Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Form S-1 - Acme Communications, Inc. 157 718K
2: EX-10.29 Joint Sales Agmt Dated 4/23/99 - Dp Media, Inc. 9 38K
3: EX-10.30 Option Agreement 4/23/99 - Dp Media, Inc. 12 48K
4: EX-10.40 Amend No.1 to 1st Amended & Restated Credit Agmt 12 43K
5: EX-10.41 Amend No.2 to 1st Amended & Restated Credit Agmt 6 20K
6: EX-10.42 Amend No.3 to 1st Amended & Restated Credit Agmt 9 31K
7: EX-10.43 Amend No.4 to 1st Amended & Restated Credit Agmt 10 36K
8: EX-10.53 Amended & Restated Investment and Loan Agreement 66 302K
9: EX-10.54 Form of Convertible Debenture Due June 30, 2008 3 13K
10: EX-10.60 Lease Agt 1/1/97 Btwn Tom Winter & Vcy/America Inc 8 27K
11: EX-10.61 Assignment & Assumption Lease - 10/6/97 3 14K
12: EX-10.62 Assignment & Assumption of Lease 4/23/99 3 14K
13: EX-10.71 Bridge Loan Agreement Dated 4/23/99 14 57K
14: EX-21.0 Subsidiaries of the Registrant 1 8K
15: EX-23.2 Consent of Kpmg Peat Marwick-Koplar Communications 1 7K
16: EX-23.3 Consent of Kpmg Peat Marwick Re: Channel 32, Inc. 1 7K
17: EX-27.1 Financial Data Schedule 1 9K
EX-10.30 — Option Agreement 4/23/99 – Dp Media, Inc.
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EXHIBIT 10.30
OPTION AGREEMENT
BETWEEN
DP MEDIA OF BATTLE CREEK, INC.
AND
ACME TELEVISION HOLDINGS, LLC
FOR
WZPX-TV
BATTLE CREEK, MICHIGAN
OPTION AGREEMENT
This OPTION AGREEMENT is dated this 23rd day of April 1999 by and
between DP Media of Battle Creek, Inc., a Florida corporation ("Seller"), and
ACME Television Holdings, LLC, a Delaware limited liability company ("Buyer").
RECITALS
WHEREAS, Seller holds a license issued by the Federal Communications
Commission (the "FCC") for television station WZPX-TV in Battle Creek, Michigan
(the "Station"); and
WHEREAS, simultaneously with the execution of this Option Agreement,
Seller and Buyer are executing a Joint Sales Agreement ("JSA") which authorizes
Buyer to sell advertising time on the Station; and
WHEREAS, Seller is willing to provide Buyer with a conditional option
(the "Call Option") to (1) acquire the assets used and useful in the operation
of the Station (the "Station Assets") or (2) enter into a Time Brokerage
Agreement, Local Marketing Agreement or other similar agreement (a "Programming
Agreement") that would enable Buyer to provide programming over the Station, all
in accordance with the terms and conditions of this Agreement; and
WHEREAS, Buyer is desirous of providing Seller with an unconditional
option (the "Put Option") to require Buyer's purchase of the Station Assets in
accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained herein, the undersigned parties, intending to
be legally bound, hereby agree as follows:
1. CALL OPTION.
(a) CONVEYANCE OF OPTION. In exchange for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by Seller, Seller hereby grants to Buyer an exclusive,
irrevocable Call Option to (i) purchase all the Station Assets free and
clear of all liens, security interests, and encumbrances of any kind or
nature whatsoever and (ii) enter into a Programming Agreement with
Seller for use of he Station's facilities.
(b) PURCHASE PRICE. The purchase price for the Station
Assets (the "Purchase Price") shall be Thirty Million Dollars
($30,000,000).
(c) MANNER OF EXERCISE.
(i) Buyer's Call Option is conditioned upon receipt
of written notice from Seller of its proposal either to (A)
assign the Station Assets to an unaffiliated third party (a
"Sales Event") or (B) enter into a Programming Agreement with an
unaffiliated third party (a "Programming Event"). For purposes
hereof, a transaction between Seller and Paxson Communications
Corporation or an affiliated company (collectively, "PCC") shall
not be deemed to be a Sales Event or a Programming Event.
Notwithstanding any other provision of this
Agreement, Buyer's right to exercise its Call Option is
expressly subject to and conditional upon Buyer being in
compliance in all material respects with its obligations under
the JSA.
(ii) Upon receipt of written notice from Seller of a
Sales Event, Buyer shall have a period of thirty (30) days (the
"Exercise Period") within which to exercise its Call Option.
Buyer shall exercise its Call Option by signing and delivering
to Seller the Asset Purchase Agreement (the "Purchase
Agreement"), annexed hereto as Exhibit A, with Buyer's
authorized signature. Neither party shall have any right to
modify the Purchase Agreement except for those modifications
which are necessary to reflect changes occurring over time and
in the ordinary course of business: provided, that Buyer shall
not be obligated to assume any contract entered into by Seller
after the effective date of this Agreement (except for those
contracts approved in writing by Buyer, which approval which
shall not be unreasonably withheld, or contracts previously
approved by Buyer pursuant to the JSA). Buyer's Call Option
shall terminate and expire if Buyer fails to deliver the
executed Purchase Agreement within the Exercise Period. Seller
shall be required to execute the Purchase Agreement within five
(5) business days after its receipt of the executed Purchase
Agreement from Buyer. The Purchase Agreement shall require,
among other provisions, that Buyer shall make a payment of
Twenty-Four Million Dollars ($24,000,000) (the "Initial
Payment") to Seller at a closing (the "First Closing") to be
held within thirty (30) days after delivery of the executed
Purchase Agreement to Seller. Simultaneously upon receipt of the
Initial Payment, Seller shall assign, transfer, and convey to
Buyer all of the Station Assets other than FCC licenses and
authorizations, as well as those other assets expressly excluded
from conveyance at the First Closing under the Purchase
Agreement (collectively, the "Remaining Assets"), to Buyer free
and clear of any and all liens, security interests, and
encumbrances of any kind or nature whatsoever (except those
expressly permitted by the Purchase Agreement). The Remaining
Assets shall be assigned, transferred, and conveyed to Buyer at
a subsequent closing (the "Second Closing") to be held in
accordance with the terms and conditions of the Purchase
Agreement. At the Second Closing, Seller shall convey the
Remaining Assets to Buyer in exchange for Buyer's payment to
Seller of Six Million Dollars ($6,000,000). All of the Remaining
Assets assigned, transferred and conveyed to the Buyer at the
Second Closing shall be free and clear of any and all liens,
security interests and encumbrances of any kind or nature
whatsoever (except those expressly permitted by the Purchase
Agreement).
(iii) Upon receipt of written notice from Seller of a
Programming Event, Buyer shall have the same Exercise Period
within which to exercise its Call Option to enter into an
agreement with Seller that is identical in all material respects
with the terms and conditions of the terms of any Programming
Agreement that reflects a bona fide proposal from a third party
(not PCC) and is attached to the aforementioned notice from
Seller for the provision of programming on the Station. Buyer's
Call Option shall terminate and expire if Buyer fails to agree
in writing to enter into such an agreement with Seller within
the Exercise Period that is consistent in all material respects
with the terms and conditions of any document attached to the
aforementioned notice from Seller. Buyer's Call Option to
purchase the Station in accordance with subsection (c)(i)
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of this section will remain in effect if Seller provides notice
under this paragraph and Buyer enters into the particular third
party Programming Agreement.
(iv) Notwithstanding anything to the contrary in this
Agreement, upon any transfer, conveyance or assignment of all or
substantially all of the Station Assets by Seller to PCC during
the Term hereof, PCC and Buyer shall simultaneously enter into
an agreement on mutually acceptable terms which (1) grants to
Buyer the right to match the financial terms of any bona fide
written offer from an unaffiliated third party to acquire the
Station from PCC, (2) provides that Buyer's right of first
refusal shall be in effect for the period of five (5) years
following the acquisition of the Station Assets by PCC and (3)
provides that Buyer's right of first refusal shall not apply to
any transaction involving a sale to a single unaffiliated party
of all or substantially all of the capital stock or assets of
PCC or a sale to a single unaffiliated third party of 50 percent
or more of all of the television broadcast stations licensed to
PCC.
(d) BONA FIDE OFFER. Buyer shall have no obligation to enter
into any Purchase Agreement or Programming Agreement, and Buyer's Call
Option shall not in any way be terminated or otherwise affected, unless
any notice to be provided by Seller under this section includes a
document which incorporates a bona fide proposal from an independent
third party (unaffiliated with PCC or Seller) that is ready, able and
willing to proceed with the transaction described in such document.
(e) DURATION. The Call Option may be exercised at any time
during the period beginning on May 1, 1999 and ending on April 30, 2003.
2. PUT OPTION.
(a) CONVEYANCE OF OPTION. In exchange for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by Buyer, Buyer hereby grants to Seller an exclusive,
irrevocable Put Option to require Buyer to purchase the Station Assets
(except contracts entered into by Seller after the date hereof as set
forth in subsection (c) of this section), free and clear of all liens,
security interests, and other encumbrances of any kind or nature
whatsoever.
(b) PURCHASE PRICE. The purchase price shall be identical to
the Purchase Price for the exercise of the Call Option and is
hereinafter referred to as the "Purchase Price."
(c) MANNER OF EXERCISE FOR PURCHASE. Seller may exercise the
Put Option by delivering to Buyer an executed copy of the Purchase
Agreement, which shall include only those modifications as may be
necessary to reflect changes occurring over time and in the ordinary
course of business, such as revised equipment schedules and contracts to
be assumed: provided, that Buyer shall not be obligated to assume any
contract entered into after the date of this Agreement (except for those
contracts approved by Buyer in writing, which approval shall not be
unreasonably withheld, or contracts previously approved by Buyer
pursuant to the JSA); and, provided further, that, in addition to the
Purchase Price, Buyer shall be required to pay up to Five Hundred
Thousand Dollars ($500,000) of third party costs incurred by PCC for the
construction and installation of the Station's digital television
equipment in exchange for assignment and conveyance of
3
the digital equipment to Buyer as specified in the Purchase Agreement.
Buyer shall be required to execute the Purchase Agreement within thirty
(30) days after Buyer's receipt of the Purchase Agreement from Seller
(the "Acceptance Date"). Buyer shall make the Initial Payment to Seller
at the First Closing, which shall be held on the Acceptance Date.
Simultaneous with the delivery of the Initial Payment, Seller shall
assign, transfer and convey to Buyer the Station Assets (other than the
Remaining Assets) free and clear of any and all liens, security
interests, and encumbrances of any kind or nature whatsoever, except
those expressly permitted in the Purchase Agreement. The Remaining
Assets shall be assigned, transferred, and conveyed to Buyer at a
subsequent closing (the "Second Closing") to be held in accordance with
the terms and conditions of the Purchase Agreement. At the Second
Closing, Seller shall convey the Remaining Assets to Buyer in exchange
for Buyer's payment to Seller of Six Million Dollars ($6,000,000). All
of the Remaining Assets assigned, transferred and conveyed to the Buyer
at the Second Closing shall be free and clear of any and all liens,
security interests and encumbrances of any kind or nature whatsoever
(except those expressly permitted by the Purchase Agreement).
(d) The Put Option may be exercised by Seller at any time
beginning on May 1, 1999 and ending on April 30, 2003.
3. LIMITATIONS ON SELLER. Seller shall not enter into any stock
purchase agreement, merger agreement, asset purchase agreement, time brokerage
agreement, local marketing agreement, option agreement or any other similar
agreement of any kind or nature which is in any way inconsistent with Seller's
obligations under this Agreement or would adversely affect Buyer's rights under
this Agreement.
4. GOVERNMENTAL APPROVALS.
(a) Notwithstanding anything to the contrary in this
Agreement, no Station Assets shall be conveyed from Seller to Buyer
unless and until all prior and necessary government approvals have been
secured, including but not limited to (i) the prior approval of the FCC
and (ii) the expiration of any waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR").
(b) Within five (5) business days after Buyer's exercise of
the Call Option for a purchase of the Station Assets or the Acceptance
Date for Buyer's acknowledgement of Seller's exercise of the Put Option,
the parties shall file an appropriate application with the FCC (the
"Application") requesting the FCC's approval for the assignment of the
FCC licenses and other authorizations to Buyer. Seller and Buyer shall
cooperate with each other in the preparation and in the prosecution of
the Application. Each party will timely respond to any request for
information or amendment from the FCC. Each party will also cooperate
with the other in the vigorous defense against any petition to deny,
complaint, or other objection filed with the FCC or any governmental
authority with respect to the FCC's approval of the Application or the
consummation of the transaction contemplated hereby. Each party will
promptly provide the other party with copies of any and all pleadings,
letters, and other communications to or from the FCC with respect to the
Application.
(c) Within ten (10) business days after the filing of the
Application, the parties will jointly prepare and file any necessary
documents under HSR. The parties
4
will cooperate with each other in the prosecution of that filing in the
same manner as contemplated by subsection (b) in this section in
conjunction with the Application.
(d) Any and all filing fees with the FCC under the HSR shall
be divided equally between the parties. The parties will otherwise bear
and be responsible for their own respective expenses and costs,
including attorneys' fees.
5. REMEDIES.
(a) The FCC licenses of the Station and the broadcast
business made possible thereby are unique assets not readily available
on the open market. For that reason, Seller acknowledges that monetary
damages alone would not be adequate to compensate Buyer for a material
breach hereof and that specific performance is an appropriate remedy for
Buyer in the event of such a material breach (including but not limited
to Seller's obligation to produce complete and accurate schedules to the
Purchase Agreement). Buyer shall have the right to seek specific
performance of this Agreement or the Purchase Agreement. The rights
afforded Buyer by this paragraph shall be in addition to any and all
other rights Buyer may have at law or equity. If any action is brought
by Buyer to enforce this Agreement or the Purchase Agreement, Seller
shall waive the defense that there is an adequate remedy at law.
(b) If Buyer breaches this Agreement, then, in that event,
Seller shall be entitled to any and all remedies available to Seller at
law or equity.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer as follows:
(a) Seller is a corporation duly formed, validly existing
and in good standing under the laws of the State of Florida.
(b) Seller has and will have upon the exercise of the Call
Option or the Put Option full power and authority to consummate this
Agreement and the Purchase Agreement and to consummate the transactions
contemplated hereby and thereby. This Agreement constitutes, and any
other instruments contemplated hereby when executed will constitute, the
legal, valid and binding obligations of Seller, enforceable in
accordance with their terms, except as may be affected by bankruptcy and
insolvency laws and court-applied equitable principles.
(c) Except as otherwise expressly stated in this Agreement,
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and compliance with the terms,
conditions and provisions of this Agreement, with or without the giving
of notice or the passage of time, or both, will not: (i) contravene any
provision of Seller's articles of incorporation or other organizational
documents, (ii) subject to the consent of Seller's institutional lender,
conflict with or result in a breach of or constitute a default under any
of the terms, conditions or provisions of any indenture, mortgage, loan
or credit agreement or any other agreement or instrument to which the
Seller is a party or by which Seller or any of the Station Assets may be
bound or affected, or any decree, judgment or order of any court or
governmental department, commission, board, agency or instrumentality,
domestic or foreign, or any applicable law, ordinance,
5
rule, policy or regulation, including but not limited to the
Communications Act of 1934, as amended ("the Act"), and the rules and
policies of the FCC promulgated thereunder.
(d) No representation or warranty by Seller in this
Agreement or in the Purchase Agreement contains or will contain any
untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make this statement or facts contained herein
or therein not misleading.
7. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller as follows:
(a) Buyer is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of
Delaware.
(b) Buyer has and will have upon the exercise of the Call
Option or the Put Option full power and authority to consummate this
Agreement and the Purchase Agreement and to consummate the transactions
contemplated hereby and thereby. This Agreement constitutes, and any
other instruments contemplated hereby when executed will constitute, the
legal, valid and binding obligations of Buyer, enforceable in accordance
with their terms, except as may be affected by bankruptcy and insolvency
laws and court-applied equitable principles.
(c) Except as otherwise expressly stated in this Agreement,
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and compliance with the terms,
conditions and provisions of this Agreement, with or without the giving
of notice or the passage of time, or both, will not (i) contravene any
provision of Buyer's operating agreement or other organizational
documents, (ii) subject to the consents of Buyer's lenders, conflict
with or result in a breach of or constitute a default under any of the
terms, conditions or provisions of any indenture, mortgage, loan or
credit agreement or any other agreement or instrument to which the Buyer
is a party or by which Buyer may be bound or affected, or any decree,
judgment or order of any court or governmental department, commission,
board, agency or instrumentality, domestic or foreign, or any applicable
law, ordinance, rule, policy or regulation, including but not limited to
the Act and the rules and policies of the FCC promulgated thereunder.
(d) No representations or warranty by Buyer in this
Agreement or in the Purchase Agreement contains or will contain any
untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make this statement or facts contained herein
or therein not misleading.
8. COVENANTS OF SELLER.
So long as this Agreement is in effect, and subject to the terms
of the JSA, Seller covenants that it will not, without the Buyer's prior written
approval:
(a) create or incur, assume or suffer to exist any
indebtedness, obligation or liability, whether matured or unmatured,
liquidated or unliquidated, direct or contingent, except for
indebtedness incurred in the ordinary course of business not to exceed
Ten
6
Thousand Dollars ($10,000) in the aggregate at any one time (except for
the pre-existing obligation to pay Monthly Interest as defined in the
JSA);
(b) create, assume or suffer to exist, directly or
indirectly, any security interest, mortgage, deed of trust, pledge,
lien, charge, option, warrant, or other encumbrance or future ownership
interest of any nature whatsoever upon any of its properties or assets,
now owned or hereafter as acquired, except for:
(i) any existing security interest, mortgage, deed
of trust, pledge or lien in connection with Seller's
pre-existing loan obligation referred to in the JSA,
(ii) liens for taxes or assessments either not
delinquent or the validity of which are being contested in good
faith by appropriate legal or administrative proceedings and as
to which adequate reserves shall have been set aside on its
books, in conformity with generally accepted accounting
principles,
(iii) materialmen's, mechanics', carriers', workmen's,
repairmen's, warehousemen's or other like liens arising in the
ordinary course of business and either not yet due and payable
or being contested in good faith by appropriate legal
proceedings and as to which adequate reserves shall have been
set aside on its books, in conformity with generally accepted
accounting principles,
(iv) deposits or pledges to secure payment of
workers' compensation, unemployment insurance or other social
security benefits or obligations, or
(v) any judgment lien, unless the judgment it
secures shall not have been discharged, vacated, reversed, or
execution thereof stayed pending appeal within thirty (30) days
after the entry thereof, or shall not have been discharged,
vacated or reversed within thirty (30) days after the expiration
of any such stay; or
(vi) any security interest, mortgage, deed of trust,
pledge or lien in connection with any new, additional or
replacement institutional financing.
(c) sell, transfer, lease or otherwise dispose of any
material Station Assets except in connection with the acquisition of
replacement property of equivalent kind and value;
(d) enter into any consolidation or merger with, or into any
acquisition of all or substantially all of the properties or assets of
any person or entity;
(e) change in any material respect the nature or character
of its business as intended, or engage in any activity not reasonably
related to such business;
(f) enter into any contract or commitment relating to its
ownership or assets except for contracts involving aggregate payments of
less than Five Thousand Dollars ($5,000) and contracts which can be
terminated without penalty on thirty (30) days' notice or less, or amend
or terminate any material contract or lease (or waive any substantial
right thereunder);
7
(g) transfer or grant any right under, or enter into any
settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, service mark, trade name, franchise, or similar
right, or modify any existing right relating to the Seller;
(h) enter into any agreement to assign to any person the
Station's FCC licenses, any assets related thereto; or
(i) enter into any agreement or take any other action that
would interfere with, or prevent, Seller's ability to assign and
transfer the Station Assets to Buyer as contemplated hereunder or under
the Purchase Agreement.
9. COVENANTS OF BUYER. So long as this Agreement is in effect,
Buyer will not knowingly take any action that would prevent Buyer from
fulfilling its obligations hereunder, including any action that would disqualify
Buyer as the assignee of the FCC licenses for the Station or make the
consummation of the transactions contemplated by this Agreement conditional on
the grant of a waiver by the FCC of any rule or policy.
10. EFFECTUATION OF AGREEMENT.
(a) Seller and Buyer will each use commercially reasonable
efforts, and otherwise take any and all reasonable action, including the
execution of documents reasonably acceptable to the parties, to
effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
(b) Each party will notify the other promptly (and in any
event within five (5) business days) of the threat of, or the assertion
or commencement of any claim, suit, action, arbitration, legal,
administrative or other proceeding, or governmental investigation or tax
audit affecting the Station or the Company.
11. MISCELLANEOUS.
(a) Notwithstanding anything to the contrary in this
Agreement, Seller shall have no right to terminate this Agreement after
the First Closing.
(b) Neither party may assign its rights and obligations
under this Agreement to any other party without the prior written
consent of the other party: provided, that Buyer shall have the right to
assign its rights and obligations under this Agreement to any third
party as long as Buyer remains liable for Buyer's obligations hereunder.
(c) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
assigns.
(d) This Agreement, along with the other agreements and
documents referenced herein, constitute the entire understanding of the
parties with respect to the subject matter hereof and supersede any and
all prior or contemporaneous agreements or understandings. No amendment,
waiver of compliance with any provision or condition hereof, or consent
pursuant to this Agreement, will be effective unless evidenced by an
instrument in writing signed by the parties.
8
(e) The headings of this Agreement are for convenience only
and will not control or affect the meaning or construction of the
provisions of this Agreement.
(f) The construction and performance of this Agreement will
be governed by the laws of Michigan without regard to its principles for
choice of law.
(g) Any notice, demand or request required or permitted to
be given under the provisions of this Agreement shall be in writing and
shall be deemed to have been duly delivered on the date of personal
delivery or the date of receipt if sent by an overnight courier service
(charges prepaid) or mailed by certified mail-return receipt requested
(postage prepaid), and shall be deemed to have been received on the date
of personal delivery or on the date set forth on the return receipt, to
the following addresses or to such other address as any party may
provide to the other parties pursuant to this paragraph:
If to DP Media:
DP Media of Battle Creek, Inc.
Suite 204
231 Bradley Place
Palm Beach, FL 44380
Attn: Devon Paxson
Tel: (561) 833-1096
Fax: (561) 833-8616
with a copy to:
Alan C. Campbell, Esq.
Irwin Campbell & Tannenwald, P.C.
Suite 200
1730 Rhode Island Avenue, N.W.
Washington, D.C. 20036
Tel: (202) 728-0401, ext. 110
Fax: (202) 728-0534
If to ACME:
ACME Television Holdings, LLC
Suite 202
10829 Olive Boulevard
St. Louis, MO 63141
Attn: Douglas Gealy
Tel: (314) 989-0566
Fax: (314) 989-0616
ACME Television Holdings, LLC
Suite 202
2101 East 4th Street
Santa Ana, CA 92705
Attn: Tom Allen
Tel: (714) 245-9499
Fax: (714) 245-9494
9
with a copy to:
Lewis J. Paper, Esq.
Dickstein Shapiro Morin & Oshinsky LLP
2101 L Street, N.W.
Washington, DC 20036
Tel: (202) 828-2265
Fax: (202) 887-0689
(h) This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
(i) After the date hereof, Buyer shall be afforded
reasonable opportunity to inspect the Station Assets and the books and
records of Seller relating to the Station upon reasonable request.
(j) Buyer and Seller will each use commercially reasonable
efforts to keep confidential (except for such disclosure to attorneys,
bankers, underwriters, investors, and other agents and representatives
as may be appropriate in the furtherance of the transactions
contemplated hereby and except for such filings with the FCC as may be
required) all information of a confidential nature obtained in
connection with the transactions contemplated by this Agreement, and in
the event that such transactions are not consummated, each party will
return to the other party or parties such documents and other material
obtained from the other party or parties in connection therewith (along
with copies or duplicates thereof).
(k) Buyer and Seller shall jointly prepare, and determine
the timing of, any press release or other announcement to the public
relating to the execution of this Agreement. No party hereto will issue
any press release or make any other public announcement relating to the
transactions contemplated hereby without the prior consent of the other
party hereto, except that any party may make any disclosure required to
be made by it under applicable law if it determines in good faith that
it is appropriate to do so and gives prior notice to the other party.
(l) Except as otherwise stated herein, each party shall bear
its own costs incurred by it in connection with the transactions
contemplated by this Agreement.
(m) Prior to the consummation of the Purchase Agreement,
Buyer shall not directly or indirectly control, supervise or direct or
attempt to control, supervise or direct the operations of the Station or
Seller. Such operations, including ultimate control of the Station's
programs, employees and finances, shall remain the sole responsibility
of Seller.
(n) Notwithstanding anything to the contrary in this
Agreement, a sale of the Station Assets to any party other than Buyer,
regardless of whether that party is PCC or any other third party, shall
not by itself result in a termination of the JSA or Seller's Secondary
Affiliation Agreement with the WB Television Network (which is
referenced in the JSA).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement with
the intent of it being effective as of the date first written above.
DP MEDIA OF BATTLE CREEK, INC.
By: /s/ Roslyck Paxson
-------------------------------------
Roslyck Paxson
Vice President
ACME TELEVISION HOLDINGS, LLC
By: /s/ Douglas Gealy
-------------------------------------
Douglas Gealy
President
The following Exhibit has been intentionally omitted by the Registrant.
LIST OF EXHIBITS
----------------
Exhibit A Form of Asset Purchase Agreement
A copy of the omitted Exhibit will be provided to the Securities and
Exchange Commission upon request.
11
Dates Referenced Herein and Documents Incorporated by Reference
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