Common use of The Exchange Offer Clause in Contracts

The Exchange Offer. (a) As soon as reasonably practicable following the Commencement Date, the Company shall commence (within the meaning of Rule 13e-4(a)(4) under the Exchange Act) the Exchange Offer to exchange, out of funds legally available therefor, (i) for each outstanding share of 14¼% Preferred validly tendered in the Exchange Offer and not validly withdrawn (x) $7,000 principal amount of Series A Convertible Subordinated Debt and (y) $1,000 initial liquidation preference of Series A-1 Convertible Preferred, and (ii) for each outstanding share of 9¾% Preferred validly tendered in the Exchange Offer and not validly withdrawn (A) $4,000 principal amount of Series A Convertible Subordinated Debt and (B) $1,000 initial liquidation preference of Series A-1 Convertible Preferred; provided, that if, at the Exchange Offer Closing, the number of shares of 14¼% Preferred or 9¾% Preferred validly tendered in the Exchange Offer and not validly withdrawn represent 50% or less of the total outstanding shares of such class (a “Minority Exchange”), the Company shall exchange, out of funds legally available therefor, (i) for each outstanding share of 14¼% Preferred that has been accepted for exchange (x) $7,500 principal amount of Series A Convertible Subordinated Debt and (y) $500 initial liquidation preference of Series B Convertible Preferred, and (ii) for each outstanding share of 9¾% Preferred that has been accepted for exchange (A) $4,500 principal amount of Series A Convertible Subordinated Debt and (B) $500 initial liquidation preference of Series B Convertible Preferred. In order for shares of Senior Preferred Stock to be validly tendered, each holder of Senior Preferred Stock who tenders in the Exchange Offer shall tender all but not less than all of the Senior Preferred Stock such holder owns on the Commencement Date. (b) The Company shall cause the Exchange Offer to remain open until the twentieth Business Day after such commencement of the Exchange Offer or, as set forth in this Section 5.01(b), such other later date as CIG and NBCU may mutually agree (the “Exchange Offer Initial Expiration Date”). The Company shall be obligated to accept for exchange shares of Senior Preferred Stock validly tendered pursuant to the Exchange Offer, subject only to the non-occurrence or waiver of each of the conditions set forth in Annex B (the “Exchange Offer Conditions”). The Company shall not amend or make changes to the terms of the Exchange Offer, including the Exchange Offer Conditions, without the prior written consent of both CIG and NBCU. Notwithstanding anything in this Agreement to the contrary, the Company shall have the right to extend the Exchange Offer Initial Expiration Date for (i) any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Exchange Offer, (ii) any period required to obtain required stockholder approval of the Proposed Amendments, or (iii) any period required by applicable Law. On the Exchange Offer Initial Expiration Date, CIG and the Company shall, in their reasonable judgment, jointly determine whether the Exchange Offer Conditions exist and whether any such Exchange Offer Conditions shall be waived. Notwithstanding the foregoing, (A) in the event the Company, in its reasonable judgment, determines that one or more Exchange Offer Conditions exist and the Company reasonably determines not to waive any such Exchange Offer Condition and CIG, in its reasonable judgment, determines that each such Exchange Offer Condition does not exist or reasonably determines to waive any such Exchange Offer Condition, the Contingent Exchange pursuant to Section 5.04(b) shall occur, (B) in the event CIG, in its reasonable judgment, determines that one or more Exchange Offer Conditions exist and CIG reasonably determines not to waive any such Exchange Offer Condition and the Company, in its reasonable judgment, determines that each such Exchange Offer Condition does not exist or reasonably determines to waive any such Exchange Offer Condition, the Exchange Offer shall expire and no shares of Senior Preferred Stock shall be accepted for exchange and the Contingent Exchange pursuant to Section 5.04(b) shall not occur and (C) in the event an Exchange Offer Condition set forth in clauses (b) or (c) of Annex B exists that cannot be waived and that prevents the Exchange Offer Closing from occurring, the Exchange Offer shall expire and no shares of Senior Preferred Stock shall be accepted for exchange and the Contingent Exchange pursuant to Section 5.04(b) shall not occur. (c) To the extent the Company amends or makes changes to the terms and conditions of the Exchange Offer pursuant to Section 5.01(b), CIG and the NBCU Entities shall cooperate with the Company in making any filings or amendments required by the DGCL, the Exchange Act, the Securities Act or any other applicable Law, or as otherwise may be necessary to effect such amendment or change. (d) As promptly as reasonably practicable on the date the Exchange Offer is commenced, the Company shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments thereto, the “Exchange Offer Schedule TO”) with respect to the Exchange Offer, which will comply in all material respects with the provisions of all applicable federal and state securities laws, and will contain (including as an exhibit) or incorporate by reference an offer to exchange relating to the Exchange Offer, the consent solicitation statement described in Section 5.02 and forms of the related letter of transmittal (which documents, together with the Exchange Offer Schedule TO and any supplements or amendments thereto, are referred to collectively as the “Exchange Offer Documents”). The related letter of transmittal shall provide that, among other matters, in order for shares of Senior Preferred Stock to be validly tendered, each holder of Senior Preferred Stock who tenders in the Exchange Offer shall represent and warrant to the Company that (x) such holder has full power and authority to tender, sell, assign and transfer shares of Senior Preferred Stock in the Exchange Offer, (y) such holder has tendered all but not less than all of the shares of Senior Preferred Stock held by such holder on the Commencement Date and (z) when such shares are accepted for exchange by the Company, the Company shall acquire good, marketable and unencumbered title thereto, free and clear of all Liens. The Exchange Offer Documents, on the date filed with the SEC and on the date first disseminated to the holders of Senior Preferred Stock, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall take all steps necessary to cause the Exchange Offer Documents to be filed with the SEC and to be disseminated to the holders of Senior Preferred Stock, in each case as and to the extent required by applicable federal securities laws. The Company shall promptly correct or supplement any information in the Exchange Offer Documents if and to the extent that it shall have become false and misleading in any material respect, and the Company shall take all steps necessary to cause the Exchange Offer Documents as so corrected to be filed with the SEC and to be disseminated to the holders of Senior Preferred Stock, in each case as and to the extent required by applicable federal securities laws. CIG, the NBCU Entities and their respective counsel shall be given a reasonable opportunity to review and comment on the initial Exchange Offer Documents before they are filed with the SEC. In addition, the Company shall provide CIG, the NBCU Entities and their respective counsel with any comments or other communications that it or its counsel may receive from time to time from the SEC or its staff with respect to the Exchange Offer Documents promptly after the receipt of such comments or other communications. CIG, the NBCU Entities and their respective counsel shall be given a reasonable opportunity to review and comment on any response of the Company to comments or other communications from the SEC or any amended or revised Exchange Offer Documents before it is filed with the SEC. (e) Subject to the terms of this Agreement, promptly after the expiration of the Exchange Offer, the Company shall accept for exchange, in accordance with the terms of the Exchange Offer, all of the shares of Senior Preferred Stock validly tendered pursuant to the Exchange Offer and not validly withdrawn. (f) If the exchange is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing shares of Senior Preferred Stock is registered on the stock transfer books of the Company, it shall be a condition of exchange that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such exchange shall have paid all transfer and other taxes required by reason of the exchange to a Person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of the Company that such taxes either have been paid or are not applicable.