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Exhibit 10.23
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), by and
between (I) THE PRODUCERS ENTERTAINMENT GROUP LTD. (the "Company"), a Delaware
corporation, and (ii) MOUNTAINGATE PRODUCTIONS LLC (the "Purchaser"), dated as
of the __day of February, 1996.
WITNESSETH
WHEREAS, the Company desires to provide to the Purchaser the
opportunity to purchase shares of the Company's common stock, par value $.001
per share (the "Common Stock"), for good and valuable consideration as provided
herein; and
WHEREAS, the Purchaser desires to purchase Cretan shares of
Common Stock from the Company;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants herein contained, the parties agree as follows:
1. Sale And Purchase Of Common Stock. Subject to the
terms and conditions of this Agreement and the Note (as defined below), (i) the
Company hereby sells to the Purchaser two million (2,000,000) shares of Common
Stock (the "Shares") at a purchase price of $0.50 per Share, for a total
purchase price of $1,000,000.00 (the "Purchase Price"), and (ii) the Purchaser
hereby purchases such Shares from the Company for such Purchase Price. The
Purchaser shall pay the Purchase Price by issuing to the Company, concurrently
with the execution and delivery of this Agreement, a promissory note
substantially in the form attached as Exhibit A hereto (the "Note"), and the
Purchaser's sole liability to make payments to the Company under this Agreement
shall be satisfied by its liability under the Note. The Shares are duly
authorized, validly issued, fully paid and nonassessable, but the Shares are
subject to the terms and conditions of this Agreement. The Company issues
concurrently herewith a duly executed certificate evidencing the Shares
purchased hereunder, with the legends provided herein, in exchange for the
delivery by the Purchaser of the duly executed Note.
2. Pledge.
(a) As security for the fulfillment of its
obligations under the Note, the Purchaser hereby pledges, hypothecates,
assigns, transfers, sets over, delivers and grants to the Company a security
interest in (i) the Shares, (ii) all dividends, interest, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the Shares, (iii) subject to the
provisions of Section 4 hereof, all rights and privileges of the Purchaser with
respect to the Shares and the other property referred to in clause (ii) and
(iv) subject to the provisions of Section 4 hereof, all proceeds of any of the
foregoing and any property of any character whatsoever into which any of the
foregoing may be converted (all items referred to in clauses (i) through (iv)
above being hereinafter collectively called the "Pledged Collateral")
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TO HAVE AND TO HOLD the Pledged Collateral, together with all
rights, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Company, its successors and assigns, forever,
subject, however, to the terms, covenants and conditions hereinafter set forth;
and provided that such Pledged Collateral or a proportional amount thereof
(based on the ratio of the payments of principal on the Note to the total
Purchase Price) shall be released by the Company and returned to the Purchaser,
without representation or recourse, as the Purchaser shall make the payments
required to be made under the Note.
(b) The Purchaser hereby delivers, and agrees
promptly to deliver, to the Company any and all Pledged Collateral, and any and
all certificates or other instruments or documents representing any of the
Pledged Collateral, which shall be in or come into the Purchaser's possession
during the term of this Agreement.
(c) If the Purchaser shall not make any payment
required to be made on the Note at the time such payment is due, the Company
may sell, assign, transfer, endorse and deliver all, or from time to time, any
part of the Pledged Collateral to any third party or to the Company at a price
per Share equal to $0.50 or, if less than $0.50 per share, at the fair market
value of a Share as determined in good faith by the Company. The proceeds of
the sale of all or any part of the Pledged Collateral shall be applied by the
Company first to accrued interest then to the then-outstanding principal amount
of the Note. Any remaining amount from such sale shall be paid over to the
Purchaser.
3. Purchaser's Representations: Sources of Funds
(a) The Purchaser represents to the Company that
it is purchasing the Shares being purchased hereunder for its own account and
not as nominee or agent for any other person and not with a view to, or for
offer or sale in connection with, any distribution thereof (within the meaning
of the Securities Act of 1933 (the "Securities Act") which would be in
violation of the securities laws of the United States of America or any state
thereof, without prejudice, however, to its rights at all times to sell or
otherwise dispose of all or any part of said Shares under an effective
registration statement under the Securities Act, or under an exemption from
such registration available under the Securities Act and subject, nevertheless,
to the disposition of its property being at all times within its control
(subject to the restrictions of this Agreement.).
(b) The Purchaser further represents that it is
knowledgeable, sophisticated and experienced in business and financial matter;
that it fully understands the limitations on transfer described herein; that it
is able to bear the economic risks of its investment in the Shares and is
presently able to afford the complete loss of such investment; and that it has
been afforded access to information about the Company, the Company's financial
condition, results of operations, business, property, management and prospects
sufficient to enable it to evaluate its investment in the Shares.
(c) The Purchaser further represents that it is
an "accredited investor" as such term is defined in Rule 501 (a) of Regulation
D under the Securities Act.
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(d) The Purchaser will not Transfer the Shares in
violation of any federal or state securities law. For purposes of this
Agreement, "Transfer" shall mean any transfer, sale, assignment, pledge or
other disposition. If the Purchaser desires to sell or otherwise dispose of
all or any part of the Shares (other than a Transfer to the Company or a
Transfer pursuant to an effective registration statement under the Securities
Act and pursuant to registration or qualification under any applicable state
securities laws), if requested by the Company, it will deliver to the Company
an opinion of counsel, reasonably satisfactory in form and substance to the
Company, that an exemption from registration is available. The stock
certificate for the Shares shall bear an appropriate legend reflecting such
restriction.
4. Restrictions Applicable to the Shares.
(a) Unless vested earlier upon the happening of
certain events, as provided in section 4(c) hereof, the Purchaser's rights to
retain the Shares free of any rights of the Company with respect to the Shares
(other than the Company's rights to such portion of the Shares that is pledged
as security for the Note) shall vest in accordance with the following schedule
if the Purchaser is engaged to render services to the Company pursuant to the
Production Agreement between the Purchaser and the Company (the "Production
Agreement") as of such date:
Cumulative Percentage of Shares Date of Vesting
------------------------------- ---------------
50% April 1, 1996
75% June 30, 1996
100% June 30, 1997
Until the Shares have vested, the Purchaser may not Transfer the Shares and the
stock certificate representing the Shares shall bear an appropriate legend to
that effect.
(b) All cash dividends payable with respect to
the Shares will be paid directly to the Purchaser at the same time that
dividends are paid with respect to all other shares of Common Stock. The
Purchaser will have the right to vote the Shares.
(c) The Shares will be subject to the following
provisions upon a Change in Control of the Company or upon any other
termination of the Purchaser's engagement by the Company under the Production
Agreement which may occur before the Shares have vested in accordance with
Section 4(a).
(i) Change in Control. Upon a Change in
Control during the Purchaser's engagement by
the Company, all of the Shares which have not
vested in, and shall not be subject to
forfeiture by, the Purchaser. For purposes
of this Agreement, a Change in Control shall
have the meaning provided in the Production
Agreement.
(ii) Death or Disability. If the
purchaser's engagement by the Company is
terminated by reason of the death or
Disability of Irwin Meyer, all of the Shares
which have not
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previously vested in accordance with Section
4(a) or Section 4(c)(i) shall immediately
vest in, and shall not be subject to
forfeiture by, the Purchaser. For purposes
of this Agreement, "Disability" shall have
the meaning provided in the Production
Agreement.
(iii) Termination by the Company without
Cause or by the Purchaser for Good Reason or
upon the Retirement of Irwin Meyer. If the
Company terminates the Purchaser's engagement
without Cause or if the Purchaser terminates
its engagement for Good Reason or upon
Retirement of Irwin Meyer, all of the Shares
which have not vested in accordance with
section 4(a) or Section 4(c)(i) shall
immediately vest in, and shall not be subject
to forfeiture by, the Purchaser. For
purposes of this Agreement, "Cause" and "Good
Reason" shall have the meanings provided in
the Production Agreement and "Retirement"
shall mean retirement in accordance with any
retirement plan or policy of the Company.
(iv) Other Termination of Employment. If
the Purchaser's engagement terminates before
a Change in Control shall have occurred for
any reason other than death, disability,
termination by the Company other than for
Cause or termination by the Purchaser for
Good Reason or upon the Retirement of Irwin
Meyer, then the Purchaser shall forfeit to
the Company the Shares which have not
previously vested in accordance with Section
4(a), and the Purchaser's obligation under
the Note with respect to the payment of the
Purchase Price (at $0.50 per share plus
interest accrued thereon in accordance with
the terms of the Note) for the number of
Shares so forfeited shall be forgiven by the
Company and the Purchaser shall have no
further liability under the Note with respect
to the amount so forgiven.
5. Successors.
Without the prior written consent of the Company, this
Agreement shall not be assignable by the Purchaser. This Agreement shall inure
to the benefit of and be enforceable by the Purchaser, the Company and their
successors.
6. Miscellaneous.
(a) Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of New York, applied
without reference to principles of conflict of laws.
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(b) Amendments. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(c) Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered or mailed to the other party by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Purchaser:
Moutaingate Productions LLC
12610 Promontory Road
Los Angeles, CA 90049
If to the Company:
The Producers Entertainment Group Ltd.
9150 Wilshire Blvd., Suite 205
Los Angeles, CA 90212
or to such other address as either party shall have furnished to the other in
writing in accordance herewith, except that notice of change of address shall
be effective only when actually received by the addressee.
(d) Severability. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of the Agreement.
(e) Waiver. Waiver by any party hereto of any
breach or default by any other party of any of the terms of this Agreement
shall not operate as a waiver of any other breach or default, whether similar
to or different from the breach or default waived.
(f) Entire Agreement. This Agreement constitutes
the entire agreement between the parties hereto with respect to the matters
referred to herein other than the Production Agreement, and no other agreement,
verbal or otherwise, shall be binding as between the parties unless it is in
writing and signed by the party against whom enforcement is sought. All prior
and contemporaneous agreements and understandings between the parties with
respect to the subject matter of this Agreement other than the Production
Agreement are superseded by this Agreement.
(g) Survival. The respective rights and obligations
of the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
(h) Captions and References. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. References in this
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Agreement to a section number are references to sections of the Agreement
unless otherwise specified.
IN WITNESS WHEREOF, the Purchaser of the Company have
each caused this Agreement to be duly executed in its name on its behalf all as
of the day and year first above written.
THE PRODUCERS ENTERTAINMENT
GROUP LTD.
By:______________________________
Its:_____________________________
MOUNTAINGATE PRODUCTIONS
LLC
By:______________________________
Its:_____________________________
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EXHIBIT A
PROMISSORY NOTE
$1,000,000.00
Los Angeles, California
February __,1996
FOR VALUE RECEIVED, the undersigned, MOUNTAINGATE PRODUCTIONS
LLC (the "Promissor"), hereby promises to pay to the order of THE PRODUCERS
ENTERTAINMENT GROUP LTD., a Delaware corporation or its successors (the
"Holder"), the principal sum of ONE MILLION DOLLARS ($1,000,000.00) or such
lesser amount as may then be the unpaid principal balance hereof (the
"Principal Amount"), together with interest thereon, payable by certified or
official bank check or wire transfer of immediately available funds to an
account designated by the Holder in accordance with the following schedule:
twelve and one-half percent (12-1/2%) of the Principal Amount plus all accrued
but unpaid interest thereon will be payable on April 1, 1997, twelve and
one-half percent (12-1/2%) of the Principal Amount (as calculated without
regard to any prior payments thereof) plus all accrued but unpaid interest
thereon will be payable on October 1, 1998, and the balance of the Principal
Amount plus all accrued but unpaid interest thereon will be payable on October
1, 2000.
The Promissor promises to pay interest on the Principal Amount
of this promissory note (this "Note") from the date hereof until such Principal
Amount is paid in full at the fixed rate of 7% per annum compounded
semiannually, such interest payable in accordance with the foregoing schedule;
provided, however, that any Principal Amount hereof not paid when due and, to
the fullest extent permitted by applicable law, any overdue interest shall bear
interest at a rate per annum equal to 10% (after, as well as before, any
judgment), payable on demand. Interest shall be calculated on the basis of a
360-day year for the actual number of days elapsed.
This Note is issued in connection with the transaction
contemplated by the Stock Purchase Agreement, dated as of the date hereof,
between the Promissor and the Holder.
This Note shall be binding upon the Promissor and its
successors and shall inure to the benefit of the Promissor and its successors;
provided, however, that the Promissor shall be liable to the Holder only with
respect to twenty-five percent (25%) of the portion of the Principal Amount
which shall remain unpaid at any time, plus accrued but unpaid interest
thereon. The Promissor shall not have any liability to the Company with
respect to the payment of the remaining portion of the Principal Amount or
accrued but unpaid interest thereon.
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The Promissor hereby waives presentment, demand, notice,
protest and all other demands and notices in connection with the delivery,
acceptance, performance or enforcement of this Note.
The provisions of this Note may be amended, modified, changed
or terminated only by an agreement in writing signed by the Promissor and the
Holder.
If at any time the indebtedness evidenced by this Note is
collected through legal proceedings or this Note is placed in the hands of
attorneys for collection, the Promissor hereby agrees to pay all costs and
expenses (including attorneys' fees) incurred by the Holder in collecting or
attempting to collect such indebtedness.
If any payment on this Note becomes due and payable on a day
other than a Business Day (as hereinafter defined), the maturity thereof shall
be extended to the immediately following Business Day and interest shall
continue to accrue during such extension. "Business Day" means any day other
than a Saturday or Sunday or any other day on which commercial banks in New
York, New York are authorized or obligated by law to close.
This Note is non-transferable except to a person or entity
that succeeds (by transfer of assets, other reorganization or otherwise) to all
or substantially all of the business of Holder.
THE PROMISSOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OR ANY DISPUTE ARISING UNDER OR
RELATING TO THIS NOTE AND AGREES THAT ANY SUCH DISPUTES SHALL BE TRIED BEFORE A
JUDGE SITTING WITHOUT A JURY.
THIS NOTE IS GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
MOUNTAINGATE PRODUCTIONS LLC
By:______________________________
Its:______________________________