NBCU Call Option II Agreement CALL AGREEMENT
Exhibit
D to the
Master
Transaction Agreement
NBCU
Call Option II Agreement
CALL
AGREEMENT, dated as of May 4, 2007 (this “Agreement”),
by and among ION Media Networks, Inc., a Delaware corporation
(“ION”),
and NBC PALM BEACH INVESTMENT I, INC., a California corporation
(“Palm
Beach I”).
WITNESSETH:
WHEREAS,
on May 3, 2007, ION, NBC Universal, Inc., Palm Beach I, NBC Palm Beach
Investment II, Inc., a California corporation (“Palm
Beach II”),
and CIG Media LLC, a Delaware limited liability company (“CM”),
entered into the Master Transaction Agreement (the “Master
Transaction Agreement”)
which provides for a restructuring of the Company’s ownership and capital
structure (the “Transaction”);
and
WHEREAS,
pursuant to Section 11.01 of the Master Transaction Agreement, the execution
and delivery of this Agreement is a condition to the commencement of the
transactions contemplated by the Master Transaction Agreement; and
WHEREAS,
on the date hereof, CM and Palm Beach II entered into a Call Agreement (the
“NBCU
Option I Agreement”)
pursuant to which, effective as of the Effective Date, CM granted to Palm Beach
II an irrevocable right to purchase from CM 8,311,639 shares of Class B Common
Stock (as defined below) and 15,455,062 shares of Class A Common Stock (as
defined below), both as adjusted for stock dividends and distributions, stock
splits, reverse stock splits, or similar events, owned by CM, subject to the
terms and conditions set forth in the NBCU Option I Agreement; and
WHEREAS,
ION wishes to grant Palm Beach I the right to purchase the Call Shares (as
defined below), subject to the terms and conditions of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE
I
DEFINED
TERMS
Section
1.1 Definitions. As used in this Agreement, the following terms shall
have the meanings set forth below:
“Action”
means any claim, demand, action, suit, arbitration, proceeding or investigation
by or before any Governmental Authority.
“Affiliate”
means, with respect to any Person, any other Person that controls, is
controlled by, or is under common control with, such Person. As used in this
definition,
“control”
(including its correlative meanings, “controlled by” and “under
common control with”) means the possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise).
“Business
Day”
means any day, other than a Saturday, Sunday or a day on which commercial banks
in New York, New York are authorized or obligated by Law or executive order to
close.
“Call
Closing”
has the meaning assigned to it in Section 2.4.
“Call
Notice”
has the meaning assigned to it in Section 2.3.
“Call
Period”
means the five-year period commencing on the Effective Date, provided that the
Call Period shall be automatically extended for successive five-year periods
commencing upon each successive five-year anniversary of the Effective
Date.
“Call
Price”
has the meaning assigned to it in Section 2.2.
“Call
Right”
has the meaning assigned to it in Section 2.2.
“Call
Shares”
means 26,688,361 shares of Class B Common Stock, as such amount may be adjusted
(x) as a result of a stock dividend or distribution on, stock split or reverse
stock split of, or similar event with respect to, Call Shares or (y) in a
merger, consolidation, combination, reclassification, recapitalization or
similar transaction involving the Company.
“Class
A Common Stock”
means the shares of Class A Common Stock, par value $0.001 per share, of
ION.
“Class
B Common Stock”
means the shares of Class B Common Stock, par value $0.001 per share, of
ION.
“CLP”
has the meaning assigned to it in the Recitals.
“CM”
has the meaning assigned to it in the Recitals.
“Communications
Act”
means the Communications Act of 1934, as amended (including, without
limitation, the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competition Act of 1992 and the Telecommunications Act
of 1996) and all rules and regulations of the FCC, in each case as from time to
time in effect.
“Company”
has the meaning assigned to it in the Recitals.
“Effective
Date”
means the date of the closing of the transactions contemplated by the Original
Call Agreement.
2
“FCC”
means the Federal Communications Commission and any successor governmental
entity performing functions similar to those performed by the Federal
Communications Commission on the date hereof.
“FCC
Application”
means the application to be filed with the FCC, if such application is required
to be filed under the Communications Act, in connection with the exercise of
the Call Right by the Investor requesting that the FCC consent to the Transfer
of the Call Shares pursuant to this Agreement.
“Final
Order”
means an action or actions by the FCC that have not been reversed, stayed,
enjoined, set aside, annulled, or suspended, and with respect to which no
requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
“Governmental
Authority”
means any federal, national, supranational, state, provincial, local, or other
government, governmental, regulatory or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral body.
“Governmental
Order”
means any order, writ, judgment, injunction, decree, stipulation, determination
or award issued or entered by or with any Governmental Authority.
“HSR
Act”
means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and
the rules and regulations promulgated thereunder.
“ION”
has the meaning assigned to it in the Preamble.
“Law”
means any provision of any (i) federal, state, provincial, local, foreign or
similar statute, law, ordinance, regulation, rule, code, administrative
interpretation, regulation or other requirement of any Governmental Authority
or (ii) Governmental Order.
“Lien”
means any mortgage, pledge, hypothecation, assignment, encumbrance, lien
(statutory or other) or security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement or any financing lease having substantially the same effect as any of
the foregoing).
“Master
Transaction Agreement”
has the meaning assigned to it in the Recitals.
“Original
Call Agreement”
means the Call Agreement, dated as of November 7, 2005, among ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, certain of his Affiliates and Palm Beach II, as such agreement may
be amended from time to time.
“Palm
Beach I”
has the meaning assigned to it in the Preamble.
“Palm
Beach II”
has the meaning assigned to it in the Recitals.
3
“Person”
means an individual, corporation, unincorporated association, partnership,
group (as defined in subsection 13(d)(3) of the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder), trust,
joint stock company, joint venture, business trust or unincorporated
organization, limited liability company, any governmental entity or any other
entity of whatever nature.
“Put/Call
Agreement”
means the Put/Call Agreement, dated as of the date hereof, between NBC
Universal, Inc. and CM.
“Securities
Act”
means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Series
B Convertible Preferred”
means the 11% Series B Convertible Preferred Stock, par value $0.001 per share,
of the Company, with a liquidation preference of $10,000 per share, as it may
be modified from time to time.
“Subsidiary”
means, with respect to the Company, a corporation, partnership, limited
liability company, joint venture or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned, directly or indirectly, through one or more intermediaries (including,
without limitation, other Subsidiaries), or both, by the Company.
“Transaction”
has the meaning assigned to it in the Recitals.
“Transaction
Agreements”
has the meaning assigned to it in the Master Transaction
Agreement.
“Transfer”
means, with respect to the Call Shares or the Call Right, any sale, assignment,
pledge, offer or other transfer or disposal of any interest in such shares or
right.
ARTICLE
II
CALL
RIGHT
Section
2.1 Effectiveness. The
Call Right granted pursuant to Section 2.2(a) shall be effective as of the date
of the closing of the transactions contemplated by the Original Call Agreement.
Section
2.2 Call Right. (a) ION
hereby grants to Palm Beach I, effective as of the Effective Date, an
irrevocable right to purchase from ION during the Call Period all of the Call
Shares on the terms and conditions set forth herein (the “Call
Right”).
In consideration for the grant of the Call Right, Palm Beach I hereby
surrenders and delivers, effective as of, and
4
subject
to the occurrence of, the Effective Date, an amount of shares of Series B
Convertible Preferred it owns, determined in accordance with Section 10.10 of
the Master Agreement.
(b) At any
time during the Call Period, Palm Beach I may exercise the Call Right, in whole
or in part, and subject to the terms and conditions set forth herein, purchase
from ION the Call Shares for a purchase price (the “Call
Price”)
equal to the sum of $0.50 multiplied by the number of Call Shares specified in
the Call Notice (as defined below). The price per Call Share specified in the
previous sentence and the Call Price shall be equitably adjusted to reflect any
conversions, reclassifications, reorganizations, stock dividends, stock splits,
reverse splits and similar events which occur with respect to the Class B
Common Stock after the date hereof and on or prior to a Call
Closing.
Section
2.3 Exercise of Call Right; Call Notice. (a)
Exercise of the Call Right shall be accomplished by Palm Beach I sending notice
of such exercise (the “Call
Notice”)
to ION at the address provided for in Section 5.1 of this Agreement at any time
during the Call Period. The Call Notice shall state the total number of Call
Shares Palm Beach I wishes to purchase, the denominations of the certificate or
certificates evidencing such Call Shares Palm Beach I wishes to receive, the
Call Price and the place such Call Closing will be conducted.
(b) As
promptly as practicable, but in no event later than 20 Business Days after
the giving of a Call Notice, to the extent required by applicable Law, the
parties shall make any filings required under the Communications Act and/or HSR
Act.
Section
2.4 Call Closing. (a) Each
closing (a “Call
Closing”)
of the exercise of the Call Right and the purchase and sale of the Call Shares
included in a Call Notice shall occur as promptly as practicable following, but
in no event less than five Business Days following, the receipt of any required
consent, approval, authorization or other order of, action by, or any required
filing with or notification to, any Governmental Authority or any required
third party consent referred to in Section 4.1(b) below, including, without
limitation, (i) the expiration or termination of any waiting period (and any
extension thereof) under the HSR Act applicable to the purchase of the Call
Shares and (ii) approval by the FCC of the FCC Application, which approval
shall have become a Final Order, provided that requirement for a Final Order
may be waived by Palm Beach I in its sole discretion. If the Call Closing shall
not have occurred on or before the 18-month anniversary of the date of the
Exercise Notice, then such Exercise Notice shall be of no further force and
effect and neither ION nor Palm Beach I shall be obligated to consummate the
Call Closing with respect to such Exercise Notice; provided that following such
date, this Agreement and the Call Right shall continue in full force and effect
and Palm Beach I shall retain all rights hereunder subject to the terms and
conditions contained herein. The Call Closing shall occur at the place
designated in the Call Notice.
(b) At a
Call Closing, (i) ION shall deliver to Palm Beach I certificates representing
the applicable number of Call Shares free and clear of all Liens (in the
denominations specified in the Call Notice) and shall record Palm Beach I as
the holder of record of the Call Shares purchased at the Call Closing in the
stock transfer books of ION and (ii) Palm Beach I shall pay the Call Price by
wire transfer in immediately available funds to the account or accounts
specified by ION. ION shall furnish necessary account information at least two
Business Days prior to such Call Closing.
5
Section
2.5 Reservation for Issuance. At all times following the Effective Date
and until the earlier of the (i) the expiration of the Call Period prior to the
delivery by Palm Beach I of a Call Notice and (ii) a Call Closing with respect
to all of the remaining Call Shares, ION shall keep reserved for issuance (a)
the number of shares of Class B Common Stock equal to the Call Shares subject
to the Call Right and (b) the number of shares of Class A Common Stock issuable
upon conversion of the Call Shares subject to the Call Right.
Section
2.6 Legends. Palm Beach I agrees to the imprinting, for so long as
appropriate, of substantially the following legends on certificates
representing any of the Call Shares:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A
STOCKHOLDERS’ AGREEMENT, DATED AS OF MAY 4, 2007, AMONG ION MEDIA
NETWORKS, INC., CIG MEDIA LLC AND NBC UNIVERSAL, INC., AND THE CALL AGREEMENT
DATED AS OF MAY 4 2007, BETWEEN ION MEDIA NETWORKS, INC. AND NBC PALM BEACH
INVESTMENT I, INC.
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
OF 1933 OR AN EXEMPTION THEREFROM AND, IN EACH CASE, IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS.
Section
2.7 Termination of the Call Right. The right of Palm Beach I to purchase
the Call Shares pursuant to this Agreement shall terminate upon the earliest to
occur of the (i) expiration of the Call Period prior to the delivery of a Call
Notice by Palm Beach I to ION and (ii) written consent of the parties
hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.1 Representations and Warranties of ION. ION represents and warrants
to Palm Beach I as follows:
(a) Existence;
Compliance with Law. ION is
duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its organization and has all necessary power and authority to
enter into this Agreement, to carry out its obligations and to consummate the
transactions contemplated hereby. ION is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so
licensed or qualified and in good standing would not adversely affect the
ability of ION to carry out its obligations under, and to consummate the
transactions contemplated by,
6
this
Agreement. The execution and delivery by ION of this Agreement, the performance
by ION of its obligations hereunder and the consummation by ION of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of ION and its stockholders. This Agreement has been duly
executed and delivered by ION, and (assuming due authorization, execution and
delivery by the other parties) this Agreement constitutes legal, valid and
binding obligations of ION, enforceable against ION in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency
(including all Laws relating to fraudulent transfers), reorganization,
moratorium or similar Laws affecting creditors’ rights generally and
subject to the effect of general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
(b) Authorization;
Enforceable Obligations.
Assuming that all consents, approvals, authorizations and other actions
described in Section 3.1(c) have been obtained or have occurred and any
applicable waiting period has expired or been terminated, and except as may
result from any facts or circumstances relating solely to Palm Beach I, the
execution, delivery and performance of this Agreement does not and will not
(i) violate, conflict with or result in the breach of the limited
liability company agreement (or similar organizational documents) of ION, (ii)
conflict with or violate any Law or Governmental Order applicable to ION or
(iii) conflict with, result in any breach of, constitute a default (or
event which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of
termination, acceleration or cancellation of, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which ION or any of its subsidiaries is a
party, except, in the case of clauses (ii) and (iii), as would not materially
and adversely affect the ability of ION to carry out its obligations under, and
to consummate the transactions contemplated by, this Agreement.
(c) Governmental
Consents. The
execution, delivery and performance by ION of this Agreement and the
transactions contemplated hereby do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to, any Governmental Authority, except (i) the pre-merger
notification and waiting period requirements of the HSR Act and the approval by
the FCC pursuant to Section 310(d) of the Communications Act in connection with
the exercise of the Call Right, (ii) where failure to obtain such consent,
approval, authorization or action, or to make such filing or notification,
would not prevent or materially delay the consummation by ION of the
transactions contemplated by this Agreement or (iii) as may be necessary as a
result of any facts or circumstances relating solely to Palm Beach
I.
(d) Capitalization. As of
the Effective Date, ION will have taken all necessary corporate action to
authorize, reserve and permit it to issue, and at all times from the date
hereof until such time as the obligation to deliver Call Shares upon the
exercise of the Call Right terminates, will have reserved, all the Call Shares
issuable pursuant to this Agreement and shares of Class A Common Stock issuable
upon conversion of the Call Shares, and ION will take all necessary corporate
action to authorize and reserve and permit it to issue all additional shares of
Class B Common Stock or other securities that may be issued pursuant this
Agreement, all of which, upon their issuance and delivery in accordance with
the terms of this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable, and shall be delivered free and clear of all Liens and
not subject to any preemptive rights.
7
Section
3.2 Representations and Warranties of Palm Beach I. Palm Beach I
represents and warrants to ION as follows:
(a) Existence;
Compliance with Law. Palm
Beach I is duly organized, validly existing and in good standing under the Laws
of the jurisdiction of its organization and has all necessary power and
authority to enter into this Agreement, to carry out its obligations and to
consummate the transactions contemplated hereby. Palm Beach I is duly licensed
or qualified to do business and is in good standing in each jurisdiction in
which the properties owned or leased by it or the operation of its business
makes such licensing or qualification necessary, except to the extent that the
failure to be so licensed or qualified and in good standing would not adversely
affect the ability of Palm Beach I to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement. The execution and
delivery by Palm Beach I of this Agreement, the performance by Palm Beach I of
its obligations hereunder and the consummation by Palm Beach I of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of Palm Beach I and its stockholders. This Agreement has
been duly executed and delivered by Palm Beach I, and (assuming due
authorization, execution and delivery by the other parties) this Agreement
constitutes legal, valid and binding obligations of Palm Beach I, enforceable
against Palm Beach I in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency (including all Laws relating to fraudulent
transfers), reorganization, moratorium or similar Laws affecting
creditors’ rights generally and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding at law
or in equity).
(b) Authorization;
Enforceable Obligations.
Assuming that all consents, approvals, authorizations and other actions
described in Section 3.2(c) have been obtained and any applicable waiting
period has expired or been terminated, and except as may result from any facts
or circumstances relating solely to ION, the execution, delivery and
performance of this Agreement does not and will not (i) violate, conflict
with or result in the breach of the certificate of incorporation or bylaws (or
similar organizational documents) of Palm Beach I, (ii) conflict with or
violate any Law or Governmental Order applicable to Palm Beach I or
(iii) conflict with, result in any breach of, constitute a default (or
event which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of
termination, acceleration or cancellation of, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which Palm Beach I or any of its
subsidiaries is a party, except, in the case of clauses (ii) and (iii), as
would not materially and adversely affect the ability of Palm Beach I to carry
out its obligations under, and to consummate the transactions contemplated by,
this Agreement.
(c) Accredited
Investor. Upon
exercise of the Call Right, Palm Beach I shall acquire the shares of Class A
Common Stock to be issued upon exercise thereof solely for the account of Palm
Beach I and not as a nominee for any other party, and for investment, and Palm
Beach I shall not offer, sell or otherwise dispose of any such shares of Class
A Common Stock except under circumstances that will not result in a violation
of the Securities Act or any applicable state securities laws. Palm Beach I is
an institutional accredited investor (within the meaning of subparagraphs
(a)(1), ((2), (3) or (7) of Rule 501 under the Securities Act).
8
(d) Governmental
Consents. The
execution, delivery and performance by Palm Beach I of this Agreement and the
transactions contemplated hereby do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to, any Governmental Authority, except (i) the pre-merger
notification and waiting period requirements of the HSR Act and the approval by
the FCC pursuant to Section 310(d) of the Communications Act in connection with
the exercise of the Call Right, (ii) where failure to obtain such consent,
approval, authorization or action, or to make such filing or notification,
would not prevent or materially delay the consummation by Palm Beach I of the
transactions contemplated by this Agreement or (iii) as may be necessary as a
result of any facts or circumstances relating solely to the other party
hereto.
ARTICLE
IV
OTHER
AGREEMENTS
Section
4.1 Governmental Filings; Consents. (a) Each of
the parties to this Agreement shall use its commercially reasonable best
efforts to obtain (and ION shall cause the Subsidiaries to obtain) all
authorizations, consents, orders and approvals of all Governmental Authorities
and officials that may be or become necessary for its execution and delivery
of, and the performance of its obligations pursuant to, this Agreement,
including approval by the FCC of the FCC Application pursuant to Section 310(d)
of the Communications Act and any approvals required under the HSR Act, and
will cooperate fully with the other party in promptly seeking to obtain all
such authorizations, consents, orders and approvals. Each party hereto agrees
to use its commercially reasonable best efforts to supply as promptly as
practicable to the appropriate Governmental Authorities any additional
information and documentary material that may be requested in connection with
obtaining such authorizations, consents, orders and approvals, including the
FCC Application or pursuant to the HSR Act.
(b) Following
receipt of the Call Notice, ION shall, or shall cause the Subsidiaries to, give
promptly such notices to third parties and use its or their reasonable best
efforts to obtain such third party consents and estoppel certificates as Palm
Beach I and ION may in their reasonable discretion deem necessary in connection
with the transactions contemplated by this Agreement. Palm Beach I shall
cooperate and use all reasonable efforts to assist ION in giving such notices
and obtaining such consents and estoppel certificates; provided, however, that
neither Palm Beach I nor ION shall have any obligation to give any guarantee or
other consideration of any nature in connection with any such notice, consent
or estoppel certificate or to consent to any change in the terms of any
agreement or arrangement which Palm Beach I or the Company in its reasonable
discretion may deem adverse to the interests of Palm Beach I, ION or any
Subsidiary.
Section
4.2 Inconsistent Actions. Once the FCC Application has been filed and
for so long as it is pending, neither Palm Beach I nor ION shall take any
action that could reasonably be expected to delay or hinder the grant of the
FCC Application.
Section
4.3 Distribution. Investor shall acquire the Call Shares for investment
purposes only and not with a view to any distribution thereof in violation of
the
9
Securities
Act, and shall not sell any Call Shares purchased pursuant to this Agreement
except in compliance with the Securities Act and applicable state securities or
“blue sky” laws.
ARTICLE
V
MISCELLANEOUS
Section
5.1 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
overnight courier, by 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 in a
notice given in accordance with this Section 5.1):
| (a) |
If to
Palm Beach I, to: |
NBC Palm
Beach Investment I, Inc.
c/o NBC
Universal, Inc.
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
with a
copy to:
Shearman
& Sterling LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
| (b) |
If to
ION, to: |
ION
Media Networks, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
With a
copy to:
Holland
& Knight LLP
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Section
5.2 Entire Agreement; Amendment; Waiver. The Transaction Agreements and
the documents described therein or attached or delivered pursuant thereto set
forth the entire agreement between the parties thereto with respect to the
transactions contemplated by such agreements. Any provision of this Agreement
may be amended or modified in whole or in part at any time only by an agreement
in writing signed by all of the parties. No failure on the part of any party to
exercise, and no delay in exercising, any right shall operate as a waiver
thereof nor shall any single or partial exercise by any party of any right
preclude any other or future exercise thereof or the exercise of any other
right.
Section
5.3 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by 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
Transaction 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 a mutually acceptable manner in order that the
Transaction be consummated as originally contemplated to the fullest extent
possible.
Section
5.4 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
Section
5.5 Governing Law; Jurisdiction. This Agreement shall be governed by,
and construed in accordance with, the Laws of the State of New York applicable
to contracts executed in and to be performed in that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York state or federal court sitting in the
Borough of Manhattan of The City of New York. The parties hereto hereby (a)
submit to the exclusive jurisdiction of any state or federal court sitting in
the Borough of Manhattan of The City of New York for the purpose of any Action
arising out of or relating to this Agreement brought by any party hereto, and
(b) irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement may not be enforced in or by any of the above-named
courts.
Section
5.6 Waiver of Jury Trial. Each of the parties hereto hereby waives to
the fullest extent permitted by applicable Law any right it may have to a trial
by jury with respect to any litigation directly or indirectly arising out of,
under or in connection with this Agreement. Each of the parties hereto (a)
certifies that no representative, agent or attorney of any other party
11
has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other hereto have been induced to enter into this Agreement, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 5.6.
Section
5.7 Successors and Assigns; Third Party Beneficiaries. ION may not
assign this Agreement or assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of Palm Beach I. Palm
Beach I may freely assign this Agreement or assign any of its rights or
delegate any of its duties under this Agreement without the prior written
consent of ION, provided,
however, that
in the event of an assignment or delegation to an Affiliate, no such assignment
or delegation shall relieve Palm Beach I of any of its obligations hereunder
and; provided,
further,
however, that
any such assignment by Palm Beach I shall be made in compliance with the
applicable rules and regulations of the FCC and the Securities and Exchange
Commission. Any assignee of Palm Beach I shall be deemed to be Palm Beach I for
all purposes under this Agreement. Any purported assignment in violation of
this Section 5.7 shall be null and void. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any Person, other than the
parties hereto and their respective successors and permitted assignees, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors and permitted assignees, and for
the benefit of no other Person.
Section
5.8 Remedies. No right, power or remedy conferred upon any party in this
Agreement shall be exclusive, and each such right, power or remedy shall be
cumulative and in addition to every other right, power or remedy whether
conferred in this Agreement or now or hereafter available at law or in equity
or by statute or otherwise. No course of dealing among Palm Beach I and ION and
no delay in exercising any right, power or remedy conferred in this Agreement
or now or hereafter existing at law or in equity or by statute or otherwise
shall operate as a waiver or otherwise prejudice any such right, power or
remedy. The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in addition to any other remedy to
which they are entitled at law or in equity.
Section
5.9 Further Assurances. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of the terms of this Agreement and the transactions contemplated
hereby.
Section
5.10 Headings, Captions and Table of Contents. The section headings,
captions and table of contents contained in this Agreement are for reference
purposes only, are not part of this Agreement and shall not affect the meaning
or interpretation of this Agreement.
12
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto or by
their respective duly authorized representative all as of the date first above
stated.
| ION MEDIA NETWORKS, INC | ||
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| NBC PALM BEACH INVESTMENT I, INC. | ||
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