EXHIBIT 4.5
STOCKHOLDERS' AND REGISTRATION RIGHTS AGREEMENT
EXECUTION COPY
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STOCKHOLDERS' AND REGISTRATION
RIGHTS AGREEMENT
STOCKHOLDERS' AND REGISTRATION RIGHTS AGREEMENT, dated as of October
11, 2001 (the "AGREEMENT"), by and among the signatories hereto (each, a
"STOCKHOLDER"), which are direct or indirect holders of all of the outstanding
equity securities of Telemundo Communications Group, Inc., a Delaware
corporation (the "COMPANY"), and General Electric Company, a New York
corporation (the "ISSUER").
WHEREAS, as of the date hereof, the number of shares of capital stock
of the Company directly owned, of record or beneficially, by each Stockholder or
its wholly owned subsidiary (as determined in accordance with Rule 13d-3
promulgated under the Exchange Act (as defined in Section 1.1)) is set forth on
the signature pages hereto (such shares, or any other voting or equity
securities of the Company hereafter acquired by any Stockholder prior to the
Closing Date, being referred to herein collectively as the "COMPANY STOCK");
WHEREAS, concurrently with the execution of this Agreement, the Issuer,
National Broadcasting Company, Inc., a Delaware corporation and a wholly owned
subsidiary of the Issuer, TN Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of the Issuer (the "ACQUISITION SUBSIDIARY"), SPE Mundo
Investment Inc., a California corporation, and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (the "MERGER
AGREEMENT"), pursuant to which, upon the terms and subject to the conditions
thereof, the Company will be merged with and into the Acquisition Subsidiary,
and the Acquisition Subsidiary will be the surviving corporation (the "MERGER");
and
WHEREAS, certain of the Stockholders will, prior to the Merger,
distribute Company Stock to their direct and indirect owners.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
parties hereby agree, severally and not jointly, as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used herein, unless the context
otherwise requires, the following terms have the following respective meanings:
"beneficially own" means to possess beneficial ownership as determined
under Rule 13d-3 under the Exchange Act.
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"BUSINESS DAY" means a day of the year other than a Saturday, Sunday or
other day on which banks are required or authorized to close in New York City.
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"CONFIDENTIAL INFORMATION" means all confidential or proprietary
information of the Company or relating to its business. "Confidential
Information" shall not include information that (a) at the time of disclosure is
generally available to and known by the public (other than as a result of a
disclosure directly by the Stockholder or any of its Representatives in
violation of Section 2.6 hereof), (b) is made available to such Stockholder on a
non-confidential basis from a source that was not known to the Stockholder to be
prohibited from disclosing such information to such Stockholder by a
contractual, legal or fiduciary obligation or (c) is known to the Stockholder
prior to or independently of its relationship with the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such successor federal statute.
"ISSUER COMMON STOCK" means the common stock, par value $.06 per share,
of the Issuer.
"INDEMNIFICATION AGREEMENT" means the Indemnification Agreement, to be
executed by and among Xxxxx XxXxxxxx, Xxxx X. Xxxxx, certain of the
Stockholders, Acquisition Subsidiary and the other parties thereto.
"PERMITTED TRANSFEREE" means any subsidiary or other affiliate
controlled by or under common control with a Stockholder, any member or partner
of such Stockholder and any member or partner of such member or partner
identified to the Issuer prior to any transfer of Registrable Securities
pursuant to Section 3.5(a)(i).
"PERSON" means any individual, corporation, limited liability company,
partnership, trust, firm, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency, department or political
subdivision thereof) or other entity of any kind.
"PROSPECTUS" means the prospectus related to any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance on Rule 415 under the Securities Act), as amended or
supplemented by any amendment or prospectus supplement, including post-effective
amendments, and all materials incorporated by reference in such prospectus.
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"REGISTRABLE SECURITIES" means (i) the Shares and (ii) any Related
Registrable Securities. As to any particular Registrable Securities, once
issued, such securities shall cease to be Registrable Securities when (a) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (b) they shall have
been distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (c) they shall have been otherwise transferred, and
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Issuer and subsequent public distribution of
them shall not, in the opinion of counsel to the holders (or in the opinion of
counsel to the Issuer, which opinion is reasonably satisfactory to the holders),
require registration of them under the Securities Act, or (d) they shall have
ceased to be outstanding. All references to percentages of Registrable
Securities shall be calculated pursuant to Section 4.7.
"REGISTRATION EXPENSES" means all costs, fees and expenses incident to
the Issuer's performance of or compliance with Section 3.1, including all
registration and filing fees, all fees and expenses of complying with securities
or blue sky laws, all word processing, duplicating and printing expenses,
messenger and delivery expenses, and the fees and disbursements of counsel for
the Issuer and of its independent public accountants.
"REGISTRATION STATEMENT" means the Shelf Registration Statement and any
Subsequent Registration Statement.
"RELATED REGISTRABLE SECURITIES" means any securities of the Issuer
issued or issuable with respect to the Shares by way of a conversion, exchange,
replacement, stock dividend or stock split or other distribution or in
connection with a combination of shares, conversion, exchange, replacement,
recapitalization, merger, consolidation or other reorganization or otherwise;
PROVIDED, that the term "Related Registrable Securities" shall not include any
such securities received in a transaction registered under the Securities Act.
"REQUISITE HOLDERS" means, as of any date, holders of at least 50% of
the shares of Registrable Securities held by all holders of Registrable
Securities outstanding as of such date.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act, shall include a reference to the
comparable section, if any, of any such successor federal statute.
"SHARES" means the shares of Issuer Common Stock to be received by the
Stockholders pursuant to the Merger Agreement.
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"WRITTEN CONSENT" means the consent executed by each Stockholder in
accordance with the General Corporation Law of the State of Delaware approving
the Merger Agreement.
1.2 CAPITALIZED TERMS. Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them in the Merger
Agreement.
1.3 OTHER DEFINITIONS. The following capitalized terms are defined
in the following sections of this Agreement:
TERM SECTION
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Acquisition Subsidiary Recitals
Agreement Preamble
Company Preamble
Company Stock Recitals
Deferral Period 3.6(b)
Effective Time 3.1(a)
Effectiveness Period 3.1(a)
Issuer Preamble
Merger Recitals
Merger Agreement Recitals
Original Stockholder 2.6
Pledgee 3.5
Representative 2.6
Stockholder Preamble
Shelf Registration Statement 3.1(a)
Subsequent Registration Statement 3.1(b)
ARTICLE II
REPRESENTATIONS AND WARRANTIES AND CERTAIN COVENANTS
2.1 REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER. Each
Stockholder hereby, severally, and not jointly, represents and warrants to the
Issuer with respect to itself and its ownership of its Company Stock as follows:
(a) OWNERSHIP OF COMPANY STOCK. Except as set forth on
Schedule A hereto (which exceptions shall be eliminated by the relevant
Stockholder on or prior to the Closing Date), such Stockholder or its wholly
owned direct or indirect subsidiary owns of record and beneficially all of the
shares of Company Stock set forth under its signature on the signature pages
hereto and has good and marketable title to such Company Stock, free and clear
of any Liens or preemptive rights. Such Stockholder does not beneficially own,
directly or indirectly, any shares of Company Stock other than the shares of
Company Stock as set forth under its signature on the signature pages hereto.
Except pursuant to the Company Stockholders Agreement, such Stockholder or
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its wholly owned direct or indirect subsidiary has sole voting power, without
restrictions, with respect to all of such shares of Company Stock.
(b) ORGANIZATION, POWER AND AUTHORITY, BINDING AGREEMENT.
Such Stockholder, if not an individual, is a corporation, partnership, trust or
limited liability company, duly formed, legally existing and in good standing
under the laws of its state of incorporation or formation, has all requisite
corporate or limited liability company, partnership or trust power and authority
to enter into this Agreement and the Written Consent. This Agreement, the
Written Consent and the Indemnification Agreement have been duly and validly
authorized by all necessary corporate, limited liability company, partnership,
trust or similar action and have been, or at Closing will be, as applicable,
duly executed and delivered by such Stockholder and this Agreement, the Written
Consent and the Indemnification Agreement (assuming due execution and delivery
by the other parties hereto) constitute the valid and binding obligations of
such Stockholder, enforceable in accordance with their respective terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(c) NO CONFLICTS.
(i) The execution and delivery of this
Agreement, the Written Consent and the Indemnification Agreement by such
Stockholder do not, and the consummation by such Stockholder of the transactions
contemplated by this Agreement, the Written Consent, the Merger Agreement and
the Indemnification Agreement will not, (i) conflict with, or result in any
violation or breach of, any provision of the charter, by-laws or other
organizational document of such Stockholder, (ii) conflict with, or result in
any violation or breach of, or constitute (with or without notice or lapse of
time, or both) a default (or give rise to a right of termination, cancellation
or acceleration of any obligation) under, require a consent or waiver under,
constitute a change in control under, or result in the imposition of any Lien on
such Stockholder's shares of Company Stock under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or instrument to which such Stockholder is a party or by which it or
any of its properties or assets may be bound, or (iii) conflict with or violate
any permit, concession, franchise, license, judgment, injunction, order, decree,
statute, law, ordinance, rule or regulation applicable to such Stockholder or
any of its properties or assets, except in the case of clauses (ii) and (iii) of
this Section 2.1(c)(i) for any such conflicts, violations, breaches, defaults,
terminations, cancellations, accelerations or Liens as would not have a material
adverse effect on the ability of the Stockholders, or any of them, to consummate
the transactions contemplated by this Agreement or on the consummation of the
Merger or effectiveness of the Registration Statement.
(ii) Other than as set forth in the Merger
Agreement, no consent, approval, license, permit, order or authorization of, or
registration, declaration, notice or filing with, any Governmental Entity is
required by or with respect to such
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Stockholder in connection with the execution and delivery of this Agreement, the
Written Consent or the Indemnification Agreement by such Stockholder.
(d) ACCREDITED INVESTOR; ACQUISITION FOR INVESTMENT.
(i) Such Stockholder is an accredited investor
as defined in Regulation D promulgated under the Securities Act. Any shares of
Issuer Common Stock acquired by such Stockholder pursuant to the transactions
contemplated hereby and by the Merger Agreement are being acquired by such
Stockholder for its own account for investment and not with a view to any
distribution or resale thereof in any transaction which would be in violation of
the Securities Act, and the rules promulgated thereunder, or any state
securities statute or regulation, without prejudice, however, to the rights of
such Stockholder at all times to sell or otherwise dispose of all or any part of
its Issuer Common Stock under an effective registration statement under the
Securities Act, or under an exemption from such registration available under the
Securities Act, and subject, nevertheless, to the disposition of such
Stockholder's property being at all times within its control.
(ii) Such Stockholder acknowledges that the
shares of Issuer Common Stock, at the time of issuance, are not being registered
under the Securities Act or any state securities or "blue sky" law or regulation
and such shares cannot be sold or otherwise disposed of except in compliance
with the Securities Act, applicable state securities or "blue sky" laws and
regulations or in reliance upon an exemption therefrom, and that the
certificates representing such shares will contain a legend, as set forth in
Section 2.2 hereof, to such effect.
(iii) Such Stockholder has such knowledge and
experience in financial and business matters that such Stockholder is capable of
evaluating the merits and risks of the prospective investment in the shares of
Issuer Common Stock and is able to bear the economic consequences thereof.
(iv) Such Stockholder and such Stockholder's
representatives have been given a full opportunity to examine all documents
relating to the transactions contemplated hereby, including the issuance of
Issuer Common Stock, including the Merger Agreement, this Agreement, and the
Indemnification Agreement and to ask questions of, and to receive answers from,
the Company, the Issuer and their respective representatives concerning the
terms of the Merger, such Stockholder's investment in the shares of Issuer
Common Stock and the business of the Issuer and such other information as such
Stockholder desires in order to evaluate an investment in the shares of Issuer
Common Stock, and all such questions have been answered to the full satisfaction
of such Stockholder.
(v) Such Stockholder has been furnished with all
publicly available information about the Issuer's assets, operations and
business activities which such Stockholder has requested and which such
Stockholder considers necessary or relevant to enable such Stockholder to make a
decision about such Stockholder's acquisition of the shares of Issuer Common
Stock.
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(vi) Such Stockholder is not a foreign person
within the meaning of Section 1445 of the Code.
2.2 CERTAIN ACKNOWLEDGMENTS. Each Stockholder acknowledges that
the Shares will be issued at the Closing pursuant to an exemption from
registration under the Securities Act and applicable state securities law and
agrees not to sell or otherwise dispose of the Shares in any transaction which
would be in violation of the Securities Act or applicable state securities law.
Each Stockholder acknowledges that the following legend will appear on the
certificates for the Shares reflecting the foregoing restriction. The Issuer
shall, at the request of any holder of Registrable Securities, remove from each
certificate evidencing Registrable Shares the legend described above if in the
opinion of counsel reasonably acceptable to the Issuer the securities evidenced
thereby may be publicly sold without registration under the Securities Act.
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR ANY OTHER
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED, OR OTHERWISE ASSIGNED,
EXCEPT (I) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT
TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER ALL APPLICABLE
SECURITIES OR "BLUE SKY" LAWS, OR (II) UPON THE FURNISHING TO
GENERAL ELECTRIC COMPANY BY THE HOLDER OF THIS CERTIFICATE OF
AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO GENERAL
ELECTRIC COMPANY THAT SUCH TRANSACTION IS NOT REQUIRED TO BE
REGISTERED UNDER APPLICABLE SECURITIES OR "BLUE SKY" LAWS."
2.3 REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
hereby represents and warrants to the Stockholders as follows:
(a) POWER, BINDING AGREEMENT. The Issuer is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to enter into this Agreement. This Agreement has been duly executed
and delivered by the Issuer and constitutes the valid and binding obligation of
the Issuer and (assuming due execution and delivery by the other parties hereto)
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law).
(b) NO CONFLICTS.
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(i) The execution and delivery of this Agreement
by the Issuer does not, and the consummation by the Issuer of the transactions
contemplated by this Agreement will not, (1) conflict with, or result in any
violation or breach of, any provision of the charter, by-laws or other
organizational document of the Issuer, (2) conflict with, or result in any
violation or breach of, or constitute (with or without notice or lapse of time,
or both) a default (or give rise to a right of termination, cancellation or
acceleration of any obligation) under, require a consent or waiver under,
constitute a change in control under, or result in the imposition of any Lien on
the Issuer's assets under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, lease, license, contract, agreement or
instrument to which the Issuer is a party or by which it or any of its
properties or assets may be bound, or (3) conflict with or violate any permit,
concession, franchise, license, judgment, injunction, order, decree, statute,
law, ordinance, rule or regulation applicable to the Issuer or any of its
properties or assets, except in the case of clauses (2) and (3) of this Section
2.3(b)(i) for any such conflicts, violations, breaches, defaults, terminations,
cancellations, accelerations or Liens as would not, individually or in the
aggregate, materially and adversely affect the ability of the Issuer to
consummate the transactions contemplated by this Agreement or the consummation
of the Merger or effectiveness of the Registration Statement.
(ii) No consent, approval, license, permit, order
or authorization of, or registration, declaration, notice or filing with, any
Governmental Entity is required by or with respect to the Issuer in connection
with the execution and delivery of this Agreement by the Issuer or the
consummation by the Issuer of the transactions contemplated by this Agreement,
except for filings and other actions required by the Securities Act, the
Exchange Act, and state securities or "blue sky" laws.
2.4 TRANSFERS OF COMPANY STOCK. Notwithstanding anything to the
contrary contained herein, Station Partners, LLC shall distribute some or all of
its shares of Company Stock to its members on or prior to the Closing Date. In
addition, BCF Media, LLC shall distribute some or all of the shares of Company
Stock it receives in a distribution in accordance with the preceding sentence to
its members on or prior to the Closing Date, and Bastion Capital Fund L.P. shall
distribute to its general partner on or prior to the Closing Date some or all of
the shares of Company Stock it received in a distribution from BCF Media, LLC.
2.5 CASH ELECTION. The Stockholders shall, prior to the earlier of
(x) the fifth Business Day preceding the Closing and (y) the 10th Business Day
following the date on which the Issuer gives the Company and the Stockholders
notice that it intends to file a registration statement pursuant to Section
3.1(a) of this Agreement, cause Cash Elections to be made in respect of not less
than 50% and not more than 55% of the Effective Time Outstanding Share Amount;
provided, however, that if the Stockholders shall fail to make such elections in
satisfaction of this Section 2.5, then the parties agree that Cash Elections
shall be deemed to have been made in respect of 55% of the Effective Time
Outstanding Share Amount, treating the cash to be paid pursuant to Section
2.1(b)(i)(A) of the Merger Agreement as if paid pursuant to a Cash Election;
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provided, further, the foregoing shall be subject to the limitations set forth
in Section 2.1(f)(ii) of the Merger Agreement.
2.6 CONFIDENTIALITY. From the Closing Date until the first
anniversary of the Closing Date, each Stockholder that is a signatory hereto as
of the date hereof (each, an "ORIGINAL STOCKHOLDER") shall use all commercially
reasonable efforts to refrain from and shall use all commercially reasonable
efforts to cause its officers, directors, employees, accountants, consultants,
legal counsel, agents and other representatives (collectively,
"REPRESENTATIVES") to refrain from, publicly disclosing or publicly
disseminating any Confidential Information received by it in its capacity as a
Stockholder or received by its designees, if any, that serve on the board of
directors of the Company. Notwithstanding the foregoing, nothing shall be deemed
to limit or restrict the right of an Original Stockholder or any of its
Representatives to disclose or disseminate publicly any information (i) that was
obtained through other sources, including any commercial relationships with the
Company or any of its affiliates, (ii) that such parties are legally required to
disclose, (iii) that may be necessary or advisable to disclose to taxing
authorities in connection with the payment of taxes, (iv) in connection with
filings made with the Commission, the Federal Communications Commission, any
stock exchange or other applicable regulatory authority, (v) that is
contractually required to be disclosed or (vi) that is necessary to be disclosed
in order to consummate the transactions contemplated by this Agreement, the
Merger Agreement or the Indemnification Agreement.
ARTICLE III
REGISTRATION RIGHTS
3.1 SHELF REGISTRATION.
(a) The Issuer shall prepare and file a "shelf"
registration statement (the "SHELF REGISTRATION STATEMENT") with respect to the
Registrable Securities to be issued to the Stockholders pursuant to the Merger
Agreement, on Form S-3 for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act. The Issuer agrees to give
the Company and the Stockholders not less than 30 days advance notice of its
intent to file the Shelf Registration Statement. Subject to the provisions of
Section 3.6 hereof, the Issuer shall use commercially reasonable efforts to file
the Shelf Registration Statement no later than 30 days prior to the date it
reasonably anticipates the Closing will occur; PROVIDED that no such filing
shall be required to be made prior to the Closing if the Issuer determines
following consultation with outside securities counsel to the Issuer that such
filing could prevent the offer and sale of the Issuer Common Stock to the
Stockholders in the Merger from having the benefit of an exemption from
registration under the Securities Act, and a firm of outside securities counsel
to the Stockholders reasonably concurs with the advice of such outside
securities counsel to the Issuer. The Issuer shall use commercially reasonable
efforts to have the Shelf Registration Statement declared effective on the
Closing Date or promptly
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thereafter and shall use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, subject to the provisions of
Section 3.6 hereof, during the time (the "EFFECTIVENESS PERIOD") from the date
such Shelf Registration Statement is declared effective (the "EFFECTIVE TIME")
until the earlier of (i) one year after the Closing, or (ii) such time as all of
the Registrable Securities cease to be Registrable Securities. At the Effective
Time, each Stockholder (and each subsidiary of such Stockholder designated by
such Stockholder) shall be named as a selling securityholder in the Shelf
Registration Statement and related Prospectus in such a manner as to permit such
Stockholder (and such designees) to deliver such Prospectus to purchasers of
Registrable Securities in accordance with applicable law under ordinary
circumstances, subject to compliance with blue sky laws. The "Plan of
Distribution" section of the Shelf Registration Statement and Prospectus shall
state that the Registrable Securities may be sold by the selling securityholders
following the Effective Time in any legal manner selected by the Stockholders.
(b) If the Shelf Registration Statement ceases to be
effective for any reason at any time during the Effectiveness Period, the Issuer
shall, subject to the provisions of Section 3.6 hereof, use commercially
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event within 15 days of such cessation of
effectiveness amend the Shelf Registration Statement in a manner reasonably
expected by the Issuer to obtain the withdrawal of such order suspending the
effectiveness thereof or, as promptly as practicable thereafter, file an
additional registration statement (the "SUBSEQUENT REGISTRATION STATEMENT")
covering the resale by the Stockholders of all of the then Registrable
Securities on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act. If the Subsequent Registration Statement is filed, the Issuer
shall use commercially reasonable efforts, subject to the provisions of Section
3.6 hereof, to cause the Subsequent Registration Statement to become effective
under the Securities Act and remain continuously effective during the
Effectiveness Period.
(c) The Issuer shall pay all Registration Expenses
incurred in connection with the Shelf Registration Statement, any Subsequent
Registration Statement and any supplements or amendments to them, whether or not
they become effective, and whether all, none or some of the Registrable
Securities are sold pursuant to any Registration Statement. It is understood and
agreed that the Issuer may also register for public offering and sale pursuant
to the Shelf Registration Statement or any Subsequent Registration Statement,
initially or by amendment, securities other than Registrable Securities, but in
doing so shall not limit any Stockholder's rights hereunder (including any
limitation arising by application of applicable rules under the Securities Act
with respect to Registrable Securities sold pursuant to such Shelf Registration
Statement or Subsequent Registration Statement by any Person other than a
Stockholder) or materially and adversely affect any Stockholder's ability to
sell its Registrable Securities.
3.2 REGISTRATION PROCEDURES.
(a) In connection with each Registration Statement, the
Issuer shall, as promptly as practicable, subject to the provisions of Section
3.6 hereof:
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(i) supplement or amend, if necessary, the
Registration Statement, as required by the registration form utilized by the
Issuer or by the instructions applicable to such registration form or by the
Securities Act or as reasonably required by the Requisite Holders and the Issuer
shall furnish to the holders of the Registrable Securities to which the
Registration Statement relates copies of any such supplement or amendment prior
to its being used and/or filed with the Commission;
(ii) prepare and file with the Commission such
amendments and supplements to the Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective as required under Section 3.1 and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by the Registration Statement until the earlier of (x) such time as all
of such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
the Registration Statement or (y) the expiration of the Effectiveness Period;
(iii) furnish to each seller of Registrable
Securities covered by the Registration Statement such number of conformed copies
of the Registration Statement and of each such amendment and supplement thereto
(in each case including all exhibits) and such number of copies of the
Prospectus contained in the Registration Statement (including each preliminary
prospectus and any summary prospectus) and any other Prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as such seller may reasonably request;
(iv) use commercially reasonable efforts (1) to
register or qualify all Registrable Securities and other securities covered by
the Registration Statement under such other securities or "blue sky" laws of
such States of the United States of America where an exemption is not available
and as the sellers of Registrable Securities covered by the Registration
Statement shall reasonably request, (2) to keep such registration or
qualification in effect during the Effectiveness Period, (3) to obtain the
withdrawal of any order or other determination suspending such registration or
qualification during the Effectiveness Period and (4) to take any other action
which may be reasonably necessary or advisable to enable such sellers to
consummate the disposition in such jurisdictions of the securities to be sold by
such sellers, except that the Issuer shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this clause (iv) be obligated
to be so qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause
all Registrable Securities covered by the Registration Statement to be
registered with or approved by such other Governmental Entities as may be
necessary in the written opinion of counsel to the Issuer and counsel to the
seller or sellers of Registrable Securities to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities within the
United States of America;
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(vi) use commercially reasonable efforts to
furnish at the effective date of the Registration Statement, to each seller of
Registrable Securities, a signed counterpart of an opinion of counsel for the
Issuer, dated the effective date of the Registration Statement and in form
customary for delivery to selling holders of securities under such registration
statements;
(vii) give notice to all holders of Registrable
Securities (1) when the Registration Statement, any Prospectus or Prospectus
supplement relating thereto or post-effective amendment to the Registration
Statement has been filed with the Commission, (2) of any request, following the
Effective Time, by the Commission or any other federal or state Governmental
Entity for amendments or supplements to the Registration Statement or related
Prospectus or for additional information, (3) of the issuance by the Commission
or any other federal or state Governmental Entity of any stop order suspending
the effectiveness of the Registration Statement or the initiation or threat in
writing of any proceedings for that purpose, (4) of the receipt by the Issuer of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threat in writing of any proceeding for
such purpose, (5) of the occurrence of (but not the nature of or details
concerning) any of the events described in Section 3.6(a) (PROVIDED, HOWEVER,
that no notice by the Issuer shall be required pursuant to this clause (5) in
the event that the Issuer either promptly files a Prospectus supplement or
amendment to update the Prospectus or a Form 8-K or other appropriate Exchange
Act report that is incorporated by reference into the Registration Statement,
which, in either case, contains the requisite information with respect to such
event that results in the Registration Statement no longer containing any untrue
statement of material fact or omitting to state a material fact necessary to
make the statements contained therein not misleading) and (6) of the
determination by the Issuer that a post-effective amendment to a Registration
Statement will be filed with the Commission;
(viii) otherwise use commercially reasonable
efforts to comply with all applicable rules and regulations of the Commission,
and, if requested, make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least 12 months,
but not more than 18 months, beginning with the first full calendar month after
the effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder, and promptly furnish to each such seller of Registrable
Securities a copy of any amendment or supplement to the Registration Statement
or prospectus;
(ix) timely file all reports required to be filed
with the Commission under the Exchange Act;
(x) cooperate with each holder to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Registration Statement, and provide the transfer
agent for the Shares with certificates for the Registrable Securities that are
in a form eligible for deposit with The Depository Trust Company; and
13
(xi) use commercially reasonable efforts to list
all Registrable Securities covered by the Registration Statement on the New York
Stock Exchange.
(b) The Issuer may (i) require each seller of Registrable
Securities as to which any registration is being effected to furnish the Issuer
such information regarding such seller and the distribution of such securities
as the Issuer may from time to time reasonably request in writing and (ii)
require each seller of Registrable Securities to agree to comply with the
Securities Act and the Exchange Act and all applicable state securities laws and
to use commercially reasonable efforts to comply with all applicable regulations
in connection with the registration and distribution of the Registrable
Securities.
(c) Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any notice from
the Issuer of the happening of any event of the kind described in clauses (i)
and (ii) of the first sentence of Section 3.6(b), such holder shall forthwith
discontinue such holder's disposition of Registrable Securities pursuant to the
Registration Statement until such holder receives copies of the supplemented or
amended Prospectus contemplated by Section 3.2(a)(i) or 3.2(a)(ii) and, if so
directed by the Issuer, will promptly deliver to the Issuer (at the Issuer's
expense) all copies, other than permanent file copies, then in such holder's
possession of the Prospectus relating to such Registrable Securities current at
the time of receipt of such notice.
3.3 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE ISSUER. The Issuer shall, and
hereby does, indemnify and hold harmless, in the case of any Registration
Statement, each seller of any Registrable Securities covered by such
Registration Statement and each Person who controls such seller and their
respective directors, officers, partners, shareholders, employees and affiliates
or controlling persons against any losses, claims, damages or liabilities, joint
or several, to which such seller or any such director, officer, partner,
shareholder, employee, affiliate or controlling person may become subject under
the Securities Act or otherwise, including the reasonable fees and expenses of
legal counsel, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
and the Issuer will promptly reimburse each such seller and each such director,
officer, partner, shareholder, employee, affiliate and controlling Person for
any legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; PROVIDED, HOWEVER, that the Issuer shall not be liable (i) in any
such case to the extent that any such loss, claim, damage, liability (or
14
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Issuer by or on
behalf of such seller, specifically for use in the preparation thereof and (ii)
for any loss, claim, damage, liability, action or proceeding if (1) the Issuer
has notified the seller to suspend use of the Prospectus pursuant to Section
3.2(c), (2) the seller continues to use the relevant Prospectus notwithstanding
such notice, and (3) such loss, claim, damage, liability, action, or proceeding
arises from, is in connection with or relates to an untrue statement or alleged
untrue statement of any material fact or omission to state a material fact that
was cured in the supplemented or amended Prospectus contemplated by Section
3.2(a)(i) or 3.2 (a)(ii). Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any such seller or any
such director, officer, partner, shareholder, employee, affiliate or controlling
person and shall survive the transfer of such securities by such seller.
(b) INDEMNIFICATION BY THE SELLERS. Each seller of any
Registrable Securities and each other Person who controls such seller, within
the meaning of the Securities Act shall, and hereby does, indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
3.3(a)) the Issuer, and each director, officer, employee and shareholder of the
Issuer and each other Person who controls the Issuer within the meaning of the
Securities Act, with respect to any untrue statement or alleged untrue statement
of a material fact contained in or any omission or alleged omission to state
therein a material fact in any such Registration Statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by or on behalf of
such seller specifically for use in the preparation of such Registration
Statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement; PROVIDED, HOWEVER, that (i) the liability of such
indemnifying party under this Section 3.3(b) shall be limited to the amount of
net proceeds received by such indemnifying party in the offering giving rise to
such liability, and (ii) such indemnifying party shall not be liable under this
Section 3.3(b) for any loss, claim, damage, liability, action or proceeding
arising from, in connection with or relating to such an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact if such party provided the Issuer with information for
inclusion in such Registration Statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement that would have cured
such untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, and the Issuer did not timely
include such information in such Registration Statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Issuer or any such director, officer, employee, shareholder
or controlling person and shall survive the transfer of such securities by such
seller.
15
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Section 3.3(a) or (b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give written notice to the indemnifying party of the commencement of such action
or proceeding; PROVIDED, HOWEVER, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under Section 3.3(a) or (b), as the case may be, except to the
extent that the indemnifying party is actually materially prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable out of pocket costs
(excluding professional fees) incurred in connection with complying with
requests for production, depositions, interrogatories and the like; PROVIDED,
HOWEVER, that if the indemnified party reasonably believes it is advisable for
it to be represented by separate counsel because it has been advised by counsel
that there exists a conflict of interest between its interests and those of the
indemnifying party with respect to such claim, or there exist defenses available
to such indemnified party which may not be available to the indemnifying party,
or if the indemnifying party shall fail to assume responsibility for such
defense, the indemnified party may retain counsel satisfactory to it and the
indemnifying party shall pay all fees and expenses of such counsel in accordance
with Section 3.3(a) or (b) hereof, as applicable. No indemnifying party shall be
liable for any settlement of any action or proceeding effected without its prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed. No indemnifying party shall, without the consent of the indemnified
party, consent to the entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation or which requires action other than the payment of
money by the indemnifying party. No indemnified party shall consent to entry of
judgment or enter into any settlement of such action the defense of which has
been assumed by an indemnifying party without the consent of such indemnifying
party. Each indemnified party shall furnish such information regarding itself or
the claim in question as an indemnifying party may reasonably request in writing
and as shall be reasonably requested in connection with the defense of such
claim and litigation resulting therefrom.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 3.3 shall for any reason be held by a court of competent
jurisdiction to be unavailable to an indemnified party under Section 3.3(a) or
(b), as the case may be, in respect of any loss, claim, damage or liability, or
any action or proceeding in respect thereof, then, in lieu of the amount paid or
payable under Section 3.3(a) or (b), as the case may be, the indemnified party
and the indemnifying party under Section 3.3(a) or (b), as the case may be,
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating the
16
same), (i) in such proportion as is appropriate to reflect the relative fault of
the Issuer and the prospective sellers of Registrable Securities covered by the
Registration Statement in connection with the statements or omissions which
resulted in such loss, claim, damage or liability, or action or proceeding in
respect thereof, as well as any other relevant equitable considerations (the
relative fault of the Issuer and such prospective sellers to be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuer or such prospective sellers and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission) or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
shall be appropriate to reflect the relative benefits received by the Issuer and
such prospective sellers from the offering of the securities covered by such
registration statement. The parties hereto acknowledge that in no event shall
the obligation of any indemnifying party to contribute under this Section 3.3
exceed the amount that such indemnifying party would have been obligated to pay
by way of indemnification if the indemnification provided for under Sections
3.3(a) or (b) had been available under the circumstances. The Issuer and each
holder of Registrable Securities agree that it would not be just and equitable
if contribution pursuant to this Section 3.3(d) were determined by pro rata
allocation (even if such holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in the first sentence of this Section 3.3(d). No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. Such prospective
sellers' obligations to contribute as provided in this Section 3.3(d) are
several in proportion to the relative value of their respective Registrable
Securities covered by such Registration Statement and not joint. In no event
shall any prospective seller be obligated to make a contribution pursuant to
this Section 3.3(d) in excess of the amount of net proceeds received by such
prospective seller in the offering giving rise to such obligation. In addition,
no Person shall be obligated to contribute hereunder any amounts in payment for
any settlement of any action or claim effected without such Person's consent,
which consent shall not be unreasonably withheld, conditioned or delayed.
(e) INDEMNIFICATION PAYMENTS. The indemnification and
contribution required by this Section 3.3 shall be made by prompt periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or liability is
incurred.
3.4 RULE 144. The Issuer shall timely file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder (including but not limited to
the reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144) and will take such further action as the holder or
any broker facilitating such sale may reasonably request to enable holders of
Registrable Securities to sell such securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rules or regulations hereafter adopted by the Commission,
17
including filing on a timely basis all reports required to be filed by the
Exchange Act. Upon the request of any holder of Registrable Securities, the
Issuer will deliver to such holder a written statement as to whether it has
complied with such requirements.
3.5 TRANSFER OF REGISTRATION RIGHTS.
(a) Each Stockholder may (i) transfer Registrable
Securities with the associated registration rights under this Agreement to a
Permitted Transferee and (ii) pledge or otherwise transfer as security
Registrable Securities together with the associated registration rights under
this Agreement to banking institutions (including investment banks) (each, a
"PLEDGEE") in connection with financing or hedging arrangements with the
Stockholder or its affiliates; PROVIDED, HOWEVER, that (A) the transferring
Stockholder shall give the Issuer written notice prior to the time of such
transfer or pledge stating the name and address of the Permitted Transferee or
Pledgee and identifying the Registrable Securities with respect to which the
rights under this Agreement are to be transferred, (B) such Permitted Transferee
or Pledgee shall agree in writing to be bound as a Stockholder by the provisions
of this Agreement insofar as it pertains to the holding, owning and disposition
of Registrable Securities and (C) immediately following such transfer or pledge,
the further disposition of such Registrable Securities by such Permitted
Transferee or Pledgee would be restricted under the Securities Act.
(b) Upon any transfer of Registrable Securities other
than as set forth in this Section 3.5, such securities shall no longer
constitute Registrable Securities for purposes of this Agreement.
(c) If a Stockholder assigns its rights under this
Agreement in connection with the transfer of less than all of its Registrable
Securities, the Stockholder shall retain its rights under this Agreement with
respect to its remaining Registrable Securities. If a Stockholder assigns its
rights under this Agreement in connection with the transfer of all of its
Registrable Securities, the Stockholder shall have no further obligations under
this Agreement, except under Sections 2.5, 3.3, 4.1, 4.12 and 4.15 hereof.
3.6 SUSPENSION OF SALES. (A) The Issuer shall promptly notify each
holder of Registrable Securities (A) upon discovery that, or upon the happening
of any event as a result of which, the Prospectus or the Registration Statement
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, or any
event specified in clause (b) below; (B) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or (C)
of any request by the Commission for (I) amendments to the Registration
Statement or any document incorporated or deemed to be incorporated by reference
in the Registration Statement, (II) supplements to the Prospectus or (III)
additional information. Immediately following any such event (x) upon the
request of the Issuer, the holders of Registrable Securities shall suspend the
use of the Prospectus and shall not sell any Registrable Securities until such
holder has received copies of the
18
supplemented or amended Prospectus or until it is advised by the Issuer that the
Prospectus may be used, and (y) the Issuer shall use commercially reasonable
efforts to, as promptly as practicable or in the case of an event specified in
clause (b) below, by the end of the Deferral Period (as defined below), prepare
and file a post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document that would be incorporated
by reference into the Registration Statement and Prospectus so that the
Registration Statement does not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and
thereafter deliver to the holders of the Registrable Securities a reasonable
number of copies of the supplement to amendment of such Prospectus complying
with the foregoing, and, in the case of a post-effective amendment to a
Registration Statement, use commercially reasonable efforts to cause it to be
declared effective as promptly as is reasonably practicable.
(b) Notwithstanding anything to the contrary contained
herein, the Issuer will not be required to file any registration statement
pursuant to this Agreement, file any amendment thereto, furnish any supplement
to a prospectus included in a Registration Statement pursuant to Section
3.2(a)(i) or 3.2(a)(ii) hereof, make any other filing with the Commission, cause
any registration statement or other filing with the Commission to become
effective, or take any similar action, and any and all sales of Registrable
Securities by a holder thereof pursuant to an effective registration statement
shall be suspended: (i) if such filing or similar action would, in the
good-faith judgment of the Issuer, materially interfere with business activities
or plans of the Issuer, or (ii) if such filing or similar action would, in the
good-faith judgment of counsel of the Issuer, require the disclosure of material
non-public information which in the good-faith judgment of the Issuer, the
Issuer has a bona fide business purpose for preserving as confidential and
which, in the opinion of nationally-recognized counsel to the Issuer, the Issuer
would not otherwise be required to disclose; provided that the Issuer may not
delay any such actions or suspend any such sales pursuant to clause (i) or (ii)
of the first sentence of this Section 3.6(b) for more than an aggregate of 60
consecutive days or, except as otherwise provided in the third sentence of this
Section 3.6(b), for an aggregate of 60 days in any period of twelve consecutive
months. Upon the occurrence of any condition described in clauses (i) or (ii) of
the first sentence of this Section 3.6(b), the Issuer shall give prompt notice
thereof to the holders of the Registrable Securities. Upon the termination of
the condition described in clauses (i) or (ii) of the first sentence of this
Section 3.6(b), the Issuer shall give prompt notice to the holders of
Registrable Securities and shall promptly file any registration statement or
amendment thereto required to be filed by it pursuant to this Agreement, furnish
any prospectus supplement required to be furnished pursuant to Section 3.2(a)(i)
or 3.2(a)(ii) hereof, make any other filing with the Commission required of it
or terminate any suspension of sales it has put into effect and shall take such
other actions to permit registered sales of Registrable Securities as
contemplated by this Agreement. If any such delay or suspension has gone into
effect and then terminated and the holders of Registrable Securities have had
the opportunity for at least 60 consecutive Business Days to sell Registrable
Securities pursuant to the
19
Registration Statement, then the Issuer may again delay or suspend sales as
provided above for a period of up to 60 days, even if such additional delay or
suspension would result in a delay or suspension pursuant to this Section 3.6(b)
being in effect for more than an aggregate of 60 days in a period of twelve
consecutive months; PROVIDED, HOWEVER, that, if such period of additional delay
or suspension extends for 60 days, Holder shall again have the opportunity for
at least 60 consecutive Business Days to sell Registrable Securities. It is
understood and agreed that the foregoing provisions of this Section 3.6(b) shall
not prevent a sale pursuant to Rule 144 by a holder of Registrable Securities.
As used in this Agreement, the term "Deferral Period" shall mean any period of
time that sales of Registrable Securities are suspended pursuant to this Section
3.6(b). Any suspension pursuant to this Section 3.6(b) shall not be effective
unless (1) each director and executive officer subject to Section 16(b) of the
Exchange Act is prohibited from making purchases and sales by reason of the
existence of material non-public information in clause (ii) of the first
sentence of this Section 3.6(b), and (2) each other holder entitled to sell
Issuer Common Stock under a selling stockholder prospectus, is or agrees to be
subject to deferral provisions substantially equivalent to those contained in
this Section 3.6(b).
ARTICLE IV
MISCELLANEOUS
4.1 NOTICES. All notices, requests, claims and demands and other
communications hereunder shall be in writing and shall be deemed duly delivered
(i) four Business Days after being sent by registered or certified mail, return
receipt requested, postage prepaid, or (ii) one Business Day after being sent by
facsimile transmission (provided the sender retains confirmation thereof) or for
next Business Day delivery, fees prepaid, via a reputable nationwide overnight
courier service, in each case to the intended recipient as set forth below:
(a) if to the Issuer, to
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention:Xxxxx X. Xxxx, Vice President and Treasurer
Telecopy: (000) 000-0000
with a copy to:
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Healing, Esq., Corporate Counsel
Telecopy: (000) 000-0000
with a copy to:
20
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
(b) if to a Stockholder, to its address set forth under
its signature on the signature pages hereto, with a copy (that shall not
constitute notice) to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
and if to Council Tree Hispanic Broadcasters II, L.L.C.,
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxx, Esq.
Telecopy No.:(000) 000-0000
and if to Sony Pictures Entertainment Inc.,
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, LLC
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
and if to any member of Bastion Capital Fund, L.P., Bastion
Partners, L.P., BCF Media, LLC, Bron Trust, Bron 2000 Trust,
Xxxxxxxxxx Investments, Inc., Xxxx-Xxxxxxxxxx Capital, LLC or
TLMD LLC,
with a copy to:
Irell & Xxxxxxx LLP
1800 Avenue of the Stars
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
21
and if to Liberty TelemundoNet, Inc.,
with copies to:
Liberty Media Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxx X. Xxxxxx, Xx., Esq.
Telecopy No.: (000) 000-0000
Any party to this Agreement may give any notice or other communication hereunder
using any other means (including personal delivery, messenger service, telecopy
or ordinary mail), but no such notice or other communication shall be deemed to
have been duly given unless and until it actually is received by the office of
the party for whom it is intended. Any party to this Agreement may change the
address to which notices and other communications hereunder are to be delivered
by giving the other parties to this Agreement notice in the manner herein set
forth.
4.2 ENTIRE AGREEMENT; NO INCONSISTENT AGREEMENT.
(a) This Agreement constitutes the entire agreement among
the parties hereto and supersedes any prior understandings, agreements or
representations by or among the parties hereto, or any of them, written or oral,
with respect to the subject matter hereof.
(b) The Issuer will not hereafter enter into any
agreement with respect to its securities which would materially and adversely
affect the rights granted to the holders of Registrable Securities in this
Agreement.
4.3 NO THIRD-PARTY BENEFICIARIES. Except as provided in Section
3.3, Section 3.5 and Section 4.14, this Agreement is not intended, and shall not
be deemed, to confer any rights or remedies upon any Person other than the
parties hereto and their respective successors and permitted assigns or to
otherwise create any third-party beneficiary hereto.
4.4 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of and shall be enforceable by the parties hereto and, with respect
to the Issuer, its respective successors and assigns and, with respect to the
Stockholders, any holder of any Registrable Securities, subject to the
provisions respecting the minimum numbers of percentages of shares of
Registrable Securities required in order to be entitled
22
to certain rights, or to take certain actions, contained herein. No assignment
or transfer shall be effective hereunder unless and until the purported
transferee executes and delivers an agreement, in form and substance reasonably
acceptable to the parties, agreeing to be bound by the terms hereof.
4.5 AMENDMENTS AND WAIVERS. This Agreement may be amended with the
written consent of the Issuer and the Issuer may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Issuer shall have obtained the written consent to such amendment,
action or omission to act, of the Requisite Holders affected by such amendment,
action or omission; PROVIDED that any such amendment, action or omission that
would adversely affect the registration rights granted under Article III hereof
shall require the written consent of each Stockholder affected. Each holder of
any Registrable Securities at the time or thereafter outstanding shall be bound
by any consent authorized by this Section 4.5, whether or not such Registrable
Securities shall have been marked to indicate such consent.
4.6 NOMINEES FOR BENEFICIAL OWNERS. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election in writing delivered to the
Issuer, be treated as the holder of such Registrable Securities for purposes of
any request, consent, waiver or other action by any holder or holders of
Registrable Securities pursuant to this Agreement or any determination of any
number or percentage of shares of Registrable Securities held by any holder or
holders of Registrable Securities contemplated by this Agreement. If the
beneficial owner of any Registrable Securities so elects, the Issuer may require
assurances reasonably satisfactory to it of such owner's beneficial ownership of
such Registrable Securities.
4.7 CALCULATION OF PERCENTAGE INTERESTS IN REGISTRABLE SECURITIES.
For purposes of this Agreement, all references to a percentage of the
Registrable Securities shall be calculated based upon the total number of shares
of Issuer Common Stock included in the definition of the Registrable Securities
outstanding at the time such calculation is made.
4.8 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified. In the event such court does
not exercise the power granted to it in the prior sentence, the parties hereto
agree to replace such invalid or unenforceable term or provision with a valid
and enforceable term or provision
23
that shall achieve, to the extent possible, the economic, business and other
purposes of such invalid or unenforceable term.
4.9 COUNTERPARTS AND SIGNATURE. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties hereto and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart. This Agreement may be executed and delivered by
facsimile transmission.
4.10 INTERPRETATION. When reference is made in this Agreement to an
Article or Section, such reference shall be to an Article or Section of this
Agreement, unless otherwise indicated. The headings contained in this Agreement
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party. Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural, and vice versa.
Any reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
4.11 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to any choice or conflict of laws provision or rule (whether of
the State of New York or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the State of New
York.
4.12 SUBMISSION TO JURISDICTION. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought exclusively in any federal or state court located in the State and City
of New York, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 4.12 as to giving notice
hereunder shall be deemed effective service of process on such party.
24
4.13 REMEDIES. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party shall be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy shall not preclude the
exercise of any other remedy. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which the parties are entitled at law or in equity.
4.14 ADOPTION AND APPROVAL OF MERGER AGREEMENT. Each Stockholder
hereby adopts and approves the resolutions attached hereto as APPENDIX A and
adopts and approves the Merger Agreement and the transactions contemplated
thereby, including, without limitation, the Merger, in accordance with the
provisions of Section 228 and Section 251(c) of the General Corporation Law of
the State of Delaware; PROVIDED, that Station Partners, LLC is only voting
283,181 of its 444,681 shares of Series B Common Stock and 18,205 of its 19,164
shares of Series B Convertible Preferred Stock in approval; PROVIDED, FURTHER,
that any material amendment of or material waiver under the Merger Agreement
after the date hereof shall require the written consent of the Primary
Stockholders, as defined in the Company Stockholders Agreement.
4.15 WAIVER OF JURY TRIAL. EACH OF THE ISSUER AND THE STOCKHOLDERS
HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS OF THE ISSUER AND THE STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
25
IN WITNESS WHEREOF, the Issuer and the Stockholders have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
GENERAL ELECTRIC COMPANY
By: /s/
---------------------------------------
Name:
Title:
26
COUNCIL TREE HISPANIC
BROADCASTERS II, L.L.C.
By: /s/
---------------------------------------
Name:
Title:
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
B-1 Class B 444,861*
Common Stock
-----------------------------------------------
PB-1 Series B 19,164*
Preferred Stock
-----------------------------------------------
A-5 Class A 587,568**
Common Stock
-----------------------------------------------
PA-3 Series A 37,773**
Preferred Stock
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: 000-000-0000
------------------------
* Represents shares held directly by Station Partners, LLC, for which the
Stockholder acts as managing member.
** Represents shares held directly by Liberty TelemundoNet, Inc. over which
the Stockholder exercises voting power.
27
STATION PARTNERS, LLC
By: Council Tree Hispanic
Broadcasters II, L.L.C.
By: /s/
---------------------------------------
Name:
Title:
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
B-1 Class B 444,861
Common Stock
-----------------------------------------------
PB-1 Series B 19,164
Preferred Stock
-----------------------------------------------
A-5 Class A 587,568*
Common Stock
-----------------------------------------------
PA-3 Series A 37,773*
Preferred Stock
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: 000-000-0000
------------------------
* Represents shares held directly by Liberty TelemundoNet, Inc. over which
the Stockholder exercises voting power.
28
TLMD LLC:
By: DDG Capital, LLC, as Manager
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
---------------------------------------
Name: Xxxxxxx (Xxxxxxxxx) Bron
Title: Its Manager
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Its Manager
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
PA-4 Series A 14,809
Preferred Stock
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Telecopy: 000-000-0000
29
XXXX-XXXXXXXXXX CAPITAL, LLC
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
---------------------------------------
Name: Xxxxxxx (Xxxxxxxxx) Bron
Title: A Control Manager
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
A-3 Class A 83,581
Common Stock
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Telecopy: 000-000-0000
30
LIBERTY TELEMUNDONET, INC.
By: /s/
---------------------------------------
Name:
Title:
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
A-5 Class A 587,568*
Common Stock
-----------------------------------------------
PA-3 Series A 37,773*
Preferred Stock
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
Telecopy: 000-000-0000
------------------------
* Represents shares held directly by the Stockholder over which Station
Partners, LLC exercises voting power.
31
SONY PICTURES ENTERTAINMENT
INC.
By: /s/
---------------------------------------
Name:
Title:
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
PA-1 Series A 25,059
Preferred Stock
-----------------------------------------------
A-1 Class A 235,779
Common Stock
-----------------------------------------------
PA-2 Series A 12,714*
Preferred Stock
-----------------------------------------------
A-4 Class A 119,608*
Common Stock
-----------------------------------------------
-- Class A 232,181**
Common Stock
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopy: 000-000-0000
------------------------
* Represents shares held directly by SPE Mundo Investment Inc., an indirect,
wholly owned subsidiary of the Stockholder.
** Represents shares of Class A Common Stock issuable to SPE Mundo Investment
Inc. upon exchange of its 33% membership interest in Telemundo Network Group
LLC, a Delaware limited liability company.
32
SPE MUNDO INVESTMENT INC.
By: /s/
---------------------------------------
Name:
Title:
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
PA-2 Series A 12,714
Preferred Stock
-----------------------------------------------
A-4 Class A 119,608
Common Stock
-----------------------------------------------
-- Class A 232,181*
Common Stock
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopy: 000-000-0000
------------------------
* Represents shares of Class A Common Stock issuable to the Stockholder upon
exchange of its 33% membership interest in Telemundo Network Group LLC, a
Delaware limited liability company.
33
BASTION CAPITAL FUND, L.P.
By: Bastion Partners, L.P.
Its General Partner
By: Bron Corp.,
Its Co-General Partner
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
------------------------------------
Xxxxxxx (Xxxxxxxxx) Bron, President
By: Xxxxxxxxxx Investments, Inc.,
Its Co-General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
--
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Telecopy: 000-000-0000
34
BASTION PARTNERS, L.P.
By: Bron Corp.,
Its Co-General Partner
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
------------------------------------
Xxxxxxx (Xxxxxxxxx) Bron, President
By: Xxxxxxxxxx Investments, Inc.,
Its Co-General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
--
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Telecopy: 000-000-0000
35
BCF MEDIA, LLC
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
---------------------------------------
Xxxxxxx (Xxxxxxxxx) Bron, its Manager
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxxx, its Manager
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
--
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Telecopy: 000-000-0000
36
BRON 2000 TRUST dated September 29, 2000
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
---------------------------------------
Xxxxxxx (Xxxxxxxxx) Bron, Trustee
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
--
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Telecopy: 000-000-0000
37
XXXXXXXXXX INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
--
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Telecopy: 000-000-0000
38
BRON TRUST dated July 29, 1998
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
---------------------------------------
Xxxxxxx (Xxxxxxxxx) Bron, Trustee
-----------------------------------------------
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR REPRESENTED
NUMBER SERIES PREFERRED) THEREBY
-----------------------------------------------
--
-----------------------------------------------
STOCKHOLDER'S ADDRESS:
----------------------
1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Telecopy: 000-000-0000
APPENDIX A
----------
WRITTEN CONSENT IN LIEU OF
A SPECIAL MEETING OF THE STOCKHOLDERS OF
TELEMUNDO COMMUNICATIONS GROUP, INC.
In accordance with Sections 228 and 251(c) of the Delaware
General Corporation Law (the "DGCL"), the undersigned, being holders of all of
the issued and outstanding Class A common stock, par value $0.01 per share,
Class B common stock, par value $0.01 per share, Series A Convertible Preferred
Stock, par value $0.01 per share, and Series B Convertible Preferred Stock, par
value $0.01 per share, of Telemundo Communications Group, Inc. (the
"CORPORATION"), by this consent in writing does hereby waive all notice of the
time, place and purposes of a special meeting of the Corporation's stockholders
required by the DGCL or the Corporation's bylaws and hereby consent to the
adoption of the following resolutions with the same force and effect as if they
had been adopted at a duly convened meeting of the stockholders of the
Corporation:
1. APPROVAL OF THE MERGER AND AGREEMENT AND PLAN OF MERGER.
RESOLVED, that the form, terms and provisions of the Agreement
and Plan of Merger (the "AGREEMENT AND PLAN OF Merger") by and among the
Corporation, General Electric Company, National Broadcasting Corporation, Inc.,
TN Acquisition Corp. and SPE Mundo Investment Inc., substantially in accordance
with the terms and conditions thereof previously presented to the stockholders,
providing for, among other things, the merger of the Corporation with and into
TN Acquisition Corp., be, and the same hereby are, approved and adopted.
2. GENERAL AUTHORIZATION.
RESOLVED, that the officers of the Corporation hereby are, and
each of them singly hereby is, authorized, directed and empowered, for and on
behalf of the Corporation, to take any action (including, without limitation,
the payment of expenses) and to execute (by manual or facsimile signature) and
to deliver all such further documents, contracts, letters, agreements,
instruments, drafts, receipts or other writings that such officers may in their
sole discretion deem necessary or appropriate to carry out, comply with and
effectuate the purposes of the foregoing resolutions and the transactions
contemplated thereby, and that the authority of such officers to execute and
deliver any such documents and instruments, and to take any such other action,
shall be conclusively evidenced by their execution and delivery thereof or their
taking thereof; PROVIDED, HOWEVER, that any material amendment or material
waiver under the Merger Agreement after the date hereof shall require the
written consent of the Primary Stockholders, as defined in the Amended and
Restated Stockholders' Agreement, dated as of May 31, 2001, by and among the
Corporation and the other parties named therein; and it is further
RESOLVED, that any action previously taken by any officer of
the Corporation in furtherance of or consistent with the matters authorized by
the foregoing resolutions is in all respects hereby approved, ratified and
confirmed.
SCHEDULE A
----------
Xxxx-Xxxxxxxxxx Capital, LLC has pledged 83,581 shares of TCG
Series A Common Stock to an entity associated with Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated.
The Class B Common Stock and Series B Convertible Preferred
Stock held by Station Partners, LLC are subject to a put/call agreement with
Sony Pictures Entertainment Inc. and Liberty Media Corporation.
The Class A Common Stock held by Xxxx-Xxxxxxxxxx Capital, LLC
are subject to a put/call agreement with Sony Pictures Entertainment Inc. and
Liberty Media Corporation.
The Series A Convertible Preferred Stock held by TLMD LLC are
subject to a put/call agreement with Sony Pictures Entertainment Inc. and
Liberty Media Corporation.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..................................................1
1.1 Certain Definitions..........................................1
1.2 Capitalized Terms............................................4
1.3 Other Definitions............................................4
ARTICLE II REPRESENTATIONS AND WARRANTIES AND CERTAIN COVENANTS.........4
2.1 Representations and Warranties of each Stockholder...........4
2.2 Certain Acknowledgments......................................7
2.3 Representations and Warranties of the Issuer.................7
2.4 Transfers of Company Stock...................................8
2.5 Cash Election................................................8
2.6 Confidentiality..............................................9
ARTICLE III REGISTRATION RIGHTS..........................................9
3.1 Shelf Registration...........................................9
3.2 Registration Procedures.....................................10
3.3 Indemnification.............................................13
3.4 Rule 144....................................................16
3.5 Transfer of Registration Rights.............................17
3.6 Suspension of Sales(a)......................................17
ARTICLE IV MISCELLANEOUS...............................................19
4.1 Notices.....................................................19
4.2 Entire Agreement; No Inconsistent Agreement.................21
4.3 No Third-Party Beneficiaries................................21
4.4 Assignment..................................................21
4.5 Amendments and Waivers......................................22
4.6 Nominees for Beneficial Owners..............................22
4.7 Calculation of Percentage Interests in
Registrable Securities...................................22
4.8 Severability................................................22
4.9 Counterparts and Signature..................................23
4.10 Interpretation..............................................23
4.11 Governing Law...............................................23
4.12 Submission to Jurisdiction..................................23
4.13 Remedies....................................................24
4.14 Adoption and Approval of Merger Agreement...................24
4.15 WAIVER OF JURY TRIAL........................................24
