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EXHIBIT 10.46
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of June __, 1997 by and among
Media Equities International, LLC, a New York limited liability company ("MEI")
and Michael Viner ("VINER") and Deborah Raffin Viner ("RAFFIN"), individuals
residing at 1072 North Beverly Boulevard, Beverly Hills, California 90210.
WHEREAS, MEI has agreed to purchase and Viner and Raffin have agreed
to sell to MEI certain securities of Dove Entertainment, Inc. ("DOVE"), upon
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. MEI hereby purchases from Viner and Raffin,
and Viner and Raffin hereby sell to MEI:
(a) All of the Series C Preferred Stock of Dove
and Warrants to purchase Common Stock of Dove acquired by Viner and Raffin
pursuant to that Stock Purchase Agreement made as of March 27, 1997, as
amended, among Dove, MEI, Viner and Raffin, including 1,570 shares of Series C
Preferred Stock of Dove and Warrants to purchase 825,000 shares of Common
Stock, of Dove for an aggregate purchase price of $1,570,000;
(b) 214,113 shares of Series D Preferred Stock of
Dove, constituting all of the Series D Preferred Stock owned by Viner and
Raffin, for an aggregate purchase price of $516,000;
(c) 500,000 shares of Common Stock of Dove owned
by Viner and Raffin for an aggregate purchase price of $1,000,000;
All payments shall be in cash, by wire transfer or otherwise immediately
available funds.
2. Viner and Raffin hereby assign all of their
respective rights to MEI or any third party
designated by MEI, under that certain Registration
Rights Agreement dated as of March 27, 1997, by and
among Dove, MEI, Viner and Raffin.
3. For a period commencing with the date hereof
and ending on the third anniversary of the date
hereof (the "REFUSAL PERIOD"), if Viner or Raffin
(the "SELLER") shall wish to make a transfer of any
or all of the Dove shares of Common Stock then
beneficially owned by either of them to any person (a
"PROSPECTIVE TRANSFEREE"), the Seller shall first
give written notice (the "SELLER'S NOTICE") to MEI
stating his wish to make such transfer, the name and
address of the prospective transferee, the number of
Dove shares desired
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to be transferred (the "OFFERED SHARES") and the
price and terms offered by the Prospective
Transferee, which price shall be payable only in
cash, and shall by such notice grant an option to MEI
to purchase the Offered Shares at the price and upon
the terms offered by the Prospective Transferee. In
all cases, the price and terms stated in such notice
must represent a bonafide offer that the Seller will
accept if the option under this paragraph is not
exercised, and the Prospective Transferee must not be
an affiliate or an associate (as such terms are
defined in the Securities Exchange Act of 1934 and
the rules thereunder) of the Seller. In addition,
the Seller may not give any notice and sell any Dove
shares unless the Offered Shares constitute at least
5,000 shares of Common Stock, or all of the Dove
shares owned by Viner and Raffin. The option under
this paragraph shall be exercisable by written notice
to the Seller given by MEI within 5 days after the
Seller's Notice, and the sale shall be closed not
later than 10 days after the giving of the Seller's
Notice under this paragraph.
4. Notwithstanding the foregoing provisions of
paragraph 3, if a proposed sale is to be made
pursuant to Rule 144 promulgated under the Securities
Act of 1933 or otherwise in a market transaction (a
"MARKET SALE"), during the Refusal Period:
(a) Viner and Raffin shall not sell in Market
Sales during any three month period more than the greater of (i) such sales as
may be permitted under the applicable volume limitations of Rule 144 applicable
to affiliates, and (ii) 150,000 shares of Common Stock;
(b) The Seller's Notice shall be personally
delivered to MEI and shall state the number of Dove shares desired to be sold
and the minimum per share price at which the Seller proposes to sell such
shares (the "MINIMUM PRICE") which price shall not exceed the closing sale
price of a share of Dove Common Stock on the day the Seller's Notice is given
to MEI, and shall not be less than 80% of such closing sale price;
(c) MEI shall have the option, exercisable by
written notice delivered to the Seller no later than 3 days after the Seller's
Notice is given, to purchase the Option Shares at the per share price equal to
the higher of the closing sale price of the shares of Dove Common Stock on the
day MEI delivers such written notice or the Minimum Price.
5. Viner and Raffin severally represent that (a)
each has full power to execute this Agreement and
consummate to the transactions contemplated herein
and that (b) the Series C Preferred Stock, Warrants,
Series D Preferred Stock and Common stock being sold
pursuant to this Agreement are owned by them are free
and clear of all liens and encumbrances and that upon
the purchase of the securities by MEI as contemplated
in this Agreement, MEI will acquire good and
marketable title to such securities free and clear of
all
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liens, charges, claims, pledges and encumbrances of
any kind or nature whatsoever.
6. MEI represents and warrants to Viner and Raffin that
(a) MEI is an "accredited investor," as defined
in Rule 501 under the Securities Act of 1933 (the "SECURITIES ACT");
(b) MEI is acquiring the securities purchased
hereunder (the "SECURITIES") for MEI's own account for investment with no
present intention of distributing or reselling any such Securities with a view
to any distribution within the meaning of the Securities Act;
(c) MEI has had the opportunity to ask questions
of Viner and Raffin and of management of Dove regarding Dove and has received
all information reasonably requested by it; and
(d) MEI understands that the Securities have not
been registered under the Securities Act and that the certificates representing
the Securities will bear an appropriate restrictive legend. MEI agrees that it
will not, directly or indirectly, voluntarily offer, sell, pledge or otherwise
dispose of (or solicit any offer to purchase or otherwise acquire or take a
pledge of) any Securities unless (x) registered pursuant to the provisions of
the Securities Act, or (y) an exemption from registration is available under
the Securities Act.
7. This Agreement shall be governed by and
construed and enforced in accordance with the laws of
the State of California, without reference to any
otherwise applicable conflict of law provisions.
8. Any notice or other communication required or
permitted hereunder shall be sufficiently given only
if sent by confirmed facsimile transmission, by
overnight courier service, or by registered or
certified mail, postage prepaid, addressed as follows
or to such other address or addresses as may
hereafter be furnished in writing by notice similarly
given by one party to the other:
Viner or Raffin: 1072 North Beverly Boulevard
Beverly Hills, California 90210
Telephone: 310-550-1806
Telecopier: 310-273-1331
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With a required copy Williams & Connolly
(which shall not 725 Twelfth Street, N.W.
constitute notice) to: Washington, D.C. 20005
Attention: Charles Sweet, Esq.
Telephone: 202-434-5000
Telecopier: 202-434-5029
If to MEI: 1 Stamford Plaza - 12th Floor
Stamford, Connecticut 16901
Telephone: 203-323-1263
Telecopier: 203-323-1809
With required copies Ronald Lightstone
(which shall not 400 Parkwood Drive
constitute notice) to: Los Angeles, California 90077
Telephone: 310-271-5333
Telecopier: 310-271-3276
and
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
Attn: Peter D. Weinstein, Esq.
Jack Levy, Esq.
Telephone: 212-734-8600
Telecopier: 212-735-8708
Notice shall be effective immediately upon personal delivery
or telecopy, seven (7) business days after deposit in the mail, or one (1)
business day after deposit with an overnight courier service.
9. This Agreement contains the entire agreement
and understanding among the Parties with respect to
the subject matter hereof, and shall not be modified
or affected by any offer, proposal, statement or
representation, oral or written, made by or for any
party in connection with the negotiation of the terms
hereof. There are no representations, promises,
warranties, covenants, undertakings or assurances
(express or implied) other than those expressly set
forth or provided for herein and in the other
documents referred to herein. This Agreement may not
be modified or amended orally, but only by a writing
signed by the Parties.
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10. If any part of this Agreement is held to be
unenforceable or invalid under, or in conflict with,
the applicable law of any jurisdiction, the
unenforceable, invalid or conflicting part shall, to
the extent permitted by applicable law, be narrowed
or replaced, to the extent possible, with a judicial
construction in such jurisdiction that effects the
intent of the Parties regarding this Agreement and
such unenforceable, invalid or conflicting part. To
the extent permitted by applicable law,
notwithstanding the unenforceability, invalidity or
conflict with applicable law of any part of this
Agreement, the remaining parts shall be valid,
enforceable and binding on the parties.
11. This Agreement may be simultaneously
executed in several counterparts, each of
which shall be an original and all of which
shall constitute but one and the same
instrument.
12. (a) The parties will attempt in
good faith to resolve through negotiation any
dispute, claim or controversy arising out of
or relating to this Agreement. Either party
may initiate negotiations by providing
written notice in letter form to the other
party, setting forth the subject of the
dispute and the relief requested. The
recipient of such notice will respond in
writing within five (5) days with a statement
of its position on and recommended solution
to the dispute. If the dispute is not
resolved by this exchange of correspondence,
then representatives of each party with full
settlement authority will meet at a mutually
agreeable time and place within ten days of
the date of the initial notice in order to
exchange relevant information and
perspectives, and to attempt to resolve the
dispute. If the dispute is not resolved by
these negotiations, the matter will be
submitted to JoAoMoS/ENDISPUTE, or its
successor, for arbitration
(b) The parties agree that any and all disputes,
claims or controversies arising out of or relating to this agreement that are
not resolved by their mutual agreement shall be submitted to final and binding
arbitration before JoAoMoS/ENDISPUTE, or its successor, pursuant to the United
States Arbitration Act, 9 U.S.C. Sec. 1 et seq. Either party may commence the
arbitration process called for in this agreement by filing a written demand for
arbitration with JoAoMoS/ENDISPUTE, with a copy to the other party. the
arbitration will be conducted in accordance with the provisions of
JoAoMoS/ENDISPUTE's Comprehensive Arbitration Rules and Procedures in effect at
the time of filing of the demand for arbitration. The parties will cooperate
with JoAoMoS/ENDISPUTE and with one another in selecting an arbitrator from
JoAoMoS/ENDISPUTE's panel of neutrals, and in scheduling the arbitration
proceedings. The parties covenant that they will participate in the
arbitration in good faith, and that they will share equally in its costs. The
provisions of this Paragraph may be enforced by any Court of competent
jurisdiction, and the party seeking enforcement shall be entitled to an award
of all costs, fees and expenses, including attorneys fees, to be paid by the
party against whom enforcement is ordered.
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13. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their
respective heirs, administrators, successors and
assigns.
14. No provision of this Agreement shall be
interpreted or construed against any party because
that party or its legal representative drafted such
provision. For all purposes of this Agreement,
unless the context otherwise requires or as otherwise
expressly provided, (a) all defined terms shall
include both the singular and the plural forms
thereof; (b) reference to any gender shall include
all other genders; (c) all references to words such
as "herein", "hereof", and the like shall refer to
this Agreement as a whole and not to any particular
Article of Section within this Agreement; (d) the
term "include" means "include without limitation";
and (e) the term "or" is intended to include the term
"and/or".
15. No waiver by any party hereto of any one or
more defaults by any other party or parties in the
performance of any of the provisions of this
Agreement shall operate or be construed as a waiver
of any future default or defaults, whether of a like
or different nature. No failure or delay on the part
of any party in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such
right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right,
power or remedy.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above.
MEDIA EQUITIES INTERNATIONAL LLC
By:/S/ Ronald Lightstone
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Name: Ronald Lightstone
Title: Partner
/S/ Michael Viner
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MICHAEL VINER
/S/ Deborah Raffin Viner
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DEBORAH RAFFIN VINER
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