AGREEMENT
Exhibit
10.1
AGREEMENT
AGREEMENT
(“Agreement”),
entered into as of June 24, 2008, by and among Equity
Media Holdings Corporation,
a
Delaware corporation (“Parent”),
C.A.S.H.
Services, Inc.
an
Arkansas corporation and wholly owned subsidiary of Parent (“CASH”),
and
Retro
Programming Services, Inc.,
an
Arkansas corporation and wholly owned subsidiary of CASH (“Buyer”
and,
collectively with Parent and CASH, the “Buyer
Parties”),
on
the one hand, and Retro
Television Network, LLC,
an
Arkansas limited liability company (“RTN
Seller”),
Xxxxx
X. Xxxxxx (“Xxxxxx”)
and
Xxxx Xxxxxx (“Ardman”
and,
collectively with Xxxxxx and RTN Seller, the “Seller
Parties”).
Each
of the Seller Parties and each of Buyer Parties are referred to herein
individually as a “Party”
and
collectively as the “Parties.”
WHEREAS,
the predecessor in interest to Parent (Equity Broadcasting Corporation
(AEBC@))
and
entities related to EBC entered into that certain Intellectual Property
Agreement (“IPA”),
dated
December 22, 2005, with RTN Seller and certain affiliates thereof (the
“2005
Sellers”);
WHEREAS,
under the terms of the IPA, the 2005 Sellers represented and agreed that they
were transferring all of their rights to the concept, programming model and
business called Retro Television Network (“RTN”),
other
than creative and intellectual rights therein (the “December
2005 Transfer”);
WHEREAS,
the Buyer Parties and their affiliates have expended significant time, capital
and other resources in developing RTN and the related programming rights,
operations and distribution capabilities comprising a customizable television
network capable of providing 24/7 digital programming feeds to affiliate
stations, including digitally remastered popular programs from the 60s, 70s,
80s
and 90s and localized sports, weather and news (collectively, the
“Business”);
and
WHEREAS,
it is intended that any and all right, title and interest of any of Seller
Parties or their affiliates in assets that relate to the Business, including
all
creative and intellectual rights referred to in the IPA (collectively, the
“RTN
Assets”)
be
transferred, assigned and/or vested solely in the Buyer Parties and that this
Agreement shall as of the date hereof supersede the entirety of the
IPA.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual
representations, warranties, covenants and agreements in this Agreement and
for
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE
I
SALE
AND TRANSFER OF ASSETS
1.1 General.
(a) Sale
and Purchase.
Upon
the terms, and subject to the conditions, set forth in this Agreement, at the
Closing (as defined in Section 1.3), each of the Seller Parties shall sell,
assign, transfer, convey and deliver to the Buyer, and the Buyer shall purchase
and accept from each such Seller Party, all of such Seller Party’s rights,
title, and interest in, to and under any and all of the tangible and intangible
assets owned, licensed, leased or used in or otherwise related to the Business,
including, without limitation, the following (collectively, the “Acquired
Assets”):
(i) All
of
the following to the extent related to the Business: (a) software, including
source code, object code, commentary, documentation and all copyrights and
trade
secrets therein, (b) names and likenesses of natural persons, mascots, (c)
data
bases, (d) customer lists, (e) prospects lists, (f) supplier lists, (g)
marketing and sales materials, (h) proposed projects data bases and related
written plans, (i) all business plans and business and programming models,
(j)
patents, patent applications, inventions (whether patentable or not), (k)
copyrights, rights under copyrights, moral rights, (l) all trademarks, trade
names, service marks, brands and other marks used in the Business and all
derivatives and variances thereof or related thereto and all other names and
trade names owned by any Seller Party or used in the Business, including the
application for a federal trademark registration, Serial Number 7875037, and
all
goodwill associated therewith (collectively, the “Names”),
(m)
know how, confidential information and trade secrets, (n) concepts, business
methods, business processes, including the RTN Network (and any alterations
thereto), (o) websites, domain names and URLs, (p) licensed rights, (q) rights
to xxx for past, present and future infringement, misappropriation or violation
of any of the foregoing, and (r) rights to receive royalties, license fees,
revenue shares, and the like relating to any or all of the foregoing,
(collectively, the “Intellectual
Property”);
(ii) All
rights (but not obligations) of any Seller Party under any Contracts
(collectively, the “Acquired
Contracts”).
“Contract”
shall
mean any contract, agreement, license, grant or other instrument or
understanding of any kind related to any Acquired Asset, RTN or the Business,
including all amendments, supplements, modifications, extensions, or renewals
in
respect of the foregoing;
(iii) All
equipment and other personal property utilized in the Business (“Acquired
Equipment”);
and
(iv) All
other
tangible and intangible assets of the Seller Parties relating to the Business.
For
clarification, none of the Acquired Assets comprise any part of the CASH System,
which is owned by CASH.
1.2 No
Assumption of Liabilities.
It is
understood and agreed that the Buyer Parties are not assuming, and will not
be
obligated or liable for, any direct or indirect debts, obligations, claims
or
liabilities of the Seller Parties, whether absolute, accrued, contingent,
liquidated or otherwise, and whether due or to become due, asserted or
unasserted, known or unknown, including the Seller Parties’ obligations in
respect of taxes, environmental liabilities or claims, employee benefit or
profit sharing plans
or any
litigation or other claims.
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1.3 Closing.
The
closing of the Asset Purchase (the “Closing”)
is
taking place concurrently with the execution of this Agreement at the offices
of
Xxxxxxxx Xxxxxx, located at The Chrysler Building, 000 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. The date hereof is sometimes referred to as the
“Closing
Date.”
1.4 Consideration.
(a) As
consideration for the sale and purchase of the Acquired Assets, the Buyer shall
pay the RTN Seller the payments provided in this Section 1.4 (each a
“Payment”
and,
collectively, the “Purchase
Price”).
(b) From
and
after December 24, 2009 through the date this Agreement is terminated (the
“Rights
Period”),
the
Seller Parties as a group shall receive payments, in the aggregate, in an amount
equal to 10% (“Earnings
Rights Percentage”)
of any
and all annual pre-tax earnings (excluding interest, depreciation and
amortization and any related party charges not preapproved in writing by the
Seller Parties) calculated in accordance with U.S. GAAP directly generated
by
the Business through the Buyer (or any subsidiary thereof) during the Rights
Period. Payments
shall be pro rated for any partial fiscal years during the Rights
Period. Payments,
if any, under this Section 1.4(b) shall be made to the Seller Parties within
90
days of the end of the fiscal year for which such Payment is made. In the event
that pre-tax earnings are less than zero beginning on December 24, 2009, such
negative balance will be carried forward to reduce pre-tax earnings for
subsequent years for purposes of this Section 1.4(b).
(c) In
the
event the Buyer sells the Business or RTN or substantially all of the assets
of
RTN or all of Buyer Parties’ rights, title or claim to RTN to a third-party
(“Subsequent
Sale”)
during
the Rights Period, the RTN Seller may elect to exchange its right to receive
payments under Section 1.4(b), above, for a payment equal to 20% (“Sales
Proceeds Right Percentage”)
of the
sales price in the Subsequent Sale (net of transaction costs) and the
obligations to pay amounts under (b) above shall end. Notwithstanding anything
to the contrary, in the event the sale price payments from a purchaser in the
Subsequent Sale are to be made over time or on a contingent basis, the RTN
Seller shall receive its Sale Proceeds Right Percentage payments pro ratably
as
such sales price payments are made. Amounts payable under this Section 1.4(c)
shall be paid within three business days of the Buyer’s receipt of sales price
proceeds from the Subsequent Sale. Notwithstanding the foregoing, the sale
of
all of the capital stock of the Buyer to Xxxxx Communications, LLC
(“Xxxxx
Communications”)
under
the terms of a stock purchase agreement (“Xxxxx
SPA”)
of
even date herewith (the “Xxxxx
Transaction”)
shall
not constitute a Subsequent Sale. Further, the following shall not be deemed
a
Subsequent Sale: (i) the grant of the repurchase option in Article IV of the
Xxxxx SPA (“Repurchase
Option”);
(ii)
the sale or transfer of the Repurchase Option by CASH to an affiliate or to
any
third party; or (iii) the exercise of the Repurchase Option by CASH (or any
affiliate thereof) or any third party purchaser thereof.
3
(d) Notwithstanding
the foregoing, upon any sale of the Buyer to Xxxxx Communications, the Rights
Period shall be set at ten years from the date hereof (subject to earlier
termination upon termination of this Agreement), the Earnings Right Percentage
shall be reduced to 5% and the Sales Proceeds Right Percentage shall be reduced
to 5%. In the event the Buyer is reacquired by Seller (or an affiliate thereof)
upon exercise of the Repurchase Option, the Earnings Rights Percentage and
Sales
Proceeds Right Percentage shall immediately be reset to the percentages set
forth in Section 1.4 (b) and (c), above, and the length of the Rights Period
shall be governed by Section 1.4(b) above.
(e) The
Seller Parties shall have a right, upon reasonable written notice to the Buyer,
to review and audit financial records of the Buyer during normal business hours
at the Seller Parties’ sole expense to confirm that the payments made under
Sections 1.4(b), (c) and (d) above are accurate.
(f) Any
dispute as to calculation of pre-tax earnings or gross sales price shall be
determined by the Buyer’s independent auditor or, if such auditor in unable or
unwilling to do same, by another independent accountant mutually agreed upon
by
the Buyer and the Seller Parties. The determination of such auditor or
accountant shall be final and binding.
1.5 Limitations
with respect to Parent and CASH.
For
avoidance of doubt, the payment obligations under Section 1.4 are solely the
obligation of the Buyer and not any other Buyer Party or affiliate thereto.
Upon
any exercise of the right to assign this Agreement by Buyer, the obligations
and
rights of Buyer hereunder shall become those of the assignee (except under
any
assignment under Section 7.2(b)). Upon consummation of the Xxxxx Transaction,
neither Parent nor CASH (or any affiliate thereof) shall have any obligation
under Section 1.4 of this Agreement unless and until CASH and/or Parent, or
an
affiliate thereof, exercises the Repurchase Option, in which event Parent and
CASH shall have those obligations, effective as of the consummation of the
Repurchase Option.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Each
of
the Seller Parties hereby represents and warrants to the Buyer Parties as
follows as of the date hereof:
2.1 Organization.
RTN
Seller is a limited liability company duly organized, validly existing and
in
good standing under the law of its respective state of formation.
2.2 Authorization
of Transaction.
Each
Seller Party has all requisite power and authority to execute and deliver this
Agreement and the other agreements contemplated hereby to which it or he is
a
party (collectively, the “Transaction
Documents”),
and
to perform its or his obligations hereunder and thereunder. The execution and
delivery of the Transaction Documents and the performance by each Seller Party
of the transactions contemplated hereby and thereby have been duly and validly
authorized by all requisite company action on the part of RTN Seller, and no
other corporate, company or other proceedings on the part of any Seller Party
are necessary to approve the Transaction Documents or to authorize and
consummate the transactions contemplated hereby or thereby. The Transaction
Documents have been duly and validly executed and delivered by each of the
Seller Parties that is a party thereto and constitute valid and binding
obligations of such Seller Parties, enforceable against such Seller Parties
in
accordance with their terms, except as such enforceability may be limited by
general principles of equity and bankruptcy, insolvency, reorganization and
moratorium and other laws relating to creditors’ rights.
4
2.3 Acquired
Assets.
None of
the Seller Parties has granted any right, claim or interest in any of the
Acquired Assets to any other Person. “Person”
shall
mean any individual, partnership, joint venture, association, limited liability
company, corporation, trust, unincorporated organization, Governmental Authority
(defined below), or other entity. Except pursuant to the terms of the IPA,
no
Seller Party has previously entered into any contract, agreement, arrangement
or
understanding of any nature obligating any Seller Party (or affiliate thereof)
to directly or indirectly transfer any of the Acquired Assets or rights or
interests therein to any Person (as defined) other than the Buyer.
2.4 Ownership
of RTN Seller; No Conflict; Required Filings and Consents.
(a) Schedule
2.4(a)
sets
forth a list of each member, partner or other equity holder of RTN Seller Party.
No other Person has any right to or right to acquire any equity or ownership
rights in RTN Seller. All necessary approval of the members, partners or other
equity holders or owners of RTN Seller has been obtained as necessary to
authorize the valid and legal execution and delivery of the Transaction
Documents and the consummation of the transactions contemplated hereby and
thereby.
(b) The
execution and delivery of the Transaction Documents by each Seller Party and
the
performance by such Seller Party of its or his obligations hereunder and
thereunder will not (i) violate or conflict with the articles of formation
or
operating agreement of RTN Seller or any resolution adopted by the managers
or
board of directors or similar managing body of RTN Seller; (ii) conflict
with or violate any provision or requirement of any domestic or foreign,
federal, state, or local law, statute, judgment, order, writ, injunction,
decree, award, rule, or regulation (collectively, the “Laws
and Rules”)
applicable to any Seller Party or by which any of his or its properties or
assets are bound or affected; or (iii) violate, result in a breach of,
constitute (with due notice or lapse of time or both) a default under, or give
to others any rights of termination, amendment, acceleration or cancellation
of,
or result in the creation of a Lien on any of the Acquired Assets or any other
properties or assets of any Seller Party related to or used in connection with
the Business pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Seller Party is a party or by which any of the properties or
assets of any Seller Party is bound or affected.
(c) No
consents (“Required
Consents”)
of any
Person, including any Governmental Authority (as defined below) are necessary
for the Seller Parties to consummate the transactions contemplated hereby and
by
the Transaction Documents and to vest in Buyer all rights contemplated by this
Agreement in the Acquired Assets or otherwise in connection with the execution
and delivery of the Transaction Documents by any of the Seller Parties,
including any authorization, notice, filing, report or regulation required
by
any Governmental Authority or any Person that is party to any Contract. All
Required Consents have been obtained and are in full force and effect as of
the
date hereof. “Governmental
Authority”
means
the United States federal, state or local, or any foreign, government,
governmental, regulatory or administrative authority, agency or commission
or
any court, tribunal, or judicial or arbitral body.
5
2.5 Litigation.
There
are no claims, suits, proceedings, investigations, arbitrations, oppositions,
re-examinations, or other actions (“Actions”)
by any
Person or Governmental Authority relating to any of the Seller Parties or the
Acquired Assets or, to the Seller Parties’ knowledge, threatened to be brought
by or before any Person or Governmental Authority relating to the Acquired
Assets or the Business or which could otherwise prevent or impede any Seller
Party from consummating the transactions contemplated by this Agreement and
the
Transaction Documents.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF PARENT AND BUYER
The
Parent hereby represents and warrants to the Seller Parties as
follows:
3.1 Organization. Each
of
Parent, CASH and the Buyer is a corporation duly organized, validly existing
and
in good standing under the law of its state of formation.
3.2 Authorization
of Transaction.
Each of
the Buyer Parties has all requisite power and authority to execute and deliver
this Agreement and the Transaction Documents and to perform its obligations
hereunder and thereunder. The execution and delivery of the Transaction
Documents and the performance by each of the Buyer Parties of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
requisite corporate action on the part of each of the Buyer Parties, and no
other corporate proceedings on the part of either of the Buyer Parties are
necessary to approve this Agreement and the other Transaction Documents or
to
authorize and consummate the transactions contemplated hereby or thereby. The
Transaction Documents have been duly and validly executed and delivered by
each
of the Buyer Parties and constitute valid and binding obligations of each of
the
Buyer Parties that is party thereto, enforceable against each of the Buyer
Parties in accordance with their terms, except as such enforceability may be
limited by general principles of equity and bankruptcy, insolvency,
reorganization and moratorium and other laws relating to creditors’ rights, and
is in full force and effect.
3.3 No
Conflicts.
The
execution and delivery of the Transaction Documents by each of the Buyer Parties
and the performance by each of the Buyer Parties of its obligations hereunder
and thereunder will not (i) violate or conflict with the certificate of
incorporation or bylaws of either of the Buyer Parties; (ii) conflict with
or violate any Laws and Rules applicable to either of the Buyer Parties or
by
which either of the Buyer Parties’ properties or assets are bound or affected;
or (iii) violate, result in a breach of, constitute (with due notice or
lapse of time or both) a default under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a Lien on any of the properties or assets of the Buyer Parties
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which any of
the
Buyer Parties is a party or by which any of the properties or assets of the
Buyer Parties is bound or affected, except, in the case of clauses (ii) and
(iii) above, for any such conflicts, violations, breaches, defaults or other
alterations or occurrences that would not reasonably be expected to have a
material adverse effect on the business, assets, prospects, financial condition
or results of operations of the Buyer Parties or materially impair the Buyer
Parties’ ability to consummate the transactions contemplated by this
Agreement.
6
3.4 Litigation.
There
are no Actions by any Person or Governmental Authority relating to Parent or
its
business or, to Parent’s knowledge, threatened to be brought by or before any
Person or Governmental Authority relating to Parent or its business or which
otherwise prevent Parent or Buyer from consummating the transactions
contemplated by this Agreement and the Transaction Documents.
ARTICLE
IV
COVENANTS
4.1 General.
Each of
the Parties will use its best efforts to take all action and to do all things
necessary, proper, or advisable after the date of Closing in order to effect
the
transactions contemplated by this Agreement and the Transaction Documents.
4.2 Non-use
of Names.
After
the Closing, none of the Seller Parties or their affiliates shall establish
or
otherwise be associated with, as an owner, partner, stockholder, member,
employee or otherwise, any business that utilizes any of the Names or any
variant or derivative thereof and each Seller Party shall cease and desist
using
any of the Names for any purpose whatsoever, and shall not hold himself or
itself out as an employee, agent or representative of Parent or Buyer or any
of
their affiliates.
4.3 Non-Solicitation;
Non-Hire.
For a
period from the date hereof until the end of the Payment obligations under
Section 1.4 (“Restricted
Period”),
none
of the Seller Parties shall directly or through any affiliate for itself or
any
other Person hire any employee of the Parent, CASH, Buyer or the Business (other
than any person who is currently a member of RTN Seller), or induce or attempt
to induce any employee to leave the employ of the Parent, Buyer or the Business
or its successors, assigns and affiliates or in any way interfere with the
relationship between any of the Parent, Buyer or the Business and any employee,
officer, consultant to or customer of Parent, Buyer or the Business.
Notwithstanding the foregoing, Seller Parties shall be permitted to hire any
person responding in good faith solely as a result of general public
advertisements regarding employment opportunities. Each of the Seller Parties
acknowledges and agrees that the nonsolicitation and nonhire obligations
contained in this Agreement are integral components of the consideration being
provided to the Parent, CASH and the Buyer for its agreement to enter into
this
Agreement, consummate the transactions contemplated hereby and pay the Purchase
Price under Section 1.4 hereof. The obligations under this Section 4.4 shall
be
in addition to and not in lieu of any other similar obligations any Seller
Party
has to the Buyer Parties or their affiliates under any other contract,
understanding, arrangement or agreement.
4.4 Cessation
of Obligation under IPA.
Except
as otherwise provided herein, the IPA shall no longer be of any force or effect
after the date hereof. Notwithstanding the foregoing, each party acknowledges
that the IPA transferred certain rights and assets to the Buyer and that Buyer
was authorized to operate the Business under these rights. The termination
of
the IPA and execution of this Agreement shall not create any right of reversion
with respect to assets or rights previously transferred to Buyer or its
affiliates under the IPA.
7
4.5 Further
Assurances.
Upon
the reasonable request of a Party or Parties hereto at any time after the date
hereof, the other Party or Parties shall forthwith execute and deliver such
further instruments of assignment, transfer, conveyance, endorsement, direction
or authorization and other documents as the requesting party or parties or
its
or their counsel may reasonably request in order to perfect title of the Buyer
and its successors and assigns to the Acquired Assets or otherwise to effectuate
the purposes of this Agreement. Each Party agrees to use its best efforts and
to
exercise good faith in fulfilling its obligations under this
Agreement.
4.6 Confidentiality.
Except
as otherwise required by law, each Party agrees not to disclose the terms of
this Agreement or the substance of the discussions preceding this Agreement
to
any other person; provided, however, that this Section 4.6 shall not apply
to:
(a) a
Seller
Party’s communications to his immediate family or his or its attorneys,
accountants and/or financial advisors,
(b) Buyer
Party’s communications to any third party with a legitimate business need to
know, as determined in Buyer Party’s reasonable and good faith discretion (such
as its attorneys, accountants, auditors and/or financial advisors),
(c) disclosure
by a Buyer Party to the extent required by applicable U.S. federal securities
laws, and
(d) disclosure
by a Buyer Party to any potential financing source or potential buyer of the
Repurchase Option or the Company,
as
long
as the foregoing parties, prior to disclosure, first agree not to disclose
such
information to anyone else. In addition, if a Seller Party is required by law
to
disclose any of the terms of this Agreement or the substance of the discussions
preceding this Agreement, such Seller Party will provide written notice to
the
Buyer Parties in advance of such disclosure, and will cooperate with the Buyer
Parties to prevent or limit such disclosure.
ARTICLE
V
SURVIVAL
AND INDEMNIFICATION
5.1 Survival.
Each
covenant contained in this Agreement shall survive the Closing indefinitely,
except to the extent the covenant provides for a specific time period
therein. Each
representation and warranty contained in this Agreement shall survive the
Closing for a period of 24 months, except those representations and warranties
contained in (i) Section 2.2 (Authorization of Transaction) and Section 2.3
(Acquired Assets), which will survive forever. No Party will be liable to any
other Party under any warranty or representation contained herein after the
applicable expiration of such warranty or representation; provided however,
if a
claim or notice is given under this Article V with respect to any representation
or warranty in reasonable detail prior to the applicable expiration date, such
claim may be pursued to resolution notwithstanding expiration of the
representation or warranty under which the claim was brought. Completion of
the
transactions contemplated hereby shall not be deemed or construed to be a waiver
of any right or remedy of any of the Parties, except as otherwise provided
in
this Agreement.
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5.2 Indemnification
by the Seller Parties.
The
Seller Parties and their respective successors and assigns shall severally
and
not jointly indemnify, defend, reimburse and hold harmless the Buyer Parties
and
their respective officers, directors, employees, stockholders, managers, members
and agents from and against any and all claims, losses, damages, liabilities,
obligations, assessments, penalties and interest, demands, actions and expenses
(including, without limitation, settlement costs, legal and accounting fees
and
expenses and any other expenses for investigating or defending any actions
or
threatened actions, but not including consequential or special damages)
(“Losses”)
arising out of or in connection with any of the following:
(a) any
breach of any covenant, representation, warranty, agreement or obligation of
the
Seller Parties contained in this Agreement or any other Transaction Document;
and
(b) any
tax
and/or related liability owed by any of the Seller Parties or their respective
affiliates and relating to the Acquired Assets, including under bulk sales
and
similar state regulations.
5.3 Right
of Offset.
Upon
providing the Seller Party with written notice and thirty (30) day period to
pay
any such obligations directly in cash, the Buyer shall be entitled to offset
and
collect from any amounts otherwise owed to a Seller Party any and all amounts
owed by such Seller Party to the Buyer or its affiliates as Indemnitee under
this Article
V
or any
other contract between the Parties.
ARTICLE
VI
CLOSING
DELIVERIES
6.1 Closing
Documents of the Seller Parties.
At the
Closing, the Seller Parties are delivering to the Buyer the
following:
(i) Copies,
certified by the Secretary or an Assistant Secretary of each Seller Party
Entity, of resolutions of their respective board of directors or managers (or
partners) authorizing the execution, delivery and performance of this Agreement
and the other Transaction Documents to which any Seller Party Entity is a party
and the consummation of the transactions contemplated hereby and
thereby.
(ii) All
documents (executed as necessary) that are required to change the corporate
name
of each Seller Party Entity to a new name not related to the Names or any
derivative thereof.
9
(iii) An
Assignment and Xxxx of Sale in form reasonably satisfactory to Buyer and its
counsel.
(iv) Intellectual
Property instruments of assignment effective to fully vest all of the Names
and
Intellectual Property in the Buyer in form reasonably satisfactory to the Buyer
and its counsel, executed by the Seller Parties.
(v) Such
further instruments of sale, transfer, conveyance, assignment or delivery
covering the Acquired Assets, or any part thereof, as the Buyer may reasonably
require to assure the full and effective sale, transfer, conveyance, assignment
or delivery to it of the Acquired Assets to be transferred pursuant to this
Agreement.
(vi) If
applicable, consents of former and present spouses of any Seller Parties whose
marriages are or were governed by community property laws.
(vii) Other
documents as necessary to evidence the transfer of rights or settle the relative
rights among Seller Parties.
6.2 Closing
Documents of the Buyer.
At the
Closing, the Buyer is delivering or issuing to the Seller Parties the
following:
(i) Copies,
certified by an officer of the Buyer and Parent, of resolutions of their
respective boards of directors authorizing the execution, delivery and
performance of this Agreement and the other Transaction Documents to which
the
Buyer and Parent is a party and the consummation of the transactions
contemplated hereby and thereby; and
ARTICLE
VII
MISCELLANEOUS
7.1 Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed given (i) upon personal delivery,
(ii) three days after being mailed by certified or registered mail, postage
prepaid, return receipt requested, (iii) one business day after being sent
via a nationally recognized overnight courier service if overnight courier
service is requested from such service or (iv) upon receipt of electronic
or other confirmation of transmission if sent via facsimile and followed by
certified or registered mail, postage prepaid, return receipt requested, to
the
parties, their successors in interest or their assignees at the following
addresses and telephone numbers, or at such other addresses or telephone numbers
as the parties may designate by written notice in accordance with this
Section
7.1.
If
to the
Buyer:
Equity
Media Broadcasting Corporation
0
Xxxxxxxxxxx Xxxxx
Xxxxx
000
Xxxxxx
Xxxx, XX 00000
Attention:
Chairman of the Board
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
10
With
a
copy to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxx Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
If
to
Seller Parties:
Xxxxx
Xxxxxx on behalf of himself and RTN Seller:
Xxxxx
Xxxxxx
00
Xxxxx
Xxxxxxx Xxxx
Xxxxxx
Xxxx, Xxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
And
Xxxx
Xxxxxx
c/o
Equity Media Holdings Corporation
0
Xxxxxxxxxxx Xxxxx
Xxxxx
000
Xxxxxx
Xxxx, XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
7.2 Assignability
and Parties in Interest.
(a) This
Agreement and the rights, interests or obligations hereunder may not be assigned
by any Party without the written consent of the other Parties; provided,
however, that the Buyer may assign its rights under this Agreement to any entity
under control of Parent. Notwithstanding the foregoing, each Seller Party shall
be entitled to transfer and assign its rights to receive Payments under Section
1.4 to another Person without the consent of the Buyer Parties; provided
that the
right of any such assignee to any Payments shall be subject to Buyer’s right to
offset against such Payments pursuant to Section 5.3 or otherwise under
applicable law in the absence of such transfer and assignment. This Agreement
shall inure to the benefit of and be binding upon the Parties and their
respective permitted successors and assigns. Nothing in this Agreement will
confer upon any Person not a Party to this Agreement, or the legal
representatives of such Person, any rights or remedies of any nature or kind
whatsoever under or by reason of this Agreement.
11
(b) Notwithstanding
anything to the contrary, each Seller Party hereby acknowledges that the Buyer
Parties will grant a security interest in all of the Buyer Parties’ respective
rights under this Agreement to Xxxxx Fargo Bank, National Association, as
collateral agent for the lenders (including any successor thereto, the
“Collateral
Agent”)
under
the Third Amended and Restated Credit Agreement, dated as of February 13, 2008,
among the Buyer Parties and certain other subsidiaries of Parent, and the
financial institutions party thereto (as amended, supplemented and otherwise
modified from time to time, the “Credit
Agreement”),
and
each Seller Party hereby consents to the granting of such security interest;
provided that such security interest does not create a lien on any Seller
Parties’ rights hereunder or otherwise serve to modify or diminish such rights.
Each Seller Party further agrees that, following such grant, (x) each Seller
Party shall execute and deliver any and all instruments, certificates and
documents, and take any and all actions, as Parent or the Collateral Agent
may
reasonably request from time to time to ensure that the Collateral Agent has
and
maintains a first priority security interest in the rights of the Buyer Parties
under this Agreement and (y) the Collateral Agent shall have the right, both
prior to and following any default under the Credit Agreement and without any
further action by any other party hereto, to exercise the rights of the Buyer
Parties under this Agreement and to enforce the obligations of the Seller
Parties hereunder. This Agreement shall be binding upon and shall inure to
the
benefit of the parties hereto and their respective successors and permitted
assigns.
7.3 Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the internal law of the State of Arkansas, without giving effect to its
conflicts of law principles or rules that would require the application of
the
law of any other jurisdiction.
7.4 Venue.
Any
civil action or legal proceeding arising out of or relating to this Agreement
shall be brought in the appropriate federal or state court located in the State
of Arkansas. Each Party consents to the jurisdiction of such court in any such
civil action or legal proceeding and waives any objection to the laying of
venue
of any such civil action or legal proceeding in such court. Service of any
court
paper may be affected on such Party by registered mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws,
rules of procedure or local rules.
7.5 Waiver
of Jury Trial.
EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
IT OR HE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT OR HE MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER,
(B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER,
(C) IT MAKES SUCH WAIVER VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND
CERTIFICATIONS HEREIN.
12
7.6 Specific
Performance.
Each
Party agrees that the Parties shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement and to enforce specifically the terms
and
provisions hereof in any court of the United States or any state having
jurisdiction; this being in addition to any other remedy to which they are
entitled at law or in equity.
7.7 Counterparts.
Facsimile transmission of any signed original document or retransmission of
any
signed facsimile transmission will be deemed the same as delivery of an
original. At the request of any Party, the Parties will confirm facsimile
transmission by signing a duplicate original document. This Agreement may be
executed in counterparts, each of which shall be deemed an original, but all
of
which shall constitute but one and the same instrument.
7.8 Complete
Agreement.
This
Agreement, the exhibits and schedules hereto (which are incorporated herein
by
this reference) and the other Transaction Documents contain the entire agreement
between the Parties hereto with respect to the transactions contemplated herein
and therein and supersede all previous oral and written and all contemporaneous
oral negotiations, commitments, and understandings.
7.9 Headings;
References.
The
headings contained in this Agreement and the other Transaction Documents are
for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References herein to Articles, Sections,
Schedules and Exhibits refer to the referenced Articles, Sections, Schedules
or
Exhibits hereof unless otherwise specified.
7.10 Severability.
If any
provision of this Agreement is invalid, illegal, or unenforceable in any
jurisdiction, as to that jurisdiction, such provision shall be deemed amended
to
the extent required to make it valid, legal and enforceable, and to the extent
that the rights or obligations of the Parties under this Agreement will not
be
materially and adversely effected thereby, such amended provision and the
remaining provisions of this Agreement will remain in full force and effect
in
such jurisdiction and shall not render that or any other provision of this
Agreement invalid, illegal, or unenforceable
in
any other jurisdiction.
7.11 Expenses
of Transactions.
All
fees, costs and expenses incurred by the Buyer in connection with the
transactions contemplated by this Agreement shall be borne by the Buyer, and
all
fees, costs, and expenses incurred by the Seller Parties in connection with
the
transactions contemplated by this Agreement shall be borne by the Seller
Parties.
13
IN
WITNESS WHEREOF,
each of
the parties hereto has executed this Agreement as of the date first above
written.
|
EQUITY
MEDIA BROADCASTING
CORPORATION
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
C.A.S.H.
SERVICES, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
RETRO
PROGRAMMING SERVICES, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
14
SELLER
PARTIES SIGNATURE PAGE
|
RETRO
TELEVISION NETWORK, LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXX
X. XXXXXX
|
||
|
XXXX
XXXXXX
|
||
15
SCHEDULE
2.4(a)
RTN
Network, LLC
Xxxxx
Xxxxxx
Xxxx
Xxxxxx
Xxxx
Xxxx
Xxxxxxx
XxXxxxx
Xxxx
Xxxxxxx
Xxxx
Xxxxxxx
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxxx
Xxxxx
Xxxxxxxxxxxx
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxxx
Xxxxx
Xxxxxxx
Xxxxxxxxx
Xxxxxx
16
