STOCK PURCHASE AGREEMENT
(▇▇▇▇▇▇▇ ▇. ▇▇▇▇/The ▇▇▇▇ Group, Inc.)
This is a Stock Purchase Agreement, dated for convenience as of October
10, 1999 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Seller") and The ▇▇▇▇ Group, Inc., an Oregon
Corporation ("Buyer").
1. RECITALS
1.01 ▇▇▇▇ Media Corporation (the "Company") is an Oregon corporation.
1.02 The Company's Common Stock, without par value, is publicly held
and is quoted on the Nasdaq National Market operated by the National Association
of Securities Dealers, Inc.
1.03 Seller is the record and beneficial holder of shares of the
Company's Common Stock. Seller is a member of the Board of Directors and an
officer of the Company.
1.04 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is a member of the Board of Directors of the
Company and is President, Chief Executive Officer and controlling shareholder of
Buyer.
1.05 Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, 90,000 shares of the Company's Common Stock (the "Shares") at the
price and subject to the terms and conditions set forth in this Agreement.
1.06 The offer and sale of shares from Seller to Buyer will not be
registered under the Securities Act of 1933 ("Securities Act") or under the
provisions of applicable state securities laws such that Buyer shall acquire the
Shares subject to restrictions on transfer.
THEREFORE, in consideration of the above recitals and the
representations, warranties, covenants and conditions contained herein, and for
other good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
2. PURCHASE AND SALE OF SHARES
2.01 OBLIGATIONS OF BUYER AND SELLER. At the Closing, Seller shall sell
and Buyer shall purchase for the Purchase Price the Shares.
2.02 PURCHASE PRICE. The Purchase Price for the Shares shall be $11.00
per share, payable in immediately available Eugene, Oregon funds at the Closing,
subject only to adjustment, if any shall be appropriate, pursuant to Section
2.05 of this Agreement.
2.03 CLOSING. The Closing shall be held in the offices of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, beginning at 2:00 P.M. on Monday, January 3, 2000 or at such other
place and time as the parties shall mutually agree. Closing may be conducted by
means of wire transfer, telephone communication, courier and other deliveries
satisfactory to the parties.
Stock Purchase Agreement--Page 1
2.04 DELIVERIES AT CLOSING. At the Closing, Seller shall deliver
against payment of the Purchase Price, duly endorsed in blank for transfer to
Buyer, with signatures guaranteed by a participant in the medallion signature
verification system, certificates representing the number of Shares to be
transferred to Buyer and Buyer shall deliver to Seller, in immediately available
Eugene, Oregon funds, the Purchase Price applicable to such Shares.
2.05 ADJUSTMENTS TO REFLECT CHANGES IN COMPANY'S CAPITAL STRUCTURE. In
the event that, after October 10, 1999 and prior to Closing, the shares of
Common Stock of the Company shall be split, combined or consolidated by
dividend, reclassification or otherwise into a greater or lesser number of
shares of Common Stock (for convenience, a "Recapitalization'), the Purchase
Price per Share in effect immediately prior to such combination or consolidation
and the number of Shares Buyer shall purchase under this Agreement shall,
concurrently with the effectiveness of such combination or consolidation, be
equitably and proportionately adjusted such that the total purchase price for
all Shares shall not change and Buyer shall receive upon consummation of the
transactions to be concluded at Closing, the same proportionate interest in the
Company's outstanding Common Stock as buyer would have received if the Closing
had occurred immediately prior to the effective date of such Recapitalization.
If, prior to Closing, there shall be effected any consolidation or merger of the
Company with any other entity, or a sale of all or substantially all of the
Company's assets to another entity (for convenience, a "Business Combination"),
and if the holders of the Company's Common Stock shall be entitled pursuant to
the terms of any such transaction to receive stock, securities or assets with
respect to or in exchange for Common Stock, then, Buyer shall have the right to
receive upon consummation of the transactions to be concluded at Closing, upon
the basis and upon the terms and conditions specified in this Agreement and in
lieu of the Shares otherwise deliverable at Closing, such shares of stock,
securities or assets as may be issuable or payable with respect to or in
exchange for such Shares as Buyer would have received if the Closing had
occurred immediately prior to effectiveness of such Business Combination. In the
event the Company shall declare a distribution in respect of the Company's
Common Stock payable in cash, securities of other persons, evidences of
indebtedness issued by the Company or other persons, assets or options or rights
not otherwise referred to in this section 2.05, then, in such case, upon
consummation of the transactions to be concluded at the Closing, the Buyer shall
be entitled to a proportional share of any such distribution as though Buyer was
the holder of the number of Shares purchasable at the Closing as of the record
date fixed for determination of the holders of Common Stock of the Company
entitled to receive such distributions.
2.06 TRANSFER TAXES. Any and all documentary or transfer taxes payable
in connection with the transactions contemplated by this Agreement shall be paid
Buyer.
3. REPRESENTATIONS AND WARRANTIES AND CERTAIN COVENANTS OF BUYER
Buyer represents, warrants and covenants to Seller that, as of the date
of the date of this Agreement and as of the Closing:
3.01 AUTHORITY AND BINDING EFFECT. Buyer has all requisite legal and
corporate or other power and capacity, and has taken all requisite corporate or
other action, to execute and
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deliver this Agreement and to carry out and perform all of its obligations under
this Agreement and this Agreement constitutes the legal, valid and binding
obligation of Buyer, enforceable in accordance with its terms except as limited
by applicable bankruptcy, insolvency, reorganization or similar laws relating to
or affecting the enforcement of creditors rights generally and as limited by
equitable principles generally.
3.02 NO BROKERAGE COMMISSIONS. There are no claims for brokerage
commissions, finder's fees, or similar compensation in connection with the
transactions contemplated by this Agreement or any arrangement or agreement
entered into by Buyer and binding upon Seller.
3.03 ACCREDITED INVESTOR. Buyer is an "accredited investor" as defined
in Rule 501(a) under the Securities Act. Buyer is aware of the Company's
business affairs and financial condition and has had access to and has acquired
sufficient information about the Company to reach an informed and knowledgeable
decision to acquire the Shares. Buyer has such business and financial experience
as is required to give it the capacity to protect its own interests in
connection with the purchase of the Shares.
3.04 PURCHASE FOR INVESTMENT. Buyer is purchasing the Shares for its
own account as principal, for investment purposes, and not with a view to
resale, distribution or fractionalization thereof, in whole or in part. Buyer
understands that its acquisition of the Shares has not been registered under the
Securities Act or registered or qualified under any state securities law in
reliance on specific exemptions therefrom, which exemptions may depend upon,
among other things, the bona fide in nature of Buyer's investment intent as
expressed herein. Buyer will not, directly or indirectly, offer, sell, pledge,
transfer, or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act and the rules and regulations thereunder. Certificates
evidencing Buyer's ownership of the Shares shall bear an appropriate legend
referring to this requirement.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF SELLER
Seller represents, warrants and covenants to Buyer that, with respect
to Seller's sale of Shares to Buyer:
4.01 AUTHORITY AND BINDING EFFECT. Seller has all requisite legal and
other power and capacity, and has taken all requisite action, to execute and
deliver this Agreement and to carry out and perform all of Seller's obligations
under this Agreement and this Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable in accordance with its terms except as limited
by applicable bankruptcy, insolvency, reorganization or similar laws relating to
or affecting the enforcement of creditors rights generally and as limited by
equitable principles generally.
4.02 TITLE TO SHARES. Seller is the sole record and beneficial owner
of, and has the right to sell the Shares and all such Shares are now, and will
at the Closing be, free of all encumbrances, and will not be disposed of or
encumbered except: (a) for restrictions imposed by certain "lock-up" agreements
heretofore disclosed to Buyer, which restrictions will automatically
Stock Purchase Agreement--Page 3
expire prior to Closing; and (b) the terms of this Agreement, and that Buyer
shall receive good and marketable title to all Shares deliverable by Seller
under this Agreement.
4.03 NO BROKERAGE COMMISSIONS. There are no claims for brokerage
commissions, finder's fees, or similar compensation in connection with the
transactions contemplated by this Agreement or any arrangement or agreement
entered into by Seller and binding upon Buyer.
4.04 EXEMPT FROM REGISTRATION. The offer and sale of the Shares to
Buyer by Seller hereunder is exempt from the registration requirements of the
Securities Act of 1933 and from registration requirements of any applicable
state securities laws.
4.05 SEC DOCUMENTS - SUBSEQUENT EVENTS. The Company has timely filed
all SEC Documents required to be filed by the Company since December 31, 1998).
The term "SEC Documents" means all registration statements, proxy statements,
periodic and current reports and schedules, and amendments thereto, filed by the
Company with the United States Securities and Exchange Commission. The SEC
Documents (a) at the time filed, complied in all material respects with the
applicable requirements of the securities laws under which they were filed, and
(b) did not, at the time they were filed (or, if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing),
contain any untrue statement of a material fact or omit to state a material fact
required to be stated in such SEC Documents, or necessary in order to make the
statements in such SEC Documents in light of the circumstances under which they
were made, not misleading. Seller has no knowledge of any material adverse
change in the Company's financial condition or results of operations since
August 10, 1999, the date of the Company's Prospectus forming part of the
Company's Registration Statement No. 333-79367 on Form S-1 filed with the SEC.
4.06 POSSIBLE COMPANY REGISTRATION STATEMENT. In the event the Company
should determine to register shares of its Common Stock for sale to the public
on a registration form which would also permit a sale of Shares held by Buyer,
Seller agrees, upon request of Buyer, to use reasonable efforts to cause Buyer's
Shares to be included in such registration statement, provided that:
a. Seller's covenant hereunder extends only to Seller's interest as a
shareholder of the Company and not as a director, officer or
fiduciary of the Company - nothing in this Agreement shall in any
way limit Seller's freedom to fulfill such Seller's fiduciary or
other duties as an officer, employee or director of the Company or
to shareholders of the Company as a whole;
b. Shares to be offered and sold by the Company shall be entitled to
priority and precedence for inclusion in the registration
statement over any Shares to be offered by Buyer;
c. To the extent, if any, that there shall be included in such
registration statement shares of both Buyer and Seller, Buyer and
Seller shall be entitled to participate in the offering in
proportion to their respective holdings of the Company's Common
Stock;
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d. Nothing in this paragraph shall obligate the Company to file a
registration statement or make any determination to offer any of
its shares or other securities to the public; and
e. Buyer shall bear its proportionate share of all underwriting,
discounts, commissions and other expenses in connection with such
offering.
5. GENERAL PROVISIONS
5.01 AMENDMENTS. This Agreement may be amended, modified or
supplemented only by written agreement signed by Buyer and Seller.
5.02 NOTICES. All notices, requests, demands and other communications
required or permitted hereunder will be in writing and will be deemed to have
been given when delivered by hand or two days after being mailed by United
States mail, first class postage pre-paid and addressed as follows:
If to BUYER: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
The ▇▇▇▇ Group, Inc.
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
If to SELLER: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
c/o ▇▇▇▇ Media Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
5.03 ASSIGNMENT. Neither this Agreement, nor any interest herein, may
be assigned by any party without the prior written consent of the other party
hereto. No permitted assignment will release the assignor from its obligations
hereunder. Subject to the foregoing, this Agreement, and all of the provisions
hereof shall be binding upon, and shall inure to the benefit of the parties
hereto, with respect to successors, assigns, heirs, executors and personal
representatives. Nothing in this Agreement, expressed or implied is intend to
confer upon any person other than the parties hereto or their respective
successors, any rights, remedies, obligations or liabilities under or by reason
of this Agreement except that the Company is an intended beneficiary of
restrictions on transfer of Shares.
5.04 GOVERNING LAW. All matters with respect to this Agreement,
including, but not limited to matters of validity, construction, effect and
performance, will be governed by the laws of the State of Oregon applicable to
contracts made, and to be performed, therein between residents thereof,
regardless of the laws that might be applicable under principles of conflicts of
laws.
5.05 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties hereto as to the subject matter hereof. There are
no restrictions, promises, representations, warranties, covenants or
undertakings other than those expressly set
Stock Purchase Agreement--Page 5
forth or referred to herein. This Agreement supersedes all prior Agreements and
understandings among the parties with respect to the subject matter hereof.
5.06 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any jurisdiction will, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms or provisions of this
Agreement, or effecting the validity or enforceability of any of the terms or
provisions of this Agreement.
5.07 EXPENSES. Each party to this Agreement shall be responsible for,
and shall pay, all of its own fees and expenses, including those of its counsel
and advisors, incurred in the negotiation, preparation and consummation of the
Agreement and the purchase.
5.08 FURTHER ASSURANCES. Each party to this Agreement shall, without
further consideration, do and perform, or cause to be done and performed, such
further acts and things, shall execute and deliver such further agreements,
certificates, instruments, and documents, as another party hereto may reasonably
request in order to more fully accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
5.09 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original binding upon the signer
thereof against the other signing parties, but all counterparts together, shall
constitute one and the same instrument. Any counterpart may be offered or
introduced as evidence of the Agreement.
BUYER:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Date: 11/1 , 99 .
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
SELLER:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Date: 10-27 , 99 .
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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