EXHIBIT 11
EXECUTION COPY
MASTER TRANSACTION AGREEMENT
THIS MASTER TRANSACTION AGREEMENT (this "Agreement") is made and entered
into as of November 7, 2005, by and among Xx. Xxxxxx X. Xxxxxx, a resident of
the State of Florida ("Xx. Xxxxxx"), Second Xxxxxxx Xxxxxxx Limited Partnership,
a Nevada limited partnership ("Second Crystal"), Xxxxxx Enterprises, Inc., a
Nevada corporation ("Xxxxxx Enterprises" and together with Xx. Xxxxxx and Second
Crystal, collectively, the "Xxxxxx Stockholders"), Xxxxxx Communications
Corporation, a Delaware corporation ("PCC"), Xxxxxx Management Corporation, a
Nevada corporation that is wholly owned by Xx. Xxxxxx and his spouse ("PMC"),
NBC Universal, Inc. (f\k\a National Broadcasting Company, Inc.), a Delaware
corporation ("NBCU"), NBC Palm Beach Investment I, Inc., a California
corporation ("NBC Palm Beach I"), and NBC Palm Beach Investment II, Inc., a
California corporation ("NBC Palm Beach II" and, together with NBCU and NBC Palm
Beach I, the "NBCU Entities").
RECITALS
WHEREAS, on September 15, 1999, the NBCU Entities invested $415,000,000 (the
"Initial Investment") in PCC, and, in connection with the Initial Investment,
1. PCC and NBCU entered into an Investment Agreement (the "Original
Investment Agreement"), pursuant to which NBCU purchased certain
securities from PCC;
2. PCC, NBCU and the Xxxxxx Stockholders entered into a Stockholder
Agreement (the "Original Stockholder Agreement"), to provide for
certain matters with respect to the governance of PCC;
3. the Xxxxxx Stockholders and NBC Palm Beach II entered into a Call
Agreement (the "Original Call Agreement"), pursuant to which the
Xxxxxx Stockholders granted NBC Palm Beach II an option to
purchase certain securities of PCC held by them; and
4. PCC and NBCU entered into a Registration Rights Agreement (the
"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 PCC granted NBCU and certain of its Affiliates certain
registration rights with respect to certain shares of Class A
Common Stock (defined below) held or acquired by NBCU 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 foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
AGREEMENTS
1. Definitions. As used in this Agreement, the following terms shall have
the meanings set forth below:
"Affiliation Agreements" has the meaning set forth in Section 2(i).
"Agreement" has the meaning set forth in the Preamble.
"Amended Existing Agreements" means the Existing Agreements (other than the
Registration Rights Agreement and the Original Call Agreement), as amended and
restated as of the date hereof, and the Registration Rights Agreement Amendment.
"Beneficiaries" has the meaning set forth in Section 3(b).
"Xxxxxxx Employment Agreement" has the meaning set forth in Section 2(h)(i).
"Xxxxxxx Group" has the meaning set forth in Section 6(e).
"Call Agreement" has the meaning set forth in Section 2(a).
"Call Right" has the meaning set forth in Section 2.1 of the Call Agreement.
"Class A Common Stock" means the Class A Common Stock, par value $0.001 per
share, of PCC.
"Class B Common Stock" means the Class B Common Stock, par value $0.001 per
share, of PCC.
"Class C Common Stock" means the Class C Non-Voting Common Stock, par value
$0.001 per share, of PCC.
"CNI" has the meaning set forth in Section 4(e)(i).
"CNI Master Agreement" has the meaning set forth in Section 4(e)(i).
"CNI Station Agreements" has the meaning set forth in Section 4(e)(ii).
"Code" has the meaning set forth in Section 2(d)(ii).
"Collateral Assignment" has the meaning set forth in Section 2(g)(i).
2
"Common Stock" means the Class A Common Stock, the Class B Common Stock and
the Class C Common Stock.
"Conflicting Provisions" has the meaning set forth in Section 7(g).
"Conversion Shares" has the meaning set forth in Section 4(b)(ii).
"Effective Time" means the date hereof.
"Escrow Agreement" has the meaning set forth in Section 3(a).
"Existing Agreements" has the meaning set forth in the Recitals.
"Existing Preferred Stock" has the meaning set forth in Section 4(b).
"FCC" means the Federal Communications Commission or any successor
governmental authority performing functions similar to those performed by the
Federal Communications Commission on the date hereof.
"Final Order" means an action or actions by the FCC that have not been
reversed, stayed, enjoined, set aside, annulled, or suspended, and with respect
to which no requests are pending for administrative or judicial review,
reconsideration, appeal, or stay, and the time for filing any such requests and
the time for the FCC to set aside the action on its own motion have expired.
"GE" means General Electric Company and its successors.
"Xxxxxxx Employment Agreement" has the meaning set forth in Section
2(h)(ii).
"Xxxxxxx Noncompete Agreement" has the meaning set forth in Section
2(h)(iv).
"Governmental Authority" means any federal, national, supranational, state,
provincial, local or other government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"Governmental Order" means any order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any Governmental
Authority.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"Initial Investment" has the meaning set forth in the Preamble.
"Letter Agreements" shall mean the three letter agreements, each dated
September 15, 1999, between NBCU and PCC in respect of joint sales of
advertising and other joint services by NBCU, PCC and their respective
Affiliates.
"Letter of Credit" has the meaning set forth in Section 3(b).
3
"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).
"Xx. Xxxxxxx" has the meaning set forth in Section 2(h)(i).
"Xx. Xxxxxxx" has the meaning set forth in Section 2(h)(ii).
"Xx. Xxxxxx" has the meaning set forth in the Preamble.
"NBC Palm Beach I" has the meaning set forth in the Preamble.
"NBC Palm Beach II" has the meaning set forth in the Preamble.
"NBCU" has the meaning set forth in the Preamble.
"NBCU Entities" has the meaning set forth in the Preamble.
"Original Call Agreement" has the meaning set forth in the Recitals.
"Original Investment Agreement" has the meaning set forth in the Recitals.
"Original Series B Certificate of Designation" means the Certificate of
Designation of the Original Series B Preferred Stock executed and filed with the
Secretary of State of the State of Delaware on September 15, 1999.
"Original Series B Preferred Stock" means the 8% Series B Convertible
Exchangeable Preferred Stock, par value $0.001 per share, of PCC, with a
liquidation preference of $10,000 per share.
"Original Stockholder Agreement" has the meaning set forth in the Recitals.
"Xxxxxx Enterprises" has the meaning set forth in the Preamble.
"Xxxxxx Noncompete Agreement" has the meaning set forth in Section
2(h)(iii).
"Xxxxxx Stockholders" has the meaning set forth in the Preamble.
"PCC" has the meaning set forth in the Preamble.
"PCC Board" means the Board of Directors of PCC.
"PCC Stock Purchase Agreement" has the meaning set forth in Section 2(b).
"PCC Television Stations" means the broadcast television stations, including
low power television and television translator stations, at any time owned and
operated by PCC or any of its subsidiaries.
4
"Person" means an individual, corporation, unincorporated association,
partnership, group (as defined in subsection 13(d)(3) of the Exchange Act),
trust, joint stock company, joint venture, business trust or unincorporated
organization, limited liability company, governmental entity or any other entity
of whatever nature.
"PMC" has the meaning set forth in the Preamble.
"PMC Management Agreement" has the meaning set forth in Section 2(f)(i).
"Registration Rights Agreement" has the meaning set forth in the Recitals.
"Registration Rights Agreement Amendment" has the meaning set forth in
Section 2(k)(iii).
"Sales Agreements" means (i) the Network Sales Agreement, dated as of
November 19, 1999, between PCC and NBCU, (ii) the National Sales Agreement,
dated as of July 16, 2001, between PCC and NBCU, (iii) the Joint Sales
Agreements entered into by subsidiaries of NBCU or NBCU and subsidiaries of PCC
or PCC for various local television markets and (iv) the Letter Agreements.
"Second Crystal" has the meaning set forth in the Preamble.
"Securities Act" has the meaning set forth in Section 6(d).
"Series B Certificate of Designation" means 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 immediately following
the Effective Time, which shall be in the form of Exhibit A attached hereto.
"Series B Preferred Stock" means the 11% Series B Convertible Exchangeable
Preferred Stock, par value $0.001 per share, of PCC, with a liquidation
preference of $10,000 per share.
"Settlement Agreement" means the Settlement Agreement, dated as of the date
hereof, between NBCU and PCC, as from time to time amended, modified or
supplemented.
"Split Dollar Agreement" has the meaning set forth in Section 2(g).
"Station Level Restructuring" has the meaning set forth in Section 2(f).
"Stockholder Agreement" has the meaning set forth in Section 2(k)(ii).
"Transaction Agreements" means this Agreement, the Series B Certificate of
Designation, the Call Agreement, the PCC Stock Purchase Agreement, the PMC
Management Agreement, the Xxxxxxx Employment Agreement, the Xxxxxxx Employment
Agreement, the Xxxxxx Noncompete Agreement, the Xxxxxxx Noncompete Agreement,
the Affiliation Agreements, the Amended Existing Agreements,
5
the Registration Rights Agreement, the Split Dollar Agreement, the Collateral
Assignment, the Settlement Agreement, the Escrow Agreement and the Letter of
Credit.
"Warrants" means the Class A Common Stock Purchase Warrant, dated September
15, 1999 (Warrant No. 1999-A), issued by PCC to NBC Palm Beach II, for the
purchase of up to 13,065,507 shares of Class A Common Stock and the Class A
Common Stock Purchase Warrant, dated September 15, 1999 (Warrant No. 1999-B),
issued by PCC to NBC Palm Beach II, for the purchase of up to 18,966,620 shares
of Class A Common Stock.
2. Effective Time Actions. Concurrently with or immediately following the
Effective Time, the parties shall take the following actions, all of which shall
be deemed to be taken simultaneously:
(a) Call Agreement. The Xxxxxx Stockholders and NBC Palm Beach II shall
enter into a Call Agreement in the form attached hereto as Exhibit B (the "Call
Agreement").
(b) PCC Stock Purchase Agreement. The Xxxxxx Stockholders and PCC shall
enter into a Stock Purchase Agreement in the form attached hereto as Exhibit C
(the "PCC Stock Purchase Agreement").
(c) Redesignation of Series B Preferred Stock.
(i) NBC Palm Beach I shall execute and deliver to PCC a written
consent in the form attached hereto as Exhibit D.
(ii) PCC shall execute and file with the Secretary of State of the
State of Delaware the Series B Certificate of Designation.
(d) Satisfaction of Accrued Dividends on Series B Preferred.
(i) Through September 30, 2005, the aggregate liquidation
preference plus accrued and unpaid dividends on the Original Series B Preferred
Stock based on an asserted 28.3% dividend rate in effect from September 15,
2004, was $703,572,555. In connection with the amendment and redesignation of
the Original Series B Preferred Stock to become the Series B Preferred Stock,
PCC has declared a stock dividend of an additional 18,857 shares of Original
Series B Preferred Stock on the Original Series B Preferred Stock, which shall
be paid on the date hereof to NBC Palm Beach I, and which NBC Palm Beach I and
NBCU have agreed to accept in full satisfaction of all accrued and unpaid
dividends on the Original Series B Preferred Stock through and including
September 30, 2005. As a result, the aggregate liquidation preference of the
Original Series B Preferred Stock as of September 30, 2005, and of the
redesignated Series B Preferred Stock issued in exchange therefor, shall be
$603,570,000 and dividends on the Series B Preferred Stock shall accrue
thereafter at the rate of 11% per annum on such amount.
6
(ii) Each of PCC and NBC Palm Beach I agree to treat the
declaration of the stock dividend on the Original Series B Preferred Stock
described in this Section 2(d) as a non-taxable distribution of stock under
Section 305(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the exchange of Series B Preferred Stock for the Original Series B Preferred
Stock as a tax-free recapitalization pursuant to Section 368(a) of the Code, in
each case, for all U.S. federal, state, local and foreign tax purposes. No party
hereto shall take a position inconsistent with this treatment on any tax return,
unless otherwise required by applicable law.
(e) Cancellation of Warrants. NBC Palm Beach II shall deliver the
Warrants to PCC for cancellation and PCC shall take all actions necessary to
cancel the Warrants.
(f) Station Level Restructuring. PCC, Xx. Xxxxxx and PMC shall take all
steps necessary to complete the transfer of control of the FCC licensees of the
PCC Television Stations from PCC to PMC (the "Station Level Restructuring"),
including, but not limited to, the following:
(i) The PMC Management and Proxy Agreement in the form attached
hereto as Exhibit E (the "PMC Management Agreement") shall be executed by PCC,
PMC and the Grantors and Station Subsidiaries identified on the relevant
signature pages thereof;
(ii) PCC shall cause Xx. Xxxxxx to be elected as the sole director
of each of the Station Subsidiaries that is a corporation (as defined in the PMC
Management Agreement) for the longest term permitted by applicable law, but for
no longer than seven years and for Xxxxx Xxxxxx to succeed Xx. Xxxxxx as
director in the event of his death or permanent disability, and the resolutions
or written action adopted pursuant to this Section (f)(ii) shall not be revoked,
amended, modified or superceded.
(iii) PMC shall file, or cause to be filed, no later than the
second business day following the Effective Time, with the FCC notices of
consummation of the Station Level Restructuring and shall cause a copy of the
pertinent notice of consummation to be promptly placed in the public inspection
files maintained for the affected PCC Television Stations; and
(iv) PMC shall file, or cause to be filed, no later than 30 days
following the Effective Time, with the FCC post-consummation ownership reports
on Form 323 with respect to the Station Level Restructuring and shall cause
copies of such post-consummation ownership reports to be promptly placed in the
public inspection files maintained for the affected PCC Television Stations.
(g) Resignation of Xx. Xxxxxx; Appointment of New PCC CEO.
(i) Xx. Xxxxxx shall resign as a director, chairman of the PCC
Board and chief executive officer of PCC, and PCC and Xx. Xxxxxx shall enter
into a Resignation Agreement in the form attached hereto as Exhibit F. In
connection with such resignation, PCC and The Xxxxxx X. Xxxxxx Irrevocable
Dynasty Trust (the "Trust")
7
shall enter into the Split Dollar Agreement in the form attached hereto as
Exhibit G (the "Split Dollar Agreement") and the Trust shall assign certain
rights and interests under a policy issued by Metropolitan Life Insurance
Company to PCC pursuant to a Collateral Assignment in the form attached hereto
as Exhibit H (the "Collateral Assignment").
(ii) The PCC Board shall appoint a new chief executive officer of
PCC, effective as of the Effective Time.
(h) Employment, Consulting and Noncompete Agreements.
(i) PCC and Xx. Xxxxxxx Xxxxxxx ("Xx. Xxxxxxx") shall enter into
an Employment Agreement in the form attached hereto as Exhibit I (the "Xxxxxxx
Employment Agreement").
(ii) PCC and Xx. Xxxx Xxxxxxx ("Xx. Xxxxxxx") shall enter into an
Employment Agreement in the form attached hereto as Exhibit J (the "Xxxxxxx
Employment Agreement").
(iii) NBCU, PCC and Xx. Xxxxxx shall enter into a Consulting and
Noncompetition Agreement in the form attached hereto as Exhibit K (the "Xxxxxx
Noncompete Agreement").
(iv) NBCU and Xx. Xxxxxxx shall enter into a Noncompetition
Agreement in the form attached hereto as Exhibit L (the "Xxxxxxx Noncompete
Agreement").
(i) Affiliation Agreements. PCC and the licensees of each of the
full-power PCC Television Stations shall enter into an Affiliation Agreement in
the form attached hereto as Exhibit M, modified only by the addition of the name
of the applicable PCC licensee subsidiary, station call sign and community of
license (collectively, the "Affiliation Agreements").
(j) Dismissal of all Litigation and Arbitration; Settlement Agreement.
PCC and NBCU shall execute and deliver to each other the Settlement Agreement in
the form attached hereto as Exhibit N.
(k) Amending and Restating the Existing Agreements.
(i) PCC and NBCU shall amend and restate the Original Investment
Agreement by entering into an Amended and Restated Investment Agreement in the
form attached hereto as Exhibit O.
(ii) PCC, NBCU and the Xxxxxx Stockholders shall amend and restate
the Original Stockholder Agreement by entering into an Amended and Restated
Stockholder Agreement (the "Stockholder Agreement") in the form attached hereto
as Exhibit P.
8
(iii) PCC and NBCU shall enter into a letter agreement in the form
attached hereto as Exhibit Q (the "Registration Rights Agreement Amendment")
amending the Registration Rights Agreement.
3. Post Effective Time Actions.
(a) Escrow Agreement. Within three business days following the
Effective Time, NBCU and Xx. Xxxxxx shall designate a mutually acceptable escrow
agent and enter into an Escrow Agreement (the "Escrow Agreement") substantially
in the form attached hereto as Exhibit R, with such changes as the escrow agent
may require, pursuant to which NBCU shall place into escrow $3,863,765.50 in
cash and the Xxxxxx Stockholders shall place the shares of Class A Common Stock
owned by them into escrow.
(b) Letter of Credit. Within three business days following the
Effective Time, PCC shall establish a $2,410,375 Irrevocable Standby Letter of
Credit, issued by Citibank, N.A. (the "Letter of Credit"), for the benefit of
the holders of Class B Common Stock ("Beneficiaries"), permitting draw by such
Beneficiaries upon unilateral notice to Citibank, N.A. certifying that payment
is due under the PCC Stock Purchase Agreement, and that payment has not been
otherwise made by PCC.
(c) Cooperation. 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 each of the Transaction Agreements to which it is a party and the
transactions contemplated thereby, including, without limitation, making
application as soon as practicable for all consents and approvals required in
connection with the transactions contemplated thereby and diligently pursuing
the receipt of such consents and approvals in good faith.
(d) Inconsistent Actions.
(i) Once the application to the FCC in respect of the purchase of
the Call Shares pursuant to the Call Right (as such terms are defined in the
Call Agreement) has been filed with the FCC, none of NBC Palm Beach I, the
Permitted Transferee (as defined in the Call Agreement) or the Xxxxxx
Stockholders shall take any action that could reasonably be expected to delay or
hinder the grant of such application. NBCU hereby agrees that it will not, and
it shall not permit any of the NBCU Entities to, file a petition to deny or
otherwise object to or oppose the grant of the FCC Application (as defined in
the Call Agreement).
(ii) Once the application in respect of the purchase of the Call
Shares pursuant to the PCC Stock Purchase Agreement has been filed with the FCC,
none of the NBCU Entities shall file a petition to deny or otherwise object to
or oppose the grant of such application.
(e) Sales Agreements. PCC and NBCU acknowledge that the Sales
Agreements shall remain in full force and effect, provided that the obligations
of the
9
parties thereunder have been and shall continue to be suspended unless the
parties thereto mutually agree in writing to revoke such suspension.
(f) Stock-Based Compensation. Upon approval of the Stockholder
Proposals (as defined in the Stockholder Agreement), PCC shall reserve an
additional 50,000,000 shares of Class A Common Stock for issuance in connection
with the stock-based compensation to be granted to certain senior executives
following the Effective Time pursuant to the Stockholder Agreement.
(g) Additional NBCU Investment. Promptly following the acceptance of
the filing of the Certificate of Designation with the Secretary of State of the
State of Delaware, PCC shall issue and sell to NBC Palm Beach I, and NBC Palm
Beach I shall purchase from PCC, 250 shares of Series B Preferred Stock for the
purchase price of $2,500,000 which amount NBC Palm Beach I shall deliver to PCC
by wire transfer of immediately available funds to the account or accounts
specified in writing by PCC. NBC Palm Beach I agrees not to exchange any of such
250 shares for New Exchange Debentures (as defined in the Series B Certificate
of Designation) prior to April 18, 2010 and will not Transfer any of such shares
unless the transferee agrees in writing to be bound by the foregoing.
4. Representations and Warranties of PCC. PCC hereby represents and warrants
to NBCU and the Xxxxxx Stockholders that on and as of the date hereof:
(a) PCC is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
necessary power and authority to enter into each of the Transaction Agreements
to which it is a party, to carry out its obligations thereunder and to
consummate the transactions contemplated thereby. PCC is duly licensed or
qualified to do business and is in good standing in each jurisdiction in which
the properties owned or leased by it or the operation of its business makes such
licensing or qualification necessary, except to the extent that the failure to
be so licensed or qualified and in good standing would not adversely affect the
ability of PCC to carry out its obligations under, and to consummate the
transactions contemplated by, each of the Transaction Agreements to which it is
a party. The execution and delivery by PCC of each of the Transaction Agreements
to which it is a party, the performance by PCC of its obligations thereunder and
the consummation by PCC of the transactions contemplated thereby have been duly
authorized by all requisite action on the part of PCC and approved by the
special committee of the PCC Board. Each of the Transaction Agreements to which
it is a party has been or, upon execution, shall have been duly executed and
delivered by PCC, and (assuming due authorization, execution and delivery by the
other parties) each of the Transaction Agreements to which it is a party
constitutes or, upon execution, shall constitute legal, valid and binding
obligations of PCC, enforceable against PCC in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency (including all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting creditors' rights generally and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding at law or
in equity). PCC's by-laws have been validly amended and restated in connection
with the transactions
10
contemplated by the Transaction Agreements and true and correct copies of such
amended and restated by-laws have been supplied to NBCU.
(b) (i) As of the date hereof, the authorized capital stock of PCC
consists of (A)(1) 215,000,000 shares of Class A Common Stock of which, as of
November 2, 2005, 64,582,424 shares were issued and outstanding, (2) 35,000,000
shares of Class B Common Stock of which 8,311,639 shares are issued and
outstanding and (3) 77,500,000 shares of Class C Common Stock of which no shares
are issued and outstanding, and (B) 1,000,000 shares of preferred stock of which
(1) 72,000 shares have been designated as 14 1/4% Cumulative Junior Exchangeable
Preferred Stock of which 49,610 shares are issued and outstanding, (2) 17,500
shares have been designated as 9 3/4% Convertible Preferred Stock, with a
current conversion price of $16.00 per share, of which 15,162 shares are issued
and outstanding, and (3) 60,607 shares have been designated as Series B
Preferred Stock all of which are issued and outstanding (collectively, with any
additional shares of preferred stock that may be issued as dividends thereon,
the "Existing Preferred Stock"). As of November 2, 2005, no shares of capital
stock were held in treasury, and no shares of capital stock were reserved for
issuance except for (i) 2,211,298 shares of Class A Common Stock reserved in
respect of stock options outstanding as of such date, (ii) 10,937,500 shares of
Class A Common Stock reserved in respect of the 9 3/4% Series A Convertible
Preferred Stock, (iii) 32,032,127 shares of Class A Common Stock reserved in
respect of the Warrants, (iv) 8,311,639 shares of Class A Common Stock reserved
in respect of the Class B Common Stock and (v) 31,896,032 shares of Class A and
Class C Common Stock reserved in respect of the Series B Preferred Stock. All of
the issued and outstanding shares of PCC's capital stock have been duly and
validly authorized and issued and are fully paid and nonassessable and not
subject to preemptive rights. Since November 2, 2005, PCC has not issued any
shares of capital stock of PCC or granted or entered into any options, warrants,
convertible securities or other rights, agreements, arrangements or commitments
of any character relating to the capital stock of PCC or obligating PCC to issue
or sell any capital stock of PCC, or any other interest in, PCC, other than
pursuant to one or more of the Transaction Agreements or pursuant to the
exercise of options to acquire shares of Class A Common Stock outstanding on
November 2, 2005 in an amount not in excess of the amount set forth in clause
(i) of this Section 4(b).
(ii) The PCC Board has adopted a resolution to amend PCC's certificate
of incorporation, and declared its advisability, to increase the number of
authorized shares of Common Stock, Class A Common Stock and Class C Common Stock
to 857,000,000, 505,000,000 and 317,000,000, respectively, of which the PCC
Board has determined to reserve for issuance, subject to the approval of such
amendment by the stockholders of PCC at a duly convened meeting and the filing
of a certificate of amendment with the Secretary of State of the State of
Delaware, 303,035,000 shares of Class A and Class C Common Stock into which the
Series B Preferred Stock will be convertible (the "Conversion Shares") and, when
issued upon conversion of the Series B Preferred Stock in accordance with the
terms thereof, such Conversion Shares will be duly and validly authorized and
issued, fully paid and nonassessable and not subject to preemptive rights, and
the owner of such shares will
11
have good title thereto, free and clear of all Liens (other than any Lien
created by such owner).
(iii) Other than (A) the requirement to issue the Conversion Shares,
(B) the shares referred to in subsection (b)(i) and (C) as contemplated by the
Transaction Agreements, (1) no equity securities of PCC are or may become
required to be issued by reason of any options, warrants, rights to subscribe
to, calls, preemptive rights, or commitments of any character whatsoever, (2)
there are outstanding no securities or rights convertible into or exchangeable
for shares of any capital stock of PCC and (3) there are no contracts,
commitments, understandings or arrangements by which PCC is or will be bound to
issue additional shares of its capital stock or securities or rights convertible
into or exchangeable for shares of its capital stock or options, warrants or
rights to purchase or acquire any additional shares of its capital stock. Except
as required by the terms of the Existing Preferred Stock, PCC is not subject to
any obligation (contingent or otherwise) to repurchase, redeem or otherwise
acquire or retire any of its capital stock.
(iv) The consummation of the transactions contemplated by each of the
Transaction Agreements will not trigger the anti-dilution provisions or other
price adjustment mechanisms of any outstanding subscriptions, options, warrants,
calls, contracts, preemptive rights, demands, commitments, conversion rights or
other agreements or arrangements of any character or nature whatsoever under
which PCC is or may be obligated to issue or acquire its capital stock.
(c) Assuming that all consents, approvals, authorizations and other
actions described in Section 4(d) have been obtained, all filings required by
Section 2(f)(ii) and (iii) have been made, all filings and notifications listed
in Schedule 4(d) have been made and any applicable waiting period has expired or
been terminated, and except as may result from any facts or circumstances
relating solely to any NBCU Entity, the execution, delivery and performance by
PCC of each of the Transaction Agreements to which PCC is a party do not and
will not (i) violate, conflict with or result in the breach of the certificate
of incorporation or by laws (or similar organizational documents) of PCC, (ii)
conflict with or violate any law or Governmental Order applicable to PCC or any
of its subsidiaries or (iii) result in any breach of, constitute a default (or
event which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of
termination, acceleration or cancellation of, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which PCC or any of its subsidiaries is a
party, except, in the case of clauses (ii) and (iii), as would not materially
and adversely affect the ability of PCC to carry out its obligations under, and
to consummate the transactions contemplated by, each of the Transaction
Agreements to which PCC is a party.
(d) The execution, delivery and performance by PCC of each of the
Transaction Agreements to which PCC is or will be a party and the transactions
contemplated thereby do not and will not require any consent, approval,
authorization or other order of, action by, filing with or notification to, any
Governmental Authority,
12
except (i) as described in Schedule 4(d), (ii) the pre-merger notification and
waiting period requirements of the HSR Act and the approval by the FCC pursuant
to Section 310(d) of the Communications Act in the event of the exercise of the
Call Right, the conversion of a sufficient number of shares of Series B
Preferred Stock such that, following such conversion, a Xxxxxx Stockholder is no
longer the Single Majority Stockholder of PCC (as that term is defined by the
FCC), or the purchase of the Class B Common Stock by PCC pursuant to the PCC
Stock Purchase Agreement, (iii) where failure to obtain such consent, approval,
authorization or action, or to make such filing or notification, would not
prevent or materially delay the consummation by PCC of the transactions
contemplated by each of the Transaction Agreements to which it is a party or
(iv) as may be necessary as a result of any facts or circumstances relating
solely to the other parties hereto. Prior to the date hereof, PCC filed with the
FCC all of the applications necessary to obtain the approvals required to
consummate the Station Level Restructuring. By public notice released on
September 2, 2005, the FCC announced the grant of the initial approvals required
to consummate the Station Level Restructuring with respect to all PCC Television
Stations other than those licensed to Xxxxxx Communications LPTV, Inc., and, by
public notice released on September 12, 2005, the FCC announced the grant of the
initial approvals required to consummate the Station Level Restructuring with
respect to all PCC Television Stations licensed to Xxxxxx Communications LPTV,
Inc. The foregoing FCC grants have become Final Orders.
(e) PCC has furnished or made available to NBCU true and complete
copies, including all amendments thereto, of the following agreements:
(i) Master Agreement for Overnight Programming, Use of Digital
Capacity and Public Interest Programming, dated as of September 10, 1999
(the "CNI Master Agreement"), between The Christian Network, Inc., a Florida
not-for-profit corporation ("CNI"), and PCC, as amended by the First
Amendment to CNI Master Agreement, dated as of June 13, 2005, between CNI
and PCC.
(ii) Each of the Station Agreements for Overnight Programming, Use
of Digital Capacity and Public Interest Programming (the "CNI Station
Agreements") between CNI and each of PCC's television stations, as amended
by the First Amendments to the CNI Station Agreements, dated as of August
23, 2005, between subsidiaries of CNI and subsidiaries of PCC.
(iii) Letter Agreement, dated June 13, 2005, between CNI and PCC
with respect to the PCC's provision to CNI of certain satellite uplink and
related services.
(f) The Special Committee of the PCC Board has received (i) a written
opinion from an independent investment banking firm of national standing, dated
as of November 6, 2005, with respect to the fairness, from a financial point of
view, of the consideration to be offered to, distributed to or retained by, as
applicable, the Eligible Stockholders, which is in form and substance acceptable
to the Special Committee of the PCC Board and subject to the qualifications,
assumptions and other limitations provided
13
therein; and (ii) an independent investment banking firm of national standing,
dated as of November 6, 2005, as required by certain debt and preferred stock
instruments of PCC, that certain of the transactions contemplated by the
Transaction Agreements are fair, from a financial point of view, to PCC and its
Restricted Subsidiaries (as such term is defined in the applicable debt and
preferred stock instruments of PCC). True and correct copies of such opinions
have been furnished to NBCU.
5. Representations and Warranties of the Xxxxxx Stockholders. Each of the
Xxxxxx Stockholders, on behalf of itself only, hereby represents and warrants to
PCC and NBCU that on and as of the date hereof:
(a) Each of the Xxxxxx Stockholders that is an individual has full
legal right and capacity to execute and deliver each of the Transaction
Agreements to which he is a party and each of the Xxxxxx Stockholders that is
not an individual is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization and each of the Xxxxxx
Stockholders has all necessary power and authority to enter into each of the
Transaction Agreements to which it is a party, to carry out its obligations
thereunder and to consummate the transactions contemplated thereby. Each of the
Xxxxxx Stockholders that is not an individual is duly licensed or qualified to
do business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so licensed
or qualified and in good standing would not adversely affect the ability of such
Xxxxxx Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, each of the Transaction Agreements to which it is
a party. The execution and delivery by each Xxxxxx Stockholder of each of the
Transaction Agreements to which it is a party, the performance by each Xxxxxx
Stockholder of its obligations thereunder and the consummation by each Xxxxxx
Stockholder of the transactions contemplated thereby have been duly authorized
by all requisite action on the part of each Xxxxxx Stockholder and its
stockholders or partners, as the case may be. Each of the Transaction Agreements
to which it is a party has been or, upon execution, shall have been duly
executed and delivered by each Xxxxxx Stockholder, and (assuming due
authorization, execution and delivery by the other parties) constitutes or, upon
execution, shall constitute legal, valid and binding obligations of each Xxxxxx
Stockholder, enforceable against each Xxxxxx Stockholder in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency (including
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors' rights generally and subject to the effect of
general principles of equity (regardless of whether considered in a proceeding
at law or in equity).
(b) Assuming that all consents, approvals, authorizations and other
actions described in Section 5(c) have been obtained, all filings required by
Section 2(f)(ii) and (iii) have been made and any applicable waiting period has
expired or been terminated, and except as may result from any facts or
circumstances relating solely to any NBCU Entity, the execution, delivery and
performance by each Xxxxxx Stockholder of each of the Transaction Agreements to
which such Xxxxxx Stockholder is a party do not and will not (i) violate,
conflict with or result in the breach of the certificate of
14
incorporation or by laws (or similar organizational documents) of such Xxxxxx
Stockholder (other than Xx. Xxxxxx), (ii) conflict with or violate any law or
Governmental Order applicable to such Xxxxxx Stockholder or (iii) conflict with,
result in any breach of, constitute a default (or event which with the giving of
notice or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, acceleration or
cancellation of, any note, bond, mortgage or indenture, contract, agreement,
lease, sublease, license, permit, franchise or other instrument or arrangement
to which such Xxxxxx Stockholder or any of its subsidiaries is a party, except,
in the case of clauses (ii) and (iii), as would not materially and adversely
affect the ability of such Xxxxxx Stockholder to carry out its obligations
under, and to consummate the transactions contemplated by, each of the
Transaction Agreements to which such Xxxxxx Stockholder is a party.
(c) The execution, delivery and performance by each Xxxxxx Stockholder
of each of the Transaction Agreements to which a Xxxxxx Stockholder is a party
and the transactions contemplated thereby do not and will not require any
consent, approval, authorization or other order of, action by, filing with or
notification to, any Governmental Authority, except (i) the pre-merger
notification and waiting period requirements of the HSR Act and the approval by
the FCC pursuant to Section 310(d) of the Communications Act in the event of the
exercise of the Call Right, the conversion of a sufficient number of shares of
Series B Preferred Stock such that, following such conversion, a Xxxxxx
Stockholder is no longer the Single Majority Stockholder of PCC (as that term is
defined by the FCC) and the purchase of the Class B Common Stock by PCC pursuant
to the PCC Stock Purchase Agreement (ii) where failure to obtain such consent,
approval, authorization or action, or to make such filing or notification, would
not prevent or materially delay the consummation by such Xxxxxx Stockholder of
the transactions contemplated by each of the Transaction Agreements, (iii) as
may be necessary as a result of any facts or circumstances relating solely to
the other parties hereto or (iv) filings with the Securities and Exchange
Commission pursuant to Section 16 of the Securities Exchange Act of 1934.
6. Additional Representations and Warranties of NBCU Entities. Each of the
NBCU Entities, on behalf of itself only, hereby represents and warrants to PCC
and the Xxxxxx Stockholders on and as of the date hereof:
(a) Each of the NBCU Entities is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and each
of the NBCU Entities has all necessary power and authority to enter into each of
the Transaction Agreements to which it is a party, to carry out its obligations
thereunder and to consummate the transactions contemplated thereby. Each of the
NBCU Entities is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensing or qualification necessary,
except to the extent that the failure to be so licensed or qualified and in good
standing would not adversely affect the ability of such NBCU Entity to carry out
its obligations under, and to consummate the transactions contemplated by, each
of the Transaction Agreements to which it is a party. The execution and delivery
by each of the NBCU Entities of each of the Transaction
15
Agreements to which it is a party, the performance by each NBCU Entity of its
obligations thereunder and the consummation by each NBCU Entity of the
transactions contemplated thereby have been duly authorized by all requisite
action on the part of each NBCU Entity and its stockholders. Each of the
Transaction Agreements to which it is a party has been or, upon execution, shall
have been duly executed and delivered by each NBCU Entity, and (assuming due
authorization, execution and delivery by the other parties) constitutes or, upon
execution, shall constitute legal, valid and binding obligations of each NBCU
Entity, enforceable against each NBCU Entity in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency (including all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting creditors' rights generally and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
(b) Assuming that all consents, approvals, authorizations and other
actions described in Section 6(c) have been obtained and any applicable waiting
period has expired or been terminated, and except as may result from any facts
or circumstances relating solely to PCC and the Xxxxxx Stockholders, the
execution, delivery and performance of each of the Transaction Agreements to
which any NBCU Entity is a party do not and will not (i) violate, conflict with
or result in the breach of the certificate of incorporation or by laws (or
similar organizational documents) of such NBCU Entity, (ii) conflict with or
violate any law or Governmental Order applicable to such NBCU Entity or (iii)
conflict with, result in any breach of, constitute a default (or event which
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to others any rights of termination,
acceleration or cancellation of, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which such NBCU Entity or any of its subsidiaries
is a party, except, in the case of clauses (ii) and (iii), as would not
materially and adversely affect the ability of such NBCU Entity to carry out its
obligations under, and to consummate the transactions contemplated by, each of
the Transaction Agreements to which such NBCU Entity is a party.
(c) The execution, delivery and performance by each of the NBCU
Entities of each of the Transaction Agreements to which it is a party and the
transactions contemplated thereby do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to, any Governmental Authority, except (i) the pre-merger
notification and waiting period requirements of the HSR Act and the approval by
the FCC pursuant to Section 310(d) of the Communications Act in the event of the
exercise of the Call Right and/or the conversion of a sufficient number of
shares of Series B Preferred Stock such that, following such conversion, a
Xxxxxx Stockholder is no longer the Single Majority Stockholder of PCC (as that
term is defined by the FCC), (ii) where failure to obtain such consent,
approval, authorization or action, or to make such filing or notification, would
not prevent or materially delay the consummation by such NBCU Entity of the
transactions contemplated by each of the Transaction Agreements or (iii) as may
be necessary as a result of any facts or circumstances relating solely to the
other parties hereto.
16
(d) Each NBCU Entity that may acquire any securities of PCC pursuant to
any of the Transaction Agreements: (i) will acquire such securities of PCC
solely for its own account for the purpose of investment and not with a view to,
or for resale in connection with, any distribution thereof in violation of the
Securities Act of 1933, as amended (the "Securities Act"); (ii) has had access
to the financial and other information concerning PCC and such securities; (iii)
has received and reviewed such reports, schedules, registration statements and
proxy statements filed by PCC with the Securities and Exchange Commission and
such financial statements that it has deemed appropriate; (iv) is an "accredited
investor" as defined in Rule 501(a) under the Securities Act; (v) has such
knowledge, sophistication, and experience in business and financial matters so
as to be capable of evaluating the risks of such investment in PCC and such
securities; (vi) has so evaluated the merits and risks of such investment; (vii)
is able to bear the economic risk of such investment; and (viii) is able to
afford a complete loss of such investment.
(e) Neither Xx. Xxxxxxx, nor any member of his immediate family, nor
any entity owned or controlled by him (collectively, but not including Xx.
Xxxxxxx, the "Xxxxxxx Group") is, or during his employment with the Company will
be, an agent of NBCU or of any subsidiary or affiliate of NBCU. Furthermore,
there are, and during his employment with the Company will be, no commitments,
arrangements or understandings, written or oral, between Xx. Xxxxxxx or any
members of the Xxxxxxx Group, on the one hand, and NBCU or any subsidiary or
affiliate of NBCU on the other hand, pursuant to which Xx. Xxxxxxx or any member
of the Xxxxxxx Group has or will have any legal or financial obligation to NBCU
or any subsidiary or affiliate of NBCU, or is or will be entitled to receive now
or in the future from NBCU or any subsidiary or affiliate of NBCU any
compensation or benefits of any kind, or other valuable consideration (including
but not limited to any offer of future positions with NBCU or any of its
subsidiaries or affiliates), other than (i) as set forth in the Separation
Agreement between Xx. Xxxxxxx and NBCU, a copy of which has been furnished to
the Company with dollar amounts redacted, (ii) pursuant to benefit plans in
which Xx. Xxxxxxx is vested, specifically the GE Pension Plan and the GE Savings
and Security Plan (401(k) Plan), (iii) as might be received by or due to Xx.
Xxxxxxx or any member of the Xxxxxxx Group through ordinary arms' length
consumer transactions involving GE or its affiliates, including transactions in
publicly-traded debt and equity securities of GE or its affiliates in the public
market (so long as any such transaction does not cause Xx. Xxxxxxx or any member
of the Xxxxxxx Group to have an attributable interest in, or attributable
relationship with, NBCU or its subsidiaries or affiliates under the FCC's rules)
or (iv) as might be received by or due to Xx. Xxxxxxx or any member of the
Xxxxxxx Group through ordinary consumer transactions prior to the date hereof
that were generally available only to employees of GE or its affiliates during
the term of their employment with GE or any of its affiliates. Notwithstanding
the foregoing, if GE were in the future to acquire a company where an immediate
family member of Xx. Xxxxxxx works, this provision shall not require such
company to terminate his or her employment or Xx. Xxxxxxx'x immediate family
member to terminate his or her employment with such company. The word
"affiliates" as used in this provision is not intended to refer to broadcast
stations which may be affiliated with television networks owned and operated by
NBCU or any subsidiary or affiliate of NBCU.
17
7. Miscellaneous.
(a) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties. Transmission by telecopier of an
executed counterpart of this Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart.
(b) Entire Agreement. The Transaction Agreements and the Exhibits and
Schedules thereto contain the entire agreement among the parties thereto with
respect to the subject matter thereof, and supersede all previous agreements,
negotiations, discussions, writings, understandings, commitments and
conversations with respect to such subject matter, and there are no agreements
or understandings among the parties with respect to such subject matter other
than those set forth or referred to therein.
(c) Governing Law. 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.
(d) Assignability. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns;
provided, however, that no party hereto may assign its respective rights or
delegate its respective obligations under this Agreement without the express
prior written consent of each of the other parties hereto; provided further that
any Xxxxxx Stockholder may assign this Agreement to a Xxxxxx Estate Planning
Affiliate (as defined in the Stockholder Agreement).
(e) Third Party Beneficiaries. The provisions of this Agreement are
solely for the benefit of the parties and their successors and permitted assigns
and are not intended to confer upon any Person except the parties hereto and
their successors and permitted assigns any rights or remedies hereunder, and
there are no third party beneficiaries of this Agreement, and this Agreement
shall not provide any third Person with any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
18
(f) Notices. Except as otherwise expressly provided herein, all
notices, demands and requests required or permitted to be given under the
provisions of this Agreement shall be in writing and shall be deemed to have
been duly delivered and received (a) on the date of personal delivery, (b) on
the date of receipt (as shown on the return receipt) if mailed by registered or
certified mail, postage prepaid and return receipt requested, (c) on the next
business day after delivery to a courier service that guarantees delivery on the
next business day if the conditions to the courier's guarantee are complied
with, or (d) on the date of receipt (if such date is a business day, otherwise
on the next business day) by telecopy, in each case addressed as follows:
If to Xx. Xxxxxx, Second Crystal or Xxxxxx Enterprises:
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxxx Xxxxx, 00X
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
With a copy, which shall not constitute notice, to:
Wiley, Rein & Fielding LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
If to NBCU, NBC Palm Beach I or NBC Palm Beach II:
NBC Universal, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
With a copy, which shall not constitute notice, 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
19
If to PCC:
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000-0000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
With a copy, which shall not constitute notice, 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
Fax: 000-000-0000
and
Holland & Knight LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Any party may, by notice to the other parties, change the address to which such
notices are to be given.
(g) 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.
(h) Publicity. Prior to any public announcement or disclosure regarding
any of the transactions contemplated by this Agreement or any of the Transaction
Agreements by any of the parties to this Agreement, such party shall provide the
other parties to this Agreement with a copy of the proposed public announcement
or disclosure, and the parties shall consult with each other regarding the
content of such
20
announcement or disclosure. Except as required by applicable law
(including applicable securities laws) or the rules of the American Stock
Exchange, no party to this Agreement shall make, or cause to be made, any press
release or other public announcement regarding any of such transactions without
the prior consent of each of the other parties to this Agreement.
(i) Expenses. Except as expressly provided herein or in another
Transaction Agreement, each party shall each bear its own costs and expenses
(including legal, accounting and broker fees and expenses) incurred in
connection with this Agreement, the other Transaction Agreements and the
transactions contemplated hereby or thereby.
(j) Waivers of Default. Waiver by any party of any default by any other
party of any provision of this Agreement shall not be deemed a waiver by the
waiving party of any subsequent or other default, nor shall it prejudice the
rights of any other party.
(k) Amendments. No provisions of this Agreement shall be deemed waived,
amended, supplemented or modified by any party, unless such waiver, amendment,
supplement or modification is in writing and signed by the authorized
representative of the party against whom such waiver, amendment, supplement or
modification it is sought to be enforced.
(l) Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY
PROVIDED IN A TRANSACTION AGREEMENT, NONE OF THE PARTIES HERETO MAKES ANY
REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY OF THE TRANSACTIONS (INCLUDING ANY CONSENTS OR APPROVALS REQUIRED
IN CONNECTION HEREWITH OR THEREWITH) OR THE BUSINESS, ASSETS, CONDITION OR
PROSPECTS (FINANCIAL OR OTHERWISE) OF, OR ANY OTHER MATTERS INVOLVING, THE
ASSETS, BUSINESS OR LIABILITIES OF PCC, ITS SUBSIDIARIES OR THE TELEVISION
STATIONS OWNED BY PCC.
(m) Interpretation. In the Transaction Agreements, unless otherwise
specified or where the context otherwise requires:
(i) the Section and paragraph headings contained in such
Transaction Agreements are for reference purposes only and shall not affect in
any way the meaning or interpretation of such Transaction Agreements;
(ii) a reference to a Recital is to the relevant Recital to such
Transaction Agreement, to a Section is to the relevant Section of such
Transaction Agreement and to an Exhibit is to the relevant Exhibit to such
Transaction Agreement;
(iii) words importing any gender shall include other genders;
(iv) words importing the singular only shall include the plural
and vice versa;
21
(v) the words "include", "includes" or "including" shall be deemed
to be followed by the words "without limitation";
(vi) the words "hereof", "herein", "hereunder" and "herewith" and
words of similar import shall, unless otherwise stated, be construed to refer to
such Transaction Agreement as a whole and not to any particular provision of
such Transaction Agreement;
(vii) references to any Person shall include such Person's
successors and permitted assigns;
(viii) the parties to the Transaction Agreements have participated
jointly in the negotiation and drafting of the Transaction Agreements to which
they are parties, and, in the event an ambiguity or question of intent or
interpretation arises, the Transaction Agreements shall be construed as if
drafted jointly by the parties thereto, and no presumption or burden of proof
shall arise favoring or disfavoring any party thereto by virtue of the
authorship of any provisions of the Transaction Agreements; and
(ix) unless otherwise expressly provided therein, any contract or
law defined or referred to therein or in any contract that is referred to
therein means such contract or law as from time to time amended, modified or
supplemented, including (in the case of a contract) by waiver or consent and (in
the case of a law) by succession of comparable successor laws to all attachments
thereto and instruments incorporated therein, and any reference in the
Transaction Agreement to a law shall be deemed to include any rules and
regulations promulgated thereunder.
[Remainder of page intentionally left blank]
22
IN WITNESS WHEREOF, the parties hereby have executed this Master Transaction
Agreement as of the date first above written.
/s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
SECOND XXXXXXX XXXXXXX LIMITED PARTNERSHIP
By: Xxxxxx Enterprises, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Operating Officer
XXXXXX MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
NBC UNIVERSAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
NBC PALM BEACH INVESTMENT I, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director and President
NBC PALM BEACH INVESTMENT II, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director and President
List of Exhibits
Exhibit A Series B Certificate of Designation
Exhibit B Call Agreement
Exhibit C PCC Stock Purchase Agreement
Exhibit D Written Consent
Exhibit E PMC Management Agreement
Exhibit F Resignation Agreement
Exhibit G Split Dollar Agreement
Exhibit H Collateral Assignment
Exhibit I Xxxxxxx Employment Agreement
Exhibit J Xxxxxxx Employment Agreement
Exhibit K Xxxxxx Noncompete Agreement
Exhibit L Xxxxxxx Noncompete Agreement
Exhibit M Affiliation Agreement
Exhibit N Settlement Agreement
Exhibit O Amended and Restated Investment Agreement
Exhibit P Stockholder Agreement
Exhibit Q Registration Rights Agreement Amendment
Exhibit R Escrow Agreement
Schedule 4(d)
A. The following documents are required to be filed with the FCC pursuant to
Section 73.3613 of the FCC's rules:
1. Master Transaction Agreement
2. Series B Certificate of Designation
3. Call Agreement
4. PCC Stock Purchase Agreement
5. PMC Management Agreement
6. Resignation Agreement
7. Xxxxxx Noncompete Agreement
8. Affiliation Agreement
9. Settlement Agreement
10. Amended and Restated Investment Agreement
11. Stockholder Agreement
12. Registration Rights Agreement Amendment
B. PCC will make all required filings under the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended.
C. The following documents are required to be filed with the Secretary of State
of the State of Delaware:
1. Series B Certificate of Designation
2. Certificate of Amendment relating to the increase in the
authorized number of shares of Common Stock
