Exhibit (a)(1)-2
ML MEDIA PARTNERS, L.P.
AGREEMENT OF SALE
The undersigned Limited Partner, and/or Assignee Holder or Beneficial Owner or
Unitholder (the "Seller") does hereby sell, assign, transfer, convey and deliver
(the "Sale") to Smithtown Bay, LLC, a Delaware limited liability company
("Smithtown" or the "Purchaser"), all of the Seller's right, title and interest
in units of limited partnership interests including any rights attributable to
claims, damages, recoveries, including recoveries from class action lawsuits,
and causes of action accruing to the ownership of such units of limited
partnership interests ("Units") in ML Media Partners, L.P. (the "Partnership")
being sold pursuant to this Agreement of Sale ("Agreement") and the Offer to
Purchase dated October 16, 2003, as amended November 3, 2003, (which together
with this Agreement constitute the "Offer") for a purchase price of $600 per
Unit. The Seller acknowledges that Unitholders who tender their Units will not
be obligated to pay the $50.00 transfer fee per transferring Unitholder charged
by the Partnership, as this cost will be borne by the Purchaser.
Notwithstanding any provision to the contrary, the undersigned agrees that in
the event a distribution of cash, or any other distribution of value whatsoever
(collectively, a "Distribution") is made or declared by the Partnership to the
undersigned on or after October 1, 2003 with respect to the Units being
transferred by the undersigned pursuant to this Agreement, the cash price of
$600.00 per Unit to be paid to the undersigned shall be reduced by the amount of
the Distribution per Unit to the undersigned. To the extent any Distribution is
made or declared by the Partnership with respect to the Units for any period on
or after October 1, 2003 that is received by the undersigned, the undersigned
understands that the amount of said Distribution per Unit will be deducted from
the cash price of $600.00 per Unit to be paid to the undersigned by the
Purchaser, pursuant to the timing set forth in the Offer.
If legal title to the Units is held through an Individual Retirement Account
("▇▇▇"), ▇▇▇▇▇ Plan or similar account, the Seller understands that this
Agreement must be signed by the custodian of such ▇▇▇, ▇▇▇▇▇ Plan or similar
account. Furthermore, the Seller hereby authorizes and directs the custodian of
such ▇▇▇, ▇▇▇▇▇ Plan or similar account to confirm this Agreement.
The Seller hereby represents and warrants to the Purchaser that the Seller owns
such Units and has full power and authority to validly sell, assign, transfer,
convey, and deliver to the Purchaser such Units, and that when any such Units
are accepted for payment by the Purchaser, the Purchaser will acquire good,
marketable and unencumbered title thereto, free and clear of all options, liens,
restrictions, charges, encumbrances, conditional sales agreements, or other
obligations relating to the sale or transfer thereof, and such Units will not be
subject to any adverse claim. The Seller further represents and warrants that
the Seller is a "United States person" as defined in Section 7701(a)(30) of the
Internal Revenue Code of 1986, as amended.
The Seller hereby further represents and warrants that in making the Sale the
Seller has not relied on any information or representation of the Purchaser
except for information regarding the price at which the Purchaser is prepared to
purchase the Seller's Units, and that the Purchaser has not given the Seller any
investment advice nor has the Seller compensated the Purchaser in any manner.
The Seller understands that the price offered hereby may be more or less than
the fair market price of the Units or than prices recently quoted by secondary
market matching services. By making the Sale, the Seller acknowledges and agrees
that it intends to relinquish, and intends Purchaser to have, all risks and
rewards of ownership of the Units covered hereby. The Seller understands that
the Purchaser reserves the right to decline the Seller's Sale and that no
contract will be deemed to have arisen prior to the Purchaser's written
acceptance of the Seller's Sale.
Such Sale shall include, without limitation, all rights in, and claims to, any
Partnership profits and losses, cash distributions, voting rights and other
benefits of any nature whatsoever, distributable or allocable to such Units
under the Partnership Agreement. Upon the execution of this Agreement by the
Seller, Purchaser shall have the right to receive all benefits and cash
distributions and otherwise exercise all rights of beneficial ownership of such
Units.
Seller, by executing this Agreement, hereby irrevocably constitutes and appoints
Purchaser as its true and lawful agent, proxy and attorney-in-fact with respect
to the Units with full power of substitution. This proxy and power of attorney
is an irrevocable power, coupled with an interest of the Seller to Purchaser, to
(i) execute, swear to, acknowledge, and file any document relating to the
transfer of the ownership of the Units on the books of the Partnership that are
maintained with respect to the Units and on the Partnership's books maintained
by the General Partner of the Partnership, or amend the books and records of the
Partnership as necessary or appropriate for the withdrawal of the Seller as a
Unitholder and/or Limited Partner of the Partnership; (ii) vote or act in such
manner as any such proxy or attorney-in-fact shall, in its sole discretion, deem
proper with respect to the Units; (iii) deliver the Units and transfer ownership
of the Units on the books of the Partnership that are maintained with respect to
the Units and on the Partnership's books, maintained by the Partnership's
General Partner; (iv) endorse on the Seller's behalf any and all payments
received by Purchaser from the Partnership for any period on or after October 1,
2003, which are made payable to the Seller, in favor of Purchaser; (v) execute
on the Seller's behalf, any applications for transfer and any distribution
allocation agreements required by the National Association of Securities
Dealers, Inc.'s Notice to Members 96-14 to give effect to the transaction
contemplated by this Agreement; and (vi) receive all benefits and distributions
and amend the books and records of the Partnership, including Seller's address
and record, to direct distributions to Purchaser as of the effective date of
this Agreement and otherwise exercise all rights of beneficial owner of the
Units. Purchaser shall not be required to post bond of any nature in connection
with this power of attorney.
SELLER DOES HEREBY DIRECT AND INSTRUCT THE PARTNERSHIP AND THE GENERAL PARTNER
IMMEDIATELY UPON THEIR RECEIPT OF THIS AGREEMENT OF SALE (i) TO AMEND THE BOOKS
AND RECORDS OF THE PARTNERSHIP TO CHANGE THE SELLER'S ADDRESS OF RECORD AND TO
RECOGNIZE THE PURCHASER FOR THE PURPOSE OF RECEIVING ALL FUTURE DISTRIBUTIONS
AND ACKNOWLEDGE THE TRANSFER OF UNITS FROM THE SELLER TO SMITHTOWN BAY, LLC, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, AND (ii) TO FORWARD ALL
DISTRIBUTIONS AND ALL OTHER INFORMATION TO BE RECEIVED BY SELLER TO SMITHTOWN
BAY, LLC TO THE ADDRESS SET FORTH IN (i) ABOVE.
Seller and Purchaser do hereby release and discharge the General Partner and its
affiliates and each of their respective officers, directors, shareholders,
employees, and agents from all actions, causes of actions, claims or demands
Seller or Purchaser have, or may have, against any such person that result from
such party's reliance on this Agreement or any of the terms and conditions
contained herein. Seller and Purchaser do hereby indemnify and hold harmless the
Partnership and the General Partner and its affiliates and each of their
respective officers, directors, shareholders, employees, and agents from and
against all claims, demands, damages, losses, obligations, and responsibilities
arising, directly or indirectly, out of a breach of any one or more of their
respective representations and warranties set forth herein.
All authority herein conferred or agreed to be conferred shall survive the death
or incapacity of the Seller and any obligations of the Seller shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Upon request, the Seller will execute and deliver any additional
documents deemed by the Purchaser or the Partnership to be necessary or
desirable to complete the assignment, transfer and purchase of such Units.
Purchaser reserves the right to amend the Offer at any time without further
notice to the Limited Partners.
The Seller hereby certifies, under penalties of perjury, that (i) the tax
identification number shown on this form is the Seller's correct Taxpayer
Identification Number; and (ii) Seller is not subject to backup withholding
either because Seller has not been notified by the Internal Revenue Service (the
"IRS") that Seller is subject to backup withholding as a result of failure to
report all interest or dividends, or the IRS has notified Seller that Seller is
no longer subject to backup withholding.
The Seller hereby also certifies, under penalties of perjury, that the Seller,
if an individual, is not a nonresident alien for purposes of U.S. income
taxation, and if not an individual, is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations). The Seller understands that
this certification may be disclosed to the IRS by the Purchaser and that any
false statements contained herein could be punished by fine, imprisonment or
both.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York. Seller waives any claim that New York or the Southern
District of New York is an inconvenient forum, and waives any right to trial by
jury. The undersigned Seller (including any joint owner(s)) owns and wishes to
assign the number of Units set forth below. By its own or its Authorized
Signatory's signature below, the Seller hereby assigns its entire right, title
and interest to the Units to the Purchaser.
By executing this Agreement the Seller hereby acknowledges to the General
Partner that the Seller desires to withdraw as a Limited Partner as to the Units
referenced herein and hereby directs the General Partner to take all such
actions as are necessary to accomplish such withdrawal, and appoints the General
Partner as the agent and attorney-in-fact of the Limited Partner, to execute,
swear to, acknowledge and file any document or amend the books and records of
the Partnership as necessary or appropriate for the withdrawal of the Limited
Partner.
ML MEDIA PARTNERS, L.P.
IN WITNESS WHEREOF the Limited Partner has executed, or caused its Authorized
Signatory to execute, this Agreement.
Print Name of Limited Partner (as it appears on the investment) ________________
________________________________________________________________________________
Print Name and Capacity of Authorized Signatory (if other than above) __________
________________________________________________________________________________
------------------------ ----------------------------
Seller's Signature Joint Seller's Signature
MEDALLION GUARANTEE MEDALLION GUARANTEE
(Medallion Guarantee for (Medallion Guarantee
each Seller's signature) for each Seller's signature)
__________________________ Home Telephone Number
__________________________ Office Telephone Number
__________________________ Mailing Address
__________________________ City, State, Zip Code
__________________________ State of Residence
__________________________ Social Security/Tax ID No.
__________________________ Date
$600 Sales Price per Unit
--------------------------
_____________ Number of Units to be sold
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-------- FOR INTERNAL USE ONLY ---------
ACCEPTED:
SMITHTOWN BAY, LLC
By: Global Capital Management, Inc.
Its Manager
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer
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YOU MUST MAIL EXECUTED ORIGINAL TO THE PURCHASER:
Smithtown Bay, LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PLEASE CALL US AT (▇▇▇) ▇▇▇-▇▇▇▇ IF YOU HAVE ANY QUESTIONS
REGARDING THE SALE OF YOUR UNITS
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INSTRUCTIONS TO COMPLETE AGREEMENT OF SALE
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ALL SIGNATURES MUST BE MEDALLION GUARANTEED
Beneficial Owner of Record Should:
1. COMPLETE and SIGN Agreement.
2. Have your signature Medallion Guaranteed by your Bank or Broker.
3. Indicate Number of Units Owned and/or To Be Sold.
4. Return Agreement in Envelope Provided.
Supporting Documentation Requirements
If your units are held by a Corporation:
Attach a copy of the Corporation's corporate resolution setting forth the
authorized signatory or, if a ▇▇▇▇▇▇▇ ▇▇▇▇▇ account, attach ▇▇▇▇▇▇▇ ▇▇▇▇▇ form
titled "Corporate Authorization to Sell and Endorse Securities." Authorized
officer must be the signatory.
If your units are held by a Partnership:
Attach a copy of the Partnership Agreement. The authorized partner must sign on
behalf of the partnership.
If any owner is deceased or the units are held in an estate:
Executor is Signatory. Please enclose a certified copy of Death Certificate
current within 6 months. Please also provide Letter of Testamentary or
Administration, current within 6 months, showing your beneficial ownership or
executor capacity.
If your units have Joint Ownership:
Please have ALL owners of record sign Agreement, and SEPARATELY Medallion
Guarantee each signature.
If your units are held by a Limited Liability Company (LLC):
Attach a copy of the Articles of Organization or Operating Agreement identifying
persons who may sign on behalf of the Company. If a ▇▇▇▇▇▇▇ ▇▇▇▇▇ account,
attach a copy of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ form titled "Limited Liability Company (LLC)
Authorization."
If your units are held in a Trust:
Attach a copy of the Trust Agreement. The Trustee(s) must sign on behalf of the
Trust.
If your units are held in a retirement account ▇▇▇/▇▇▇▇▇:
1. Beneficial owner must sign Agreement.
2. Provide Custodian information (i.e., Name, Company Name, Address, Phone No.
and Account No.). Smithtown Bay will obtain the Medallion Guarantee of
Custodian Signature.
3. If the account is ▇▇▇▇▇▇▇ ▇▇▇▇▇ retirement account, attach a copy of the
▇▇▇▇▇▇▇ ▇▇▇▇▇ form titled "Certificate of Trustees." If the account is a
non-▇▇▇▇▇▇▇ ▇▇▇▇▇ retirement account, attach a copy of the retirement plan
or certificate identifying the persons (trustees) who may sign on behalf of
the plan.