VOTING AND SUPPORT AGREEMENT
Exhibit 10.2
Execution Version
This VOTING AND SUPPORT AGREEMENT (this “Agreement”) is entered into as of March 21, 2014, by and among LIN Media LLC, a Delaware limited liability company (“Xxxxx”), Media General, Inc., a Virginia corporation (“Mercury”), Mercury New Holdco, Inc., a Virginia corporation (“New Holdco”), and Xxxxxx XXX SBS L.P., a Delaware limited partnership (the “Shareholder”).
W I T N E S S E T H:
WHEREAS, as of the date of this Agreement, the Shareholder is the record and “beneficial owner” (as defined under Rule 13d-3 under the Exchange Act) of the Xxxxx Class C Shares (the “Subject Shares”) set forth opposite the Shareholder’s name on Schedule A;
WHEREAS, concurrently herewith, Mercury, New Holdco, Mercury Merger Sub 1, Inc., a Virginia corporation and a direct, wholly owned subsidiary of New Holdco (“Merger Sub 1”), Mercury Merger Sub 2, LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of New Holdco (“Merger Sub 2”), and Xxxxx are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the “Merger Agreement”), pursuant to which Mercury and Xxxxx wish to effect a strategic business combination by means of (a) a merger of Merger Sub 1 with and into Mercury (the “First Merger”), with Mercury being the surviving company in the First Merger, and (b) a merger of Merger Sub 2 with and into Xxxxx (the “Second Merger”, and together with the First Merger, the “Mergers”, and the effective time of the Second Merger, the “Second Merger Effective Time”), with Xxxxx being the surviving limited liability company in the Second Merger;
WHEREAS, the affirmative vote of (a) holders of a majority of the votes entitled to be cast by the holders of the outstanding Xxxxx Class A Shares and the Xxxxx Class C Shares, voting together as a single class, and (b) holders of a majority of the outstanding Xxxxx Class B Shares, voting as a single class, are the only votes of the holders of any class or series of Xxxxx’ limited liability company interests necessary to approve and adopt the Merger Agreement;
WHEREAS, pursuant to the Merger Agreement, at the Second Merger Effective Time, each Xxxxx Common Share issued and outstanding immediately prior to the Second Merger Effective Time, other than any Xxxxx Cancelled Shares and Xxxxx Dissenting Shares, shall automatically be converted, at the election of the holder thereof in accordance with, and subject to, the terms, conditions and procedures set forth in the Merger Agreement, into the right to receive either the Cash Election Consideration or the Stock Election Consideration, subject to pro ration as provided in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Mercury to enter into the Merger Agreement, and as inducement and in consideration therefor, Mercury has required that the Shareholder agree, and the Shareholder has agreed, in its capacity as a shareholder of Xxxxx, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises, representations, warranties, covenants and agreements contained in this Agreement, the parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. For purposes of this Agreement, capitalized terms used in this Agreement that are defined in the Merger Agreement but not in this Agreement shall have the respective meanings ascribed to them in the Merger Agreement.
SECTION 1.2 Other Definitions. For purposes of this Agreement:
(a) “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise. For purposes of this Agreement, neither Xxxxx nor Mercury shall be deemed to be an Affiliate of the Shareholder.
(b) “Representatives” shall mean, with respect to any Person, such Person’s officers, directors, employees, accountants, consultants, legal counsel, financial advisors, agents and other representatives.
(c) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(d) “Voting Period” means the period from and including the date of this Agreement through and including the earlier to occur of (i) the Second Merger Effective Time, and (ii) the termination of the Merger Agreement in accordance with its terms.
(e) “Transfer” means (i) any direct or indirect sale, assignment, disposition or other transfer, either voluntary or involuntary, of any capital stock or limited liability company interests or any interest in any capital stock or limited liability company interests or (ii) in respect of any capital stock or limited liability company interests or interest in any capital stock or limited liability company interests, to enter into any swap or other agreement, transaction or series of transactions, in each case that has an exercise or conversion privilege or a settlement or payment mechanism determined with reference to, or derived from the value of, limited liability company interests of Xxxxx, as applicable, and that xxxxxx or transfers, in whole or in part, directly or indirectly, the economic consequences of such limited liability company interest or interest in limited liability company interest, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise; provided, that no Transfer shall be deemed to have occurred of any limited liability company interest as a result of the entry into, modification of or existence of any bona fide pledge of limited liability company interest in connection with a secured borrowing transaction, the pledgee with respect to which is
a financial institution in the business of engaging in secured lending and similar transactions and which has entered into such transaction in the ordinary course of business, or any foreclosure under any such pledge.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
SECTION 2.1 Agreement to Vote.
(a) The Shareholder hereby agrees that during the Voting Period, at any meeting of the shareholders of Xxxxx, however called, or at any adjournment or postponement thereof, or in connection with any written consent of the shareholders of Xxxxx or in any other circumstances upon which a vote, consent or other approval of all or some of the shareholders of Xxxxx is sought with respect to the matters described in this Section 2.1, the Shareholder shall vote (or cause to be voted), or execute consents with respect to, as applicable, all of the Subject Shares owned by the Shareholder as of the applicable record date (x) in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Second Merger, and (y) against each of the matters set forth in clauses (i), (ii), (iii) and (iv) below, whether such vote or consent is required or requested pursuant to applicable Law or otherwise:
(i) any Acquisition Proposal with respect to Xxxxx or any other merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by Xxxxx or any other business combination involving Xxxxx or any of its Subsidiaries or any merger agreement or other definitive agreement with respect to any of the foregoing, in each case, other than the Second Merger and the other transactions contemplated by the Merger Agreement and other than the Merger Agreement;
(ii) any action or proposal to amend the Xxxxx Organizational Documents;
(iii) any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any material respect of any covenant, representation or warranty or any other obligation or agreement of Xxxxx contained in the Merger Agreement or of the Shareholder contained in this Agreement; and
(iv) any action, proposal, transaction or agreement involving Xxxxx or any of its Subsidiaries that is intended or would reasonably be expected to prevent, impede, frustrate, interfere with, delay, postpone or adversely affect the consummation of the Second Merger or the other transactions contemplated by the Merger Agreement.
(b) With respect to any meeting of the shareholders of Xxxxx held during the Voting Period, the Shareholder shall, or shall cause the holder of record of its Subject Shares on any applicable record date to, appear at such meeting or otherwise cause its Subject Shares to be counted as present thereat for purposes of establishing a quorum. Any vote required to be cast or consent required to be executed pursuant to this Section 2.1 shall be cast or executed in accordance with the applicable procedures relating thereto so as to ensure that it is duly counted for purposes of recording the results of that vote or consent.
SECTION 2.2 Grant of Irrevocable Proxy. The Shareholder hereby irrevocably appoints Mercury and any of its respective designees, and each of them individually, as the Shareholder’s proxy, with full power of substitution and resubstitution, to vote or execute consents during the Voting Period, with respect to the Subject Shares as of the applicable record date, in each case solely to the extent and in the manner specified in Section 2.1 (the “Proxy Matters”). This proxy is given to secure the performance of the duties of the Shareholder under this Agreement. The Shareholder shall not directly or indirectly grant any Person any proxy (revocable or irrevocable), power of attorney or other authorization with respect to any of the Subject Shares that is inconsistent with Section 2.1 or this Section 2.2. It is expressly agreed that the proxy granted herein shall survive beyond the eleventh month after the date hereof to the extent the Voting Period is still in effect.
SECTION 2.3 Nature of Irrevocable Proxy. The proxy granted pursuant to Section 2.2 by the Shareholder shall be irrevocable during the Voting Period, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by the Shareholder with regard to the Shareholder’s Subject Shares in respect of the Proxy Matters, and the Shareholder acknowledges that the proxy constitutes an inducement for Mercury to enter into the Merger Agreement. The proxy granted by the Shareholder is a durable proxy and shall survive the bankruptcy, dissolution, death or incapacity of the Shareholder. The proxy granted hereunder shall terminate only upon the expiration of the Voting Period.
ARTICLE III
PRE-CLOSING COVENANTS
SECTION 3.1 Restriction on Transferring Subject Securities.
(a) The Shareholder agrees that it shall not, during the Voting Period, Transfer, or cause or permit the Transfer of, any or all of the Subject Shares, or any voting rights with respect thereto.
(b) The restrictions set forth in Section 3.1(a) shall not apply to:
(i) the Transfer of the Subject Shares pursuant to the Second Merger;
(ii) any Transfer by the Shareholder of any or all of the Subject Shares that is approved in writing by Mercury; or
(iii) any Transfer by the Shareholder of any or all of the Subject Shares to one or more Affiliates of the Shareholder; provided that (x) such Affiliate shall concurrently with such Transfer execute a customary joinder in form and substance reasonably satisfactory to Mercury agreeing to be a “Shareholder” hereunder, and (y) the Shareholder shall be responsible for such transferee’s (and its direct or indirect subsequent transferees’) performance of its (or their) obligations as a Shareholder under this Section 3.1.
(c) The Shareholder agrees with, and covenants to, New Holdco and Mercury that the Shareholder shall not request that Xxxxx register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any or all of the Shareholder’s Subject Shares, unless such Transfer is made in compliance with this Agreement.
(d) Any Transfer or attempted Transfer of the Subject Shares or voting rights with respect thereto in violation of Section 3.1 shall, to the fullest extent permitted by Law, be null and void ab initio, and Xxxxx shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported transaction on the share register of Xxxxx.
SECTION 3.2 No Shop Obligations of the Shareholder.
(a) The Shareholder shall, and shall cause each of its Representatives to, immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry in respect of Xxxxx. The Shareholder agrees that, during the Voting Period, the Shareholder shall not, and shall use its reasonable best efforts to cause its Representatives acting on its behalf not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal with respect to Xxxxx or Acquisition Inquiry with respect to Xxxxx, (ii) furnish any non-public information regarding Xxxxx or any of its Subsidiaries (or the Shareholder’s Subject Shares, or any interest therein) to any Person who has made an Acquisition Proposal with respect to Xxxxx or Acquisition Inquiry with respect to Xxxxx, (iii) engage in discussions or negotiations with any Person who has made any Acquisition Proposal with respect to Xxxxx or Acquisition Inquiry with respect to Xxxxx (other than discussions in the ordinary course of business that are unrelated to an Acquisition Proposal or Acquisition Inquiry, which shall be permitted), or (iv) enter into any letter of intent, agreement in principle, merger, acquisition, purchase or joint venture agreement or other similar agreement for any Acquisition Transaction with respect to Xxxxx (“Restricted Activities”). The Shareholder shall promptly notify Mercury and Xxxxx orally and in writing of any such Acquisition Proposal or Acquisition Inquiry received by the Shareholder (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof and all modifications thereto).
(b) Notwithstanding the foregoing, solely to the extent that Xxxxx is permitted to engage in any Restricted Activities pursuant to Section 6.10(c) of the Merger Agreement the Shareholder and its Representatives may participate in such Restricted Activities, provided that (i) the Shareholder has not breached this Section 3.2 and (ii) such action by the Shareholder and its Representatives would be permitted to be taken by Xxxxx pursuant to Section 6.10(b) or Section 6.10(c) of the Merger Agreement.
SECTION 3.3 No Conversion of Xxxxx Common Shares. The Shareholder agrees that, without the prior written consent of Mercury, the Shareholder shall not, during the Voting Period, convert, or permit or cause to be converted any Xxxxx Class C Shares held of record or beneficially owned by the Shareholder into Xxxxx Class A Shares. The Shareholder agrees with, and covenants to, New Holdco and Mercury that the Shareholder shall not request that Xxxxx register the conversion (book-entry or otherwise) of any certificate or uncertificated interest representing any Xxxxx Class C Shares Subject Shares into Xxxxx Class A Shares. Any conversion of Xxxxx Class C Shares in violation of this Section 3.3 shall, to the fullest extent permitted by Law, be null and void ab initio, and Xxxxx shall not, and shall instruct its transfer
agent and other third parties not to, record or recognize any such purported conversion on the share register of Xxxxx.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.1 General Covenants. The Shareholder agrees that the Shareholder shall not:
(a) enter into any agreement, commitment, letter of intent, agreement in principle, or understanding with any Person or take any other action that violates or conflicts with the Shareholder’s covenants and obligations under this Agreement; or
(b) take any action that restricts or otherwise adversely affects the Shareholder’s legal power, authority and right to comply with and perform the Shareholder’s covenants and obligations under this Agreement.
SECTION 4.2 Cooperation. The Shareholder shall reasonably cooperate with Xxxxx and Mercury in connection with Xxxxx’ and Mercury’s efforts to make any necessary filings and submissions with any Governmental Entity necessary to be made in connection with the transactions contemplated by the Merger Agreement, and shall provide to Xxxxx and/or Mercury reasonably promptly any information regarding the Shareholder and its Affiliates as shall be reasonably requested by Xxxxx or Mercury in connection with such efforts. The Shareholder shall make as promptly as practicable all necessary filings and submissions required to be made by it with any Governmental Entity in connection with the transactions contemplated by the Merger Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
The Shareholder hereby represents and warrants to Xxxxx and Mercury as follows:
SECTION 5.1 Authorization. The Shareholder is a legal entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and has all requisite corporate or other legal entity power and authority and has taken all corporate or other legal entity actions necessary to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly executed and delivered by such Shareholder and, assuming it has been duly and validly authorized, executed and delivered by the other parties hereto, constitutes a legal, valid and binding obligation of such Shareholder, enforceable against the Shareholder in accordance with its terms, except to the extent that enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii) general principles of equity.
SECTION 5.2 Ownership of Subject Shares. As of the date hereof, the Shareholder does not own, beneficially or otherwise, any Xxxxx Class C Shares other than the Subject Shares. As of the date hereof, except as set forth on Schedule A, the Shareholder is the sole record and
beneficial owner of all of the Subject Shares, free and clear of all Liens of every nature whatsoever (including any restriction on the right to vote or otherwise transfer such Subject Shares), except as provided under this Agreement or pursuant to any applicable restrictions on transfer under the Securities Act.
SECTION 5.3 Power to Dispose of Shares. The Shareholder has sole voting power, sole power to issue instructions with respect to the matters set forth in this Agreement, sole power of disposition with respect to dispositions contemplated by this Agreement, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shareholder’s Subject Shares, with no limitations, qualifications, or restrictions on such rights, subject only to applicable securities laws and the terms of this Agreement. Any proxies granted by the Shareholder in respect of any or all of its Subject Shares prior to and including the date hereof (except as set forth herein) in respect of the Proxy Matters have been revoked.
SECTION 5.4 No Conflicts. Except as set forth in the Merger Agreement (including, without limitation, filings as may be required under applicable securities laws) and any filing required under Section 13 or 16 under the Exchange Act, (x) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity or any other Person (other than such approvals of the Shareholder’s Affiliates as have been obtained on or prior to the date hereof) is necessary for the execution of this Agreement by the Shareholder and the performance by the Shareholder of its obligations hereunder, and (y) none of the execution and delivery of this Agreement by the Shareholder, or the consummation by the Shareholder of the transactions contemplated by this Agreement or compliance by the Shareholder with any of the provisions of this Agreement shall (i) conflict with or result in any breach of the organizational documents, if applicable, of the Shareholder, (ii) result in, give rise to or constitute a violation or breach of or a default (or any event which with notice or lapse of time or both would become a violation, breach or default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the Subject Shares pursuant to, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, contract, lease, license, permit, agreement, commitment, arrangement, understanding, or other obligation of any kind to which the Shareholder is a party or by which the Shareholder or any of its Subject Shares are bound, or (iii) violate any applicable law, rule, regulation, order, judgment, or decree applicable to the Shareholder, except for in each case under clauses (i) and (ii) as would not impair the Shareholder’s ability to perform its obligations under this Agreement.
SECTION 5.5 Transaction Fee. Except as otherwise disclosed by the Shareholder to Mercury in writing prior to the date of this Agreement, the Shareholder has not employed any investment banker, broker or finder in connection with the transactions contemplated by the Merger Agreement who might be entitled to any fee or any commission in connection with or upon consummation of the Merger or the transactions contemplated by this Agreement.
SECTION 5.6 Acknowledgement. The Shareholder understands and acknowledges that each of New Holdco, Mercury, Merger Sub 1 and Merger Sub 2 is entering into the Merger Agreement in reliance upon the Shareholder’s execution, delivery and performance of this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF MERCURY AND NEW HOLDCO
Each of Mercury and New Holdco hereby represents and warrants to the Shareholder as follows:
SECTION 6.1 Authorization. Mercury and New Holdco have all necessary legal capacity, corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by Mercury and New Holdco and, assuming it has been duly and validly executed and delivered by the other parties hereto, constitutes a legal, valid and binding obligation of Mercury and New Holdco, enforceable against each in accordance with the terms of this Agreement, except to the extent that enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii) general principles of equity.
SECTION 6.2 No Conflicts. Except as set forth in the Merger Agreement (including, without limitation, filings as may be required under applicable securities laws), (x) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity or any other Person is necessary for the execution of this Agreement by Mercury and New Holdco and the performance by Mercury and New Holdco of their respective obligations hereunder, and (y) none of the execution and delivery of this Agreement by Mercury and New Holdco, or the consummation by Mercury and New Holdco of the transactions contemplated by this Agreement or compliance by Mercury and New Holdco with any of the provisions of this Agreement shall (i) conflict with or result in any breach of the organizational documents of Mercury and New Holdco, (ii) conflict with, result in any violation of, require any consent under or constitute a default (whether with notice or lapse of time or both) under any of the terms, conditions or provisions of any note, contract, lease, license, permit, agreement, commitment, arrangement, understanding, mortgage, bond, indenture, or other obligation of any kind to which Mercury or New Holdco is a party or by which Mercury or New Holdco or any of their respective properties is bound; or (iii) violate any judgment, order, injunction, decree or award of any court, administrative agency or other Governmental Entity that is binding on Mercury or New Holdco or any of their respective properties, except for in each case under clauses (i) through (iii) as would not impair the ability of such party to perform its obligations under this Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1 This Agreement and all obligations of the parties hereunder shall automatically terminate upon the earlier of (a) the termination of the Merger Agreement in accordance with its terms, or (b) the expiration of the Voting Period. Upon the termination of this Agreement, none of the parties hereto shall have any rights or obligations hereunder and this Agreement shall become null and void and have no effect; provided, however, that Sections 8.3, and 8.7 through 8.13 shall survive termination of this Agreement. Notwithstanding the foregoing, termination of this Agreement shall not relieve any party from any liability, or prevent any party from seeking any remedies (at law or in equity) against any other party, for that party’s
breach of any of its representations, warranties, covenants or obligations under this Agreement prior such termination.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 No Agreement as Director or Officer. Notwithstanding any provision of this Agreement to the contrary, the Shareholder has entered into this Agreement in its capacity as a shareholder of Xxxxx, and nothing in this Agreement shall limit, restrict or otherwise affect Royal X. Xxxxxx, III in his capacity as a director of Xxxxx from acting in such capacity or voting in such capacity in his sole discretion on any matter, including in exercising rights under the Merger Agreement.
SECTION 8.2 Publication. The Shareholder hereby consents to and authorizes New Holdco, Mercury and/or Xxxxx to publish and disclose in any and all applicable filings with the SEC, the FCC or any other Governmental Entity, and any other announcements, disclosures or filings required by applicable Law, the Shareholder’s identity and ownership of the Subject Shares and the nature of the Shareholder’s commitments, arrangements and understandings pursuant to this Agreement and/or the Merger Agreement.
SECTION 8.3 Amendments, Waivers, etc. This Agreement may be amended by an instrument in writing signed on behalf of Mercury and the Shareholder. Any agreement on the part of any party hereto to any waiver of compliance with any representations, warranties, covenants or agreements contained in this Agreement shall be valid only if set forth in a written instrument signed on behalf of such party. The waiver by any party of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder.
SECTION 8.4 Enforcement of Agreement; Specific Performance. The Shareholder acknowledges and agrees that Mercury would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any non-performance, breach or threatened breach of this Agreement by the Shareholder could not be adequately compensated by monetary damages alone and that Mercury would not have any adequate remedy at law. Accordingly, each of Mercury and New Holdco shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to seek and obtain (a) enforcement of any provision of this Agreement by a decree or order of specific performance and (b) a temporary, preliminary and/or permanent injunction to prevent breaches or threatened breaches of any provisions of this Agreement without posting any bond or undertaking. The Shareholder further agrees that it shall not object to the granting of injunctive or other equitable relief on the basis that there exists adequate remedy at law. The Shareholder hereby expressly further waives (i) any defense in any action for specific performance that a remedy at law would be adequate or that an award of specific performance is not an appropriate remedy for any reason at law or in equity and (ii) any requirement under any Law to post security as a prerequisite to obtaining equity relief. The Shareholder agrees that Mercury’s initial choice of remedy will be to seek specific performance of this Agreement in accordance with its terms. If a court of competent jurisdiction denies such
relief, Mercury may seek alternative remedies, including damages in the same or another proceeding.
SECTION 8.5 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be deemed given (i) on the date of delivery if delivered personally or if sent via facsimile (with confirmation via express courier utilizing next-day service), (ii) on the earlier of confirmed receipt or the third (3rd) Business Day following the date of mailing if mailed by registered or certified mail (return receipt requested) or (iii) on the first (1st) Business Day following the date of dispatch if delivered utilizing next-day service by an express courier (with confirmation) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
(a) If to Mercury or New Holdco, addressed to it at:
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c/o Media General, Inc. | |
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with a copy (which shall not constitute notice) to: | |
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Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP | |
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Attention: |
Xxxxxx Xxxxxxx, Esq. |
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Facsimile: |
(000) 000-0000 |
(b) If to Xxxxx, addressed to it at:
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c/o LIN Media LLC |
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with a copy (which shall not constitute notice) to: |
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Weil, Gotshal & Xxxxxx LLP Xxxxx X. Xxxxxxx, Esq. |
(c) If to the Shareholder, addressed to it at:
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c/o Carson Private Capital Incorporated Xxxxxx, XX 00000 |
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with a copy (which shall not constitute notice) to: |
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Miller, Egan, Xxxxxx & Xxxxxx LLP 0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000 Xxxxxx, XX 00000 Attention: Xxxxx Xxxx Facsimile: (000) 000-0000 |
or to that other address as any party shall specify by written notice so given, and notice shall be deemed to have been delivered as of the date so telecommunicated or personally delivered.
SECTION 8.6 Headings; Titles. When a reference is made in this Agreement to Articles, Sections, or Schedules, such reference shall be to an Article or Section of or Schedule to this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” This Agreement shall not be interpreted or construed to require any person to take any action, or fail to take any action, if to do so would violate any applicable Law.
SECTION 8.7 Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of this invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. Upon determination that any term or other provision is invalid or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement as to affect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
SECTION 8.8 Entire Agreement. This Agreement (together with the Merger Agreement, to the extent referred to in this Agreement, and any documents delivered by the parties in connection herewith), constitutes the entire agreement among the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties, with respect to the subject matter of this Agreement.
SECTION 8.9 Assignment; Binding Effect; No Third Party Beneficiaries; Further Action. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties; provided that Mercury and New Holdco may assign their
respective rights, interests or obligations hereunder to one or more of its Subsidiaries. This Agreement shall be binding upon and shall inure to the benefit of New Holdco, Mercury, Xxxxx and their respective successors and assigns and shall be binding upon the Shareholder and its successors, assigns, heirs, executors and administrators. Notwithstanding anything contained in this Agreement to the contrary, nothing in this Agreement, expressed or implied, is intended to confer on any Person (other than, in the case of New Holdco, Xxxxx and Mercury, their respective successors and assigns and, in the case of the Shareholder, its successors, assigns, heirs, executors and administrators) any rights, remedies, obligations or liabilities under or by reason of this Agreement. The Shareholder, Mercury and New Holdco shall take any further action and execute any other instruments as may be reasonably requested by the other parties to this Agreement to effectuate the intent of this Agreement.
SECTION 8.10 Mutual Drafting. Each party has participated in the drafting of this Agreement, which each party acknowledges is the result of extensive negotiations between the parties. This Agreement shall not be deemed to have been prepared or drafted by any one party or another or any party’s attorneys.
SECTION 8.11 Governing Law and Consent to Jurisdiction. This Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) shall be governed and construed in accordance with the internal Laws of the Commonwealth of Virginia, without regard to any applicable conflicts of law principles that would result in the application of the Laws of any other jurisdiction. The parties hereto agree that 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 the United States District Court for the Eastern District of Virginia (or, if that court does not have jurisdiction, the Circuit Court for the City of Richmond, Virginia), and each of the parties hereby irrevocably consents to the exclusive 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 8.5 shall be deemed effective service of process on such party. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER IN CONTRACT OR TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.12 Counterparts; Facsimiles. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that each party need not sign the same counterpart.
SECTION 8.13 Liability. Except for any liability for claims, losses, damages, liabilities or other obligations arising out of an Shareholder’s failure to perform its obligations hereunder, Mercury agrees that the Shareholder (in its capacity as a shareholder of Xxxxx) will not be liable for claims, losses, damages, liabilities or other obligations resulting from or relating to the Merger Agreement, including any breach by Xxxxx of the Merger Agreement, and that Xxxxx shall not be liable for claims, losses, damages, liabilities or other obligations resulting from or related to the Shareholder’s failure to perform its obligations hereunder.
(Signature page follows)
IN WITNESS WHEREOF, Mercury, New Holdco, Xxxxx and the Shareholder have caused this Agreement to be duly executed as of the day and year first above written.
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MEDIA GENERAL, INC. | |
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By: |
/s/ Xxxxx X. Xxxxxxxx |
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Name: Xxxxx X. Xxxxxxxx | |
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Title: Senior Vice President and Chief Financial Officer | |
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MERCURY NEW HOLDCO, INC. | |
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By: |
/s/ Xxxxx X. Xxxxxxxx |
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Name: Xxxxx X. Xxxxxxxx | |
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Title: Treasurer | |
Signature Page to Voting and Support Agreement
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By: |
/s/ Xxxxxxx X. Xxxxxxxxxx |
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Name: Xxxxxxx X. Xxxxxxxxxx | |
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Title: Senior Vice President Chief Financial Officer | |
Signature Page to Voting and Support Agreement
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SHAREHOLDER: |
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XXXXXX XXX SBS L.P. |
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By: Xxxxxx Private Capital Incorporated |
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Its General Partner |
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By: |
/s/ Royal X. Xxxxxx, III |
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Name: Royal X. Xxxxxx, III |
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Title: President |
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Signature Page to Voting and Support Agreement
Schedule A
Ownership of Xxxxx Common Shares
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Shareholder |
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Shares of Xxxxx Class C Common |
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XXXXXX XXX SBS L.P. |
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1 share(1) |
(1) Such share may be deemed to be beneficially owned by Xxxxxx Private Capital Incorporated and Royal X. Xxxxxx, III.
