EXHIBIT 2
EXECUTION COPY
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
---- -------
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
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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 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 Stockholder in connection with the
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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).
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(b) NO CONFLICTS.
(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 thereafter and shall use commercially reasonable efforts to keep
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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
14
(or 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 same), (i) in such proportion as is
16
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, including
17
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 supplemented or amended Prospectus or until it
18
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 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
19
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
20
with a copy to:
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
and if to Liberty TelemundoNet, Inc.,
21
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 to certain rights, or to
22
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
23
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 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/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice Chairman of the Board and
Executive Officer
26
COUNCIL TREE HISPANIC
BROADCASTERS II, L.L.C.
By: /S/ XXXXX XXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
STOCK DESIGNATION
CERTIFICATE (COMMON OR SERIES NUMBER OF SHARES
NUMBER PREFERRED) REPRESENTED THEREBY
------ ---------- -------------------
B-1 Class B Common Stock 444,861*
PB-1 Series B Preferred 19,164*
Stock
A-5 Class A Common Stock 587,568**
PA-3 Series A Preferred 37,773**
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/ XXXXX XXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR SERIES REPRESENTED
NUMBER PREFERRED) THEREBY
------ ---------- -------
B-1 Class B Common Stock 444,861
PB-1 Series B Preferred 19,164
Stock
A-5 Class A Common Stock 587,568*
PA-3 Series A Preferred 37,773*
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 SERIES
NUMBER PREFERRED) REPRESENTED THEREBY
PA-4 Series A Preferred 14,809
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 SERIES REPRESENTED
NUMBER PREFERRED) THEREBY
A-3 Class A Common Stock 83,581
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/ XXXXX XXXX
-----------------------------------
Name: Xxxxx Xxxx
Title: Vice President
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR SERIES REPRESENTED
NUMBER PREFERRED) THEREBY
A-5 Class A Common Stock 587,568*
PA-3 Series A Preferred 37,773*
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/ XXXX X. XXXXX
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President, Corporate
Development
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR SERIES REPRESENTED
NUMBER PREFERRED) THEREBY
------ ---------- -------
PA-1 Series A Preferred 25,059
A-1 Class A Common Stock 235,779
PA-2 Series A Preferred 12,714*
A-4 Class A Common Stock 119,608*
-- Class A Common Stock 232,181**
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/ XXXXXX XXXXX
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Secretary
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR SERIES
NUMBER PREFERRED) REPRESENTED THEREBY
------ ---------- -------------------
PA-2 Series A Preferred 12,714
A-4 Class A Common Stock 119,608
-- Class A Common Stock 232,181*
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. XXXXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxxxx, President
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR SERIES REPRESENTED
NUMBER 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 SERIES REPRESENTED
NUMBER 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:
----------------------------------------------
Xxxxxxx (Xxxxxxxxx) Bron, its Manager
By:
----------------------------------------------
Xxxxxx X. Xxxxxxxxxx, its Manager
STOCK DESIGNATION NUMBER OF SHARES
CERTIFICATE (COMMON OR SERIES REPRESENTED
NUMBER 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 SERIES REPRESENTED
NUMBER 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 SERIES REPRESENTED
NUMBER 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 SERIES REPRESENTED
NUMBER 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
