NBCU Call Option I Agreement CALL AGREEMENT
NBCU
Call Option I Agreement
CALL
AGREEMENT, dated as of May 4, 2007 (this “Agreement”),
by and among CIG Media LLC (“CM”),
a Delaware limited liability company controlled by Citadel Limited Partnership,
an Illinois limited partnership (“CLP”),
and NBC PALM BEACH INVESTMENT II, INC., a California corporation (the
“Investor”).
WITNESSETH:
WHEREAS,
on May 3, 2007, ION Media Networks, Inc., a Delaware Corporation (the
“Company”),
NBC Universal, Inc., NBC Palm Beach Investment I, Inc., the Investor, and 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”),
including, among other things, the transfer of the call right (the
“Original
Call Right”)
granted pursuant to the Original Call Agreement (as defined below) to CM; 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,
following the exercise and closing of the Original Call Right, CM wishes to
grant the Investor the right to purchase the Call Shares (as defined below),
subject to the terms and conditions of this Agreement; and
WHEREAS,
on the Effective Date and after giving effect to the consummation of the
transactions contemplated by the Original Call Agreement, CM shall be the
record and beneficial owner of the Call Shares.
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 earlier of the Business Day
following (i) the six-month anniversary of the Effective Date and (ii) the date
on which the Class A Common Stock is deregistered with the Securities and
Exchange Commission, 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 the 8,311,639 shares of Class B Common Stock and 15,455,062 shares of
Class A Common Stock owned by CM, and any shares of common stock of the Company
or other securities that may be received by CM with respect to such Call Shares
(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 Class A Common Stock, par value $0.001 per share, of the
Company.
“Class
B Common Stock”
means the Class B Common Stock, par value $0.001 per share, of the
Company.
“CLP”
has the meaning assigned to it in the Preamble
“CM”
has the meaning assigned to it in the Preamble.
“Common
Stock”
means the Class A Common stock and the Class B Common Stock.
“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
2
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.
“Exercise
Notice”
has the meaning assigned to it in Section 2.3(b).
“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.
“Investor”
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).
3
“Master
Transaction Agreement”
has the meaning assigned to it in the Recitals.
“NBCU”
means NBC Universal, Inc., a Delaware corporation.
“Original
Call Agreement”
means the Call Agreement, dated as of November 7, 2005, among ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, certain of his Affiliates and the Investor, as such agreement may be
amended from time to time.
“Original
Call Right”
has the meaning assigned to it in the Recitals.
“▇▇▇▇▇▇
Stockholders”
has the meaning assigned to it in the Master Transaction
Agreement.
“Permitted
Liens”
means (i) mechanics’, carriers’, repairmen’s or other like Liens
arising or incurred in the ordinary course of business, (ii) Liens arising
under original purchase price conditioned sales contracts and equipment leases
with third parties entered into in the ordinary course of business consistent
with past practice, (iii) statutory Liens for Taxes not yet due and payable,
(iv) Liens arising under federal or state securities laws and (v) Liens arising
under the Stockholders’ Agreement.
“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 NBCU and
CM.
“Restricted
Period”
means the period commencing on the Effective Date and ending on the later of
the Business Day following the earlier of (i) the six-month anniversary of the
Effective Date and (ii) the deregistration of the Class A Common Stock with the
Securities and Exchange.
“Restricted
Transfer Period”
has the meaning assigned to it in Section 2.5.
“Series
F Non-Convertible Preferred”
means the 8% Series E Non-Convertible Preferred Stock, par value $.001 per
share, of the Company, to be issued pursuant the Certificate of Designations of
the Powers, Preferences and Relative, Participating, Optional and Other Special
Rights of 8% Series E Non-Convertible Preferred Stock and Qualifications,
Limitations and Restrictions Thereof, to be filed with the Secretary of State
of the State of Delaware.
“Stockholders’
Agreement”
means the Stockholders’ Agreement, dated as of May 4, 2007, among the
Company, NBCU and CLP, as from time to time amended, modified or supplemented.
4
“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 assignment,
pledge, offer or other transfer or disposal of any interest in such shares or
right.
“2005
Agreements”
has the meaning assigned to it in the Master Transaction
Agreement.
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 acquisition of the Call Shares by CM pursuant to the
Original Call Agreement.
Section
2.2 Call
Right.
(a) CM
hereby grants to the Investor, effective as of the Effective Date, an
irrevocable right following the Restricted Period to purchase from CM during
the Call Period all of the Call Shares on the terms and conditions set forth
herein (the “Call
Right”).
The Call Right shall be granted as part of the mutual consideration set forth
in the transactions described in the Master Transaction Agreement, including,
without limitation, Sections 2.02 and 2.05 in the Master Transaction
Agreement.
(b) Following
the Restricted Period, at any time during the Call Period, the Investor may
exercise the Call Right, in whole but not in part, and subject to the terms and
conditions set forth herein, purchase from CM the Call Shares for a purchase
price (the “Call
Price”)
equal to the sum of (1) $0.40
multiplied by all of the shares of Class B Common Stock owned by CM on the
Effective Date which are Call Shares and are delivered at the Call Closing and
(2) $0.40
multiplied by all of the shares of Class A Common Stock owned by CM on the
Effective Date which are Call Shares and are delivered at the Call Closing. The
price per share of Class B Common Stock and Class A Common Stock specified in
the previous sentence and the Call Price shall be equitably adjusted to reflect
any conversions, reclassifications,
5
reorganizations,
stock dividends, stock splits, reverse splits and similar events which occur
with respect to the Common Stock after the date hereof and on or prior to the
Call Closing.
Section
2.3 Exercise
of Call Right; Call Notice.
(a)
Following the Restricted Period, exercise of the Call Right shall be
accomplished by the Investor sending notice of such exercise (the
“Call
Notice”)
to CM 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 Call Price and the
place at which the Call Closing will be conducted.
(b) In the
event the Investor determines to exercise the Call Right, the Investor shall
deliver written notice to CM stating that the Investor intends to exercise the
Call Right and requesting that CM cooperate (and that CM use its commercially
reasonable best efforts to cause the Company and its Subsidiaries to cooperate)
with the Investor to file any applications that may be required in connection
with the exercise of the Call Right, including the FCC Application, if
applicable, and under the HSR Act (the “Exercise
Notice”).
As promptly as practicable, but in no event later than 20 Business Days after
the giving of the Exercise Notice, the parties shall (and CM shall use its
commercially reasonable best efforts to cause the Company and its Subsidiaries
to) make any filings required under the Communications Act and/or HSR Act.
Section
2.4 Call
Closing.
(a) The
closing (the “Call
Closing”)
of the exercise of the Call Right and the purchase and sale of the Call Shares
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, subject to the last sentence of this Section 2.4(a). 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 CM nor the Investor 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 the Investor 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. The requirement for a Final Order may be
waived by the Investor in its sole discretion.
(b) At the
Call Closing, (i) CM shall deliver to the Investor certificates representing
all of the Call Shares, duly endorsed in blank or accompanied by stock powers
duly executed in blank, with all necessary stock transfer stamps affixed
thereto free and clear of all Liens other than Permitted Liens, and (ii) the
Investor shall pay the Call Price by wire transfer in immediately available
funds to the account or accounts specified by CM. CM shall furnish necessary
account information at least two Business Days prior to the Call Closing.
Section
2.5 Limitation
on Transfer of the Call Shares by CM. From
the Effective Date until the earlier of (i) the Call Closing or (ii) the
expiration of the Call Period (the “Restricted
Transfer Period”),
except as provided in the Put/Call Agreement, CM shall not
6
Transfer
any of the Call Shares; provided,
however, that,
subject to applicable Law, at any time during the Restricted Transfer Period CM
may Transfer all (but not less than all) of the Call Shares in connection with
the Transfer by CM and its Affiliates of all of the securities of the Company
owned by CM and its Affiliates; provided,
further,
however, except
as provided in the Put/Call Agreement, it shall be a condition of such Transfer
that the transferee of the Call Shares agrees in writing to assume all of the
obligations of CM under this Agreement and that the Call Shares continue to be
subject to the Call Right in accordance with the terms and conditions of this
Agreement.
Section
2.6 Conversion
of Call Shares. During
the Restricted Transfer Period, CM shall not convert any of the Call Shares
into any other security of the Company.
Section
2.7 Legends. CM
agrees to, and will request the Company to cause, 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.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF THE PUT/CALL
AGREEMENT DATED AS OF MAY 4, 2007 BETWEEN NBC UNIVERSAL, INC. AND CIG
MEDIA LLC.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A CALL
AGREEMENT DATED AS OF MAY 4, 2007,
BETWEEN CIG MEDIA LLC AND NBC PALM BEACH INVESTMENT II, 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
2.8 Termination
of the Call Right. The
right of the Investor 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 the Exercise Notice by the Investor to CM and
(ii) written consent of the parties hereto.
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ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.1 Representations
and Warranties of CM. CM
represents and warrants to the Investor as follows:
(a) Existence;
Compliance with Law. CM 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. CM 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 CM to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement. The execution and delivery by CM
of this Agreement, the performance by CM of its obligations hereunder and the
consummation by CM of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of CM and its members. This
Agreement has been duly executed and delivered by CM, and (assuming due
authorization, execution and delivery by the other parties) this Agreement
constitutes legal, valid and binding obligations of CM, enforceable against CM
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 the Investor, 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 CM, (ii)
conflict with or violate any Law or Governmental Order applicable to CM 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 CM 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 CM to carry out its obligations under, and
to consummate the transactions contemplated by, this Agreement.
(c) Governmental
Consents. The
execution, delivery and performance by CM 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
8
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 CM
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
Investor.
(d) Capitalization;
Ownership. As of
the Effective Date, CM will own the Call Shares. Upon delivery of and payment
for the Call Shares at the Call Closing as provided herein, the Investor shall
acquire good title to the Call Shares delivered by CM, free and clear of all
Liens other than Permitted Liens. As of the date hereof, CM is not a party to,
and has no knowledge of, any voting trust, proxy or any other agreement or
understanding with respect to the Call Shares other than as created by the
Transaction Agreements.
Section
3.2 Representations
and Warranties of the Investor. The
Investor represents and warrants to CM as follows:
(a) Existence;
Compliance with Law. The
Investor 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. The Investor 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 the Investor to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement. The execution and
delivery by the Investor of this Agreement, the performance by the Investor of
its obligations hereunder and the consummation by the Investor of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of the Investor and its stockholders. This Agreement has
been duly executed and delivered by the Investor, and (assuming due
authorization, execution and delivery by the other parties) this Agreement
constitutes legal, valid and binding obligations of the Investor, enforceable
against the Investor 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 CM, 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 the Investor, (ii) conflict with or violate any
Law or Governmental Order applicable to the Investor 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
9
arrangement
to which the Investor 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 the Investor to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement.
(c) Governmental
Consents. The
execution, delivery and performance by the Investor 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 the Investor 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 CM shall use its commercially reasonable best efforts to
cause the Company and 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 Exercise Notice, CM shall, or shall use its commercially
reasonable best efforts to cause the Company and 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 the
Investor and CM may in their reasonable discretion deem necessary in connection
with the transactions contemplated by this Agreement. The Investor shall
cooperate and use all reasonable efforts to assist CM in giving such notices
and obtaining such consents and estoppel certificates; provided, however, that
neither the Investor nor CM 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 such party in its reasonable discretion may deem
adverse to the interests of such party, the Company or any
Subsidiary.
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Section
4.2 Inconsistent
Actions. Once
the FCC Application has been filed, and for so long as it is pending, neither
the Investor nor CM 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 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
the Investor, to:
NBC Palm
Beach Investment II, Inc.
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
with a
copy to:
Shearman
& Sterling LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
(b)
If to
CM, to:
CIG
Media LLC
▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Tel:
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Fax:
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11
with a
copy to:
Fried,
Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
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▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Tel:
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Fax:
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and
ION
Media Networks, Inc.
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▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Tel:
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Fax:
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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
12
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 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. CM 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 the Investor,
provided that without the prior written consent of the Investor, CM may assign
this Agreement or assign its rights and delegate its duties to an Affiliate or
in connection with a transfer permitted under Section 2.5 of this Agreement,
but no such assignment or delegation shall relieve CM of any of its obligations
hereunder. Following the Restricted Period, the Investor 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 CM; provided,
however, that
in the event of any assignment or delegation to an Affiliate, no such
assignment or delegation shall relieve the Investor of any of its obligations
hereunder and; provided,
further,
however, that
any such assignment by the Investor shall only be made in compliance with the
applicable rules and regulations of the FCC and the Securities Exchange
Commission. The Investor may not assign this Agreement or assign any of its
rights or delegate any of its duties under this Agreement during the Restricted
Period. Any assignee of the Investor pursuant to this Section 5.7 shall be
deemed to be the Investor 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 the Investor, the Company and CM and no
delay in exercising any right, power or remedy
13
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.
14
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.
| CIG MEDIA LLC | ||
| |
|
|
| By: |
Citadel Limited
Partnership,
its Manager |
|
| By: |
Citadel Investment
Group, L.L.C.,
its General
Partner |
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||
| Title: Managing Director and Deputy General Counsel | ||
| NBC PALM BEACH INVESTMENT II, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
||
| Title: Vice President and Treasurer | ||