EXHIBIT 12
EXECUTION COPY
AMENDED AND RESTATED INVESTMENT AGREEMENT
BY AND BETWEEN
XXXXXX COMMUNICATIONS CORPORATION
AND
NBC UNIVERSAL, INC.
DATED AS OF NOVEMBER 7, 2005
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 2
Section 1.1 Definitions....................................................2
ARTICLE II [INTENTIONALLY OMITTED]............................................12
ARTICLE III [INTENTIONALLY OMITTED]...........................................12
ARTICLE IV CONDUCT OF BUSINESS................................................12
Section 4.1 Conduct of the Business.......................................12
Section 4.2 Modification of Investor Rights...............................15
ARTICLE V OTHER AGREEMENTS....................................................16
Section 5.1 Public Statements.............................................16
Section 5.2 Reasonable Commercial Efforts.................................16
Section 5.3 Government Filings............................................16
Section 5.4 Reservation of Shares.........................................17
Section 5.5 Notification of Certain Matters...............................17
Section 5.6 Further Assurances............................................17
Section 5.7 Company Stockholder Meetings..................................17
Section 5.8 Access to Information.........................................18
ARTICLE VI AFFIRMATIVE AND NEGATIVE COVENANTS.................................18
Section 6.1 Maintenance of Existence and Property; FCC Licenses...........18
Section 6.2 Payment of Obligations........................................18
Section 6.3 Books and Records.............................................19
Section 6.4 Insurance.....................................................19
Section 6.5 Compliance with Laws, Etc.....................................19
Section 6.6 Environmental Matters.........................................19
Section 6.7 Material Adverse Effect.......................................20
Section 6.8 ERISA.........................................................20
Section 6.9 Hazardous Materials...........................................20
Section 6.10 No Impairment of Intercompany Transfers......................20
Section 6.11 Limitation on Certain Asset Sales............................20
Section 6.12 No Restrictive Covenants.....................................21
- i -
ARTICLE VII OPERATING AGREEMENTS..............................................21
Section 7.1 [Intentionally Omitted].......................................21
Section 7.2 Investor Right of First Refusal...............................21
Section 7.3 [Intentionally Omitted].......................................22
Section 7.4 [Intentionally Omitted].......................................22
Section 7.5 [Intentionally Omitted].......................................22
ARTICLE VIII [INTENTIONALLY OMITTED]..........................................22
ARTICLE IX REDEMPTION.........................................................22
Section 9.1 [Intentionally Omitted].......................................22
Section 9.2 Default Redemption............................................22
Section 9.3 Assignment of Redemption Obligation...........................23
Section 9.4 Failure to Redeem.............................................23
Section 9.5 Company Sale..................................................23
ARTICLE X MISCELLANEOUS.......................................................24
Section 10.1 Survival of Representations and Warranties...................24
Section 10.2 Notices......................................................24
Section 10.3 Entire Agreement; Amendment..................................25
Section 10.4 Counterparts.................................................26
Section 10.5 Governing Law; Jurisdiction; Waiver of Jury Trial............26
Section 10.6 Fees and Expenses............................................26
Section 10.7 Indemnification by the Company...............................26
Section 10.8 Successors and Assigns; Third Party Beneficiaries............27
Section 10.9 Remedies.....................................................27
Section 10.10 Headings, Captions and Table of Contents....................28
Section 10.11 Termination.................................................28
Section 10.12 Severability................................................28
- ii -
EXHIBITS
Exhibit A Certificate of Designation
SCHEDULES
Schedule 4.1(g) Certain Permitted Transactions
Schedule 4.1(h) Stock-Based Compensation Plans
Schedule 10.1 Section 10.1 Individuals
- iii -
AMENDED AND RESTATED INVESTMENT AGREEMENT
AMENDED AND RESTATED INVESTMENT AGREEMENT, dated as of November 7, 2005
(this "Agreement"), by and between XXXXXX COMMUNICATIONS CORPORATION, a Delaware
corporation (the "Company"), and NBC UNIVERSAL, INC., a Delaware corporation
("NBCU" and, together with its permitted transferees, the "Investor").
Capitalized terms not otherwise defined where used shall have the meanings
ascribed thereto in Article I.
WHEREAS, on September 15, 1999, the Investor and certain of its
Affiliates invested $415,000,000 (the "Initial Investment") in the Company, and,
in connection with the Initial Investment,
1. the Company and the Investor entered into an Investment Agreement
(the "Original Investment Agreement"), pursuant to which the
Investor purchased certain securities from the Company;
2. the Company, the Investor and the Xxxxxx Stockholders entered into
a Stockholder Agreement (the "Original Stockholder Agreement"), to
provide for certain matters with respect to the governance of the
Company;
3. the Xxxxxx Stockholders and an Affiliate of the Investor entered
into a Call Agreement (the "Original Call Agreement"), pursuant to
which the Xxxxxx Stockholders granted an Affiliate of the Investor
an option to purchase certain securities of the Company held by
them; and
4. the Company and the Investor entered into a Registration Rights
Agreement (the "Original Registration Rights Agreement" and,
together with the Original Investment Agreement, the Original
Stockholder Agreement and the Original Call Agreement, the
"Existing Agreements"), pursuant to which the Company granted the
Investor and certain of its Affiliates certain registration rights
with respect to certain shares of Class A Common Stock held or
acquired by the Investor and certain of its Affiliates;
WHEREAS, since the date of the Initial Investment, certain disputes have
arisen among the parties as to their rights and obligations under the Existing
Agreements, and the parties have agreed to resolve those disputes and
restructure the Initial Investment, subject to the terms and conditions of the
Transaction Agreements (defined below);
NOW, THEREFORE, in consideration of the mutual agreements and understandings
set forth herein, the parties hereto hereby agree to amend and restate the
Original Investment Agreement as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
-----------
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Affiliate" shall mean, with respect to any Person, any other Person that
controls, is controlled by, or is under common control with, such Person,
including the executive officers and directors of such Person. As used in this
definition, "control" (including its correlative meanings, "controlled by" and
"under common control with") shall mean 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).
"Agreement" shall have the meaning set forth in the preamble hereto.
"Ancillary Documents" shall mean the Certificate of Designation, the Master
Agreement, the Call Agreement, the Stockholder Agreement, the Registration
Rights Agreement and the Settlement Agreement.
"Asset Sale" shall mean the sale, transfer or other disposition (other than
to the Company or any of its Company Subsidiaries) in any single transaction or
series of related transactions involving assets with a fair market value in
excess of $2,000,000 of (a) any capital stock of or other equity interest in any
Company Subsidiary, (b) all or substantially all of the assets of the Company or
of any Company Subsidiary, (c) real property, (d) all or substantially all of
the assets of any media property, or part thereof, owned by the Company or any
Company Subsidiary, or a division, line of business or comparable business
segment of the Company or any Company Subsidiary or (e) any transaction
involving the transfer of an FCC license for a Company Station; provided that
Asset Sales shall not include sales, leases, conveyances, transfers or other
dispositions to the Company or to a wholly owned Company Subsidiary or to any
other Person if after giving effect to such sale, lease, conveyance, transfer or
other disposition such other Person becomes a wholly owned Company Subsidiary.
"Bankruptcy Law" shall mean Title 11, U.S. Code or any similar Federal or
state law for the relief of debtors.
"Board of Directors" shall mean the Board of Directors of the Company as
from time to time constituted.
"Budget" shall mean for any fiscal year the annual operating budget for the
Company, including the Network (but specifically excluding all Company Station
operations and programming, except for Same Market Stations), which shall
include Network programming items (including capital expenditures, general
corporate overhead expenses and other operating expenses), prepared by the
Company, provided that if the Company and the Investor fail to agree on an
annual operating budget for any fiscal year, the Budget shall be the Budget for
the previous year.
2
"Call Agreement" shall mean the Call Agreement, dated as of the date hereof,
among the Investor, NBC Palm Beach Investment II, Inc. and the Xxxxxx
Stockholders, as from time to time amended, modified or supplemented.
"Certificate of Designation" shall mean the Amended and Restated Certificate
of Designation of the Series B Preferred Stock, to be executed and filed with
the Secretary of State of the State of Delaware on or prior to the date hereof,
which shall be substantially in the form of Exhibit A hereto, as from time to
time amended, modified or supplemented.
"Class A Common Stock" shall mean the shares of Class A Common Stock, par
value $0.001 per share, of the Company.
"Class B Common Stock" shall mean the shares of Class B Common Stock, par
value $0.001 per share, of the Company.
"Class C Common Stock" shall mean the shares of Class C Non-Voting Common
Stock, par value $0.001 per share, of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall mean the Class A Common Stock, Class B Common Stock and
Class C Common Stock, and any other class of common stock of the Company
hereafter created and any securities of the Company into which such Common Stock
may be reclassified, exchanged or converted.
"Communications Act" shall mean the Communications Act of 1934, as amended
(including, without limitation, the Cable Communications Policy Act of 1984 and
the Cable Television Consumer Protection and Competition Act of 1992), and all
rules and regulations of the FCC, in each case as from time to time in effect.
"Company" shall have the meaning set forth in the preamble hereto.
"Company CEO" shall mean the chief executive officer of the Company
appointed on the date hereof in connection with the execution of the Transaction
Agreements and any successor unless the initial Company CEO was terminated by
the Company without Cause or the initial Company CEO resigned for Good Reason
(in each case, as such terms are defined in the Xxxxxxx Employment Agreement (as
defined in the Master Agreement)).
"Company Plan" shall mean each "employee benefit plan" (within the meaning
of Section 3(3) of ERISA), including, without limitation, multiemployer plans
(within the meaning of ERISA Section 3(37)), stock purchase, stock option,
severance, employment, change-in-control, fringe benefit, collective bargaining,
bonus, incentive, deferred compensation and all other employee benefit plans,
agreements, programs, policies or other arrangements, whether or not subject to
ERISA (including any funding mechanism therefor now in effect or required in the
future as a result of the transaction contemplated by this Agreement or
otherwise), whether formal or informal, oral or written, under which any
employee or former employee of the Company or its Subsidiaries has any present
or future right to benefits and under which the Company or its Subsidiaries has
any present or future liability.
3
"Company Sale" shall have the meaning set forth in Section 9.5.
"Company Stations" shall mean, collectively, each full service television
station, low power television station and television translator owned and
operated by the Company or any Company Subsidiary.
"Company Subsidiary" shall mean any Subsidiary of the Company.
"Conflicting Provision" shall have the meaning set forth in Section 10.12.
"Conversion Shares" shall mean the shares of Common Stock into which the
Shares are convertible, as such shares may be subject to adjustment from time to
time and any securities into which such shares may be reclassified, exchanged or
converted.
"Custodian" shall mean any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default Redemption Period" shall have the meaning set forth in Section
9.2(b).
"Default Redemption Price" shall mean the greater of (i) the Par Value Price
and (ii) an amount per Conversion Share equal to the average of the closing
prices of the Common Stock on the American Stock Exchange (or other applicable
exchange) for the 45 consecutive trading days ending on the trading date
immediately preceding the date of delivery of the Notice of Default Redemption,
provided that if the applicable Notice of Default Redemption is based upon an
Event of Default under clause (2)(C) of the definition of Event of Default, the
Default Redemption Price shall be the Par Value Price.
"DMA" shall mean a Designated Market Area as determined by Xxxxxxx Media
Research or such successor designation of television markets that may in the
future be recognized by the FCC for determining television markets.
"Environmental Laws" shall mean all applicable federal, state, local and
foreign laws, statutes, ordinances, codes, rules, standards and regulations, now
or hereafter in effect, and in each case as amended or supplemented from time to
time, and any applicable judicial or administrative interpretation thereof,
including any applicable judicial or administrative order, consent decree, order
or judgment, imposing liability or standards of conduct for or relating to the
regulation and protection of human health, safety, the environment and natural
resources (including ambient air, surface water, groundwater, wetlands, land
surface or subsurface strata, wildlife, aquatic species and vegetation).
Environmental Laws include the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. xx.xx. 9601 et seq.)
("CERCLA"); the Hazardous Materials Transportation Authorization Act of 1994 (49
U.S.C. xx.xx. 5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. xx.xx. 136 et seq.); the Solid Waste Disposal Act (42 U.S.C.
xx.xx. 6901 et seq.); the Toxic Substance Control Act (15 U.S.C. xx.xx. 2601 et
seq.); the Clean Air Act (42 U.S.C. xx.xx. 7401 et seq.); the Federal Water
Pollution Control Act (33 U.S.C. xx.xx. 1251 et seq.); the Occupational Safety
and Health Act (29 U.S.C. xx.xx. 651 et seq.); and the Safe Drinking Water Act
(42 U.S.C. xx.xx. 300(f) et seq.), each as from time to time amended, and any
and all regulations promulgated thereunder, and all
4
analogous state, local and foreign counterparts or equivalents and any transfer
of ownership notification or approval statutes.
"Environmental Liabilities" shall mean, with respect to any Person, all
liabilities, obligations, responsibilities, response, remedial and removal
costs, investigation and feasibility study costs, capital costs, operation and
maintenance costs, losses, damages, punitive damages, property damages, natural
resource damages, consequential damages, treble damages, costs and expenses
(including all fees, disbursements and expenses of counsel, experts and
consultants), fines, penalties, sanctions and interest incurred as a result of
or related to any claim, suit, action, investigation, proceeding or demand by
any Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute or common law, including any arising under
or related to any Environmental Laws, Environmental Permits, or in connection
with any Release or threatened Release or presence of a Hazardous Material
whether on, at, in, under, from or about or in the vicinity of any real or
personal property.
"Environmental Permits" shall mean all permits, licenses, authorizations,
certificates, approvals or registrations required by any Governmental Entity
under any Environmental Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974 (or
any successor legislation hereto), as amended from time to time, and any
regulations promulgated thereunder.
"ERISA Affiliate" shall mean, with respect to the Company or any Company
Subsidiary, any trade or business (whether or not incorporated) which, together
with the Company or such Company Subsidiary, are treated as a single employer
within the meaning of Sections 414(b), (c), (m) or (o) of the Code.
"ERISA Event" shall mean, with respect to the Company, any Company
Subsidiary or any ERISA Affiliate (a) any event described in Section 4043(c) of
ERISA with respect to a Title IV Plan; (b) the withdrawal of the Company, any
Company Subsidiary or ERISA Affiliate from a Title IV Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (c) the complete or partial withdrawal
of the Company, any Company Subsidiary or any ERISA Affiliate from any
Multiemployer Plan; (d) the filing of a notice of intent to terminate a Title IV
Plan or the treatment of a plan amendment as a termination under Section 4041 of
ERISA; (e) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC; (f) the failure by the Company, any Company
Subsidiary or ERISA Affiliate to make when due required contributions to a
Multiemployer Plan or Title IV Plan unless such failure is cured within 30 days;
(g) any other event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan
or for the imposition of liability under Section 4069 or 4212(c) of ERISA; (h)
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
reorganization or insolvency of a Multiemployer Plan under Section 4241 of
ERISA; (i) the loss of a Qualified Plan's qualification or tax exempt status; or
(j) the termination of a Company Plan described in Section 4064 of ERISA.
5
"Event of Default" shall mean:
(1) the Company (i) is in material breach or default under this
Agreement or any Ancillary Document and (ii) either (A) if such breach or
default is not reasonably curable, the Company receives notice of such
breach or default from the Investor or (B) if such breach or default is
reasonably curable, the Company fails to cure such breach or default within
30 days after the Company's receipt of notice from the Investor of such
breach or default;
(2) there is (A) a default in the payment at final maturity of
principal in an aggregate amount of $10,000,000 or more with respect to any
indebtedness of the Company or any Company Subsidiary which default shall
not be cured, waived or postponed pursuant to an agreement with the holders
of such indebtedness within 60 days after written notice, (B) an
acceleration of any such indebtedness aggregating $10,000,000 or more which
acceleration shall not be rescinded or annulled within 20 days after written
notice to the Company of such default by the Investor or (C) a default or
other event that permits the acceleration of any such indebtedness
aggregating $10,000,000 or more which default or other event has not been
cured or waived by the filing deadline for the next SEC report of the
Company on Form 10-K, 10-Q or 8-K or similar report under the Exchange Act;
(3) a court of competent jurisdiction enters a final judgment or
judgments which can no longer be appealed for the payment of money in excess
of $10,000,000 against the Company or any Company Subsidiary and such
judgment remains undischarged for a period of 60 consecutive days during
which a stay of enforcement of such judgment shall not be in effect;
(4) the Company or any Company Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors,
or
(E) generally is not paying its debts as they become due; or
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Company Subsidiary in
an involuntary case,
6
(B) appoints a Custodian of the Company or any Company Subsidiary
or for all or substantially all of the property of the Company or any
Company Subsidiary, or
(C) orders the liquidation of the Company or any Company
Subsidiary, and the order or decree remains unstayed and in effect for
60 days.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Existing Agreements" shall have the meaning set forth in the recitals
hereto.
"Existing Preferred Stock" shall mean the 14 1/4% Cumulative Junior
Exchangeable Preferred Stock, par value $.001 per share, of the Company, with a
liquidation preference of $10,000 per share, of which 49,610 shares are
outstanding as of the date hereof, and any additional shares issued as payment
of dividends thereon; and the 9 3/4% Series A Convertible Preferred Stock, $.001
par value, of the Company, with a liquidation preference of $10,000 per share,
of which 15,162 shares are outstanding as of the date hereof, and any additional
shares issued as payment of dividends thereon.
"FCC" shall mean the Federal Communications Commission and any successor
Governmental Entity performing functions similar to those performed by the
Federal Communications Commission on the date hereof.
"GAAP" shall mean generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Entity" shall mean any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any self-regulating organization, securities exchange or
securities trading system, including, without limitation, the FCC.
"Hazardous Material" shall mean any substance, material or waste which is
regulated by, or forms the basis of liability now or hereafter under, any
Environmental Laws, including any material or substance which is (a) defined as
a "solid waste," "hazardous waste," "hazardous material," "hazardous substance,"
"extremely hazardous waste," "restricted hazardous waste," "pollutant,"
"contaminant," hazardous constituent," "special waste," toxic substance" or
other similar term or phrase under any Environmental Laws, (b) petroleum or any
fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCBs), or
any radioactive substance.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Independent" shall mean, with respect to a director or proposed director,
that such person is (i) "independent", as determined in accordance with Section
121A of the Company Guide of the American Stock Exchange rules and (ii) was not
employed by, engaged by or affiliated with the Company, NBCU or any Xxxxxx
Stockholder or any of their respective Affiliates within the past three years.
7
"Initial Investment" shall have the meaning set forth in the recitals
hereto.
"Investor" shall have the meaning set forth in the preamble hereto.
"Investor Call Right Termination" shall have the meaning set forth in the
Call Agreement.
"Investor Indemnitees" shall have the meaning set forth in Section 10.7(a).
"Investor Nominee" shall have the meaning set forth in the Stockholder
Agreement.
"Investor Recourse Period" shall have the meaning set forth in Section 9.4.
"Investor Rights" shall mean the rights of the Investor set forth in
Articles II, III and IV of the Stockholder Agreement and in Article IV and
Article VI hereof, other than Section 6.12.
"Issue Price" shall mean $10,000 per Share.
"Lien" shall mean 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).
"Losses" shall have the meaning set forth in Section 10.7(a).
"Master Agreement" shall mean the Master Transaction Agreement, dated as of
the date hereof, among the Company, the Investor, the Xxxxxx Stockholders, NBC
Palm Beach Investment I, Inc. and NBC Palm Beach Investment II, Inc., as from
time to time amended, modified or supplemented.
"Material Adverse Effect" shall mean a material adverse effect on (i) with
respect to the Company, the business, assets, operations or financial or other
condition of the Company and the Company Subsidiaries taken as a whole or (ii)
with respect to any party to this Agreement or the Ancillary Documents, the
ability of such party to perform its obligations under this Agreement or any of
the Ancillary Documents to which it is a party.
"Minimum Investment" shall mean 151,000,000 Conversion Shares; provided that
such number shall be equitably adjusted for any conversions, reclassifications,
reorganizations, stock dividends, stock splits, reverse splits and similar
events which occur with respect to the Common Stock; provided further that such
number shall be reduced pro rata for any reduction in the number of Conversion
Shares underlying the Series B Preferred Stock held by the Investor pursuant to
the payment of the Investor Call Right Termination Amount (as defined in the
Stockholder Agreement). For purposes of the determination of whether the Minimum
Investment is owned, the Investor or its Affiliates and any permitted transferee
holding any Shares shall be deemed to hold the Conversion Shares for such
Shares.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA and to which the Company, any Company Subsidiary or any
ERISA
8
Affiliate is making, is obligated to make, or has made or been obligated
to make, contributions on behalf of participants who are or were employed by any
of them.
"National Coverage" shall mean, with respect to any television network, the
percentage of national television households that receive such network's
broadcast as listed in the Xxxxxxx Television Index or such successor measure of
coverage equivalent thereto generally adopted by the television industry.
"NBCU" shall have the meaning set forth in the preamble hereto.
"Network" shall mean any television broadcast network owned by the Company.
"New Exchange Debentures" shall have the meaning set forth in the
Certificate of Designation.
"Notice of Default Redemption" shall have the meaning set forth in Section
9.2(a).
"Original Call Agreement" shall have the meaning set forth in the recitals
hereto.
"Original Investment Agreement" shall have the meaning set forth in the
recitals hereto.
"Original Stockholder Agreement" shall have the meaning set forth in the
recitals hereto.
"Par Value Price" shall mean, in respect of any redemption of any share of
preferred stock of the Company, the issue price of such preferred stock plus any
accrued and unpaid dividends through and including the date of redemption of
such preferred stock.
"Xxxxxx Stockholders" shall mean Xxxxxx X. Xxxxxx, Second Xxxxxxx Xxxxxxx
Limited Partnership and Xxxxxx Enterprises, Inc.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any successor
thereto.
"Person" shall mean an individual, corporation, unincorporated association,
partnership, group (as defined in Section 13(d)(3) of the Exchange Act), trust,
joint stock company, joint venture, business trust or unincorporated
organization, limited liability company, any Governmental Entity or any other
entity of whatever nature.
"PMC Management Agreement" shall mean the PMC Management and Proxy
Agreement, dated as of the date hereof, between Xxxxxx Management Corporation
and the Company.
"Qualified Plan" shall mean a Company Plan which is intended to be
tax-qualified under Section 401(a) of the IRC.
"Refinance" shall mean, in respect of any capital stock, to refinance,
extend, renew, refund, repay, prepay, repurchase, redeem or retire, or to issue
other capital stock in exchange or replacement for, or to amend the terms of,
such capital stock; provided that the amount paid or the fair market value of
capital stock issued by the Company in connection with such
9
refinancing, extension, renewal, refund, repayment, prepayment, redemption,
retirement or issuance shall not exceed the greater of the applicable Par Value
Price or redemption price of the capital stock to be so refinanced, extended,
renewed, refunded, repaid, prepaid, redeemed, retired or issued, plus the amount
of reasonable expenses incurred by the Company in connection with such
transaction; provided further that if any such capital stock which is Refinanced
or issued in connection with a Refinancing is exchangeable or exercisable for or
convertible into Class A Common Stock, such capital stock shall not be so
exchangeable, exercisable or convertible until the earlier of the closing of the
Tender Offer (as such term is defined in the Stockholder Agreement) or the end
of the Restricted Period. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Registration Rights Agreement" shall mean the Original Registration Rights
Agreement as amended by the letter agreement dated the date hereof, as from time
to time further amended, modified or supplemented.
"Release" shall mean any release, threatened release, spill, emission,
leaking, pumping, pouring, emitting, emptying, escape, injection, deposit,
disposal, discharge, dispersal, dumping, leaching or migration of Hazardous
Material in the indoor or outdoor environment, including the movement of
Hazardous Material through or in the air, soil, surface water, ground water or
property.
"Restricted Period" shall mean the period commencing on the date hereof and
ending on the earlier of the Call Closing (as such term is defined in the Call
Agreement) or the date of the Investor Call Right Termination.
"Same Market Station" shall mean any Company Station (i) in which any Person
that holds the Minimum Investment would be permitted to have an attributable
interest under the ownership rules adopted by the FCC in MM Docket Nos. 94-150,
92-51 and 87-154, as such rules may be amended from time to time, and (ii)
which, even if such Person were deemed to have an attributable interest therein,
would not increase such Person's national broadcast coverage as calculated under
the FCC's national ownership rules because such Person has an owned or operated
television station in the same DMA. For the purpose of this definition, a
television station shall be deemed to be "operated" by such Person if such
Person supplies more than 15% of the total weekly broadcast programming hours of
such station.
"SEC" shall mean the United States Securities and Exchange Commission.
"Series B Preferred Stock" shall mean the 11% Series B Convertible
Exchangeable Preferred Stock, par value $0.001 per share, of the Company, with a
liquidation preference of $10,000 per share.
"Settlement Agreement" shall mean the Settlement Agreement, dated as of the
date hereof, between the Investor and the Company, as from time to time amended,
modified or supplemented.
"Shares" shall mean the 60,607 shares of Series B Preferred Stock held by
the Investor after the filing and effectiveness of the Certificate of
Designation and the consummation of the
10
issuance and sale of Series B Preferred Stock pursuant to Section 3(g) of the
Master Agreement and any additional shares of Series B Preferred Stock issued in
respect of such Shares.
"Station Offer Notice" shall have the meaning set forth in Section 7.2(a).
"Station Offer Price" shall have the meaning set forth in Section 7.2(a).
"Station Third Party" shall have the meaning set forth in Section 7.2(a).
"Station Transfer" shall have the meaning set forth in Section 4.1(f).
"Stock-Based Compensation Awards" shall mean options, restricted stock and
any other stock-based compensation awards issued or issuable under any of the
Company's Stock Incentive Plan, 1996 Stock Incentive Plan, 1998 Stock Incentive
Plan or any other stock-based compensation plan approved by the Board of
Directors or any employment, consulting or similar agreements in effect as of
the date hereof or entered into after the date hereof and approved by the Board
of Directors.
"Stockholder Agreement" shall mean the Amended and Restated Stockholder
Agreement, dated as of the date hereof, among the Company, the Investor and the
Xxxxxx Stockholders, as from time to time amended, modified or supplemented.
"Stockholder Proposals" shall have the meaning set forth in the Stockholder
Agreement.
"Subsidiary" shall mean, as to any Person, 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, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
"Surviving Representations and Warranties" shall mean the representations
and warranties contained in Sections 3.1(c), 3.1(o) and 3.1(u) of the Original
Investment Agreement (and any relevant disclosure schedules with respect
thereto), the terms of which are incorporated herein by reference.
"Tax" or, collectively, "Taxes" shall mean any and all federal, state, local
and foreign taxes, assessments and other governmental charges, duties,
impositions and liabilities, including taxes based upon or measured by gross
receipts, income, profits, sales, use and occupation, and value added, ad
valorem, transfer, gains, franchise, withholding, payroll, recapture,
employment, excise, unemployment insurance, social security, business license,
occupation, business organization, stamp, environmental and property taxes,
together with all interest, penalties and additions imposed with respect to such
amounts. For purposes of this Agreement, "Taxes" also includes any obligations
under any agreements or arrangements with any other person with respect to Taxes
of such other person (including pursuant to Treas. Reg. Section 1.1502-6 or
comparable provisions of state, local or foreign tax law) and including any
liability for taxes of any predecessor entity.
11
"Title IV Plan" shall mean an employee pension benefit plan, as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan), which is covered by
Title IV of ERISA, and which the Company, any Company Subsidiary or ERISA
Affiliate maintains, contributes to or has an obligation to contribute to on
behalf of participants who are or were employed by any of them.
"Transaction Agreements" shall have the meaning set forth in the Master
Agreement.
"Unrestricted Transfer" shall have the meaning set forth in Section 9.4.
ARTICLE II
[INTENTIONALLY OMITTED]
ARTICLE III
[INTENTIONALLY OMITTED]
ARTICLE IV
CONDUCT OF BUSINESS
Section 4.1 Conduct of the Business.
-----------------------
Subject to the provisions of Section 4.2, the Company shall not take, nor
permit any Company Subsidiary or officer or director to take, any of the
following actions without the prior consent of the Investor or a permitted
transferee of the Investor Rights under the Stockholder Agreement:
(a) approval, not to be unreasonably withheld, of (i) a Budget, (ii) any
expenditures that materially exceed budgeted amounts or (iii) any amendments to
a Budget; provided, however, that, the Investor shall withhold its approval of
any proposed Budget by identifying those items of the proposed Budget which are
not approved and providing in writing to the Company the Investor's basis for
withholding such approval and, in such event, the portions of such proposed
Budget which are not identified as unapproved, shall be deemed to be approved
under this Section 4.1(a);
(b) [Intentionally Omitted];
(c) entering into any agreement or arrangement relating to the digital
spectrum of all or any of the Company Stations, except for any agreement which
(i) has a term of not more than 14 months, (ii) is terminable on not more than
14 months notice without payment of any material penalty or any other material
adverse consequence suffered by the Company or (iii) is approved
12
by a majority of the Board of Directors which includes a majority of the
Independent directors and the Company CEO;
(d) [Intentionally Omitted];
(e) entering into any material amendment of the Company's certificate of
incorporation or by-laws, except as may be necessary in connection with (i) the
transactions contemplated by the Master Agreement, including the Stockholder
Proposals, or (ii) issuances of capital stock permitted under this Agreement and
the other Transaction Agreements;
(f) during the Restricted Period, other than with respect to (i) any low
power television stations that do not expand the coverage and cable carriage of
any Company Station, (ii) the Company Stations located in Greenville, NC,
Jacksonville, NC, and Boston, MA (limited to Company Stations WDPX, WPXG and
W40B0), or (iii) low power station WPXO-LP, East Orange, NJ, any sale, lease,
assignment or other disposition of (x) more than 50% of the stock of any Company
Subsidiary that owns the primary operating assets of, or a FCC license of, a
Company Station or (y) the primary operating assets of, or any FCC license of, a
Company Station (each, a "Station Transfer"), in each case, if such Company
Station is located in any of the 50 largest DMAs as of the date of such
disposition;
(g) except for any transactions permitted pursuant to Section 4.1(f) or that
are set forth on Schedule 4.1(g), (i) any sale, transfer, assignment or other
disposition of assets involving, together with all other dispositions of assets
during any 12-month period, assets with a fair market value greater than 20% of
the book value of the Company's consolidated assets reflected on the balance
sheet most recently filed with the SEC, (ii) any acquisition of assets,
including pursuant to a merger, consolidation or other business combination, if
the consideration payable for such assets in any single transaction exceeds 5%
of the book value of the Company's consolidated assets reflected on the balance
sheet most recently filed with the SEC or if the aggregate consideration payable
for such transaction, together with the consideration paid for all such
acquisitions in any 12-month period, exceeds 10% of the book value of the
Company's consolidated assets reflected on the balance sheet most recently filed
with the SEC (excluding, in each case, transactions involving the issuance of
capital stock of the Company that have been approved pursuant to this Section
4.1 and transactions set forth on Schedule 4.1(g) attached hereto), or (iii) any
merger or business combination transaction where the Company is not the
surviving entity or where there is a change of control; provided that the prior
consent of the Investor shall not be required with respect to any transaction
conducted during any Default Redemption Period if such transaction is structured
to ensure that the Investor receives the full Default Redemption Price for its
redeemed Shares or Conversion Shares;
(h) issuance or sale of any capital stock of the Company or any option,
warrants or other rights to acquire capital stock of the Company (including
instruments convertible or exchangeable into or exercisable for capital stock),
other than (i) Stock-Based Compensation Awards issued under the Company's
stock-based compensation plans identified under "Plan Options" and "Non-Plan
Options" on Schedule 4.1(h) and Common Stock issued or issuable in connection
therewith, (ii) reasonable and customary Stock-Based Compensation Awards issued
pursuant to a Stock-Based Compensation Plan approved after the Effective Date by
the Board of Directors and, as necessary or advisable, the stockholders of the
Company and Common Stock
13
issued in connection therewith, (iii) 50,000,000 shares of Common Stock issued
or issuable following the Effective Date to certain officers and employees in
the form of Stock-Based Compensation Awards (upon the authorization thereof by
the stockholders of the Company pursuant to the Stockholder Proposals), (iv)
non-voting capital stock issued to Refinance the Existing Preferred Stock or the
Shares, or non-voting capital stock issued as dividends in accordance with the
terms and conditions of the Existing Preferred Stock or Shares, (v) Common Stock
issued upon conversion of Existing Preferred Stock or Shares, (vi) capital stock
issued in connection with the satisfaction in full of the Company's redemption
obligation set forth in Section 9.2 or the simultaneous satisfaction of the
Company's obligation under Section 9.5, and (vii) the issuance of
non-convertible preferred stock of the Company issued to fund the redemption of
the Existing Preferred Stock with substantially similar terms as the Existing
Preferred Stock so redeemed; provided that the number of shares of Common Stock
issued or issuable pursuant to clauses (i), (ii) and (iii) shall not exceed (A)
2,211,298 shares of Common Stock issued or issuable pursuant to Stock-Based
Compensation Awards granted prior to the Effective Date and (B) 53,446,188
shares of Common Stock issued pursuant to Stock-Based Compensation Awards
granted after the Effective Date plus such number of shares of Common Stock
underlying Stock-Based Compensation Awards granted prior to the Effective Date
that lapse, are forfeited or are otherwise cancelled following the Effective
Date, in each case, provided such grants are made in compliance with Sections
3.8(b) and 3.9 of the Stockholder Agreement;
(i) split, combine or reclassify any of its capital stock in any manner
adverse to the Investor;
(j) other than transactions contemplated by the Master Agreement, entering
into any agreement or transaction or a series of related agreements or
transactions with a Xxxxxx Stockholder or an Affiliate of a Xxxxxx Stockholder
or of the Company or a family member of a Xxxxxx Stockholder, which (i) is not
on an arm's-length basis or (ii) involves an amount in excess of $100,000;
(k) except as provided in the Master Agreement, (i) entering into any
employment, compensation or other agreement with an employee or director of the
Company or any of its Subsidiaries (other than station managers) that (A)
provides for cash compensation (excluding bonus) reasonably expected to be in
excess of $400,000 per year or (B) has longer than a three-year term; or (ii)(A)
increasing the management fee payable pursuant to Section 5.2 of the PMC
Management Agreement or (B) amending such Section of the PMC Management
Agreement;
(l) any increase in the size of the Board of Directors other than any
increases as a result of a Voting Rights Triggering Event (as defined in the
certificates of designation relating to the Company's Existing Preferred Stock);
(m) any voluntary bankruptcy or winding up of the Company or filing for
protection under any Bankruptcy Law; or
(n) entering into any joint sales, joint services, time brokerage, local
marketing or similar agreement or arrangement (other than agreements or
arrangements that may be terminated at no cost to the Company upon six-months'
notice), but only if after entering into such agreement or
14
arrangement, Company Stations representing 20% or more of the Company's National
Coverage would be subject to such agreements or arrangements.
If any member of the Board of Directors, who was an Investor Nominee, votes
in such capacity to approve any matter set forth in Section 4.1 that requires
the consent of the Investor, the Investor shall be deemed to have consented to
such matter for purposes of this Section 4.1. Notwithstanding the foregoing, the
parties agree that there is no expressed or implied agreement to elect any
Investor Nominee to the Board of Directors of the Company.
Section 4.2 Modification of Investor Rights.
-------------------------------
(a) Subject to Section 4.2(b), for so long as NBCU or any of its Affiliates
holds the Minimum Investment, the Investor Rights set forth in Sections 4.1(a),
(f), and (l) shall be deemed to have no force or effect and Sections (g) and (k)
shall be deemed to read as follows:
(i) Section 4.1(g) shall be deemed to read: "(i) any sale, transfer,
assignment or other disposition in any single transaction or
series of related transactions of assets with a fair market value
(as determined by the Board of Directors in good faith) greater
than 20% of the fair market value (as determined by the Board of
Directors in good faith) of the Company's total assets, (ii) any
acquisition of assets, including pursuant to a merger,
consolidation or other business combination, if the consideration
payable for such assets in any single transaction or series of
related transactions exceeds 20% of the fair market value (as
determined by the Board of Directors in good faith) of the
Company's total assets or (iii) any merger or business combination
transaction where the Company is not the surviving entity or where
there is a Change of Control (as defined in the Stockholder
Agreement); provided that the prior consent of the Investor shall
not be required with respect to any transaction conducted during
any Default Redemption Period if such transaction is structured to
ensure that the Investor receives the full Default Redemption
Price for its redeemed Shares or Conversion Shares;"
(ii) Section 4.1(k) shall be deemed to read: "(i) increasing by more
than 20% the aggregate cash compensation (assuming full payment of
any bonus) paid to any one of the Company's ten most highly
compensated executives or (ii)(A) increasing the management fee
payable pursuant to Section 5.2 of the PMC Management Agreement
other than in accordance with such Section or (B) amending such
Section of the PMC Management Agreement;"
At such time that NBCU or any of its Affiliates no longer holds the Minimum
Investment, this Section 4.2(a) shall no longer have any force or effect.
(b) Upon the Investor Call Right Termination, the Investor Rights set forth
in Sections 4.1 (a), (c), (g), (h), (k), (l), and (n) of this Agreement
(including, to the extent applicable, as modified by Section 4.2(a)) shall
terminate and have no further force or effect.
15
ARTICLE V
OTHER AGREEMENTS
Section 5.1 Public Statements.
-----------------
Before any party or any Affiliate of such party shall release any
information concerning the Transaction Agreements or the matters contemplated
hereby or thereby which is intended for or can reasonably be expected to result
in public dissemination, such party shall cooperate with the other party, shall
furnish drafts of all documents or proposed oral statements to the other party,
provide the other party the opportunity to review and comment upon any such
documents or statements and shall not release or permit release of any such
information without the consent of the other party, except to the extent
required by applicable law or the rules of any securities exchange or automated
quotation system on which its securities or those of its Affiliate are traded.
Section 5.2 Reasonable Commercial Efforts.
-----------------------------
Subject to the terms and conditions provided in this Agreement, each party
shall use reasonable commercial efforts to take promptly, or cause to be taken,
all actions, and to do promptly, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated hereby, to obtain all necessary waivers,
consents and approvals and to effect all necessary registrations and filings,
and to remove any injunctions or other impediments or delays, legal or
otherwise, in order to consummate and make effective the transactions
contemplated by this Agreement for the purpose of securing to the parties hereto
the benefits contemplated by this Agreement; provided that notwithstanding
anything to the contrary in this Agreement, no party nor any of its Affiliates
shall be required to make any disposition of, or enter into any agreement to
hold separate, any Subsidiary, asset or business, and no party hereto nor any of
its Affiliates shall be required to make any payment of money nor shall any
party or its Affiliates be required to comply with any condition or undertaking
or take any action which, individually or in the aggregate, would materially
adversely affect the economic benefits to such party of the transactions
contemplated hereby and by the other Transaction Agreements, taken as a whole,
or materially adversely affect any other business of such party or its
Affiliates.
Section 5.3 Government Filings.
------------------
(a) Each of the Company and the Investor will make as promptly as
practicable, after notice to such effect by the Investor to the Company, all
filings required to be made, if any, by it, including in connection with a
tender offer pursuant to Section 3.5 of the Stockholder Agreement, under the HSR
Act and any other applicable laws, rules, regulations or orders of any
Governmental Entity with regard to the transactions which are the subject of
this Agreement and the other Transaction Agreements (including, without
limitation, the conversion of the Shares, the purchase of shares pursuant to the
Call Agreement and the holding of the Conversion Shares) and each of them will
take all reasonable steps within its control (including providing information to
the Federal Trade Commission and the Department of Justice) to cause the waiting
periods required by the HSR Act to be terminated or to expire as promptly as
practicable.
16
The Company and the Investor will each provide information and cooperate in all
other respects to assist the other of them in making its filings under the HSR
Act.
(b) Each of the Company and the Investor will make as promptly as
practicable after notice to such effect by the Investor to the Company, all
filings required to be made, if any, by it under the Communications Act or the
rules and regulations related thereto with regard to the transactions which are
subject of this Agreement and the other Transaction Agreements (including
without limitation the conversion of the Shares, the purchase of shares pursuant
to the Call Agreement and the holding of the Conversion Shares) and each of them
will take all reasonable steps within its control (including providing
information to the FCC) to obtain any required consents or approvals as promptly
as practicable. The Company and the Investor will each provide information and
cooperate in all other respects to assist the other of them in making its
filings under the Communications Act.
(c) At any time that the Investor holds an attributable interest in the
Company within the meaning of 47 C.F.R. ss. 73.3555 of the rules of the FCC
(including any successor rule) that it is not permitted to hold pursuant to the
FCC's rules, the parties shall cooperate fully with each other and negotiate in
good faith to agree on such actions as may be necessary so that the Investor
comes into compliance with the FCC's rules, including, without limitation, the
transfer or redemption of shares of Series B Preferred Stock held by the
Investor (however, the parties understand that there shall be no obligation on
the part of the Company to so redeem) or a transfer of shares of Series B
Preferred Stock pursuant to Section 4.1(a)(iii) of the Stockholder Agreement.
Section 5.4 Reservation of Shares.
---------------------
The Company agrees to keep reserved for issuance at all times after the
adoption of the Stockholder Proposals, as contemplated in the Stockholder
Agreement, prior to conversion of the Shares the aggregate number of Conversion
Shares issuable upon conversion of the Shares.
Section 5.5 Notification of Certain Matters.
-------------------------------
Each party to this Agreement shall give prompt notice to the other party of
any failure of any party to comply with or satisfy any covenant or agreement to
be complied with or satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section 5.5 shall not limit or otherwise
affect any remedies available to the party receiving such notice.
Section 5.6 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, including, without limitation, making
application as soon as practicable for all consents and approvals required in
connection with the transactions contemplated hereby and diligently pursuing the
receipt of such consents and approvals in good faith.
Section 5.7 Company Stockholder Meetings.
----------------------------
17
At the first annual meeting of the stockholders of the Company occurring
after the date hereof, and in any event no later than June 30, 2006, the Company
shall seek stockholder approval of the Stockholder Proposals, provided, however,
that if the Investor exercises the Call Right (as defined in the Call Agreement)
prior to such time, the Company shall seek stockholder approval of the
Stockholder Proposals as soon as practicable. All reasonable and customary
documented expenses incurred by the Company in connection with seeking
stockholder approval of the Stockholder Proposals prior to the annual meeting
referred to in the immediately preceding sentence shall be borne by the
Investor.
Section 5.8 Access to Information.
---------------------
Subject to applicable laws, the Company shall, and shall cause the Company
Subsidiaries to, afford the officers, employees, auditors and other agents of
the Investor reasonable access during normal business hours to their officers,
employees, properties, offices, plants and other facilities, and contracts,
commitments, books and records relating thereto, and shall furnish such Persons
all such documents and such financial, operating and other data and information
regarding such businesses and Persons that are in the possession of such Person
as the Investor through its officers, employees or agents may from time to time
reasonably request. All such information will be provided subject to the terms
of the confidentiality agreement dated May 12, 1999, between the Company and the
Investor.
ARTICLE VI
AFFIRMATIVE AND NEGATIVE COVENANTS
Section 6.1 Maintenance of Existence and Property; FCC Licenses.
---------------------------------------------------
The Company shall do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and its rights and
franchises material to its business. The Company and each Company Subsidiary
shall maintain in good repair, working order and condition all of the properties
that are material to the Company and the Company Subsidiaries, taken as a whole,
used or useful in the business of such Person and from time to time will make or
cause to be made all appropriate (as reasonably determined by such Person)
repairs, renewals and replacements thereof. The Company shall, and shall cause
each Company Subsidiary to, use its best efforts to keep in full force and
effect all of its material FCC Licenses and shall provide the Investor with a
copy of any (or, in the event of any notice based on knowledge of such Person, a
brief description of such default and the basis of such knowledge) notice from
the FCC of any violation with respect to any material FCC License received by it
(or with respect to which such Person may have any knowledge).
Section 6.2 Payment of Obligations.
----------------------
(a) Subject to Section 6.2(b), except as disclosed in the Company's SEC
filings prior to the date hereof, the Company shall pay and discharge or cause
to be paid and discharged before any penalty accrues thereon all material Taxes
payable by it or any Company Subsidiary.
18
(b) The Company and each Company Subsidiary may in good faith contest, by
appropriate proceedings, the validity or amount of any Taxes described in
Section 6.2(a); provided that (i) adequate reserves with respect to such contest
are maintained on the books of such Person, in accordance with GAAP and (ii)
such Person shall promptly pay or discharge such contested Taxes and all
additional charges, interest, penalties and expenses, if any, if such contest is
terminated or discontinued adversely to such Person or the conditions set forth
in this Section 6.2(b) are no longer met.
Section 6.3 Books and Records.
-----------------
The Company shall, and shall cause each Company Subsidiary to, keep adequate
books and records with respect to its business activities in which proper
entries, reflecting all financial transactions, are made in accordance with GAAP
and on a basis consistent with the Company's audited financial statements for
the twelve month period ended December 31, 2004.
Section 6.4 Insurance.
---------
The Company shall, and shall cause each Company Subsidiary to, maintain or
cause to be maintained, with financially sound and reputable insurers, insurance
with respect to its business and properties, including, without limitation,
business interruption insurance, insurance on fixed assets and directors and
officers' liability insurance, against loss or damage of the kinds customarily
carried or maintained under similar circumstances by entities of established
reputation engaged in similar businesses.
Section 6.5 Compliance with Laws, Etc.
-------------------------
The Company shall, and shall cause each Company Subsidiary to, comply with
all (i) federal, state, local and foreign laws and regulations applicable to it,
including those relating to the Communications Act, ERISA and labor matters and
Environmental Laws and Environmental Permits, except to the extent that any such
non-compliance has not had and could not reasonably be expected to have a
Material Adverse Effect and (ii) provisions of all FCC licenses, certifications
and permits, franchises, or other permits and authorizations relating to the
operation of the Company's business and all other material agreements, licenses
or leases to which it is a party or of which it is a beneficiary and suffer no
loss or forfeiture thereof or thereunder, except to the extent that any such
non-compliance or loss or forfeiture has not had and could not reasonably be
expected to have a Material Adverse Effect.
Section 6.6 Environmental Matters.
---------------------
The Company shall, and shall cause each Company Subsidiary to, and shall
cause each Person within its control to: (a) conduct its operations and keep and
maintain its real estate in compliance with all Environmental Laws and
Environmental Permits other than noncompliance which could not reasonably be
expected to have a Material Adverse Effect; (b) implement any and all
investigation, remediation, removal and response actions which are appropriate
or necessary to comply with Environmental Laws and Environmental Permits
pertaining to the presence, generation, treatment, storage, use, disposal,
transportation or Release of any Hazardous Material on, at, in, under, above,
to, from or about any of its real estate, except as could not reasonably be
expected to have a Material Adverse Effect; (c) notify the Investor
19
promptly after such Person becomes aware of any violation of Environmental Laws
or Environmental Permits or any Release on, at, in, under, above, to, from or
about any of its real estate which is reasonably likely to have a Material
Adverse Effect; and (d) promptly forward to the Investor a copy of any order,
notice, request for information or any communication or report received by such
Person in connection with any such violation or Release or any other matter
relating to any Environmental Laws or Environmental Permits that could
reasonably be expected to have a Material Adverse Effect, in each case whether
or not the Environmental Protection Agency or any Governmental Entity has taken
or threatened any action in connection with any such violation, Release or other
matter.
Section 6.7 Material Adverse Effect.
-----------------------
The Company shall not make any changes in any of its business objectives,
purposes or operations which could reasonably be expected to have or result in a
Material Adverse Effect on the Company of the type described in clause (ii) of
the definition of Material Adverse Effect.
Section 6.8 ERISA.
-----
The Company shall not, and shall not cause or permit any ERISA Affiliate to,
cause or permit to occur an event which could result in the imposition of a Lien
under Section 412 of the Code or Section 302 or 4068 of ERISA or cause or permit
to occur an ERISA Event to the extent such ERISA Event could reasonably be
expected to have a Material Adverse Effect.
Section 6.9 Hazardous Materials.
-------------------
The Company shall not, and shall not cause or permit any Company Subsidiary
to, cause or permit a Release of any Hazardous Material on, at, in, under,
above, to, from or about any of its real estate where such Release would violate
in any material respect, or form the basis for any material Environmental
Liabilities under, any Environmental Laws or Environmental Permits.
Section 6.10 No Impairment of Intercompany Transfers.
---------------------------------------
Except in connection with any transaction contemplated in any of the
Transaction Agreements, the Company shall not permit any Company Subsidiary to
directly or indirectly enter into or become bound by any agreement, instrument,
indenture or other obligation which could directly or indirectly restrict,
prohibit or require the consent of any Person with respect to the payment of
dividends or distributions or the making or repayment of intercompany loans by
any Company Subsidiary to another Company Subsidiary or the Company.
Section 6.11 Limitation on Certain Asset Sales.
---------------------------------
The Company will not, and will not permit any Company Subsidiary to,
consummate an Asset Sale unless (i) the Company or such Company Subsidiary, as
the case may be, receives consideration at the time of such sale or other
disposition at least equal to the fair market value thereof on the date the
Company or the Company Subsidiary (as applicable) entered into the agreement to
consummate such Asset Sale (as determined in good faith by the Company's Board
of Directors, and evidenced by a resolution of the Board of Directors); (ii) not
less than 75% of the consideration received by the Company or such Company
Subsidiary, as the case may be, is
20
in the form of cash or cash equivalents other than in the case where the Company
is exchanging all or substantially all of the assets of one or more media
properties operated by the Company (including by way of the transfer of capital
stock) for all or substantially all of the assets (including by way of transfer
of capital stock) constituting one or more media properties operated by another
Person, provided that at least 75% of the consideration received by the Company
in such exchange, other than the media properties, is in the form of cash or
cash equivalents; and (iii) the proceeds of such Asset Sale received by the
Company or such Company Subsidiary are applied first, to the extent the Company
elects or is required, to prepay, repay or purchase debt under any then existing
indebtedness of the Company or any Company Subsidiary within 180 days following
the receipt of the proceeds of such Asset Sale and second, to the extent of the
balance of the proceeds of such Asset Sale after application as described above,
to the extent the Company elects, to make an Investment in assets (including
capital stock or other securities purchased in connection with the acquisition
of capital stock or property of another Person) used or useful in businesses
similar or ancillary to the business of the Company or any Company Subsidiary as
conducted at the time of such Asset Sale, provided that such investment occurs
or the Company or any Company Subsidiary enters into contractual commitments to
make such investment, subject only to customary conditions (other than the
obtaining of financing), on or prior to the 181st day following receipt of the
proceeds of such Asset Sale and the proceeds of such Asset Sale contractually
committed are so applied within 360 days following the receipt of the proceeds
of such Asset Sale.
Section 6.12 No Restrictive Covenants.
------------------------
The Company and each Company Subsidiary shall not enter into any agreement
that would in any way restrict or limit the Company's ability to redeem the
Shares, or pay the New Exchange Debentures, at maturity.
ARTICLE VII
OPERATING AGREEMENTS
Section 7.1 [Intentionally Omitted].
-----------------------
Section 7.2 Investor Right of First Refusal.
-------------------------------
(a) So long as the Investor owns the Minimum Investment, during the
Restricted Period, the Company or any Company Subsidiary at any time intends to
effect a Station Transfer to any Person other than a wholly owned Company
Subsidiary (a "Station Third Party"), the Company shall give written notice to
the Investor at least 30 days prior to the effectiveness of such Station
Transfer (a "Station Offer Notice"), stating the Company's intention to make
such a Station Transfer, the name of the proposed Station Third Party, the
assets or securities proposed to be transferred, the consideration to be paid
for such assets or securities (the "Station Offer Price") and in reasonable
detail all other material terms and conditions upon which such Station Transfer
is proposed. Notwithstanding the foregoing, the Investor shall not be entitled
to a right of first refusal with respect to the assets or securities of any
Company Station that is not located in one of the fifty largest DMAs.
21
(b) Upon receipt of the Station Offer Notice, the Investor shall have an
option to purchase all of the assets or securities proposed to be transferred at
the Station Offer Price and on the other material terms and condition set forth
in the Station Offer Notice, which option may be exercised by written notice to
the Company given within 30 days of the Investor's receipt of the Station Offer
Notice. If any portion of the consideration to be paid by such Station Third
Party is not cash, the Investor may pay in lieu of such non-cash consideration
cash equal to the fair market value thereof. The fair market value shall be
determined by mutual agreement or, if no such agreement shall be reached within
ten days, by the determination of an independent nationally recognized appraiser
selected by the Company and reasonably acceptable to the Investor.
(c) If the Investor exercises its option pursuant to Section 7.2(b), the
closing of such purchase shall take place within 30 days of the date the
Investor gives notice of such exercise, except to the extent FCC approval is
required or reasonably advisable for the transaction, in which case the closing
shall take place as soon as practicable after receipt of final, non-appealable
approval from the FCC.
(d) If the Investor determines not to exercise its option, then for a period
of 60 days from the earlier of (i) the expiration of the offer to the Investor
and (ii) the receipt of written notice from the Investor stating that the
Investor does not intend to exercise its option, or for such longer period
required or reasonably advisable for FCC approval, the Company shall be free to
sell the proposed assets or securities to the Station Third Party at a price
equal to or greater than the Station Offer Price and on substantially the same
terms as set forth in the Station Offer Notice.
Section 7.3 [Intentionally Omitted].
-----------------------
Section 7.4 [Intentionally Omitted].
-----------------------
Section 7.5 [Intentionally Omitted].
-----------------------
ARTICLE VIII
[INTENTIONALLY OMITTED]
ARTICLE IX
REDEMPTION
Section 9.1 [Intentionally Omitted].
-----------------------
Section 9.2 Default Redemption.
------------------
(a) In the event that an Event of Default occurs, then the Investor will
have the right to require the Company to redeem, by payment in cash, any Shares
or Conversion Shares at a price equal to the Default Redemption Price by
delivering notice to the Company (a "Notice of Default
22
Redemption") following written notice by the Company to the Investor of an Event
of Default or written notice by the Investor to the Company of an Event of
Default; provided that the Investor may only give a Notice of Default Redemption
(i) after the Restricted Period and (ii) if at such time the Event of Default is
continuing.
(b) The Company or its assignee pursuant to Section 9.3 will have a period
of 180 days (the "Default Redemption Period") from the date of any such demand
to consummate the redemption; provided that if at any time during such 180-day
period, the Company's outstanding debt and preferred stock covenants do not
prohibit a redemption and the Company has funds on hand to consummate such
redemption, then the Company or its assignee shall consummate such redemption at
such time. Notwithstanding the foregoing, in the event the Company assigns its
redemption obligation to a third party pursuant to Section 9.3, then the Default
Redemption Period shall terminate on the earlier of (i) 180 days from the date
of such demand to consummate the redemption and (ii) 30 days after such
assignment.
Section 9.3 Assignment of Redemption Obligation.
-----------------------------------
The Company may assign its redemption obligation under Section 9.2 to a
third party. The Company shall provide the Investor with notice at least 30 days
prior to any proposed assignment of its redemption obligation to a third party;
provided that if it is not possible to provide notice 30 days prior to such
assignment, the Company shall provide such notice as soon as possible.
Section 9.4 Failure to Redeem.
-----------------
In the event the Company or its assignee, as the case may be, does not
consummate a redemption pursuant to Section 9.2 during the Default Redemption
Period, then, for a period of 180 days after the expiration of the Default
Redemption Period (the "Investor Recourse Period"), the Investor may sell the
Shares and the Conversion Shares and transfer the related rights under this
Agreement, the Stockholder Agreement and the Registration Rights Agreement to
any party without regard to the restrictions on transferability set forth
therein, including any consent right; provided that the transfer of the Investor
Rights shall be subject to the transferee acquiring the Minimum Investment (an
"Unrestricted Transfer"). If, at the end of the Investor Recourse Period, the
Investor has not effected an Unrestricted Transfer, then the Company shall have
a 30-day period during which to effect a redemption at the Default Redemption
Price. If the Company does not effect redemption during such period, then the
Investor shall have the right to effect a Company Sale pursuant to Section 9.5.
Section 9.5 Company Sale.
------------
If the Company fails to effect a redemption as set forth in Section 9.4, the
Investor may require the Company to effect, at the Company's option, either a
public sale or a liquidation of the Company (a "Company Sale"), exercisable by
written notice to the Company. If the Investor exercises such right, any
Investor Nominees who have been elected to the Board shall immediately resign as
directors. The Investor will retain the rights to participate as a bidder in any
such sale; provided that if the highest bid in any such public sale is not in an
amount sufficient to pay the Investor the Default Redemption Price for all the
Shares and Conversion
23
Shares held by the Investor, the Investor will have a right of first refusal to
purchase the Company for such highest bid amount. The Company shall be required
to accept any offer it receives which provides for payment to the Investor of
the full Default Redemption Price for all Shares and Conversion Shares held by
the Investor; provided that if the Company receives more than one such offer,
the Company shall have the right to determine which offer to accept.
ARTICLE X
MISCELLANEOUS
Section 10.1 Survival of Representations and Warranties.
------------------------------------------
The Surviving Representations and Warranties which were made as of September
15, 1999, shall continue to survive indefinitely, and the representations and
warranties in Section 3.1(j) of the Original Investment Agreement, which were
also made as of September 15, 1999, the terms of which are incorporated herein
by reference (including any relevant disclosure schedules with respect thereto)
shall survive until 30 days after the expiration of the applicable statute of
limitations relating to the taxes or other matters covered. For the avoidance of
doubt, it is understood and agreed that except for the Surviving Representations
and Warranties and the representations and warranties set forth in Section
3.1(j) of the Original Investment Agreement, which shall survive in accordance
with the preceding sentence, none of the other representations and warranties
made in the Original Investment Agreement, whether made by either the Company or
the Investor, survive; provided, however, that except as set forth in the
Settlement Agreement, the parties hereto retain all rights, powers and remedies
available at law or in equity or otherwise in connection with any breach arising
out of the Original Investment Agreement prior to the date hereof, and the
execution of this Agreement by the parties shall not operate as a waiver of, nor
shall it prejudice, any such right, power or remedy now or hereafter existing at
law or in equity or otherwise except for any rights, powers or remedies arising
out of events that occurred prior to the date hereof to the extent the events
giving rise to such rights, powers or remedies were disclosed in the Company's
public filings with the FCC or SEC, disclosed in writings to the Investor or
actually known by those individuals listed on Schedule 10.1, which rights,
powers and remedies shall be null and void and of no further force or effect.
Section 10.2 Notices.
-------
All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly given, if delivered personally, by telecopier or
sent by overnight courier as follows:
(a) If to the Investor, to:
NBC Universal, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
24
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx.
Tel: 000-000-0000
Fax: 000-000-0000
(b) If to the Company, to:
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
with copies to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Xx.
Tel: 000-000-0000
Telecopy: 202-776-2222
and
Holland & Knight LLP
00 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Xx.
Tel: 000-000-0000
Fax: 000-000-0000
or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
Section 10.3 Entire Agreement; Amendment.
---------------------------
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. This
Agreement amends and restates the Original Investment Agreement in its entirety
and such Original Investment Agreement shall be of no further force or effect,
other than as set forth in Section 10.1 of this Agreement. 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
25
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 10.4 Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to constitute an original, but all of which together shall
constitute one and the same document.
Section 10.5 Governing Law; Jurisdiction; Waiver of Jury Trial.
-------------------------------------------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts executed and performed
within such state, and each party hereby submits to the jurisdiction of the
Delaware Chancery Court. In the event the Delaware Chancery Court does not have
jurisdiction over any dispute arising out of this Agreement, each party hereby
submits to the jurisdiction of the United States District Court for the Southern
District of New York, provided that in the event such court does not have
jurisdiction over any dispute arising out of this Agreement, each party hereby
submits to the jurisdiction of the Supreme Court of the State of New York, New
York County. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER
THIS AGREEMENT.
Section 10.6 Fees and Expenses.
-----------------
Each party shall bear its own costs and expenses incurred in connection with
this Agreement and the Ancillary Documents and the transactions contemplated
hereby, including the fees and expenses of their respective accountants and
counsel.
Section 10.7 Indemnification by the Company.
------------------------------
(a) Subject to the provisions of Section 10.7(b), the Company agrees to
indemnify and save harmless the Investor and each of the respective officers,
directors, employees, agents and Affiliates of the Investor in their respective
capacities as such (the "Investor Indemnitees"), from and against any and all
actions, suits, claims, proceedings, costs, damages, judgments, amounts paid in
settlement (subject to Section 10.7(b)) and expenses (including, without
limitation, reasonable attorneys' fees and disbursements) (collectively,
"Losses"), suffered or incurred by any of them relating to or arising out of any
inaccuracy in or breach of the representations, warranties, covenants or
agreements made by the Company herein. No payment for Investor's Losses shall be
required except to the extent that the cumulative aggregate amount of such
Losses equals or exceeds $1,000,000. The Company's liability to the Investor
under this Section 10.7 shall not exceed $417,500,000.
(b) An Investor Indemnitee shall give written notice to the Company of any
claim with respect to which it seeks indemnification promptly after the
discovery by such party of any matters giving rise to a claim for
indemnification; provided that the failure of any Investor Indemnitee to give
notice as provided herein shall not relieve the Company of its obligations
26
under this Section 10.7 unless and to the extent that the Company shall have
been materially prejudiced by the failure of such Investor Indemnitee to so
notify the Company. In case any such action, suit, claim or proceeding is
brought against an Investor Indemnitee, the Company shall be entitled to
participate in the defense thereof and, to the extent that it may wish, to
assume the defense thereof, with counsel reasonably satisfactory to the
Investor, and after notice from the Company of its election so to assume the
defense thereof, the Company will not be liable to such Investor Indemnitee
under this Section 10.7 for any legal or other expense subsequently incurred by
such Investor Indemnitee in connection with the defense thereof; provided,
however, that (i) if the Company shall elect not to assume the defense of such
claim or action or (ii) if outside legal counsel to the Investor Indemnitee
reasonably determines that there may be a conflict between the positions of the
Company and of the Investor Indemnitee in defending such claim or action, then
separate counsel shall be entitled to participate in the conduct of the defense,
and the Company shall be liable for any legal or other expenses reasonably
incurred by the Investor Indemnitee in connection with the defense (but only
with respect to one such separate counsel). The Company shall not be liable for
any settlement of any action, suit, claim or proceeding effected without its
written consent; provided, however, that the Company shall not unreasonably
withhold, delay or condition its consent. The Company further agrees that it
will not, without the Investor Indemnitee's prior written consent (which consent
shall not be unreasonably withheld), settle or compromise any claim or consent
to entry of any judgment in respect thereof in any pending or threatened action,
suit, claim or proceeding in respect of which indemnification may be sought
hereunder unless such settlement or compromise includes an unconditional release
of the Investor and each other Investor Indemnitee from all liability arising
out of such action, suit, claim or proceeding.
Section 10.8 Successors and Assigns; Third Party Beneficiaries.
-------------------------------------------------
Subject to compliance with applicable law, the Investor may assign its
rights under this Agreement in whole or in part only to (i) any Affiliate of the
Investor, but no such assignment shall relieve the Investor of its obligations
hereunder; or (ii) to a party that is not an Affiliate of the Investor in
compliance with the provisions of the Stockholder Agreement. Upon a valid
assignment in accordance with the provisions of the preceding sentence, such
assignee shall become the Investor for purposes hereof. For purposes of this
Agreement, any direct or indirect transfer to a third party of a controlling
interest in the capital stock of the Investor (other than if the Investor at the
applicable time is NBCU) shall be deemed to be an assignment hereunder and shall
be subject to all of the terms and conditions set forth herein. The Company may
not assign any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the Investor. Any purported assignment in
violation of this Section shall be 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 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 assigns, and for the benefit of no other
Person.
Section 10.9 Remedies.
--------
27
No right, power or remedy conferred upon the Investor in this Agreement or
the other Transaction Agreements to which it is a party 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 the other
Transaction Agreements to which it is a party or now or hereafter available at
law or in equity or by statute or otherwise. No course of dealing between the
Investor and the Company 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 or the other
Transaction Agreements to which they are parties 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 or the other Transaction
Agreements to which they are parties 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 10.10 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.
Section 10.11 Termination.
-----------
Sections 4.1, 5.5, 5.7 and 5.8 and Article VI (other than Section 6.12) of
this Agreement shall terminate if neither (i) the Investor (together with its
Affiliates) owns at least the Minimum Investment nor (ii) a transferee of the
Investor to whom the Investor Rights were transferred in accordance with the
Stockholder Agreement owns at least the Minimum Investment. This Agreement shall
terminate in its entirety upon the earlier of (i) the Investor or a permitted
transferee acquiring shares of capital stock that provide it with the unfettered
right to vote a sufficient number of voting shares to elect a majority of the
members of the Board of Directors or (ii) December 31, 2013.
Section 10.12 Severability.
------------
If one or more provisions of this Agreement or the application thereof to
any Person or circumstances is determined by a court or agency of competent
jurisdiction to violate any law or regulation, including, without limitation,
any rule or policy of the FCC, or to be invalid, void or unenforceable to any
extent (a "Conflicting Provision"), the Conflicting Provision shall have no
further force or effect, but the remainder of this Agreement and the application
of the Conflicting Provision to other Persons or circumstances or in
jurisdictions other than those as to which it has been held invalid or
unenforceable shall not be affected thereby and shall be enforced to the
greatest extent permitted by law, so long as any such violation, invalidity or
unenforceability does not change the basic economic or legal positions of the
parties. In such event, the parties shall negotiate in good faith such changes
in other terms as shall be practicable in order to effect the original intent of
the parties.
28
IN WITNESS WHEREOF, this Amended and Restated Investment Agreement has been
executed by the parties hereto or by their respective duly authorized
representatives, all as of the date first above written.
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Operating Officer
NBC UNIVERSAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Schedule 4.1(g)
Certain subsidiaries of the Company have entered into agreements to purchase
substantially all the assets of full power television stations serving the
Memphis, TN and New Orleans, LA markets for an aggregate purchase price of $36
million. The Company's subsidiaries have the right to purchase and the current
owner of such stations has the right to require the Company's subsidiaries to
purchase such stations at any time after January 1, 2007 through December 31,
2008.
Schedule 4.1(h)
Plan Options: 1,711,298
Non-Plan Options: 500,000
Schedule 10.1
Each of the current persons with the respective following positions, and any
person holding such position at any time during the period commencing on
September 15, 1999 and concluding on the Effective Date who is still employed by
General Electric Company.
Executive
---------
Xxxxxx X. Xxxxxx, President and CEO
Xxxxxxx Xxxxxxx, EVP Business Development
Xxxx X. Xxxxxxxx, EVP and CFO
Xxxxxxx Xxxxxx, EVP and General Counsel
Xxxx Xxx, EVP and President, Information Technology and Operations
Xxxxx Xxxxx, EVP and President, NBC Television Network
Xxx Xxxxxxx, EVP and President, NBC Television Stations Division
Business Development
--------------------
Xxxxx Xxxxxxxx, SVP Business Development
Xxx Xxxxxxxx, VP, Business Development
Xxxxx Xxxxxxx, Director, Business Development
Accounting
----------
Xxxxx Xxxxxxxx, SVP and Chief Accounting Officer
Xxxx Xxxxxx, Director, Business Development
Finance
-------
Xxxxxxxx Xxxxxx - EVP & CFO Universal Studios
Xxxxxx Xxxxxxxxx - EVP, CFO, TVSD
Xxxxxxx Xxxxx - VP, Finance, TVSD
Xxxxxxx X. Xxxxxxx - SVP, Financial Planning and Analysis
Xxxxxxxx Xxxxxxxx - Manager, Finance (Affiliate Compensation)
Xxxx Xxxxxxx - VP, Finance & Administration
Human Resources
---------------
Xxxxx Xxxxxxx - VP, Human Resources, NBC Network
Xxx Xxxxx - VP, Human Resources, TVSD
Tax
---
Xxx Xxxxxxx - Counsel, Mergers & Acquisitions
Xxxx Xxxxx - SVP, Tax
Xxxxx Xxxxxxxxx - Tax Counsel
Xxxxx X'Xxxxx - VP, Tax Counsel
Law Department
--------------
Xxxxx Xxxxxx, EVP Litigation and Assistant General Counsel
Xxxxxxxxx Xxxxxx, SVP Corporate & Transactions Law
Xxxxxx Xxxxxxx, VP, Corporate Law
Xxxx Xxxxxxxxx, VP, Corporate & Transactions Law
Xxxxxx Xxxxxx, VP, Litigation
Xxxx XxXxxx, Senior Counsel, Regulatory
Xxxxxxxx Xxx, Senior Counsel, Corporate & Transactions Law
Xxxxxxxxx Xxx, Litigation Counsel
TV Stations (General Managers)
------------------------------
Philadelphia: WCAU - Xxxxxx Xxxxxxx
Providence: WJAR - Xxxx Xxxxxxxxxxx
New York: WNBC - Xxxxx Xxxxxxxxxx
Miami: WTVJ - Xxxxxx Xxxxxxx
Hartford: WVIT - Xxxxx Xxxxxxx
D.C.: WRC - Xxxxxxx Xxxx
Raleigh: WNCN - Xxxxx Xxxxxxx
Los Angeles: KNBC - Xxxxx Xxxxxxx
Dallas: WKXAS - Xxx X'Xxxxx
Birmingham: WVTM - Xxx Xxxxxx
San Francisco: KNTV - Xxxxx Xxxxxxxx
Chicago: WMAQ - Xxxxx Xxxx
NBC Network Sales & Pricing / National Spot Sales
-------------------------------------------------
Xxxxx Xxxxxx, President
Xx Xxxxxxxx, EVP Network & CFO Commercial
Xxxxx Post, Sales Account Executive, Network
Xxxxx Xxxxx - Sales Account Executive, Network
Programming
-----------
Sheraton Kalouria - SVP, Daytime Programs
Xxxxxxxx Xxxxx - VP, Programming
TV Group
--------
Xxxxxxx Xxxxx , General Manager, WeatherPlus
Xxxx Xxxxx - VP, Affiliate Relations
Xxxx Xxxxxxx - SVP, Affiliate Relations
Marketing
---------
Xx X'Xxxxxxx - SVP, Marketing & Media Development
Xxxx X. Xxxxxx - President & Chief Marketing Officer
Xxxxxxx Xxxxxxx - Group Director, Marketing, TV
Other - Non-GE Employees
------------------------
Xxxx Xxxx, Xxxxxxxxx & Xxxxxxxx
Xxxxx Xxxxxxx, UBS
Xxxxxxxx X. Tu, Dell Computer Corp., former EVP and General Counsel, NBC
Universal
