Exhibit 10.12
NONCOMPETITION AGREEMENT
THIS AGREEMENT is made as of this 17th day of June 1997 by and among
Peregrine Communications, Ltd., Peregrine Holdings, Ltd. (together "Peregrine"
), corporations organized under the laws of Oregon, Channel 32 Incorporated, a
corporation organized under the laws of Oregon, ("Channel 32") (together
Peregrine and Channel 32 are referred to herein as "Covenantors") and Acme
Television Holdings of Oregon, L.L.C. ("Acme"), a limited liability company
organized under the laws of Oregon ("Buyer").
RECITALS:
WHEREAS, Peregrine is the parent company of Channel 32 Incorporated
("Channel 32"), a corporation organized under the laws of Oregon; and
WHEREAS, Channel 32 is the licensee of television station KWBP-TV in
Salem, Oregon, (the "Station"); and
WHEREAS, Channel 32 and Acme have entered into an Asset Purchase
Agreement, as amended (the "Purchase Agreement") dated January 31, 1997 pursuant
to which Channel 32 has agreed to sell and assign, and Buyer has agreed to
purchase and acquire, the assets used or useful in the operation of the Station;
and
WHEREAS, as the parent company of Channel 32, Peregrine will benefit
from consummation of the Purchase Agreement; and
WHEREAS, the Purchase Agreement requires Covenantors to enter into a
Noncompetition Agreement for the Salem, Oregon market upon consummation of the
Purchase Agreement; and
WHEREAS, the Federal Communications Commission (the "FCC") has granted
its consent to the assignment of the FCC Licenses (as defined in the Purchase
Agreement) from Channel 32 to Buyer; and
WHEREAS, in accordance with the terms of the Purchase Agreement, the
parties hereto wish to enter into a noncompetition agreement with respect to the
Station and the area surrounding the Station upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises set forth herein, the parties hereby agree as follows:
1. PAYMENT OF CONSIDERATION. In consideration of their obligations
hereunder, Buyer has paid Covenantors on this date the sum of One Thousand
Dollars
($1,000), which sum is part of the Purchase Price paid by Buyer to Covenantors
under the Purchase Agreement.
2. COVENANTORS' OBLIGATIONS.
a. For a period of two (2) years from the date of this Agreement
(the "Noncompetition Period"), neither Covenantors nor their Affiliates (as
defined below) shall, directly or indirectly, (i) own, manage, operate, control,
join, assist, lend money to, guarantee the obligation of, or participate in the
ownership, management, operation or control of, or be involved as consultant,
stockholder, or partner with, or participate in any manner with the
establishment of, any Competitive Business (as defined below), or (ii) solicit
or induce any employee of Buyer while an employee of the Station (and which
employee was formerly an employee of KWBP-TV immediately before the execution
and delivery of the Purchase Agreement) to terminate such employment to become
employed by Covenantor or an Affiliate and (iii) these restrictions shall apply
to all future assignees of Covenantors and their Affiliates.
b. "Competitive Business" means any television station as
defined in the FCC's rules and regulations in the Salem, Oregon metro market,
as defined by Arbitron as of the date of this Agreement.
c. "Restricted Region" means the Salem, Oregon television
metro market, as defined by Arbitron as of the date of this Agreement.
d. An "Affiliate" means any other person or entity that
controls or is controlled by any Covenantor.
3. EXTENSION OF NONCOMPETITION PERIOD. If any Covenantor or Affiliate
thereof violates this Agreement and Buyer secures appropriate injunctive or
other equitable relief from a court of competent jurisdiction, the
Noncompetition Period for any such Covenantor shall be computed anew from the
date judicial relief is afforded to Buyer but reduced by the time expired
between the date the initial Noncompetition Period commenced and the date of the
first violation by the Covenantor or its Affiliate.
4. AMENDMENT BY COURT ORDER. If any provision of the Agreement shall
be determined by any court of competent jurisdiction to be unenforceable for any
reason, the Agreement shall be deemed to be amended to conform with any such
judicial determination but only to the extent necessary to avoid such provision
from being declared null and void or otherwise unenforceable.
5. ASSIGNMENT. Buyer may assign its rights under this Agreement to,
and this Agreement shall thereafter be binding upon and inure to the benefit of,
any subsequent licensee of the Stations, and such assignee shall thereupon
be deemed substituted for Buyer upon the terms and subject to the conditions
hereof.
6. NOTICES. All notices, requests, demands, and other communications
permitted or required by this Agreement shall be in writing and shall be deemed
given when delivered personally (which shall include delivery by any reputable
overnight courier service that issues a receipt or other confirmation of
delivery) or five (5) business days after the date mailed by certified or
registered U.S. mail, return receipt requested, postage prepaid, and addressed
as follows:
If to Covenantors:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Channel ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
9725 S.W. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Buyer:
▇▇▇▇▇▇▇ ▇▇▇▇▇
President, Acme Television Holdings of Oregon,
L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇. Paper, Esq.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change the address to which such notices are to be addressed by
notice thereof to the other party in the manner set forth above.
7. APPLICABLE LAW. This Agreement shall be interpreted and enforced
under the laws of the State of Oregon without regard to conflict of laws
provisions.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between and among the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral and written agreements,
understandings and commitments between the parties with respect to the subject
matter hereof. No amendments to this Agreement may be made except by a writing
signed by all parties hereto.
9. WAIVERS. No failure or delay of Buyer in exercising any of its
rights or remedies hereunder for breach of any provision hereof shall constitute
a waiver of such rights or remedies or any waiver in connection with any
subsequent breach thereof. No waiver of any provision of this Agreement shall be
effective unless in writing and signed by the party against which such waiver is
sought to be enforced.
10. ACKNOWLEDGMENTS. Covenantors hereby acknowledge (1) that they have
had the opportunity to consult independent counsel of their choosing in
connection with the preparation and execution of this Agreement, (2) that the
provisions of this Agreement have been negotiated and carefully tailored with a
view to preventing the serious and irreparable injury that Buyer will suffer in
the event of competition by Covenantors with Buyer in the Restricted Region
during the Noncompetition Period, (3) that Buyer is providing the benefits set
forth in this Agreement in reliance on Covenantors' joint and several
representations that the restrictions set forth in this Agreement will not
impose an undue hardship on any Covenantors since each has other business
opportunities with respect to the operation of the television station, (4) that
Covenantors' individual or joint breach of this Agreement will cause irreparable
injury to Buyer, the exact amount of which will be difficult to ascertain, and
that the remedies at law for any such breach would be inadequate, and (5) that,
if any Covenantor or its Affiliate breaches this Agreement, Buyer shall be
entitled to injunctive relief without posting bond or other security.
11. COUNTERPARTS. This Agreement may be signed in multiple
counterparts, all of which together shall constitute one agreement binding on
the parties hereto, notwithstanding that all of the parties have not signed
the same counterpart.
12. LEGAL FEES AND COSTS. If any action in law or in equity is
instituted to enforce the provisions of this Agreement, the prevailing party
shall be entitled to reimbursement by the other party for all reasonable
costs incurred thereby, including reasonable attorneys' fees.
13. CONSTRUCTION. The section headings of this Agreement are
for convenience only and in no way modify, interpret or construe the meaning
of specific provisions of the Agreement. As used herein, the neuter gender
shall also denote the masculine and feminine, and the masculine gender shall
also denote the neuter and feminine, where the context so permits or
requests. To the extent it is not defined in this
Agreement, any term used herein shall have the same meaning herein as in the
Purchase Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CHANNEL 32 INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Executive Vice President
PEREGRINE COMMUNICATIONS, LTD.
By: /s/ ▇▇▇ ▇▇▇▇
___________________________
Chief Executive Officer
PEREGRINE HOLDINGS, LTD.
By: /s/ ▇▇▇ ▇▇▇▇
___________________________
Chief Executive Officer
ACME TELEVISION HOLDINGS OF OREGON, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Managing Member