EXHIBIT 4.14
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
January 3, 2002, by and between ▇▇▇▇▇ Broadcasting Partners, L.P., a Delaware
limited partnership ("Seller"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ("Buyer"), and solely
for purposes of Section 7.2, Sunrise Television Corp., a Delaware corporation
(the "Company").
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, one share (the "Share") of Class A Common Stock, par value $0.01
per share, of the Company, in consideration for the Purchase Price (as defined
below), upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants, and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
Purchase and Sale of the Share
1.1 Purchase and Sale of the Share. Upon the terms and subject to
the conditions set forth in this Agreement, at the Closing (as defined below),
Seller shall sell to Buyer, and Buyer shall purchase from Seller, the Share,
free and clear of all liens, security interests, claims, charges, rights of
another, defects in title, and encumbrances of any kind or character ("Liens").
1.2 Purchase Price. The purchase price payable by Buyer to Seller
in consideration for the sale of the Share shall be an amount equal to $200 (the
"Purchase Price"). Payment of the Purchase Price shall be made at the Closing by
or on behalf of Buyer in cash or by wire transfer of immediately available funds
to Seller.
ARTICLE II
Representations and Warranties
2.1 Representations and Warranties of Seller. Seller hereby
represents and warrants to Buyer as follows (with the understanding that Buyer
is relying on such representations and warranties in entering into and
performing this Agreement):
(a) Ownership of the Share. Seller is the holder of
record and owns beneficially the Share. At the Closing, Seller will
transfer to Buyer good and valid title to the Share, free and clear of
all Liens.
(b) Organization. Seller is a limited partnership duly
organized and validly existing under the laws of the State of Delaware.
(c) Authority. Seller has the requisite partnership power
and authority to enter into this Agreement and each other agreement,
document, and instrument required to be executed by Seller in
accordance herewith (collectively, and including this Agreement, the
"Transaction Documents") and to consummate the transactions
contemplated hereby and thereby. The
execution and delivery of the Transaction Documents by Seller and the
consummation by Seller of the transactions contemplated thereby have
been duly authorized by all necessary partnership action on the part of
Seller. Each Transaction Document has been, or when executed and
delivered in accordance herewith or therewith, will be duly executed
and delivered by Seller and, assuming that such Transaction Document
constitutes a valid and binding obligation of the other party(ies)
thereto, constitutes or, upon execution and delivery, will constitute a
valid and binding obligation of Seller, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, and
similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity).
(d) Consents; Noncontravention. The execution, delivery,
and performance of the Transaction Documents by Seller does not require
the consent of any governmental entity or third party, except for (i)
the approval by the Federal Communications Commission of the
transactions contemplated by this Agreement, (ii) the consent of the
network under each network affiliate agreement to which the Company and
any of its subsidiaries is a party, and (iii) those that have already
been obtained. The execution, delivery and performance of the
Transaction Documents by Seller will not conflict with or violate any
applicable law or any judgment, order, or ruling of any government
entity having jurisdiction over Seller, will not, directly or
indirectly, conflict with or constitute a breach or default under any
agreement, license, or permit to which Seller is a party or is subject,
and will not result in the creation of any Lien on the assets of the
Company.
(e) No Valuation. Seller understands and acknowledges
that Buyer has not performed, directly or indirectly, any valuation of
the Share or of the Company and this Agreement shall not be construed
as a valuation of the Share or of the Company.
2.2 Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows (with the understanding that Seller is relying on
such representations and warranties in entering into and performing this
Agreement):
(a) Authority. Buyer has the requisite capacity to enter
into the Transaction Documents to which Buyer is to be a party and to
consummate the transactions contemplated hereby and thereby. Each
Transaction Document to which Buyer is to be a party, has been, or when
executed and delivered in accordance herewith or therewith will be,
duly executed and delivered by Buyer and, assuming that such
Transaction Document constitutes a valid and binding obligation of the
other party(ies) thereto, constitutes or, upon execution and delivery,
will constitute a valid and binding obligation of Buyer, enforceable
against him in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith
and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(b) Investment Intent. The Share to be acquired by Buyer
hereunder is being acquired for his own account, for investment and
with no intention of distributing or reselling such Share or any part
thereof or interest therein in any transaction which would be a
violation of the securities laws of the United States of America or any
state or any foreign country or jurisdiction.
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(c) Investment Status. Buyer is an "Accredited Investor"
as defined in Rule 501 under the Securities Act of 1933 (the
"Securities Act"), and Buyer has such knowledge, sophistication and
experience in business and financial matters so as to be capable of
evaluating an investment in the Share, and is able to bear the economic
risks of such investment.
(d) Access. Buyer has carefully reviewed and is familiar
with the terms of each Transaction Document to which he is or will be a
party. Seller and the Company have made available to Buyer all
agreements, documents, records, and books that Buyer has requested
relating to the purchase of the Share. Buyer has had a full opportunity
to ask questions of and receive answers from Seller or the Company or a
person acting on behalf of Seller or the Company concerning the terms
and conditions of the purchase of the Share, and all questions asked by
Buyer have been adequately answered to the full satisfaction of Buyer.
Buyer is familiar with the business and financial condition,
properties, operations and prospects of the Company.
(e) Restricted Securities. Buyer understands (i) that the
Share has not been and will not be registered under the Securities Act
or registered or qualified under any applicable state or securities or
"blue-sky" laws by reason of its issuance in transactions exempt from
the registration requirements of the Securities Act or registration or
qualification requirements of any applicable state securities or
"blue-sky" laws, (ii) that the Share must be held indefinitely unless a
subsequent disposition thereof is registered under the Securities Act
or registered or qualified under any applicable state securities or
"blue-sky" laws or is exempt from such registration, (iii) that Seller
is under no obligation to so register the Share and (iv) that the
certificate evidencing the Share will be imprinted with a legend that
prohibits the transfer thereof unless they are registered or such
registration is not required.
(f) State of Residence. Buyer's residence is located in
the state of Texas, and Buyer has no present intention of moving his
residence to any other state or jurisdiction.
ARTICLE III
Covenants
3.1 Side Letter Agreement. At the Closing, Buyer and the Company,
shall execute and enter into a side letter agreement substantially in the form
attached hereto as EXHIBIT A (the "Side Letter Agreement").
3.2 Assurances. Each of Buyer, Seller, and the Company shall use
his or its commercially reasonable efforts to consummate, or cause to be
consummated, the transactions contemplated by this Agreement.
ARTICLE IV
Closing Conditions
4.1 Conditions to each Party's Obligations. The obligations of
each party hereto to consummate the transactions contemplated hereby are subject
to the satisfaction of the following conditions on or before the Closing:
(a) No temporary restraining order, preliminary or
permanent injunction, or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated under this Agreement
shall be in effect;
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(b) No action shall have been taken nor any statute,
rule, or regulation shall have been enacted by any governmental entity
that makes the consummation of the transactions contemplated under this
Agreement illegal;
(c) No litigation or administrative proceeding or
investigation (whether formal or informal) shall be pending or, to any
party's knowledge, threatened which challenges the transactions
contemplated hereby;
(d) All necessary approvals by the Federal Communications
Commission shall have been obtained; and
(e) All necessary consents or waivers under each network
affiliate agreement to which the Company or any of its subsidiaries is
a party shall have been received without any adverse conditions or
requirements being imposed on the Company or any of its subsidiaries as
a condition to any network affiliate's consent or waiver and to which
the Company or any of its subsidiaries does not agree.
4.2 Conditions to Obligations of Buyer. The obligation of Buyer to
effect the transactions contemplated hereby is subject to the satisfaction of
the following conditions unless waived, in whole or in part, by Buyer:
(a) The representations and warranties of Seller in this
Agreement shall be true and correct as of the Closing Date;
(b) Seller shall have performed all obligations under its
covenants and agreements in this Agreement on or before the Closing
Date; and
(c) All items required to be delivered by Seller and the
Company pursuant to Section 5.2 shall have been delivered.
4.3 Conditions to Obligations of Seller. The obligation of Seller
to effect the transactions contemplated hereby is subject to the satisfaction of
the following conditions unless waived, in whole or in part, by Seller:
(a) The representations and warranties of Buyer in this
Agreement shall be true and correct as of the Closing Date;
(b) Buyer shall have performed all obligations under its
covenants and agreements in this Agreement before the Closing Date; and
(c) All items required to be delivered by Buyer and
Seller pursuant to Section 5.2 shall have been delivered.
ARTICLE V
Closing
5.1 Closing. On the terms and subject to the conditions set forth
herein, the closing of the sale and purchase of the Share (the "Closing") shall
take place at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., Dallas, Texas time, on March 3,
2002 or, if all of the conditions contained in Article IV have not been
satisfied or waived by such date, then on the first business day after the date
on which all of the conditions contained in
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Article IV have been satisfied or waived, as applicable, or at such other place
or at such other time or date as may be mutually agreed to in writing by Buyer
and Seller. The date of the Closing is referred to herein as the "Closing Date."
For purposes of this Agreement, each and every event referred to in this
Agreement that is to occur at the Closing shall be deemed to have occurred
contemporaneously.
5.2 Actions to Occur at Closing.
(a) At the Closing, Buyer shall deliver to Seller an
amount equal to the Purchase Price in cash or by wire transfer of
immediately available funds.
(b) At the Closing, Seller shall deliver to Buyer a
certificate representing the Share, accompanied by a stock power duly
endorsed in blank, and otherwise in proper form for transfer.
(c) At the Closing, Buyer, and the Company shall deliver
to each other a duly executed copy of the Side Letter Agreement.
ARTICLE VI
Termination
6.1 Termination. This Agreement may be terminated at any time
prior to Closing as follows:
(a) by mutual consent of Buyer and Seller; or
(b) by written notice of Buyer to Seller or Seller to
Buyer, if the other party breaches any of its representations,
warranties, covenants or agreements contained herein which (i) would
give rise to the failure of a condition to the Closing set forth in
Article IV, as applicable, and (ii) cannot be or has not been cured
within 30 days after the date notice of such breach or default is
served by the party seeking to terminate this Agreement; or
(c) by written notice of Buyer to Seller or Seller to
Buyer, if there shall be in effect any judgment, decree or order that
would prevent or make unlawful the Closing of the transactions
contemplated by this Agreement;
provided, however, that no party hereto may effect a termination hereof
if such party is then in material breach or default of this Agreement;
provided, further, that the termination of this Agreement pursuant to
this Section 6.1 shall not relieve any party of any liability for
breach of this Agreement prior to the date of termination. Articles VI
and VII shall survive termination of this Agreement.
ARTICLE VII
Miscellaneous
7.1 Indemnification; Survival Period. Each party hereto
acknowledges and understands the meaning and legal consequences of the
representations, warranties, covenants, and agreements set forth herein and that
the other parties hereto have relied or will rely upon such representations,
warranties, covenants, and agreements, and such party shall indemnify and hold
harmless each other party hereto and, to the extent applicable, such other
party's officers, directors, controlling persons, agents, and employees, from
and against any and all loss, claim, damage, liability, or expense, and any
action in respect thereof, joint or several, to which any such person may become
subject, due to or arising out of a breach of any such representation, warranty,
covenant or agreement, together with all reasonable costs and expenses
(including attorneys' fees) incurred by any such person in connection with any
action, suit, proceeding,
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demand, assessment, or judgment incident to any of the matters so indemnified
against. All representations and warranties contained in this Agreement, and the
indemnification contained herein, shall survive the sale of the Share in full
force and effect until the expiration of the applicable statute of limitations.
To the extent that such are performable after the Closing, each of the covenants
and agreements contained in this Agreement shall survive the Closing
indefinitely.
7.2 Expenses and Obligations. Except as otherwise expressly
provided in this Agreement or as provided by law, as between the parties hereto,
all costs and expenses incurred by the parties hereto in connection with the
transactions contemplated in this Agreement or in the other related documents
shall be borne solely and entirely by the Company, including any fees associated
with any filings or applications with the Federal Communications Commission
related to the transactions contemplated herein.
7.3 Parties in Interest. This Agreement shall be binding upon and,
except as provided in Section 7.1, inure solely to the benefit of each party
hereto and their successors and permitted assigns, and nothing in this
Agreement, except as set forth in Section 7.1, express or implied, is intended
to confer upon any other person any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
7.4 Specific Performance. The parties recognize that, in the event
any party should refuse to perform under the provisions of this Agreement,
monetary damages alone will not be adequate. Each party shall therefore be
entitled, in addition to any other remedies which may be available, including
money damages, to obtain specific performance of the terms of this Agreement. In
the event of any action to enforce this Agreement specifically, each party
hereby waives the defense that there is an adequate remedy at law.
7.5 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Buyer, to
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▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Seller, to
▇▇▇▇▇ Broadcasting Partners, L.P.
c/▇ ▇▇▇▇▇ Broadcasting Group, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
7.6 Entire Agreement. This Agreement (which term shall be deemed
to include the other certificates, documents and instruments delivered
hereunder) constitutes the entire agreement of the parties hereto and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
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7.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO
THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
7.8 Interpretation. All references in this Agreement to Articles,
Sections, subsections, and other subdivisions refer to the corresponding
Articles, Sections, subsections, and other subdivisions of this Agreement unless
expressly provided otherwise. Titles appearing at the beginning of any Articles,
Sections, subsections or other subdivision of this Agreement are for convenience
only, do not constitute any part of such Articles, Sections, subsections, or
other subdivisions, and shall be disregarded in construing the language
contained therein. The words "this Agreement," "herein," "hereby," "hereunder,"
and "hereof" and words of similar import, refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. The word
"including" (in its various forms) means "including without limitation."
Pronouns in masculine, feminine, or neuter genders shall be construed to state
and include any other gender and words, terms, and titles (including terms
defined herein) in the singular form shall be construed to include the plural
and vice versa, unless the context otherwise expressly requires. Unless the
context otherwise requires, all defined terms contained herein shall include the
singular and plural and the conjunctive and disjunctive forms of such defined
terms. The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
7.9 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in any number of counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
7.10 Assignment; Amendment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either of Seller
or Buyer, whether by operation of law or otherwise without the prior written
consent of the other party hereto. No amendment, waiver of compliance with any
provision or condition hereof or consent pursuant to this Agreement shall be
effective unless evidenced by an instrument in writing signed by the party
against whom enforcement of any waiver, amendment or consent is sought.
7.11 Further Assurances. From time to time following the Closing,
the parties hereto shall execute and deliver such other instruments of
assignment, transfer and delivery and shall take such other actions as the other
reasonably may request in order to consummate, complete and carry out the
transactions contemplated by this Agreement.
7.12 Severability. If one or more provisions contained in this
Agreement shall be deemed or held to be invalid, illegal or unenforceable in any
respect under any applicable law, this Agreement shall be construed with the
invalid, illegal or unenforceable provision deleted, and the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected or impaired thereby.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
SELLER:
▇▇▇▇▇ BROADCASTING PARTNERS, L.P.
By: ▇▇▇▇▇ Broadcasting Group, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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PURCHASER:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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THE COMPANY (solely for purposes of Section 7.2):
SUNRISE TELEVISION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: CFO
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EXHIBIT A
January ___, 2002
Sunrise Television Partners, L.P, (the "Partnership")
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Sunrise Television Corp., a Delaware corporation (the "Company")
Gentlemen:
This letter confirms that at such time, if ever, as the 891,498 shares
of Class B Common Stock, par value $0.01 per share ("Nonvoting Stock"), of the
Company held by the Partnership are converted, in accordance with the applicable
provisions of the Company's Amended and Restated Articles of Incorporation, as
amended from time to time, into 891,498 shares of Class A Common Stock, par
value $0.01 per share ("Voting Stock"), of the Company, the undersigned shall
cooperate fully to cause the one share of Voting Stock held by the undersigned,
which share would then represent less than one percent of the total outstanding
Voting Stock of the Company, to be redeemed, repurchased, or extinguished at the
original purchase price thereof.
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