) all of the terms and conditions of
the Offer (the "Offer Notice") (The Offer Notice may be delivered concurrently
with any notice required to be delivered to Silver King pursuant to Section
3.1(c) below). In addition, Xxxxxxx shall provide Koplar, within five (5) days
from Koplar's request, with any additional information in their possession or of
which they have knowledge regarding the Offer that Koplar may reasonably
request.
(a) Within sixty (60) days (plus an additional fourteen (14) days
if Silver King then has the right of first refusal as mentioned in Section
3.1(c) below) after its receipt of the Offer Notice (which period may run
concurrently with any notice required to be given by Xxxxxxx to Silver King's
right of refusal noted in Section 3.1(c) below), Koplar shall notify Xxxxxxx if
Xxxxxx (or its designated Affiliate) determines to purchase such property or
enter into such agreements, as applicable, in accordance with the terms set
forth in the Offer Notice. If Koplar gives proper notice as required by this
Agreement, Company, Xxxx and/or Xxxxx (as applicable) and Koplar (or its
designated Affiliate) shall proceed to closing in accordance with the
substantive terms and conditions of the Offer, with such non-material changes as
are appropriate due to the change in the purchasing parties.
(b) If Koplar (or its designated Affiliate) does not notify
Xxxxxxx of its intention to exercise the aforesaid right of first refusal within
the time period specified in Section 3.1(a), Company, Xxxx and/or Xxxxx (as
applicable) may, subject to Section 3.2 of this Agreement, sell such property or
enter into such agreement, as applicable, to the Outsider, in accordance with
all of the terms and conditions set forth in the Offer Notice, with such
non-material changes as are appropriate due to the passage of time. If Koplar
gives notice of its intention to exercise its right of first refusal but, due to
Koplar or its Affiliates' own fault and through no fault of Xxxxxxx, any
Affiliate of Xxxxxxx, or any other Person, Koplar is unable to close on such
transaction within the later of (i) One Hundred Eighty (180) days after such
notice, (ii) the time provided in the Offer, or (iii) the time necessary to
obtain any regulatory approval required in connection with such transaction,
then Xxxxxxx shall be free to consummate the proposed transaction with the
Outsider. If Company, Xxxx and/or Xxxxx (as applicable), do not consummate the
sale of such property or enter into such agreements, as applicable, with the
Outsider prior to one hundred eighty (180) days after the date of the Offer
Notice or such longer time as is necessary to obtain any regulatory approval
required in connection with such
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transaction, or if the terms or provisions as described in the Offer Notice are
changed in any material respect, then any such sale or agreement with the
Outsider shall be null, void and of no effect, and the Company, Xxxx and/or
Xxxxx (as applicable) may not enter into any transaction contemplated by Section
3.1(c) without making a new offer pursuant to the right of first refusal set
forth in this Section 3.1.
(c) Notwithstanding anything contained herein to the contrary,
Koplar acknowledges that Silver King Broadcasting of Missouri, Inc., a Delaware
Corporation ("Silver King"), pursuant to that certain Right of First Refusal and
Put Agreement, dated as of April 28, 1989, by and among the Company, Silver
King, and the holder of the Company's Class A Voting Common Stock (a true and
correct copy of which has been delivered to Koplar), has an existing right of
first refusal regarding the sale of the Station (whether by way of the purchase
of all or substantially all of the assets of the Station or for the sale of
stock in the Company) to a third party, and Koplar's right of first refusal is
subordinate to the presently existing right of first refusal, lien and other
rights of Silver King pursuant to such aforementioned agreement with Silver
King, and a Shareholder Agreement with Silver King dated February 21, 1989 (a
true and correct copy of which has been delivered to Koplar).
3.2 In the event Koplar does not exercise its right of first refusal as
set forth in Section 3.1 above, and if Company proposes to sell Company's FCC
broadcast license for the Station to a Xxxxx Related Entity (as defined below),
or to enter into any agreements as contemplated under Section 2.1(b) above with
a Xxxxx Related Entity, or if Xxxx and/or Xxxxx propose to sell the Station or
any capital stock in the Company to a Xxxxx Related Entity, then Koplar may, by
written notice ("Election Notice") to Xxxxxxx within sixty (60) days after its
receipt of the Offer Notice, require Xxxxxxx to purchase all of Koplar's
Membership Interest (as defined in the Newco Operating Agreement) in Newco at
the Purchase Price, prior to or simultaneously with the consummation of such
agreement or sale . Notwithstanding anything contained herein to the contrary,
if Koplar gives the Election Notice as required herein, Company, Xxxx and/or
Xxxxx (as applicable) may not sell such property to or enter into such agreement
with a Xxxxx Related Entity, as applicable, until Koplar has been paid the full
Purchase Price. As used herein, a "Xxxxx Related Entity" is Xxxxx Xxxxx; any
spouse, child, or sibling of Xxxxx Xxxxx; or any entity in which Xxxxx Xxxxx,
any Affiliate of Xxxxx Xxxxx, or any spouse, child or sibling of Xxxxx Xxxxx is
(i) a five percent (5%) or greater equity holder or participant as a
stockholder, partner, participant, member, or equity holder; or (ii) is an
officer, director, lender of funds, or guarantor of obligations or liabilities
of such entity.
3.3 So long as Koplar has a Membership Interest in Newco, Xxxxxxx
covenant and agree, that except for television broadcast properties proposed and
80% or more financed by Silver King or HSN, Xxxxxx Communications Corporation, a
Delaware corporation, Xxx Xxxxx, or Xxxxxx Xxxxx, or any of their respective
Affiliates, if Company, Xxxx or Xxxxx, or any of their Affiliates, desire to
acquire any ownership or equity interest in a television broadcast property or
any Person which owns or is contemplating owning, directly or indirectly through
any Affiliate, a television broadcast property (the "Acquisition") before
acquiring any such equity or ownership interest: Xxxxxxx shall offer in writing
the right to purchase such ownership interest in the subject television property
to Newco (or its designated Affiliate); and, if the Acquisition includes
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participation of an equity investor ("Outside Investor") in the Person which
owns or is contemplating owning, directly or indirectly through an Affiliate, a
television broadcast property, Xxxxxxx shall offer to Koplar, or its designated
Affiliate, the right to participate as an equity investor upon the same terms
and conditions as being proposed or offered with respect to the Outside
Investor. Xxxxxxx shall give Newco and Koplar written notice which shall set
forth (i) the name and address of the proposed television broadcast property
related to the Acquisition, and (ii) all of the terms and conditions of the
Acquisition including but not limited to all provisions relating to the proposed
investment and financial terms related to any Outside Investor (the "Acquisition
Notice"). In addition, Xxxxxxx shall provide Newco and Koplar, within five (5)
days from Newco's or Koplar's reasonable request, with any additional
information in the possession or knowledge of Xxxxxxx regarding the Acquisition
that Newco or Koplar may request. Notwithstanding the above, Xxxxxxx shall not
be prohibited from individually owning shares of stock of any company which is
traded publicly on a national stock exchange without offering such investment to
Newco and Koplar pursuant to the provisions of this Section 3.3. As used herein,
"control" means the ownership of more than fifty percent (50%) of the voting
securities and more than fifty percent (50%) of all of the equity of a Person.
(a) Within sixty (60) days after its receipt of the Acquisition
Notice, Newco shall notify Xxxxxxx if Newco (or its designated Affiliate)
determines to purchase an interest in the television broadcast property included
in the Acquisition Notice, in accordance with the terms set forth in the
Acquisition Notice
(b) In the event that the Acquisition includes the ownership of
any equity interest by Xxxxxxx in a Person in which an Outside Investor will
own, directly or indirectly, an equity interest, then within sixty (60) days
after its receipt of the Acquisition Notice, Koplar shall notify Xxxxxxx if
Xxxxxx (or its designated Affiliate) determines to participate in the
Acquisition upon substantially the same terms and provisions as are being
proposed or offered with respect to the Outside Investor.
(c) If Newco and Koplar (or their designated Affiliates) do not
exercise the aforesaid rights of first refusal, Xxxxxxx may acquire such
interest in such television broadcast property or in such Person, provided,
however, all of the terms and conditions shall be identical to those set forth
in the Acquisition Notice with such non-material changes as are appropriate due
to the change in the purchasing parties or passage of time. If Xxxxxxx does not
consummate the purchase of such interest prior to one hundred and eighty (180)
days after the date of the Acquisition Notice or such longer time as may be
necessary to obtain any required regulatory approval, or if the terms or
provisions as described in the Acquisition Notice are changed in any material
respect, then any such Acquisition shall be null, void and have no effect and
the right of first refusal set forth in this Section 3.2 shall again apply.
(d) Xxxxx, Xxxx and the Company agree to cooperate with Koplar
and Newco in acquiring the television broadcast property and/or equity interest
in a Person, pursuant to Newco's or Koplar's exercise of its rights of first
refusal contained in this Section 3.3.
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(e) If Newco holds a license or construction permit ("Permit")
for the development of a broadcast television property, but chooses not or does
not have the available financial resources to construct and develop such
property, and if (i) Xxxxxxx proposes to develop such property on its own, or
(ii) Xxxxxxx proposes accepting a firm and bona fide offer from a third party to
participate as an equity investor in the development of such property, then (i)
Newco shall have the right to participate on the same basis as Xxxxxxx, or (ii)
Koplar shall have the right to participate on the same basis as such third
party, pursuant to the right of first refusal provisions set forth in this
Section 3.3. If Newco and Koplar do not exercise the aforesaid rights of first
refusal, Xxxxxxx may acquire from Newco for cash such Permit and all other
rights of Newco with respect to such property for an amount equal to Newco's
direct costs, plus 9% per annum. In the event, pursuant to the above, Xxxxxxx
purchases such Permit and other rights to develop such property on its own, and
prior to broadcasting on such property for at least twelve (12) consecutive
months, Xxxxxxx proposes to have a third party participate as an equity investor
in such property or the entity which directly or indirectly owns an equity
interest in such property, then Koplar shall have the right to participate on
the same basis as such third party, pursuant to the right of first refusal
provisions set forth in this Section 3.3.
4. COMPENSATION
4.1 In consideration of the covenants and agreements of Xxxxxxx
hereunder, Koplar shall pay to Company a total of Three Hundred Thousand Dollars
($300,000), to be paid as follows:
(a) One Hundred Thousand Dollars ($100,000) shall be paid upon
execution of this Agreement (the "Initial Payment").
(b) One Hundred Thousand Dollars ($100,000) shall be paid on the
first anniversary date of this Agreement.
(c) The final One Hundred Thousand Dollars ($100,000) shall be
paid on the second anniversary date of this Agreement.
4.2 In the event Xxxxxxx elect, by written notice pursuant to Section
2.2 above, to extend the restrictions contained in Section 2.1 above for an
additional two (2) years (i.e., for a total of 5 years), then Koplar shall pay
to Company One Hundred Fifty Thousand Dollars ($150,000) on the third
anniversary date of this Agreement and One Hundred Fifty Thousand Dollars
($150,000) on the fourth anniversary date of this Agreement.
4.3 Notwithstanding anything contained herein to the contrary, in the
event (a) of an HSN Termination (referred to in Section 2.3); (b) Company sells
Company's FCC broadcast license for the Station, or Company enters into any
agreements as contemplated under Section 2.1(b) above; or (c) Xxxx and/or Xxxxx
sell the Station or any capital stock in the Company, all compensation
thereafter required to be paid by Koplar pursuant to this Agreement shall
immediately cease and Koplar shall have no further monetary obligations to
Xxxxxxx pursuant to this Agreement.
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4.4 Notwithstanding Section 4.3(c) above, nothing contained in this
Agreement shall prohibit Xxxx and/or Xxxxx from transferring any capital stock
in the Company to a revocable trust created by Xxxx and/or Xxxxx for the primary
benefit of themselves, their respective spouses and/or children or from
transferring any capital stock in the Company directly to their spouse and/or
children; provided, however, that such transferee shall thereafter remain
subject to all of the restrictions, terms and conditions of this Agreement, and
such transferee shall join in and execute an agreement to such effect in form
and substance reasonably satisfactory to Koplar.
5. ADDITIONAL AGREEMENTS
5.1 Upon execution of this Agreement, Xxxxxx, Xxxx and Xxxxx shall
execute the Newco Operating Agreement and take such other action as is necessary
to cause the formation of Newco.
5.2 Upon execution of this Agreement, Koplar shall submit to Xxxx and
Xxxxx, written evidence from Foothill Capital Corporation, that Koplar has
$3,250,000 of irrevocable funds available for investment in Newco, as
contemplated and set forth in the Newco Operating Agreement (the "Foothill
Financing"). Thereafter, from time to time as reasonably requested by Xxxxxxx,
Xxxxxx shall provide written evidence of its continuing ability to provide the
necessary funds for its investment in Newco, as contemplated and set forth in
the Newco Operating Agreement.
6. REPRESENTATIONS AND WARRANTIES OF XXXXXXX
Xxxxxxx represent and warrant to Koplar as follows:
6.1 Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, is duly qualified as a
foreign corporation and is in good standing in the State of Missouri and in
those jurisdictions where the failure to so qualify would have a material
adverse effect on Company. Company has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby.
6.2 This Agreement and all other documents executed instant hereto or
thereto (collectively the "Transaction Documents") have been duly authorized,
executed and delivered by Xxxxxxx and constitute legal, valid and binding
obligations of Xxxxxxx in accordance with their respective provisions. Neither
the execution nor performance of the Transaction Documents by Xxxx, Xxxxx and
the Company (i) violates or will violate any provisions of any Law, or (i)
requires any approval, consent or withholding of objections on the part of any
Governmental Authority (except with regard to a transfer of control pursuant to
Section 3 of this Agreement, which may require FCC approval), or (iii) conflicts
with any of the provisions of Company's Articles of Incorporation or Bylaws, or
(iv) conflicts with, results in a breach of or constitutes a default under any
indenture, mortgage, agreement, lease or other instrument to which Xxxx, Xxxxx
or the Company is a party or by which any of them are bound.
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6.3 Xxxxxxx is not in violation, and has not received notice of any
alleged violation, of any applicable, federal, state, local or foreign Law,
Order or other requirement of any Governmental Authority, which violation could
have material adverse effect on the operation of the Company or the Station.
Company holds, and at all relevant times held, all licenses, permits,
registrations and authorizations necessary for the lawful operations of the
Station in all material respects.
6.4 Xxxxxxx have not retained any broker or finder with respect to the
transactions contemplated by this Agreement.
6.5 No consent, approval, or authorization by or notice to any
Governmental Authority (except with regard to a transfer of control pursuant to
Section 3 of this Agreement, which may require FCC approval), is required in
connection with the execution, delivery or performance by Xxxxxxx of this
Agreement or the transactions contemplated hereby.
7. REPRESENTATIONS AND WARRANTIES OF KOPLAR
Koplar represents and warrants to Xxxxxxx as follows:
7.1 Koplar is a corporation , duly organized, validly existing and in
good standing under the laws of the State of Missouri and has all requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated by it, including without limitation, the Foothill
Financing.
7.2 The Transaction Documents have been duly authorized, executed and
delivered by Koplar and constitute legal, valid and binding obligations of
Koplar in accordance with their respective provisions. Neither the execution nor
performance of the Transaction Documents, including without limitation, the
Foothill Financing, by Koplar (i) violates or will violate any provision of any
Law, or (ii) requires any approval, consent or withholding of objections on the
part of any Governmental Authority (except with regard to a transfer of control
pursuant to Section 3 of this Agreement, which may require FCC approval), or
(iii) conflicts with any of the provisions of Koplar's Articles of Incorporation
or Bylaws, or (iv) conflicts with, results in a breach of or constitutes a
default under any indenture, mortgage, agreement, lease or other instrument of
which Koplar is a party or by which it is bound.
7.3 No consent, approval, or authorization by or notice to any
Governmental Authority (except with regard to a transfer of control pursuant to
Section 3 of this Agreement, which may require FCC approval), is required in
connection with the execution, delivery or performance by Koplar of this
Agreement or the transactions contemplated hereby.
7.4 Koplar has not retained any broker or finder with respect to the
transactions contemplated by this Agreement.
7.5 Koplar has the necessary funding in order to make its required
$3,500,000 investment into Newco as and when required under the Newco Operating
Agreement.
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8. OBLIGATIONS
8.1 Simultaneous with the execution of this Agreement, Xxxxxxx shall
deliver to Koplar in accordance herewith:
(a) The Newco Operating Agreement, duly executed by Xxxx and
Xxxxx;
(b) Corporate resolutions of Company authorizing the transactions
contemplated by this Agreement;
(c) The favorable written opinion of Armstrong, Teasdale,
Schlafly & Xxxxx, counsel for Xxxxxxx, to Koplar regarding the relevant
representations and warranties contained in Section 6 of this Agreement, and
which is otherwise reasonably satisfactory to Koplar and Koplar's counsel; and
(d) All such other certificates, affidavits, consents and other
documents reasonably required by Koplar to effectively comply with the
provisions of this Agreement.
8.2. Simultaneous with the execution of this Agreement, Koplar shall
deliver to Xxxxxxx in accordance herewith:
(a) The Initial Payment;
(b) The Newco Operating Agreement, duly executed by Koplar;
(c) Written evidence from Foothill Capital Corporation, that
Koplar has Three Million Five Hundred Thousand Dollars ($3,500,000) of
irrevocable funds available for investment in Newco, as contemplated and set
forth in the Newco Operating Agreement;
(d) Corporate resolutions of Koplar authorizing the transactions
contemplated by this Agreement;
(e) The favorable written opinion of Xxxxxxxxxxxx, Xxxxxx & Xxxx,
P.C., counsel for Koplar, to Xxxxxxx regarding the relevant representations and
warranties contained in Section 7 of this Agreement, and which is otherwise
reasonably satisfactory to Xxxxxxx and Xxxxxxx' counsel; and
(f) All such other certificates, affidavits, consents and other
documents reasonably required by Xxxxxxx to effectively comply with the
provisions of this Agreement.
9. REMEDIES
Recognizing that immediate irreparable injury will result to
Koplar and Xxxxxxx, their respective businesses and properties in the event of a
breach of any of the provisions of Sections 2 or 3 of this Agreement, that such
provisions are necessarily of a special, unique and
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extraordinary nature and that the loss arising from a breach of any of such
provisions cannot reasonably and adequately be compensated by money damages, and
because this Agreement is based in large measure upon such provisions, Koplar
and Xxxxxxx expressly agree that in the event of a violation of any of such
provisions, the nonbreaching party shall be entitled, in addition to any other
remedies and damages such nonbreaching party could recover, at law or in equity,
as a result of any such violation, to obtain restraining orders and/or
injunctions, both temporary and permanent, in order to prevent future violations
thereof by the breaching party and any Affiliate. If the nonbreaching party
seeks such an order or injunction and the court requires the nonbreaching party
to post a bond in connection therewith, Koplar and Xxxxxxx stipulate and
acknowledge that the reasonable amount of such bond shall be limited to $50,000.
Seeking and/or obtaining equitable relief shall not preclude the nonbreaching
party from obtaining damages arising out of any breach of this Agreement. Koplar
and Xxxxxxx may pursue either or both of the remedies (injunction and damages)
described in this paragraph concurrently or consecutively in any order as to any
such breach or violation, and the pursuit of one of such remedies at any time
will not be deemed an election of remedies or waiver of the right to pursue the
other of such remedies. Koplar and Xxxxxxx hereby waive the claim or defense the
nonbreaching party has an adequate remedy at law, and Koplar and Xxxxxxx shall
not claim, at any such action or proceeding, that an adequate remedy at law
exists. If (i) Koplar fails to make any payments to Xxxxxxx required under this
Agreement and such failure to make such required payment continues for the ten
(10) day period following notice by Xxxxxxx to Koplar of such failure to pay, or
if (ii) a final unappealable determination is made by a court of competent
jurisdiction (or an arbitrator if the parties mutually agree to arbitration)
that Koplar failed to make an investment into Newco that was required under the
Newco Operating Agreement, or if (iii) Koplar fails to provide evidence of its
continuing financial ability pursuant to Section 5.2 and such failure continues
after sixty (60) days' notice from Xxxxxxx, then Xxxxxxx may, at their election,
terminate this Agreement, and shall thereafter be relieved of all future
obligations and restrictions hereunder; provided, however, that Xxxxxxx shall
retain all available rights and remedies against Koplar as a result of such
breach.
10. MISCELLANEOUS
10.1 Any obligation, agreement, covenant, representation or warranty
undertaken by Xxxxxxx hereunder shall be deemed to be undertaken by Company,
Xxxx and Xxxxx, jointly and severally.
10.2 All notices and other communications made pursuant to this
Agreement shall be in writing and shall be deemed to have been given or
delivered upon receipt if given by hand, or three business days after being
mailed by registered or certified mail, postage prepaid, return receipt
requested, in each case addressed as follows:
If to Company, Xxxxxxx Broadcasting Company
Xxxx or Xxxxx: Kingsway Centre
0000 Xxxxx Xxxxxxxxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President
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with a copy to: Armstrong, Teasdale, Schlafly & Xxxxx
Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. xxx Xxxxxx
If to Koplar: Koplar Communications, Inc.
0000 Xxxxxxx Xxxx.
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, President
with a copy to: Xxxxxxxxxxxx, Xxxxxx & Xxxx, P.C.
00 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
PROVIDED, HOWEVER, any party may, be notice given in accordance with this
Section to the other party, designate another address or person for receipt of
notices hereunder.
10.3 The headings of the Sections of this Agreement and in the Exhibits
to this Agreement are inserted for convenience of reference only and shall not
be used in interpreting this Agreement. Unless specifically stated otherwise,
references to Section, paragraphs, or Exhibits refer to the Sections,
paragraphs, or Exhibits to this Agreement.
10.4 All of the Exhibits to this Agreement constitute an integral part
of this Agreement as if fully written within it.
10.5. This Agreement and the agreements, documents and instruments to be
delivered under it constitute the entire understanding and agreement between the
parties concerning the subject matter covered hereby and supersede all prior
agreements, understandings and commitments with respect to such subject matter
including without limitation the Letter of Intent.
10.6. This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of Missouri, without regards to conflicts
of law principles.
10.7. Neither party shall make any public announcements concerning this
Agreement or the transactions contemplated by it without the prior written
consent of the other party. Notwithstanding the foregoing, either party may
disclose the transactions in accordance with applicable Laws.
10.8. This Agreement and the rights and duties hereunder shall be
binding upon and inure to the benefit of the successors and assigns of each of
the parties hereto, but shall not be assignable or delegable by any party
without the prior written consent of the other, or as specifically permitted
herein, and any purported assignment without such prior written consent shall be
null and void.
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10.9. Any waiver by Xxxxxxx or by Koplar of any breach of or failure to
comply with any provision of this Agreement by another party, shall be in
writing and shall not be construed as, or constitute, a continuing waiver of
such provision, or a waiver of any other breach of, or failure to comply with,
any other provision of this Agreement.
10.10. This Agreement may not be amended orally but only by an
instrument in writing duly executed by the parties.
10.11. More than one counterpart of this Agreement may be executed by
the parities hereto, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
10.12. Except as otherwise specifically provided in this Agreement, each
party hereto shall be solely liable for all costs and expenses (including but
not limited to attorneys', accountants', brokers and finder fees) incurred by it
in connection with the negotiation of this Agreement and the consummation of the
transactions contemplated hereby.
10.13. All pronouns and any variations thereof refer to the masculine,
feminine, neuter, singular or plural, as the context may require.
10.14 The non-prevailing party in any arbitration or legal proceeding
pursuant this Agreement shall indemnify and hold the prevailing party harmless
from all costs and expenses (including reasonable attorneys' fees) incurred by
the prevailing party in enforcing the prevailing party's rights under this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first above written.
XXXXXXX BROADCASTING COMPANY KOPLAR COMMUNICATIONS, INC.
By:/s/Xxxxxx X. Xxxxxxx By:/s/Xxxxxx X. Xxxxxx
_____________________________ ____________________________
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: President
/s/Xxxxxxx X. Xxxxxxx
________________________________
Xxxxxxx X. Xxxxxxx
/s/Xxxxxx X. Xxxxxxx
________________________________
Xxxxxx X. Xxxxxxx
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Exhibit A - Operating Agreement of Newco has been intentionally omitted by
the Registrants.
A copy of this omitted Exhibit A will be furnished to the Securities and
Exchange Commission upon request.