STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into as
of the 2nd day of January, 1997, by and between Ziffren, Brittenham, Branca &
Xxxxxxx ("Seller") and Cinergi Pictures Entertainment Inc., a Delaware
corporation ("Purchaser").
R E C I T A L S:
WHEREAS, pursuant to that certain Stock Sale and Repurchase Agreement dated
as of January 1, 1994 by and between Purchaser and Seller, Seller acquired six
shares of the Purchaser's common stock;
WHEREAS, Seller paid for such shares by paying an amount in cash equal to
the aggregate par value of such shares and by issuing to Purchaser a Secured
Recourse Promissory Note (the "Note") in the principal amount of $450,000,
bearing interest at the rate of 6% per annum and secured in accordance with that
certain Security and Stock Pledge Agreement, dated as of January 1, 1994, by and
between Purchaser and Seller (the "Security Agreement");
WHEREAS, pursuant to a subsequent stock split, the six shares of
Purchaser's common stock acquired by Seller were converted into 372,341 shares
of Purchaser's common stock (the "Shares"), which continue to be owned by Seller
and constitute the only shares of Purchaser's common stock owned by Seller; and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase all of
the Shares on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual benefits to be derived from
this Agreement and the representations, warranties, conditions and promises
hereinafter contained, the parties hereto hereby agree as follows:
A G R E E M E N T:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 PURCHASE AND SALE. Upon the terms and subject to the conditions set
forth herein, at the Closing (as hereinafter defined) Seller shall sell the
Shares to the Purchaser free and clear of all encumbrances (other than the
security interest granted to Purchaser pursuant to the Security Agreement), and
Purchaser shall purchase all of the Shares.
1.2 PURCHASE PRICE. Subject to and on the terms and conditions of this
Agreement, Purchaser shall pay Seller a price of $450,000 for all of the Shares
(the "Purchase Price"), which constitutes the total amount due, principal and
all accrued interest, under the Note. Purchaser and Seller agree that the
Purchase Price shall be paid by canceling the Note, in full consideration for
the sale of the Shares to the Purchaser.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
As a material inducement to Purchaser to enter into this Agreement, Seller
hereby makes the following representations and warranties to Purchaser, each of
which are made as of the date hereof, and shall be deemed made again as of the
Closing Date (as hereinafter defined).
2.1 OWNERSHIP. Seller is the record and beneficial owner of all of the
Shares and has good and marketable title to the Shares, free and clear of any
encumbrances (other than the security interest granted to Purchaser pursuant to
the Security Agreement).
2.2 AUTHORIZATION AND ENFORCEABILITY.
(a) The execution, delivery and performance of this Agreement (and
all other documents, instruments and agreements executed in connection herewith)
by Seller has been duly authorized by all necessary partnership action on the
part of Seller. This Agreement and all other documents, instruments and
agreements executed by Seller in connection herewith constitute its legally
valid and binding agreements, enforceable against Seller in accordance with
their respective terms, except to the extent that enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforceability of creditors' rights generally, or by
general equitable principles.
(b) Seller has the full and unqualified legal right, power and
authority to sell, transfer, assign and convey to Purchaser complete and
absolute legal and equitable title to all of the Shares, free and clear of any
encumbrances (other than the security interest granted to Purchaser pursuant to
the Security Agreement). On the Closing Date, upon consummation of the
transactions contemplated hereby, the Purchaser will acquire complete and
absolute legal, equitable, good, valid and marketable title to all of the
Shares, free and clear of all encumbrances.
2.3 NO VIOLATIONS. The execution, delivery and other performance by
Seller of this Agreement and all other documents, instruments and agreements
executed in connection herewith, and the consummation by Seller of the
transactions contemplated hereby, do not and will not (i) constitute a material
violation of or default under (either immediately, upon notice or upon lapse of
time) any provision of any material contract to which Seller is a party or by
which it may be bound; (ii) result in the creation or imposition of any
encumbrance upon, or give to any third person any interest in or right to, any
of the Shares; or (iii) constitute a violation of any provision of Seller's
partnership agreement.
2.4 BROKERS. There is no person acting on behalf of Seller who is
entitled to or has any claim for any brokerage or finder's fee or commission in
connection with the execution of this Agreement and the consummation of the
transactions contemplated hereby.
2.5 ACCREDITED INVESTOR; INVESTOR KNOWLEDGE. Seller represents that it is
an "accredited investor" within the meaning of Rule 501 promulgated under the
Securities Act of 1933, as amended. Seller represents that, by reason of its
business and financial experience, it
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has such knowledge, sophistication and experience in business and financial
matters as to be capable of evaluating the merits and risk of the sale of Shares
contemplated by this Agreement.
2.6 ACCESS TO INFORMATION. Seller acknowledges that it has received all
the information that it has requested from Purchaser about Purchaser in order to
make an informed decision with respect to its sale of the Shares. Seller
represents and warrants that it and its accountants, counsel, financial advisers
and other representatives have been given reasonable access to all relevant
information and records of Purchaser and that it has been given adequate
opportunities to obtain any additional information and documents relating to the
sale of the Shares and to ask questions and receive answers about all of the
foregoing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As a material inducement to Seller to enter into this Agreement, Purchaser
hereby makes the following representations and warranties to Seller, each of
which are made as of the date hereof, and shall be deemed made again as of the
Closing Date.
3.1 BROKERS. There is no person acting on behalf of Purchaser who is
entitled to or has any claim for any brokerage or finder's fee or commission in
connection with the execution of this Agreement and the consummation of the
transactions contemplated hereby.
3.2 AUTHORIZATION AND ENFORCEABILITY. The execution, delivery and
performance of this Agreement (and all other documents, instruments and
agreements executed in connection herewith) by Purchaser has been duly
authorized by all necessary corporate action on the part of Purchaser. This
Agreement and all other documents, instruments and agreements executed by
Purchaser in connection herewith constitute its valid and legally binding
agreements, enforceable against Purchaser in accordance with their respective
terms, except to the extent that enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforceability of creditors' rights generally, or by general
equitable principles.
3.3 NO VIOLATIONS. The execution, delivery and other performance by
Purchaser of this Agreement and all other documents, instruments and agreements
executed in connection herewith, and the consummation by Purchaser of the
transactions contemplated hereby, do not and will not constitute a material
violation of or default under (either immediately, upon notice or upon lapse of
time) its Certificate of Incorporation or Bylaws.
ARTICLE IV
CLOSING; OBLIGATIONS AT CLOSING
4.1 CLOSING. The closing for the consummation of the transactions
contemplated by this Agreement (the "Closing") shall occur at such date
("Closing Date") and time as may be mutually agreed upon by the parties;
provided, however, that the Closing shall take place on the date of this
Agreement or within fifteen (15) days thereafter, unless the parties shall
otherwise agree.
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4.2 OBLIGATIONS AT CLOSING.
4.2.1 SELLER'S OBLIGATIONS. Seller shall deliver to Purchaser at
the Closing the following:
(a) Stock Certificate No. 2006 (the "Stock Certificate")
representing all of the Shares with a separate stock assignment executed in
blank, in form reasonably acceptable to the Purchaser, together with any
documentary stamps required in connection with such transfer or such other
appropriate documents and instruments of transfer as Purchaser may reasonably
request. Purchaser hereby acknowledges that, pursuant to the Security
Agreement, it currently holds the Stock Certificate.
(b) All other agreements, certificates, instruments and
documents reasonably requested by Purchaser in order to fully consummate the
transactions contemplated hereby and carry out the purposes and intent of this
Agreement.
4.2.2 PURCHASER'S OBLIGATIONS TO SELLER AT CLOSING. Purchaser
shall deliver to Seller at the Closing the following:
(a) The original Note marked canceled, which shall constitute
payment in full of the Purchase Price.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
5.1 CONDITIONS PRECEDENT. The obligations of the Purchaser and the Seller
under this Agreement are subject to the satisfaction on or before the Closing
Date of the following conditions:
5.1.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of Seller and Purchaser herein shall be true and correct on and
as of the Closing Date and shall not have been false or misleading in any manner
on the date hereof.
5.1.2 PERFORMANCE OF TERMS AND CONDITIONS. All of the terms and
conditions of this Agreement to be satisfied or performed by Seller and
Purchaser on or before the Closing, including the deliveries required to be made
at Closing, shall have been satisfied or performed.
5.1.3 APPROVAL OF DOCUMENTATION. The form and substance of all
certificates, instruments and other documents delivered or in accordance with
this Agreement shall be reasonably satisfactory to the party or parties to whom
they are to be so delivered.
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ARTICLE VI
TERMINATION AND WAIVER
6.1 TERMINATION GENERALLY. This Agreement may, by notice given prior to
the Closing, be terminated and abandoned by mutual written consent of the
parties hereto.
6.2 WAIVER OR MODIFICATION OF AGREEMENT. Notwithstanding any provision to
the contrary, any party hereto which is entitled to the benefits of this
Agreement may, and has the right to, waive in writing its rights or benefits of
any term or condition hereof at any time prior to, on or after the Closing Date.
ARTICLE VII
INDEMNIFICATION AND RELEASE
7.1 SELLER'S OBLIGATION TO INDEMNIFY. From and after the Closing Date,
Seller shall indemnify and hold harmless Purchaser and its respective successors
and assigns, officers, directors, shareholders, employees, advisors and agents,
from and against any and all proceedings, judgments, obligations, losses,
damages, deficiencies, settlements, assessments, charges, costs and expenses
(including without limitation reasonable attorneys' fees, paralegals' fees,
investigation expenses, court costs, interest and penalties) arising out of or
in connection with, or caused by, directly or indirectly, any or all of the
following:
7.1.1 Any misrepresentation, breach or failure of any warranty or
representation made by Seller in this Agreement or pursuant hereto.
7.1.2 Any failure or refusal by Seller to satisfy or perform any
term or condition of this Agreement to be satisfied or performed by Seller.
7.2 PURCHASER'S OBLIGATION TO INDEMNIFY. From and after the Closing Date,
Purchaser shall indemnify and hold harmless Seller and its partners, successors
and assigns, from and against any and all proceedings, judgments, obligations,
losses, damages, deficiencies, settlements, assessments, charges, costs and
expenses (including without limitation reasonable attorneys' fees, paralegals'
fees, investigation expenses, court costs, interest and penalties) arising out
of or in connection with, or caused by, directly or indirectly, any or all of
the following:
7.2.1 Any misrepresentation, breach or failure of any warranty or
representation made by Purchaser in this Agreement or pursuant hereto.
7.2.2 Any failure or refusal by Purchaser to satisfy or perform
any term or condition of this Agreement to be satisfied or performed by
Purchaser.
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ARTICLE VIII
MISCELLANEOUS
8.1 ASSIGNMENT. The respective rights and obligations of the parties
under this Agreement shall not be assignable without the prior written consent
of the other parties. This Agreement shall inure solely to the benefit of, and
be binding upon, the parties hereto.
8.2 NOTICES. All notices, consents, requests, claims, demands,
instructions or other communications given or made hereunder by the Purchaser or
Seller shall be in writing and personally delivered or transmitted by registered
or certified mail, postage prepaid, return receipt request, or by telex or
facsimile to the parties at the following addresses:
If to Purchaser, to:
Cinergi Pictures Entertainment Inc.
0000 Xxxxxxxx
Xxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxx
Fax No. (000) 000-0000
If to Seller, to:
Ziffren, Brittenham, Branca & Xxxxxxx
2121 Avenue of the Stars
Xxxxxx-Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
or to such other person or address as any party may from time to time designate
by notice to the others. All such notices, consents, requests, claims, demands,
instructions and other communications shall be deemed to have been received on
the date of personal delivery, telex or facsimile or on the date of receipt if
mailed.
8.3 ENTIRE AGREEMENT. This Agreement and the other agreements and
documents referred to herein set forth the entire understanding of the parties
relating to the subject matter hereof and supersede all prior agreements and
understandings, whether oral or written.
8.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California regardless of the law of
choice of law, or conflicts of law, of that or any other jurisdiction.
8.5 FURTHER ASSURANCES. At any time and from time to time after the
Closing Date, at Purchaser's request and without further consideration, Seller
shall promptly execute and deliver all such further agreements, certificates,
instruments and documents and perform such further actions that the Purchaser
may reasonably request, in order to fully consummate the transactions
contemplated hereby and carry out the purposes and intent of this Agreement.
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8.6 AMENDMENT; WAIVER. No attempted amendment, modification, termination,
discharge or change of this Agreement shall be valid and effective, unless the
parties shall unanimously agree in writing to such amendment. No waiver of any
provision of this Agreement shall be effective unless it is in writing and
signed by the party against whom it is asserted, and any such written waiver
shall only be applicable to the specific instance to which it relates and shall
not be deemed to be a continuing or future waiver.
8.7 SECURITY AGREEMENT. Effective as of the Closing Date, pursuant to
Section 10.1 of the Security Agreement, the Obligations (as such term is defined
in the Security Agreement) shall be deemed terminated and the Security Agreement
shall terminate.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PURCHASER:
CINERGI PICTURES
ENTERTAINMENT INC.
By: /s/ Warrren Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
SELLER:
ZIFFREN, BRITTENHAM, BRANCA & XXXXXXX
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Partner
By his signature below, the undersigned (i) acknowledges that he has read,
understands and agrees to the foregoing Agreement, (ii) agrees to waive any
rights he may have to purchase the Shares pursuant to that certain letter
agreement dated April 27, 1994 between Cinergi Pictures Entertainment Inc. and
Ziffren, Brittenham, Branca & Xxxxxxx (the "Letter Agreement"), and (iii) agrees
that the Letter Agreement and any rights of the undersigned thereunder shall
hereby terminate.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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