AGREEMENT AND PLAN OF MERGER dated as of March 26, 2018, among WME ENTERTAINMENT PARENT, LLC, LION MERGER SUB, INC. and NEULION, INC.

 

 

AGREEMENT AND PLAN OF MERGER

dated as of March 26, 2018,

among

WME ENTERTAINMENT PARENT, LLC,

 

 

LION MERGER SUB, INC.

and

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ARTICLE I

The Merger

 

 

ARTICLE II

Representations and Warranties of the Company

 

 

 

 

ARTICLE III

Representations and Warranties of Parent and Merger Sub.

 

 

ARTICLE IV

Covenants Relating to Conduct of Business

 

 

ARTICLE V

Additional Agreements

 

 

 

 

ARTICLE VI

Conditions Precedent to the Merger

 

 

ARTICLE VII

Termination, Amendment and Waiver

 

 

ARTICLE VIII

General Provisions

 

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AGREEMENT AND PLAN OF MERGER, dated as of March 26, 2018 (this “Agreement”), among WME Entertainment Parent, LLC, a Delaware limited liability company (“Parent”), Lion Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a wholly owned direct or indirect Subsidiary of Parent, and NeuLion, Inc., a Delaware corporation (the “Company”).

 

WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the Company have unanimously (i) approved and declared advisable this Agreement, (ii) approved the merger (the “Merger”) of Merger Sub into the Company on the terms and subject to the conditions set forth in this Agreement, whereby, except as expressly provided in Section 1.07, each issued and outstanding share of Company Common Stock will be converted into the right to receive $0.84 (eighty-four cents)  in cash and (iii) in the case of Merger Sub and the Company, recommended that their respective stockholders vote in favor of the adoption of this Agreement;

 

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(a)          The authorized capital stock of the Company consists of 500,000,000 shares of common stock of the Company, par value $0.01 per share (“Company Common Stock”) and 50,000,000 shares of preferred stock of the Company, par value $0.01 per share (the “Company Preferred Stock”).

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(i)           280,334,268 shares of Company Common Stock were issued and outstanding,

 

(iii)         (A) 24,862,025 shares of Company Common Stock were subject to outstanding Company Stock Options, (B) 6,405,377 shares of Company Common Stock were subject to outstanding Company Restricted Stock Units, and (C) 1,894,741 shares of Company Common Stock were subject to Company Warrants, and

 

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(i)           each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;

 

(ii)          each Contract to which the Company or any Company Subsidiary is a party that (A) restricts the ability of the Company or any Company Subsidiary to compete in any business or with any Person in any geographical area (other than restrictions with respect to “exclusivity” of the type described in clause (D) of this clause (ii)), (B) provides any third party a right of first offer, right of first refusal, right of first negotiation or similar obligation with respect to any assets of the Company or any Company Subsidiary (including Owned Intellectual Property), (C) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party or (D) provides for “exclusivity” or any similar requirement in favor of any third party;

 

(iii)         each Contract to which the Company or any Company Subsidiary is a party that either (A) provided for annual payments or receipts by the Company together with the Company Subsidiaries for the twelve-month period ending December 31, 2017 or (B) is reasonably expected to provide for payments or receipts by the Company together with the Company Subsidiaries for the twelve-month period ending December 31, 2018, in the case of each of clauses (A) and (B), with respect to annual payments, in excess of $500,000, and with respect to annual receipts, in excess of $250,000;

 

(iv)         each Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty in respect of indebtedness for borrowed money;

 

(v)          each Contract with or binding upon the Company or any of the Company Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;

 

 

(vi)         each material IP Contract (other than non-exclusive licenses of Company Intellectual Property granted to customers in the ordinary course of business, or licenses to commercially available Software granted to the Company or any Company Subsidiary that do not require payments in excess of $50,000 over the term of such license);

 

(vii)        each partnership, joint venture or similar agreement to which the Company or any Company Subsidiary is a party that relates to the formation, creation, operation, management or control of any partnership or joint venture;

 

(viii)       each acquisition or divestiture Contract (including any Contract containing an option to acquire or divest) to which the Company or any Company Subsidiary is a party contemplating payments (including the maximum amount of any “earn-out” or other contingent payment obligations) by or to the Company and/or any of the Company Subsidiaries in excess of $125,000 of future payments in the aggregate;

 

(ix)         each stockholders’, investors rights’, registration rights or similar Contract to which the Company or any Company Subsidiary is a party;

 

(x)          each Contract that, following the Closing, would bind, binds or purports to bind Parent or any of its Affiliates (other than the Company and the Company Subsidiaries);

 

(xi)         each Contract which requires or is in respect of any unpaid capital commitment or capital expenditure(s) by the Company or any Company Subsidiary in an amount in excess of $250,000; and

 

(xii)        each Contract relating to employment and consulting or severance, in each case, that involve an aggregate future or potential liability in excess of $125,000.

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Parent and Merger Sub, jointly and severally, represent and warrant to the Company that:

 

SECTION 3.01          Organization, Standing and Power.  Each of Parent and Merger Sub is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has all requisite corporate power and authority to carry on its business as presently conducted, except as would not reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse Effect.

 

SECTION 3.02          Merger Sub.  Merger Sub was formed solely for the purpose of entering into the Transactions, and since the date of its incorporation, Merger Sub has not carried on any business other than those relating to the Merger and the performance of its obligations hereunder and matters ancillary thereto. Parent owns, directly or indirectly, all of the outstanding Equity Interests of Merger Sub.

 

 

SECTION 3.03          Authority; Execution and Delivery; Enforceability.  Each of Parent and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the Transactions.  The execution and delivery by each of Parent and Merger Sub of this Agreement and the consummation by it of the Transactions have been duly authorized by all necessary corporate action on the part of Parent and Merger Sub, and no other corporate proceedings (including any stockholder approval or other action) on the part of Parent or Merger Sub are necessary to authorize this Agreement or to consummate the Merger or the other Transactions.  Each of Parent and Merger Sub has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by the Company, and this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms (except insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity).

 

SECTION 3.04          No Conflicts; Consents.

 

 

 

SECTION 3.05          Brokers.  No broker, investment banker, financial advisor or other similar Person, the fees and expenses of which will be paid by Parent or one or more of its Subsidiaries, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Merger and the other Transactions based upon arrangements made by or on behalf of Parent, except as will be paid by Parent or one or more of its Subsidiaries.

 

 

SECTION 3.06          Ownership of Company Common Stock.  None of Parent or Merger Sub or any other wholly owned Subsidiary of Parent beneficially owns (within the meaning of Section 13 of the Exchange Act and the rules and regulations promulgated thereunder), or will prior to the Effective Time (other than pursuant to the transactions contemplated hereby), beneficially own any shares of Company Common Stock.

 

SECTION 3.07          Available Funds.  Parent will have as of the Effective Time, sufficient cash available, directly or through one or more Subsidiaries, to pay all amounts to be paid by Parent or Merger Sub in connection with this Agreement, including the payment of the aggregate Per Share Merger Consideration.

 

 

SECTION 4.01          Conduct of Business of the Company.  Except for matters set forth in Section 4.01 of the Company Disclosure Letter or with the prior written consent of Parent, from the date of this Agreement to the Effective Time, the Company shall, and shall cause each Company Subsidiary to, conduct its business in the ordinary course consistent with past practice and, to the extent consistent therewith, use commercially reasonable efforts to preserve intact its present business organization and preserve its present relationships with customers, suppliers, licensors, licensees, distributors and others having material business dealings with it. In addition, except for matters set forth in Section 4.01 of the Company Disclosure Letter, from the date of this Agreement to the Effective Time, the Company shall not, and shall cause each Company Subsidiary not to, take any of the following actions without the prior written consent of Parent:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 4.02          No Frustration of Conditions.  The Company shall not, and shall not permit the Company Subsidiaries to, and Parent shall not, and shall not permit any of its Subsidiaries to, take any action (except as otherwise expressly permitted by Section 7.01) that would, or would reasonably be expected to, result in any condition to the Merger set forth in Article VI not being satisfied.

 

SECTION 4.03          No Solicitation.

 

 

 

 

 

(d)          Nothing contained in this Section 4.03 shall prohibit the Company from (i) taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any “stop-look-and-listen” communication to the stockholders of the Company pursuant to Section 14d-9(f) promulgated under the Exchange Act (or any similar communications to the shareholders of the Company) in which the Company indicates that it has not changed the Company Board Recommendation. For the avoidance of doubt, the foregoing shall not in any way limit or modify the effect that any such action has under this Agreement (including whether such action constitutes a Company Adverse Recommendation Change).

 

(e)          For purposes of this Agreement:

 

“Acquisition Proposal” means any inquiry, proposal, indication of interest or offer from any Person or group relating to (i) any direct or indirect acquisition or purchase, in a single transaction or a series of related transactions, of (A)  15% or more of the assets (including capital stock of the Company Subsidiaries) of the Company and Company Subsidiaries, taken as a whole, or (B) 15% or more of the aggregate voting power of the capital stock, or of any class of capital stock, of the Company or (ii) any tender offer, exchange offer, merger, consolidation, business combination, recapitalization, liquidation, dissolution, binding share exchange or similar transaction involving the Company that, if consummated, would result in any Person or group (or the shareholders of any Person) owning, directly or indirectly, 15% or more of the aggregate voting power of the capital stock, or of any class of capital stock, of the Company or of the surviving entity or the resulting direct or indirect parent of the Company or such surviving entity, other than, in each case, the Transactions.

 

“group” shall have the meaning set forth in Rule 13d-5 of the Exchange Act.

 

 

SECTION 5.01          Stockholder Written Consent; Information Statement.

 

(a)          In connection with the Stockholder Written Consent, the Company shall take all actions necessary to comply, and shall comply in all respects, with the DGCL, including Section 228 and Section 262 thereof, the Company Charter and the Company Bylaws.

 

(b)          As promptly as practicable following the date of this Agreement (and in any event within 10 days of the date hereof), the Company shall promptly prepare and file with the SEC and the CSA a written information statement of the type contemplated by Rule 14c-2 of the Exchange Act containing (i) the information specified in Schedule 14C under the Exchange Act concerning the Stockholder Written Consent, the Merger and the other Transactions (such information statement, including any amendment or supplement thereto, the “Information Statement”), (ii) the notice of action by written consent required by Section 228(e) of the DGCL and (iii) the notice of availability of appraisal rights and related disclosure required by Section 262 of the DGCL.

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(e)          The Company shall cause the Information Statement to be (i) filed with the SEC in definitive form as contemplated by Rule 14c-2 under the Exchange Act and (ii) mailed to the stockholders of the Company, in each case as promptly as practicable after, and in any event within two days after, the latest of (A) confirmation from the SEC that it has no further comments on the Information Statement, (B) confirmation from the SEC that the Information Statement is otherwise not to be reviewed or (C) expiration of the 10-day period after filing in the event the SEC does not review the Information Statement.

 

 

SECTION 5.02          Access to Information; Confidentiality.  Except if prohibited by any applicable Law, the Company shall, and shall cause each of the Company Subsidiaries to, afford to Parent and to Parent’s Representatives reasonable access during normal business hours during the period prior to the Effective Time to all their respective properties, books and records and Contracts and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish, as promptly as reasonably practicable, to Parent all information concerning its business, properties and personnel as Parent may reasonably request.  Notwithstanding the immediately preceding sentence, neither the Company nor any of the Company Subsidiaries shall be required to afford access or furnish information to the extent the Company determines in good faith that affording such access or furnishing such information would jeopardize the attorney-client privilege of the Company or any of the Company Subsidiaries or violate applicable Law; provided, that the Company shall use its commercially reasonable efforts to make alternative arrangements to afford such access or furnish such information without jeopardizing such attorney-client privilege or violating applicable Law, as applicable.  All information exchanged pursuant to this Section 5.02 shall be subject to the confidentiality letter agreement dated November 27, 2017, between the Company and Parent (the “Confidentiality Agreement”).

 

SECTION 5.03          Reasonable Best Efforts; Notification.

(a)          In connection with this Agreement and the transactions contemplated hereby, the parties hereto shall (i) use their reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers and authorizations of, actions or nonactions by, and make, as promptly as reasonably practicable, all necessary filings and submissions with, any Governmental Entity or third party necessary to consummate and make effective the Transactions as promptly as practicable, (ii) cooperate with each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, permits, notices or authorizations are required to be obtained prior to the Effective Time from, Governmental Entities or third parties in connection with the execution and delivery of this Agreement and the other agreements, documents and instruments being delivered pursuant to or specifically contemplated by this Agreement and consummation of the transactions contemplated hereby and thereby and (B) making all such filings and timely seeking all such consents, approvals, permits, notices or authorizations, (iii) use reasonable best efforts to cause the conditions to the Closing set forth in Article VI to be satisfied as promptly as reasonably practicable, and (iv) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, and cooperate with each other in order to do, all other things reasonably necessary or appropriate to cause the Closing to occur and to consummate the transactions contemplated hereby as soon as practicable; provided, that, for the avoidance of doubt, none of the parties hereto shall be obligated or required by this Section 5.03 to waive a condition to Closing set forth in Article VI. Notwithstanding anything in this Section 5.03 to the contrary, other than, in the case of the following clause (y), the last sentence of this Section 5.03, nothing in this Agreement shall require, or be deemed to require, (x) Parent to, or cause any of its Affiliates or subsidiaries to, whether prior to, at, after, or conditioned upon, the Effective Time, (A) propose, negotiate, commit to, effect and agree to, by consent decree, hold separate order or otherwise, the sale, divestiture, license, holding separate, or other disposition of or restriction on the businesses, assets, properties, product lines, or equity interests of, or changes to the conduct of business of, Parent or any of its Affiliates or subsidiaries, (B) create, terminate, or divest relationships, ventures, contractual rights or obligations of Parent or any of its Affiliates or subsidiaries or (C) otherwise take or commit to take any action, including institute any Proceeding, that would limit in any way Parent’s or any of its Affiliates’ or subsidiaries’ freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of the Parent or any of its Affiliates or subsidiaries or (y) the Company to sell, or agree to sell, hold or agree to hold separate, or otherwise dispose or agree to dispose of its or any Company Subsidiary’s assets, or conduct or agree to conduct the businesses of the Company and the Company Subsidiaries in any particular manner, or take any other actions that has, or would be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect. Without limiting the foregoing, in no event shall the Company (and the Company shall cause the Company Subsidiaries not to) propose, negotiate, effect or agree to any such actions set forth in the foregoing clause (y) without the prior written consent of Parent. Notwithstanding anything to the contrary herein, the Company shall, and shall cause the Company Subsidiaries to, at the direction of Parent, sell, or agree to sell, hold or agree to hold separate, or otherwise dispose or agree to dispose of the Company’s or the Company Subsidiaries’ assets, or conduct or agree to conduct the businesses of the Company and the Company Subsidiaries in any particular manner, or take any other actions as determined by Parent; provided, that any such actions are conditioned upon and only become effective upon the Effective Time.

 

 

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SECTION 5.04          Equity Awards.

(i)          each Company Stock Option, whether vested or unvested, outstanding immediately prior to the Effective Time shall be canceled at the Effective Time, with the holder of such Company Stock Option becoming entitled to receive an amount in cash equal to (A) the excess, if any, of (1) the Per Share Merger Consideration minus (2) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (B) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time;

 

(ii)          each Company Restricted Stock Unit, whether vested or unvested, outstanding immediately prior to the Effective Time shall be canceled at the Effective Time, with the holder of such Company Restricted Stock Unit becoming entitled to receive an amount in cash equal to (A) the Per Share Merger Consideration multiplied by (B) the number of shares of Company Common Stock subject to such Company Restricted Stock Unit immediately prior to the Effective Time;

 

(iii)          the Company ESPP will terminate effective upon the Effective Time and, after the date of this Agreement and prior to the Effective Time, no offering periods or purchase periods will be commenced thereunder.

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(i)          “Company ESPP” means the Employee Share Purchase Plan of JumpTV, Inc.

 

(ii)          “Company Restricted Stock Unit” means any restricted stock unit award payable in shares Company Common Stock or the value of which is determined with reference to the value of shares of Company Common Stock, whether granted by the Company under a Company Stock Plan or otherwise.

 

(iii)          “Company Stock Option” means any option to purchase shares of Company Common Stock granted by the Company under a Company Stock Plan or otherwise.

 

(iv)          “Company Stock Plans” means the Company’s Amended and Restated 2012 Omnibus Securities and Incentive Compensation Plan and Fourth Amended and Restated Stock Option Plan.

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(f)          The provisions of this Section 5.05 are solely for the benefit of the parties to this Agreement, and no Company Employee or any other Person (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement (except to the extent provided in Section 8.07 with respect to Section 5.04 and Section 5.06), and no provision of this Section 5.05 shall create such rights in any such Persons in respect of any benefits that may be provided, directly or indirectly, under any Company Benefit Plan or Company Benefit Agreement or any employee program or any plan or arrangement of Parent or any of its subsidiaries.  Nothing herein shall be construed as an amendment to any Company Benefit Plan, Company Benefit Agreement or plan, program, policy, agreement, arrangement or understanding of Parent.

 

SECTION 5.06          Indemnification.

 

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SECTION 5.07          Fees and Expenses.  Except as expressly set forth in this Agreement, all fees and expenses incurred in connection with this Agreement, the Merger and the other Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated.

 

SECTION 5.08          Public Announcements. Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press release, other public statements or broad-based employee communications with respect to the Merger and the other Transactions, and shall not issue any such press release or make any such public statement or broad-based employee communication prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange and except as specifically permitted or required by Section 4.03.  The parties agree that the initial press release to be issued with respect to the Transactions shall be in the form heretofore agreed to by the parties. Notwithstanding the foregoing, this Section 5.08 shall not apply to any press release or other public statement made by the Company or Parent or Merger Sub (a) that is consistent with the initial press release and the terms of this Agreement and does not contain any information relating to the Company, Parent, Merger Sub or the transactions contemplated by this Agreement that has not been previously announced or made public in accordance with the terms of this Section 5.08 or (b) is made in the ordinary course of business consistent with past practice and does not relate to this Agreement or the Transactions.

 

SECTION 5.09          Transfer Taxes.  All stock transfer, real estate transfer, documentary, stamp, recording and other similar Taxes (“Transfer Taxes”) incurred in connection with the Transactions shall be paid by either Merger Sub or the Surviving Corporation, and the Company shall cooperate with Merger Sub and Parent in preparing, executing and filing any Tax Returns with respect to such Transfer Taxes.

 

 

SECTION 5.10          Company Warrants.  Prior to the Effective Time, the Company shall cooperate and consult with Parent, and shall take all actions necessary to ensure that, at or prior to the Effective Time, each Company Warrant shall be treated in accordance with Section 1.07(e).

 

SECTION 5.11          Transaction Litigation.  Prior to the termination of this Agreement in accordance with Article VII, the Company shall promptly advise Parent of any commenced or threatened Proceeding of which the Company is aware against the Company or its directors relating to this Agreement or the Transactions and shall keep Parent promptly and reasonably informed regarding any such Proceeding.  The Company shall give Parent the opportunity, at Parent’s expense, to participate in the defense or settlement of any such Proceeding and shall give due consideration to Parent’s views with respect thereto and no settlement of any such Proceeding shall be agreed to without Parent’s prior written consent.

 

SECTION 5.12          Rule 16b-3 Matters.  The Company shall take all reasonable actions as may be required to cause any dispositions of Company Equity Interests (including derivative securities) in connection with this Agreement by each individual who is a director or officer of the Company subject to Section 16 of the Exchange Act to be exempt under Rule 16b-3 under the Exchange Act.

 

SECTION 5.13          Delisting.  Prior to the Closing Date, the Company shall cooperate and consult with Parent and take, or cause to be taken, all actions, and do or cause to be done all things, necessary, proper or advisable on its part under applicable Laws and (x) the rules and policies of the Toronto Stock Exchange to cause the delisting of the Company and of the Company Common Stock from the Toronto Stock Exchange as promptly as practicable after the Effective Time and the deregistration of the Company Common Stock under the Exchange Act as promptly as practicable after such delisting, (y) the rules and policies of OTC Markets Group (“OTC”) to enable the Company Common Stock to no longer be quoted on OTC and (z) National Policy 11-206 of the CSA to cease to be a “reporting issuer” within the meaning of applicable Canadian securities Laws in all provinces of Canada.

 

SECTION 5.14          Affiliate Transactions.  Except with respect to the Contracts set forth on Section 5.14 of the Company Disclosure Letter or such other Contracts approved, or requested, in writing by Parent, prior to the Effective Time, the Company shall cooperate and consult with Parent, and shall take all actions necessary to ensure that, at or prior to the Effective Time, all Contracts between the Company, on the one hand, and any Affiliate of the Company, on the other hand (which shall include that certain Stockholders’ Agreement, dated as of January 30, 2015 (as amended, modified, supplemented or restated), by and among the Company and the Voting Parties (as defined therein)), shall terminate and shall be of no further force and effect thereafter.

 

SECTION 5.15          Notification of Certain Matters.  Without limiting the other provisions of this Agreement, the Company shall give prompt notice to Parent in writing (a) of any event, circumstance, occurrence, fact, condition, development, effect or change that would render any representation or warranty made by the Company contained in this Agreement untrue or inaccurate, (b) of any failure of the Company to comply with or satisfy any covenant or agreement to be complied with by it under this Agreement or any event, circumstance, occurrence, fact, condition, development, effect or change that would otherwise result in the nonfulfillment of any of the conditions to Parent or Merger Sub’s respective obligations hereunder, (c) of any event, circumstance, occurrence, fact, condition, development, effect or change that has had, or would reasonably be expected to have, a Company Material Adverse Effect or (d) of any notice or other communication from any Person alleging that the consent or approval of such Person is or may be required in connection with the consummation of the Transactions.

 

 

SECTION 5.16          Restructuring; Purchase Agreement.  Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, effect the restructuring set forth on Section 5.16 of the Company Disclosure Letter. Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, enter into and deliver the Transaction Agreements (as defined in the Purchase Agreement) and each of the other agreements contemplated by the Purchase Agreement, and take all actions contemplated by the Purchase Agreement to consummate the Closing (as defined in the Purchase Agreement).

 

 

SECTION 5.17          Financing Cooperation.  Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, cooperate with Parent in connection with the arrangement of any financing by Parent in connection with the transactions contemplated by this Agreement, if and to the extent requested by Parent, including (a) furnishing Parent and the sources of such financing with such information relating to the Company and Company Subsidiaries as shall be reasonably requested by Parent or such financing sources in connection with the arrangement of such financing, (b) assisting Parent in the preparation of pro forma financial information and financial statements to the extent required by the sources of such financing, (c) facilitating the payoff of any existing Debt of the Company and the Company Subsidiaries and the termination of any existing Liens on the assets or properties of the Company or the Company Subsidiaries and (d) facilitating the pledging of the assets and properties of the Company and the Company Subsidiaries in favor of such financing sources.

 

SECTION 6.01          Conditions to Each Party’s Obligation.  The respective obligation of each party to effect the Merger is subject to the satisfaction or (to the extent permitted by Law) waiver at or prior to the Closing of the following conditions:

 

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SECTION 6.02          Conditions to Obligations of Parent and Merger Sub.  The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction or (to the extent permitted by Law) waiver at or prior to the Closing of the following conditions:

 

(a)          Representations and Warranties.  The representations and warranties of the Company (i) set forth in Section 2.08 (Absence of Certain Changes or Events), Section 2.23 (Takeover Statutes) and Section 2.24 (Stockholder’s Consent) shall be true and correct in all respects, in each case, as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representation or warranty expressly relates to a specified date, in which case on and as of such specified date), (ii) set forth in Section 2.02 (Capitalization) and Section 2.19 (Brokers) shall be true and correct in all respects, in each case, as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representation or warranty expressly relates to a specified date, in which case on and as of such specified date), other than de minimis inaccuracies, (iii) Section 2.01 (Organization, Standing, and Power), Section 2.04 (Authority; Execution and Delivery; Enforceability) and Section 2.22 (Affiliate Transactions) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representation or warranty expressly relates to a specified date, in which case on and as of such specified date) and (iii) set forth in Article II, other than those described in clauses (i) and (ii) above, shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representation or warranty expressly relates to a specified date, in which case on and as of such specified date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  Parent shall have received a certificate signed on behalf of the Company by an executive officer thereof to such effect.

 

(b)          No Company Material Adverse Effect.  Since the date of this Agreement, there shall not have occurred (or be occurring) any event, circumstance, occurrence, fact, condition, development, effect or change that has had or would reasonably be expected to have, individually and in the aggregate, a Company Material Adverse Effect.

 

(c)          Performance of Obligations by the Company.  The Company shall have performed or complied in all material respects with its obligations required to be performed or complied with by it under this Agreement by the time of the Closing, and Parent shall have received a certificate signed on behalf of the Company by an executive officer thereof to such effect.

 

 

(d)          Purchase Agreement Closing.  The Closing (as defined in the Purchase Agreement) shall have been consummated, without giving effect to any amendment, modification or waiver of any terms of the Purchase Agreement other than with the prior written consent of Parent.

 

SECTION 6.03          Conditions to Obligation of the Company.  The obligation of the Company to effect the Merger is further subject to the satisfaction or (to the extent permitted by Law) waiver at or prior to the Closing of the following conditions:

 

(a)          Representations and Warranties.  The representations and warranties of Parent and Merger Sub set forth in Article III shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Parent Material Adverse Effect” and words of similar import set forth therein) as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent such representation or warranty expressly relates to a specified date, in which case on and as of such specified date), except, where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.  The Company shall have received a certificate signed on behalf of Parent by an executive officer thereof to such effect.

 

(b)          Performance of Obligations of Parent and Merger Sub.  Parent and Merger Sub shall have performed or complied in all material respects with all obligations required to be performed or complied with by them under this Agreement by the time of the Closing, and the Company shall have received a certificate signed on behalf of Parent by an executive officer thereof to such effect.

 

SECTION 6.04          Frustration of Closing Conditions.  Neither Parent nor Merger Sub may rely on the failure of any condition set forth in Section 6.01 or Section 6.02 to be satisfied if such failure was caused by the failure of Parent or Merger Sub to perform any of its obligations under this Agreement, to act in good faith or to use its reasonable best efforts to consummate the Merger and the other Transactions, as required by and subject to Section 5.03.  The Company may not rely on the failure of any condition set forth in Section 6.01 or Section 6.03 to be satisfied if such failure was caused by its failure to perform any of its obligations under this Agreement, to act in good faith or to use its reasonable best efforts to consummate the Merger and the other Transactions, as required by and subject to Section 5.03.

SECTION 7.01          Termination.  This Agreement may be terminated at any time prior to the Closing, whether before or after receipt of the Stockholder Approval (except as otherwise expressly noted):

 

(a)          by mutual written consent of Parent, Merger Sub and the Company;

 

 

(b)          by either Parent or the Company:

 

(i)          if the Merger shall not have been consummated on or before September 26, 2018 (the “Outside Date”); provided, however, that (x) if all of the conditions to Closing set forth in Article VI (other than those conditions that by their nature can only be satisfied at the Closing, but are capable of being satisfied at such time) other than the conditions set forth in Section 6.01(b) and Section 6.01(c) are satisfied on, or have been waived prior to, the Outside Date, then the Outside Date shall automatically be extended by a period of ninety (90) calendar days and (y) the right to terminate this Agreement under this Section 7.01(b)(i) shall not be available to a party if the failure to consummate the Merger is the result of a material breach of this Agreement by such party; or

 

(ii)          if any Legal Restraint permanently preventing or prohibiting consummation of the Merger shall be in effect and shall have become final and non-appealable; provided that the party seeking to terminate this Agreement pursuant to this clause (ii) shall have complied with its obligations under Section 5.03 in respect of any such Legal Restraint;

 

(c)          by Parent, if the Company breaches or fails to perform any of its representations, warranties or covenants contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.02(a), Section 6.02(b) or Section 6.02(c) and (ii) cannot be or has not been cured prior to the earlier of (x) 30 days after the giving of written notice to the Company of such breach and (y) the Outside Date (provided that Parent and Merger Sub are not then in material breach of any representation, warranty or covenant contained in this Agreement that would cause the conditions set forth in Section 6.03(a) or Section 6.03(b) not to be satisfied); and

(e)          by the Company, if Parent or Merger Sub breaches or fails to perform any of its representations, warranties or covenants contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.03 and (ii) cannot be or has not been cured prior to the earlier of (x) 30 days after the giving of written notice to Parent or Merger Sub of such breach and (y) the Outside Date (provided that the Company is not then in material breach of any representation, warranty or covenant contained in this Agreement that would cause the conditions set forth in Section 6.02(a), Section 6.02(b) or Section 6.02(c) not to be satisfied).

 

The party desiring to terminate this Agreement pursuant to this Section 7.01 (other than pursuant to Section 7.01(a)) shall give written notice of such termination to the other party in accordance with Section 8.02.

 

 

(a)          If this Agreement is terminated pursuant to Section 7.01, this Agreement shall become void and of no effect without liability of any party to the other party. Notwithstanding the foregoing, to the extent that any termination of this Agreement results from the willful and material breach by a party of any representation or warranty set forth in this Agreement or from the willful and material breach by a party of any covenant set forth in this Agreement, then such party shall be liable for any damages incurred or suffered by the other party as a result of such willful and material breach.  The provisions of this Section 7.02 and Article VIII shall survive any termination hereof pursuant to Section 7.01.

 

SECTION 7.03          Amendment; Extension; Waiver.

 

(a)          At any time prior to the Effective Time, the parties may (i) extend the time for the performance of any of the obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained in this Agreement or in any document delivered pursuant to this Agreement or (iii) waive compliance by the other party with any of the agreements or conditions contained in this Agreement.  Notwithstanding the foregoing, (A) after the receipt of the Stockholder Approval, there shall be made no amendment to this Agreement that by Law requires further approval by the stockholders of the Company without such approval having been obtained and (B) no amendment shall be made to this Agreement after the Effective Time.

 

 

(b)          This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.  Any agreement on the part of a party to any extension or waiver with respect to this Agreement shall be valid only if set forth in an instrument in writing signed on behalf of such party.  The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

SECTION 8.01          Nonsurvival of Representations and Warranties.  None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time.  This Section 8.01 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time, which, in each case, shall survive in accordance with its terms and conditions.

 

 

SECTION 8.02          Notices.  All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery by hand, by confirmed facsimile or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified by like notice):

 

with a copy (which shall not constitute actual or constructive notice) to:

▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:          ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

▇▇▇▇▇ ▇. ▇▇▇▇▇

(b)

if to the Company, to NeuLion, Inc.

▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇.

▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention:          General Counsel

with copies (which shall not constitute actual or constructive notice) to:

 

 

Loeb & Loeb LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:          ▇▇▇▇▇ ▇▇▇

 

SECTION 8.03          Definitions.  For purposes of this Agreement:

An “Affiliate” of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.  As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.

 

“Anti-Corruption Laws” means the U.S.  Foreign Corrupt Practices Act, the UK Bribery Act and all other applicable anti-corruption laws.

 

 “Book-Entry Shares” means shares of Company Common Stock held in the system that provides for electronic direct registration of securities in a record holder’s name on the Company’s transfer books and allows shares to be transferred between record holders electronically.

 

A “Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized by Law to close in New York, New York.

 

“Code” means the Internal Revenue Code of 1986.

 

“Company Intellectual Property” means the Owned Intellectual Property and the Licensed Intellectual Property.

 

“Company Material Adverse Effect” means any event, circumstance, occurrence, fact, condition, development, effect or change that (i) has had, or would reasonably be expected to have, a material adverse effect on the business, assets, financial condition or results of operations of the Company and the Company Subsidiaries, taken as a whole; provided, however, that none of the following shall be deemed to be a Company Material Adverse Effect: any event, circumstance, occurrence, fact, condition, development, effect or change to the extent resulting from or arising in connection with (A) general conditions in the industries in which the Company and the Company Subsidiaries operate, (B) general economic conditions or securities, credit, financial or other capital markets conditions (including changes generally in prevailing interest rates, currency exchange rates, credit markets and price levels or trading volumes), in each case in the United States or elsewhere in the world, (C) any change in applicable Law or GAAP (or interpretation or enforcement thereof), (D) the outbreak or escalation of hostilities, any acts of war or terrorism, (E) any hurricane, flood or earthquake or other natural disaster, (F) the failure, in and of itself, of the Company to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics before, on or after the date of this Agreement, or changes or prospective changes in the market price or trading volume of Company Common Stock or the credit rating of the Company (it being understood that the underlying facts giving rise or contributing to such failure or change may be taken into account in determining whether there has been a Company Material Adverse Effect if such facts are not otherwise excluded under this definition), except, in the case of clause (A), (B), (C), (D) or (E), if the Company and the Company Subsidiaries, taken as a whole, are disproportionately affected thereby as compared with other participants in the industries in which the Company and the Company Subsidiaries operate; or (ii) prevents, impairs or materially delays the consummation by the Company of the Merger and the other Transactions or the ability of the Company to perform its obligations under this Agreement.

 

 

“Company Software Products” means all current and prior versions of Software products distributed by or on behalf of Company or any Company Subsidiary under license to third Person customers.

 

 “Company Warrants” means any and all warrants to purchase or otherwise acquire shares of Company Common Stock or any other Equity Interests of the Company outstanding prior to the Effective Time.

 

“Government Official” means any public or elected official or officer or employee (regardless of rank), in each case, acting on behalf of a national, provincial or local government, including a department, agency, instrumentality, state-owned or state-controlled company, public international organization (such as the United Nations or World Bank) or non-U.S. political party, non-U.S. party official or any non-U.S.  candidate for political office.

 

“Hazardous Substances” means (i) any substance that is listed, classified or regulated as hazardous, toxic, dangerous, carcinogenic or otherwise harmful or a pollutant or contaminant under any Law, (ii) any petroleum product or by-product, asbestos-containing material, lead-containing paint or plumbing, polychlorinated biphenyls, radioactive material or radon or (iii) any other substance that is or may become the subject of regulatory action under any Environmental Law.

 

 

“Liens” means all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever.

 

“Money Laundering Laws” means all applicable money laundering Laws.

“Parent Material Adverse Effect” means any event, circumstance, occurrence, fact, condition, development, effect or change that that has a material adverse effect on the ability of Parent to perform its obligations under this Agreement and to consummate the Merger and the transactions contemplated by this Agreement.

 

 

A “Person” means any individual, firm, corporation, partnership, company, limited liability company, trust, joint venture, association, Governmental Entity or other entity.

 

“Purchase Agreement” means that certain Purchase Agreement, dated as of the date hereof, by and between the Company and Stillwater Holding Company LLC.

 

The “Representatives” of any Person means the directors, officers, employees, general partners, managers, consultants, accountants, legal counsel, investment bankers or other financial advisors, agents and other representatives of such Person and such Person’s Subsidiaries.

 

“Sanctions Laws” means all applicable sanctions Laws administered by any Governmental Entity.

 

A “Subsidiary” of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the Equity Interests of which) is owned directly or indirectly by such first Person.

 

 “Tax” and “Taxes” means all taxes, imposts, levies or other like assessments or charges in the nature of taxes imposed by a Governmental Entity, together with all interest, penalties and additions imposed with respect to such amounts.

 

“Tax Return” means all Tax returns, declarations, statements, reports, schedules, forms and information returns (including any amendments thereto) relating to Taxes.

 

 

“Termination Fee” means a cash amount equal to $6,220,000 (six million two hundred-twenty thousand dollars).
 

SECTION 8.04          Interpretation.  The headings contained in this Agreement and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  References to “this Agreement” shall include the Company Disclosure Letter.  All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.  Any terms used in the Company Disclosure Letter, any Exhibit or any certificate or other document made or delivered pursuant hereto but not otherwise defined therein shall have the meaning as defined in this Agreement.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The word “will” shall be construed to have the same meaning as the word “shall”.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.  The word “or” shall be disjunctive but not exclusive.  The phrase “date hereof” or “date of this Agreement” shall mean “as of immediately prior to the execution and delivery of this Agreement”. References to “$” or “dollars” shall mean “United States dollars”. The phrase “made available”, when used in this Agreement, shall mean the relevant information or materials provided directly to Parent and Merger Sub, including information or materials in the Company SEC Documents or in the electronic data room hosted by Firmex and maintained by the Company for purposes of the Transactions, at least two days prior to the effectiveness of this Agreement. Unless the context requires otherwise (i) any definition of or reference to any Contract, instrument or other document or any Law herein shall be construed as referring to such Contract, instrument or other document or Law as from time to time amended, supplemented or otherwise modified (including any waiver thereto) in accordance with the terms thereof, but only to the extent, in the case of any material amendment, supplement or other modification (including any waiver thereto) to any Contract, instrument or other document listed in the Company Disclosure Letter, that such amendment, supplement or other modification is also listed in the appropriate schedule, (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, provided, that nothing contained in this Section 8.04 is intended to authorize any assignment or transfer not otherwise permitted by this Agreement, (iii) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) if the last day for the giving of any notice or the performance of any act required or permitted under this Agreement is a day that is not a Business Day, then the time for the giving of such notice or the performance of such action shall be extended to the next succeeding Business Day, (v) with regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence and (vi) all references herein to Articles, Sections and Exhibits shall be construed to refer to Articles and Sections of, and Exhibits to, this Agreement.  This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.

SECTION 8.05          Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.

 

 

SECTION 8.06          Counterparts; Effectiveness.  This Agreement may be executed in any number of counterparts, as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement.  Facsimile signatures or signatures received as a pdf attachment to electronic mail shall be treated as original signatures for all purposes of this Agreement.  This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart signed by all of the other parties hereto.

 

SECTION 8.07          Entire Agreement; Third-Party Beneficiaries; No Other Representations or Warranties.

(a)          This Agreement, the Confidentiality Agreement and the Support Agreements (i) constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties and their Affiliates, or any of them, with respect to the subject matter of this Agreement, the Confidentiality Agreement and the Support Agreements and (ii) except for Section 5.06, are not intended to confer upon any Person other than the parties any rights or remedies.

 

(b)          Except for the representations and warranties contained in Article II, each of Parent and Merger Sub acknowledges that neither the Company nor any Person on behalf of the Company makes any other express or implied representation or warranty with respect to the Company or any of the Company Subsidiaries or with respect to any other information made available to Parent or Merger Sub in connection with the Transactions.

 

(c)          Except for the representations and warranties contained in Article III, the Company acknowledges that none of Parent, Merger Sub or any other Person on behalf of Parent or Merger Sub makes any other express or implied representation or warranty with respect to Parent or Merger Sub or with respect to any other information made available to the Company in connection with the Transactions.

 

SECTION 8.08          Governing Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

 

SECTION 8.09          Assignment.  Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties, provided, that Parent and Merger Sub may assign, in its sole discretion and at any time, any or all of their respective rights, interests and obligations under this Agreement to any Affiliate of Parent without the consent of any other party hereto, but no such assignment shall relieve Parent or Merger Sub of any of its obligations under this Agreement.  Any purported assignment without such consent shall be void.  Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

 

 

SECTION 8.10          Specific Enforcement; Jurisdiction.

 

(a)          The parties to this Agreement agree that irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached and that monetary damages, even if available, would not be an adequate remedy therefor.  It is accordingly agreed that the parties to this Agreement shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Chosen Courts, this being in addition to any other remedy at law or in equity, and the parties to this Agreement shall not be required to prove actual damages. 

 

(b)          Each party to this Agreement (i) irrevocably and unconditionally submits to the personal jurisdiction of the federal courts of the United States of America located in the State of Delaware and the Court of Chancery of the State of Delaware, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that any actions or proceedings arising in connection with this Agreement or the Transactions shall be brought, tried and determined only in the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) (the “Chosen Courts”), (iv) waives any claim of improper venue or any claim that those courts are an inconvenient forum and (v) agrees that it will not bring any action relating to this Agreement or the Transactions in any court other than the Chosen Courts.  The parties to this Agreement agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 8.02 or in such other manner as may be permitted by applicable Law, shall be valid, effective and sufficient service thereof.

SECTION 8.11          Waiver of Jury Trial.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MERGER OR ANY OTHER TRANSACTION.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 8.11.

 

SECTION 8.12          No Recourse.  This Agreement may only be enforced against, and any claim or clause of action based upon, arising out of, or related to this Agreement may only be brought against the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such party.  No Person shall have any liability for any obligations or liabilities of any party hereto under this Agreement or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the transactions contemplated hereby or in respect of any oral representations made or alleged to be made in connection herewith.

 

[remainder of page intentionally blank; signature pages follow]

 

 

IN WITNESS WHEREOF, Parent, Merger Sub and the Company have duly executed this Agreement, all as of the date first written above.

 

	WME ENTERTAINMENT PARENT, LLC, as Parent,
	by	/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
		Name:      ▇▇▇▇▇ ▇▇▇▇▇▇
		Title:          Chief Financial Officer
	LION MERGER SUB, INC., as Merger Sub,
	by	/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
		Name:      ▇▇▇▇▇ ▇▇▇▇▇▇
		Title:          Chief Financial Officer
	NEULION, INC., as the Company,
	by	/s/       ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
		Name:            ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
		Title:               President and Chief Executive Officer

 

 

Exhibit A

[Form of Stockholder Written Consent]

WRITTEN CONSENT

OF CERTAIN STOCKHOLDERS OF

NEULION, INC.

 

---

Pursuant to Section 228 of the
General Corporation Law of the State of Delaware

 

---

 

 

WHEREAS, the Board of Directors of the Company (the “Board”) has unanimously (i) approved and declared advisable that certain Agreement and Plan of Merger among the Company, WME Entertainment Parent, LLC, a Delaware limited liability company (“Parent”), and Lion Merger Sub, Inc., a Delaware corporation and a wholly owned direct or indirect subsidiary of Parent (“Merger Sub”) (as it may be amended from time to time, the “Merger Agreement”), pursuant to which, among other things, Merger Sub will be merged with and into the Company and the Company will become a wholly owned direct or indirect subsidiary of Parent (the “Merger”) and (ii) recommended that the Company’s stockholders vote in favor of adopting the Merger Agreement;

 

WHEREAS, the Merger Agreement has been executed and delivered by the parties thereto;

 

 

WHEREAS, the undersigned have received a copy of a substantially final draft of the Merger Agreement, have reviewed the Merger Agreement and such other information as they believed necessary to make an informed decision concerning their vote on the adoption of the Merger Agreement, and have had the opportunity to consult with their own legal, tax, financial and/or other advisor(s) regarding the consequences to them of the Merger, the Merger Agreement and the execution of this Written Consent; and

 

WHEREAS, the undersigned desire to adopt and approve the Merger Agreement.

 

NOW, THEREFORE, BE IT RESOLVED, that the Merger Agreement be, and hereby is, adopted and approved in all respects; and be it further

 

RESOLVED, that the proper officers of the Company be, and each of them hereby is, authorized, empowered and directed to make and execute such other documents and instruments as are required to complete the Merger and to cause the same to be filed with the Secretary of State of Delaware and/or such offices as are required, and to do all things whatsoever, whether within or without the State of Delaware, which may be in anywise necessary or proper to effect said Merger; and be it further

 

RESOLVED, that the proper officers of the Company be and each of them hereby is, authorized, empowered and directed to do all things that may be necessary or appropriate to carry out the intent of the foregoing resolutions and the transaction contemplated thereby.

[The remainder of this page was intentionally left blank.]

 

 

IN WITNESS WHEREOF, the undersigned stockholders have duly executed this Written Consent.  This Written Consent shall be effective immediately following the execution and delivery of the Merger Agreement (the “Consent Effective Time”); provided, however, in no event shall this Written Consent be effective as to any of the undersigned if the Consent Effective Time is more than 60 days after the date of signature next to such person’s name below, which date is the date on which provision for the effectiveness of this Written Consent was made.  Prior to the Consent Effective Time, this Written Consent shall be irrevocable as to each of the undersigned.

 

 

 

The Corporate Secretary of the Company hereby certifies that this Written Consent of Certain Stockholders of the Company is true, correct and complete: