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EXIBIT 10.2
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of October
25, 1996, by and among American Telecasting, Inc., a Delaware corporation (the
"Company"), Wartone Property Holdings Ltd., a corporation organized under the
laws of the Republic of Ireland, Harletko Ltd., a corporation organized under
the laws of the Republic of Ireland, and Tarian Properties Ltd., a corporation
organized under the laws of the Republic of Ireland (each a "Purchaser").
ARTICLE I
Purchase and Sale of Preferred Stock
1.1 Purchase and Sell. Upon the basis of the representations,
warranties and covenants, for the consideration, and subject to the terms and
conditions set forth in this Agreement, the Company hereby sells to each
Purchaser, and each Purchaser purchases from the Company, 50,000 shares of a
series of preferred stock, $.01 par value per share, of the Company (the
"Preferred Stock") designated as the Series B Convertible Preferred Stock and
having the preferences and rights set forth in the form of Certificate of
Designation attached as Exhibit A hereto (the "Certificate"), free and clear of
all claims, liens, charges and encumbrances of any nature whatsoever, and, in
consideration of the sale of the shares of Preferred Stock by the Company to
each Purchaser, such Purchaser is hereby paying cash to the Company in the
aggregate amount of $5,000,000. Each Purchaser hereby acknowledges receipt of
the certificate evidencing the Preferred Stock purchased by it and the Company
hereby acknowledges receipt from each Purchaser of its purchase price.
ARTICLE II.
Representations, Warranties and Covenants of the Company
The Company hereby represents, warrants and covenants to each
Purchaser as follows;
2.1 Incorporation and Organization. The Company is a
corporation duly formed, validly existing and in good standing under the laws
of the State of Delaware and has full corporate power and authority to own and
operate its assets and properties and carry on its businesses as presently
conducted and is duly qualified to do business and is in good standing in all
jurisdictions in which the ownership or occupancy of its properties or its
activities presently makes such qualification necessary, except where the
failure to so qualify or, be in good standing would not have a material adverse
effect upon the businesses, properties or assets of the Company and its
subsidiaries taken as a whole.
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2.2 Authority and Validity. The Company has all requisite
corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby, including without limitation the sale and
issuance of the Preferred Stock hereunder and the issuance of shares of the
Company's Class A Common Stock, $.01 par value per share (the "Common Stock"),
upon conversion of the Preferred Stock. The execution and delivery by the
Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action of the Company. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought. The shares of Preferred Stock are, and any
shares of Common Stock when issued upon conversion of the Preferred Stock in
accordance with this Agreement and the Preferred Stock will be, duly and
validly issued, fully paid and nonassessable and free of preemptive rights by
any shareholders of the Company.
2.3 Consents and Approvals. Assuming the accuracy of the
representation of each Purchaser set forth in Section 3.5 hereof and except as
may be required pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), in connection with the Company's registration
obligation under Article V hereof, all authorizations, approvals and consents,
if any, required to be obtained from, and all registrations, declarations and
filings, if any, required to be made with all governmental authorities and
regulatory bodies to permit the Company to execute and deliver, and to perform
its obligations under, this Agreement have been obtained or made, as the case
may be, and all such authorizations, approvals, consents, registrations,
declarations and filings (collectively, "Company consents and filings") are in
full force and effect, except where failure to obtain and/or maintain in full
force and effect such Company consents and filings would not have a material
adverse effect upon the execution and delivery of, and upon the performance of
the Company's obligations under, this Agreement.
2.4 No Violations. Neither the execution or delivery by the
Company, nor the consummation by the Company of the transactions herein
contemplated, nor the fulfillment by the
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Company of the terms and provisions hereof (other than the requirement that the
Company repurchase securities under the circumstances contemplated by Section
4.1(b) hereof) (i) will conflict with, violate or result in a breach of, any of
the terms, conditions or provisions of any law, regulation, order, writ,
injunction, decree, determination or award of any court, governmental
department, board, agency or instrumentality or any arbitrator, applicable to
the Company, (ii) will conflict with, violate or result in a breach of, or
constitute a default under, any of the terms, conditions or provisions of the
Company's certificate of incorporation, certificates of designations and
bylaws, or (iii) will conflict with, violate or result in a breach of, or
constitute a default under, any of the terms, conditions or provisions of any
material loan agreement, indenture, trust, deed or other agreement or
instrument to which the Company is a party or by which it is bound, except
where such conflict, violation or breach will not have a material adverse
effect on the Company's execution, delivery, consummation or fulfillment of
this Agreement.
2.5 Public Documents. As of the dates on which they were
filed, none of the Company's filings with the Securities and Exchange
Commission (the "SEC") since January 1, 1995 contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company has
registered the Common Stock pursuant to Section 12 of the Exchange Act and the
Common Stock is included for trading on the NASDAQ Stock Market. The Company
has filed in a timely manner all material required to be filed pursuant to all
applicable reporting obligations under either Section 13(a) or 15(d) of the
Exchange Act for a period of at least 12 months prior to the date hereof.
2.6 Full Disclosure. There is no fact known to the company
(other than general economic conditions known to the public generally) that has
not been disclosed in the Company's filings with the SEC that (i) is likely to
have a material adverse effect on the condition (financial or otherwise) or in
the earnings, business affairs, business prospects, properties or assets of the
Company and its subsidiaries taken as a whole, or (ii) is likely to materially
and adversely affect the ability of the Company to perform its obligations
pursuant to this Agreement.
2.7 Exemption from Securities Act. Assuming that the
representations, warranties and acknowledgments of each Purchaser provided for
in Article III hereof are true and correct, the sale of the shares of Preferred
Stock to such Purchaser pursuant to
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this Agreement will be exempt from the registration provisions of the
Securities Act and the registration provisions of any blue sky or other state
securities law or regulation (hereinafter collectively referred to as "blue sky
laws") of any applicable jurisdiction.
2.8 Conversion. Subject to compliance by each Purchaser with
its representations, warranties and covenants hereunder, the Company will
permit such Purchaser to exercise its right to convert shares of Preferred
Stock by telecopying an executed and completed Notice of Conversion (as defined
in the Certificate) to the Company and delivering the original Notice of
Conversion and the certificate representing the shares of Preferred Stock to
the Company by express courier. Each date on which a Notice of Conversion is
telecopied to and received by the Company in accordance with the provisions
hereof shall be deemed a Conversion Date (as defined in the Certificate).
Subject to compliance by the Purchaser with its representations, warranties and
covenants hereunder, the company will transmit the certificates representing
shares of Common Stock issuable upon conversion of any shares of Preferred
Stock (together with the certificates representing the shares of Preferred
Stock not so converted) to the Purchaser via express courier or otherwise
within three business days after the date on which the Company receives the
original Notice of Conversion and certificate for the shares of Preferred Stock
being so converted, In addition to any other remedies which may be available to
each Purchaser, in the event that the Company fails for any reason to transmit
such certificates within such three-business day period, each Purchaser will be
entitled to revoke any relevant Notice of Conversion sent by it by delivering
by telecopy a notice to such effect to the Company not later than the time at
which such Purchaser actually receives such certificates, whereupon the Company
and such Purchaser shall each be restored to their respective positions
immediately prior to delivery of such Notice of Conversion and the Company
shall not be liable in any manner for such failure.
ARTICLE III
Representations, Warranties and Covenants of the Purchasers
Each Purchaser hereby represents, warrants and covenants to the
Company solely with respect to itself as follows:
3.1 Organization. Such Purchaser has been duly organized and
is subsisting as a corporation under the laws of the Republic of Ireland and
has full power and authority to own
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and operate its assets and properties and carry an its businesses as presently
conducted.
3.2 Authority. Such Purchaser has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by such Purchaser of this
Agreement and the consummation by such Purchaser of the transactions
contemplated hereby have been duly authorized by all necessary action of such
Purchaser. This Agreement has been duly and validly executed and delivered by
such Purchaser and constitutes a valid and binding obligation of such Purchaser
enforceable against such Purchaser in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding therefor may be
brought.
3.3 Consents and Approvals. Assuming the accuracy of the
representation of the Company set forth in Section 2.3 hereof, all
authorizations, approvals and consents, if any, required to be obtained from,
and all registrations, declarations and filings, if any, required to be made
with, all governmental authorities and regulatory bodies to permit such
Purchaser to execute and deliver, and to perform its obligations under, this
Agreement have been obtained or made, as the case may be, and all such
authorizations, approvals, consents, registrations, declarations and filings
(collectively, "Purchaser consents and filings") are in full force and effect,
except where failure to obtain and/or maintain in full force and effect the
Purchaser consents and filings would not have a material adverse effect upon
the execution and delivery of, and upon the performance of the Purchasers'
obligations under, this Agreement.
3.4 No Violations. Neither the execution or delivery by such
Purchaser of this Agreement, nor the consummation by such Purchaser of the
transactions herein contemplated, nor the fulfillment by such Purchaser of the
terms and provisions hereof (i) will conflict with, violate or result in a
breach of, any of the terms, conditions or provisions of any law, regulation,
order, writ, injunction, decree, determination or award of any court,
governmental department, board, agency or instrumentality or any arbitrator,
applicable to such Purchaser, (ii) will conflict with, violate or result in a
breach of, or constitute a default under, any of the terms, conditions or
provisions of such Purchaser's organizational documents, or (iii) will conflict
with, violate or result in a breach of, or constitute a default under, any of
the terms, conditions or provisions of any material
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loan agreement, indenture, trust, deed or other agreement or instrument to
which such Purchaser is a party or by which it or he is bound, except where
such conflict, violation or breach will not have a material adverse effect on
such Purchaser's execution, delivery, consummation or fulfillment of this
Agreement.
3.5 Investment Representation. Such Purchaser is an
accredited investor within the meaning of Regulation D promulgated under the
Securities Act and is acquiring the shares of Preferred Stock and any shares of
Common Stock issuable upon conversion thereof (collectively, the "Company
Securities") for its own account for investment purposes, and not with a view
to, or for resale in connection with, any distribution thereof within the
meaning of the Securities Act. Such Purchaser understands that the Company
Securities have not been registered under the Securities Act or any blue sky
laws in reliance, in part, upon the representations, warranties and covenants
contained herein. Such Purchaser also understands that it cannot offer for
sale, sell or transfer the Company Securities except as provided below.
3.6 Transfer Restrictions. Such Purchaser agrees that the
following restrictive legend will be placed on certificates representing any or
all of the Company Securities and that transfer of any or all of the Company
Securities may be refused by the Company's transfer agent unless the Company
Securities for which transfer is sought are registered under the Securities Act
and all other applicable federal securities or blue sky laws or unless such
Purchaser provides information satisfactory to the Company that such
registration is not required:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF,
BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (1) TO THE COMPANY, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES."
Such Purchaser agrees that the Company Securities being delivered
pursuant to this Agreement shall not be transferred by such Purchaser except
(i) pursuant to an effective registration statement under the Securities Act,
or (ii) pursuant to an
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exemption from registration under the Securities Act. Each Purchaser
represents and warrants that it has (i) such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of an investment in the Company Securities, (ii) all information deemed
by it to be necessary or appropriate to evaluate the risks and merits of an
investment in the Company Securities, (iii) received all information requested
from the Company, and (iv) had the opportunity to ask questions of and receive
answers from representatives of the Company concerning the Company.
3.7 Trading in Securities Of the Company; Conversion. For so
long as a Purchaser shall hold shares of Preferred Stock which remain
convertible into shares of Common Stock, such Purchaser nor any of its
affiliates will not directly or indirectly (i) establish or maintain any short
position in any securities of the Company, it being agreed that its ownership
of the Company Securities shall be disregarded for purposes of determining
whether there is a short position, or (ii) within three business days prior to
the giving of a "Conversion Notice" with respect to the Preferred Stock, sell
or otherwise dispose of any shares of Common Stock or securities convertible
into or exercisable for shares of Common Stock.
ARTICLE IV
Registration
4.1 Registration. (a) The Company agrees to effect the
registration under the Securities Act and relevant blue sky laws of the shares
of Common Stock issuable upon conversion of the Preferred Stock (the
"Registration Shares") in order to permit their resale by the Purchaser, it
being agreed for such purposes that the Company will have complied with its
agreement to register shares hereunder if such registration statement covers
the resale of that number of Registration Shares equal to twice the number of
shares of Common Stock that would be issued if all of the Preferred Stock were
to be converted on the day prior to the initial filing of such registration
statement. The Company and the Purchaser shall cooperate in good faith in
connection with the furnishing of information required for such registration
and the taking of such other actions as may be legally or commercially
necessary in order to effect such registration. Within 20 days following the
date hereof, the Company shall file a registration statement on Form S-3 with
respect to the resale of the Registration Shares and shall use its best efforts
to cause such registration statement to become effective as soon as practicable
thereafter. Such best efforts shall include, but not be limited to, (i)
promptly responding to all comments received
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from the staff of the SEC, (ii) providing the Purchasers' counsel with a
contemporaneous copy of all written communications from and to the staff of the
SEC with respect to such registration statement, (iii) promptly preparing and
filing amendments to such registration statement which are responsive to the
comments received from the staff of the SEC, (iv) furnishing to each Purchaser
such number of copies of each prospectus included in the registration statement
for the Registration Shares, including each preliminary prospectus, each of
which shall be in conformity with the requirements of the rules and regulations
of the SEC, (v) notifying each Purchaser at any time when a prospectus relating
to such Registration Shares is required to be delivered under rules and
regulations of the SEC of the happening of any event as a result of which the
prospectus included in the registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of circumstances then existing, and at each Purchaser's
request, preparing and furnishing to it a reasonable number of copies of a
supplement to or amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registration Shares, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, (vi) using its reasonable commercial efforts to cause all
Registration Shares to be included for trading on the NASDAQ Stock Market, and
(vii) in instances where an exemption from such qualification is not available,
using its reasonable best efforts to register or qualify the Registration
Shares under the securities or blue sky laws of such jurisdictions as each
Purchaser shall reasonably request; provided, that the Company shall not be
required to register or qualify under the blue sky laws in states where the
Company is already cleared. Once declared effective by the SEC, the Company
shall cause such registration statement to remain effective until the earlier
of (A) the sale by the Purchaser of all shares of Common Stock so registered,
or (B) the end of the period during which shares of Preferred Stock remain
convertible. In the event that the Company has not effected the registration of
the Registration Shares within 90 days after the date hereof, the Company shall
pay to each Purchaser by wire transfer, as liquidated damages for such failure
and not as a penalty, an amount in cash equal to $100,000 for each period of 30
consecutive days (or portion thereof) following the expiration of such 90-day
period, such amounts to be due and payable on the last day of each such period.
The payment of such liquidated damages shall not relieve the Company from its
obligations to register the Registration Shares pursuant to this Article IV
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except as hereinafter provided. In addition to the payment of such liquidated
damages, if the registration of the Registration Shares has not been effected
within 180 days of the date hereof the Company shall, within five business days
of a written request therefor from a Purchaser, repurchase all of the shares of
Preferred Stock or all of the Registration Shares issued upon the conversion
thereof held by such Purchaser, in each case for a cash purchase price equal to
$5,000,000 (ratably reduced to the extent such Purchaser shall have disposed of
shares of Preferred Stock or Registration Shares prior to such purchase) by
wire transfer of immediately available funds to an account designated by such
Purchaser. Upon payment of such amount to such Purchaser, the obligation of
the Company to pay liquidated damages to such Purchaser as a consequence of the
failure to effect the registration of the Registration Shares shall be
terminated prospectively.
(b) In anticipation of the registration of the
Registration Shares under the Securities Act and the rules and regulations
promulgated thereunder pursuant to this Agreement, the Company will: (i)
indemnify and hold harmless each Purchaser and each other person, if any, who
controls each Purchaser within the meaning of the Securities Act (each such
party, an "Indemnified Party"), to the fullest extent permitted by law, against
any losses, claims, damages or liabilities, joint or several, to which any such
Indemnified Party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement under
which the Registration Shares were registered under the Securities Act and the
rules and regulations promulgated thereunder, any preliminary prospectus or
final prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and (ii) reimburse each Indemnified Party for any legal or any
other expenses reasonably incurred thereby in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in said registration statement, said preliminary prospectus, said
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Indemnified Party
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specifically for use in the preparation thereof.
(c) Each Purchaser will (i) indemnify and hold harmless
the Company and each other person, if any, who controls the Company within the
meaning of the Securities Act, to the fullest extent permitted by law, against
any losses, claims, damages or liabilities, joint or several, to which the
Company or such controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the registration
statement under which the Registration Shares were registered under the
Securities Act and the rules and regulations promulgated thereunder, any
preliminary prospectus or final prospectus contained therein or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (ii) reimburse the Company and
each other person, if any, who controls the Company within the meaning of the
Securities Act for any legal or any other expenses reasonably incurred thereby
in connection with investigating or defending any such loss, claim, damage,
liability or action, in each case to the extent and only to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in said registration statement, said preliminary prospectus or said
prospectus or said amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such Purchaser
specifically for use in the preparation thereof; provided, however, that the
aggregate liability of each Purchaser to the Company or such controlling person
shall be limited to the net proceeds received by such Purchaser from the sale
of Registration Shares covered by such registration statement.
(d) in addition to the indemnification and remedies
provided above, each of the Company, on the one hand, and the Purchasers, on
the other hand, agrees to indemnify the other and hold the other harmless from
and against any and all losses, damages, liabilities, costs and expenses
(including reasonable attorneys' fees) which the other party may sustain or
incur in connection with the breach by the indemnifying party of any
representation, warranty or covenant made by it in this Agreement.
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ARTICLE V
Miscellaneous
5.1 Collateral Agreements, Amendments and Waivers. This
Agreement supersedes all prior documents, understandings and agreements, oral
or written, relating to this transaction and constitutes the entire
understanding between the parties with respect to the subject matter hereof.
Any modification or amendment to, or waiver of, any provision of this Agreement
may be made only by an instrument in writing executed by the party against whom
enforcement thereof is sought.
5.2 Successors and Assigns. Neither the Purchasers' nor the
Company's rights or obligations under this Agreement may be assigned, except
that each Purchaser may assign its rights hereunder to an affiliate, provided
that (i) such affiliate is deemed an "accredited investor" within the meaning
of Regulation D of the Securities Act, (ii) the affiliate certifies to the
Company that it is an "accredited investor," and (iii) the affiliate shall
execute and deliver such documentation as the Company deems necessary to be
bound by the terms of this Agreement. Any assignment in violation of the
foregoing shall be null and void. Subject to the preceding sentences of this
Section 5.2, the provisions of this Agreement (and, unless otherwise expressly
provided therein, of any document delivered pursuant to this Agreement) shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
5.3 Expenses. Each party shall pay all costs and expenses
incurred by it in connection with the negotiation, execution and delivery of
this Agreement and the transactions contemplated hereby. The Company shall pay
all costs and expenses incurred in connection with the registration of the
Registration Shares pursuant to Article IV hereof, except that the Company will
not be responsible for paying either Purchaser's legal costs or brokerage
commissions incurred in connection therewith.
5.4 Invalid Provisions. If any provision of this Agreement is
held to he illegal, invalid or unenforceable under present or future laws,
then, if possible, such illegal, invalid or unenforceable provision will be
modified to such extent as is necessary to comply with such present or future
laws and such modification shall not affect any other provision hereof,
provided that if such provision may not be so modified such illegality,
invalidity or unenforceability will not affect any other provision, but this
Agreement will be reformed, construed and
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enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
5.5 Notices. In any case where any notice or other
communication is required or permitted to be given hereunder (including,
without limitation, any change in the information set forth in this Section
5.5) such notice or communication shall be in writing and (i) personally
delivered, (ii) sent by registered United States mail, postage prepaid, return
receipt requested, (iii) transmitted by telecopy, or (iv) sent by way of a
recognized overnight courier service, postage prepaid, return receipt requested
with instructions to deliver on the next business day, in each case as follows:
if to the Company, to:
American Telecasting, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
XxXxxxxxx, Will & Xxxxx
0000 X Xxxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
if to any Purchaser, to such Purchaser:
c/o Larkin Corporate Consultants, Ltd.
00 Xxxxxxxxxxx Xxxxxxx
Xxxxxx 0
Xxxxxxxx xx Xxxxxxx
Telecopy: (___) _____________
with a copy to:
Law Offices of Xxx Xxxxxxx
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
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5.6 Public Accountant. Neither the Company nor the
Purchasers, shall issue or cause the publication of any press release or other
public announcement with respect to the transactions contemplated by this
Agreement without the consent of the other party, which consent shall not be
unreasonably withheld, provided that the Company may make such disclosure as it
deems appropriate pursuant to its reporting obligations under the Exchange Act
and that each party may issue such press releases or public announcements as
shall be required by law.
5.7 No Third-Party Beneficiaries. No person or entity not a
party to this Agreement shall be deemed to be a third-party beneficiary
hereunder or entitled to any rights hereunder.
5.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW. EACH OF THE PARTIES CONSENTS TO
THE JURISDICTION OF THE FEDERAL COURTS WHOSE DISTRICTS ENCOMPASSES ANY PART OF
THE STATE OF NEW YORK OR THE STATE COURTS OF THE STATE OF NEW YORK IN
CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT AND HEREBY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION
BASED ON FORUM NON CONVENIENS, TO THE BRINGING OF ANY SUCH PROCEEDING IN SUCH
JURISDICTIONS. EACH PARTY HEREBY AGREES THAT IF ANOTHER PARTY TO THIS
AGREEMENT OBTAINS A JUDGMENT AGAINST IT IN SUCH A PROCEEDING, THE PARTY WHICH
OBTAINED SUCH JUDGEMENT MAY ENFORCE SAME BY SUMMARY JUDGMENT IN THE COURTS OF
ANY COUNTRY HAVING JURISDICTION OVER THE PARTY AGAINST WHOM SUCH JUDGMENT WAS
OBTAINED, AND EACH PARTY HEREBY WAIVES ANY DEFENSES AVAILABLE TO IT UNDER LOCAL
LAW AND AGREES TO THE ENFORCEMENT OF SUCH A JUDGMENT. EACH PARTY TO THIS
AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO SUCH PARTY AT ITS ADDRESS SET FORTH HEREIN. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
5.9 Counterparts. This Agreement may be executed in two or
more counterparts, each of which may be executed by one or more of the parties
hereto, but all of which, when taken together, shall constitute but one
agreement binding upon each of the parties hereto.
[signatures on the following page]
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IN WITNESS WHEREOF, the parties hereto have duly executive this
Agreement as of the date first above.
AMERICAN TELECASTING, INC.
By:
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Name:
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Title:
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WARTONE PROPERTY HOLDINGS LTD.
By:
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Name:
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Title:
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HARLEKO LTD.
By:
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Name:
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Title:
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TARIAN PROPERTIES LTD.
By:
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Name:
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Title:
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