CALL RIGHT TRANSFER AGREEMENT
CALL RIGHT TRANSFER AGREEMENT (this "Agreement") dated February 22,
2007, among NBC Palm Beach Investment II, Inc., a California corporation ("Palm
Beach II"), NBC Universal, Inc., a Delaware corporation ("NBCU," and together
with Palm Beach II, the "NBCU Entities"), and CIG Media LLC ("CM"), a Delaware
limited liability company controlled by Citadel Limited Partnership, an Illinois
limited partnership ("CLP").
W I T N E S S E T H
WHEREAS, on November 7, 2005, Xx. Xxxxxx X. Xxxxxx, Second Xxxxxxx
Xxxxxxx Limited Partnership, a Nevada limited partnership, Xxxxxx Enterprises,
Inc., a Nevada corporation (collectively, the "Call Stockholders") and Palm
Beach II entered into a Call Agreement (the "Call Agreement"; capitalized terms
used herein and not otherwise defined have the meanings ascribed to such terms
in the Call Agreement), pursuant to which the Call Stockholders irrevocably
granted Palm Beach II the Call Right to purchase from the Call Stockholders all
of the Call Shares during the Call Period;
WHEREAS, contemporaneously with the execution of the Call Agreement,
the Call Stockholders, NBCU and The Bank of New York (the "Escrow Agent")
entered into an Escrow Agreement (the "Escrow Agreement"), pursuant to which the
Call Stockholders deposited 15,455,062 shares of Class A Common Stock owned by
the Call Stockholders and NBCU deposited cash in the amount of $3,863,765.50
(the "Escrow Deposit") with the Escrow Agent;
WHEREAS, contemporaneously with the execution of the Call Agreement and
the Escrow Agreement, Xx. Xxxxxx X. Xxxxxx, NBCU and ION Media Networks, Inc.
(f/k/a Xxxxxx Communications Corporation), a Delaware corporation (the
"Company"), entered into a Xxxxxx Consulting and Noncompetition Agreement (the
"Xxxxxx Noncompete Agreement") and Xx. Xxxx X. Xxxxxxx and NBCU entered into a
Xxxxxxx Noncompetition Agreement (the "Xxxxxxx Noncompete Agreement," and
together with the Xxxxxx Noncompete Agreement, the "Noncompete Agreements"),
pursuant to which NBCU agreed to make certain payments to the Company, Xx.
Xxxxxx X. Xxxxxx and Xx. Xxxx X. Xxxxxxx under the terms and condition set forth
therein;
WHEREAS, in connection with a potential restructuring (the
"Transaction") of the Company's ownership and capital structure proposed by CLP
and NBCU in a letter to the Company, dated January 17, 2007, including a term
sheet attached thereto (as the same may be amended, restated, supplemented or
otherwise modified from time to time), the NBCU Entities wish to assign all of
their rights and obligations under the Call Agreement, the Escrow Agreement and
the Noncompete Agreements to CM, and CM wishes to assume all of the rights and
obligations of the NBCU Entities under the Call Agreement, Escrow Agreement and
the Noncompete Agreements, pursuant to Section 5.6 of the Call Agreement,
Section 11 of the Escrow Agreement, Section 8 of the Xxxxxx Noncompete Agreement
and Section 7 of the Xxxxxxx Noncompete Agreement, respectively;
WHEREAS, on February 16, 2007 the Board of Directors approved CM as the
Permitted Transferee of the Call Right pursuant to Section 2.5 of the Call
Agreement; and
WHEREAS, effective upon CM's acquisition of Class B Common Stock
included in the Call Shares at the Call Closing, that certain PMC Management and
Proxy Agreement, dated November 7, 2005, among the Company, Xxxxxx Management
Corporation, a Nevada corporation ("PMC"), Xx. Xxxxxx X. Xxxxxx and certain of
the Company's subsidiaries (collectively, the "Station Subsidiaries") listed on
the signature page thereto, and the voting control of PMC over the Station
Subsidiaries shall terminate.
NOW THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Action" means any claim, demand, action, suit, arbitration,
proceeding or investigation by or before any Governmental Authority.
"Agreement" has the meaning assigned to it in the Preamble.
"Assignment Closing" has the meaning assigned to it in Section 2.3
hereof.
"Assignment Date" has the meaning assigned to it in Section 2.3
hereof.
"Call Agreement" has the meaning assigned to it in the Recitals.
"Call Stockholders" has the meaning assigned to it in the Recitals.
"CLP" has the meaning assigned to it in the Preamble.
"CM" has the meaning assigned to it in the Preamble.
"Company" has the meaning assigned to it in the Recitals.
"Definitive Documentation" means the agreements to be executed in
connection with the Transaction by the Company, any of the parties hereto
or their respective Affiliates at or prior to the Assignment Date, in each
case in form and substance reasonably satisfactory to such parties.
"Escrow Agent" has the meaning assigned to it in the Recitals.
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"Escrow Agreement" has the meaning assigned to it in the Recitals.
"Escrow Deposit" has the meaning assigned to it in the Recitals.
"Xxxxxxx Noncompete Agreement" has the meaning assigned to it in the
Recitals.
"Law" means any federal, state, provincial, local, foreign or similar
statute, law, ordinance, regulation, rule, code (having the force of law),
requirement or interpretation or rule of law of any Governmental Authority
or any Order.
"Material Adverse Effect" means any event, change, circumstance or
effect that, individually or when taken together with all other such
events, changes, circumstances or effects, is or would reasonably be
expected to be materially adverse to the business, assets, liabilities,
results of operations or financial condition of the Company and its
Subsidiaries, taken as a whole; provided, however, that none of the
following shall be considered in determining whether there has been a
Material Adverse Effect (except to the extent disproportionately affecting
the Company and its Subsidiaries relative to other companies in the
television broadcasting industry): (i) general economic condition or (ii)
events, changes, circumstances or effects affecting the television
broadcasting industry generally.
"NBCU" has the meaning assigned to it in the Preamble.
"NBCU Entities" has the meaning assigned to it in the Preamble.
"Noncompete Agreements" has the meaning assigned to it in the
Recitals.
"Order" means any decree, injunction, judgment, order, ruling,
assessment or writ issued by a Governmental Authority.
"Palm Beach II" has the meaning assigned to it in the Preamble.
"Xxxxxx Noncompete Agreement" has the meaning assigned to it in the
Recitals.
"PMC" has the meaning assigned to it in the Recitals.
"SEC" means the United States Securities and Exchange Commission.
"SEC Filings" has the meaning assigned to it in Section 4.1(a) hereof.
"Station Subsidiaries" has the meaning assigned to it in the Recitals.
"Subsidiary" means, with respect to the Company, a corporation,
partnership, limited liability company, joint venture, or other entity of
which at least a majority of the securities or ownership interests having
by their terms ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions is owned or
controlled, directly or indirectly, by the Company and/or one or more of
its respective Subsidiaries.
"Transaction" has the meaning assigned to it in the Recitals.
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ARTICLE II
ASSIGNMENT AND ASSUMPTION
Section 2.1 Assignment of Call Agreement, Escrow Agreement and
Obligations under Noncompete Agreements by NBCU Entities. On the terms and
subject to the conditions set forth in this Agreement, effective as of the
Assignment Date, (i) Palm Beach II shall assign all of its rights and
obligations under the Call Agreement (including the Call Right), and (ii) NBCU
shall assign all of its rights and obligations under the Escrow Agreement
(including the right to the proceeds of the Escrow Deposit) and the Noncompete
Agreements (including the payment obligations to the Company, Xx. Xxxxxx X.
Xxxxxx and Xx. Xxxx X. Xxxxxxx thereunder), to CM. The parties hereto hereby
agree that, following the Assignment Closing, the NBCU Entities shall not have
any rights or obligations under the Call Agreement, the Escrow Agreement or the
Noncompete Agreements.
Section 2.2 Assumption of Call Agreement, Escrow Agreement and
Obligations under Noncompete Agreements by CM. On the terms and subject to the
conditions set forth in this Agreement, effective as of the Assignment Date, CM
shall assume and accept the assignment of (i) all of the rights and obligations
of Palm Beach II under the Call Agreement and (ii) all of the rights and
obligations of NBCU under the Escrow Agreement and the Noncompete Agreements,
and in each case, agree to be bound by all of the terms and conditions thereof
in the same way as such terms obligate the NBCU Entities.
Section 2.3 Effective Date of Assignment. (a) Subject to the terms and
conditions of this Agreement, the assignment by the NBCU Entities of the Call
Agreement, the Escrow Agreement and the Noncompete Agreements, and the
assumption by CM of the Call Agreement, Escrow Agreement and the Noncompete
Agreements contemplated by this Agreement shall become effective at a closing
(the "Assignment Closing") to be held at the office of Shearman & Sterling LLP,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., local time, on the third
Business Day following the satisfaction or waiver of all conditions specified in
Article III (other than those conditions that by their nature are to be
satisfied at the Assignment Closing, but subject to satisfaction or waiver
thereof), or at such other place or at such other time or on such other date as
the parties hereto may mutually agree upon in writing (the day on which the
Assignment Closing takes place being the "Assignment Date").
(b) At the Assignment Closing and subject to the satisfaction or waiver
of all conditions specified in Article III (other than those conditions that by
their nature are to be satisfied at the Assignment Closing, but subject to
satisfaction or waiver thereof), each party hereto, including its respective
Affiliates, shall deliver or cause to be delivered to each of the other parties
hereto, the duly executed Definitive Documentation to which it is a party.
(c) Immediately following the Assignment Closing, CM shall (i) deliver
a Call Notice to the Call Stockholders to exercise the Call Right pursuant to
the terms and conditions of the Call Agreement and (ii) commence a Tender Offer
pursuant to the terms and conditions of Section 3.5 of the Stockholder
Agreement. Upon exercise of the Call Right, CM shall (x) together with the Call
Stockholders, deliver a joint written notice to the Escrow Agent pursuant to
Section 4(a) of the Escrow Agreement and (y) pay Xx. Xxxx X. Xxxxxxx $2,250,000
by wire transfer of immediately available funds to such an account or accounts
specified in writing by him.
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ARTICLE III
CONDITIONS TO ASSIGNMENT CLOSING
Section 3.1 Conditions to Assignment Closing of CM. The obligations of
CM to effect the Assignment Closing shall be subject to the satisfaction or
waiver by CM, on the Assignment Date, of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of the NBCU Entities set forth in this Agreement shall be true and correct in
all material respects as of the date hereof and as of the Assignment Date as if
made on and as of the Assignment Date.
(b) Board Approval. The Board of Directors shall have approved the
Transaction.
(c) Governmental Filings and Third Party Approvals. CM shall have made
all governmental filings required to be made to consummate the Transaction under
the applicable law, including the HSR Act, and any waiting period (and any
extension thereof) under the HSR Act shall have expired or been terminated and
all material permits and approvals required to be obtained from any Governmental
Authority or any other Person to consummate the Transaction or the transactions
contemplated hereby shall have been received or obtained.
(d) FCC Application. CM shall have filed the FCC Application in
accordance with Section 2.2(b) of the Call Agreement.
(e) FCC Approval. The FCC shall have granted the FCC Application by a
Final Order approving the acquisition of the Call Shares by CM from the Xxxxxx
Stockholders; provided that if a Final Order has not been received by May 6,
2007, this condition shall be deemed waived.
(f) Absence of Material Adverse Effect. No event, change, circumstance
or effect shall have occurred which, individually or in the aggregate, has had
or would reasonably be expected to have a Material Adverse Effect.
(g) No Action. No Action involving the Company or any of its directors,
officers, employees, stockholders or debtholders shall be pending before any
Governmental Authority that would prevent or materially delay the consummation
of the Transaction or, if successful, would require the parties hereto or the
Company to materially alter the Transaction.
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(h) No Orders; Law. No Law or Order shall have been enacted, entered,
issued, promulgated or enforced by any Governmental Authority that has the
effect of making the transactions contemplated by this Agreement or the
Definitive Documentation illegal or otherwise prohibiting or restraining the
consummation of the transactions contemplated hereby or thereby.
(i) Definitive Documentation. Each of the Company and the NBCU Entities
shall have executed and delivered to CM the Definitive Documentation to which it
is a party, and CM shall be reasonably satisfied as to the form and substance of
such Definitive Documentation.
(j) Performance of Covenants. Each of the NBCU Entities shall have
performed in all respects the covenants specified in Sections 4.5 and 4.7 of
this Agreement and in all material respects all other covenants and agreements
required to be performed by it under this Agreement.
(k) Performance of Covenants under Other Agreements. Each of the NBCU
Entities shall have performed in all material respects all covenants and
agreements required to be performed by it under each of the Call Agreement, the
Escrow Agreement or the Noncompete Agreements to which it is a party.
Section 3.2 Conditions to Assignment Closing of NBCU Entities. The
obligations of the NBCU Entities to effect the Assignment Closing shall be
subject to the satisfaction or waiver by the NBCU Entities, on the Assignment
Date, of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of CM set forth in this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Assignment Date as if made on and
as of the Assignment Date.
(b) Board Approval. The Board of Directors shall have approved the
Transaction.
(c) Governmental Filings and Third Party Approvals. CM shall have made
all governmental filings required to be made to consummate the Transaction under
the applicable law, including the HSR Act, and any waiting period (and any
extension thereof) under the HSR Act shall have expired or been terminated and
all material permits and approvals required to be obtained from any Governmental
Authority or any other Person to consummate the Transaction or the transactions
contemplated hereby shall have been received or obtained.
(d) FCC Application. CM shall have filed the FCC Application in
accordance with Section 2.2(b) of the Call Agreement.
(e) FCC Approval. The FCC shall have granted the FCC Application by a
Final Order approving the acquisition of the Call Shares by CM from the Xxxxxx
Stockholders; provided that if a Final Order has not been received by May 6,
2007, this condition shall be deemed waived.
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(f) Absence of Material Adverse Effect. No event, change, circumstance
or effect shall have occurred which, individually or in the aggregate, has had
or would reasonably be expected to have a Material Adverse Effect.
(g) No Action. No Action involving the Company or any of its directors,
officers, employees, stockholders or debtholders shall be pending before any
Governmental Authority that would prevent or materially delay the consummation
of the Transaction or, if successful, would require the parties hereto or the
Company to materially alter the Transaction.
(h) No Orders; Law. No Law or Order shall have been enacted, entered,
issued, promulgated or enforced by any Governmental Authority that has the
effect of making the transactions contemplated by this Agreement or the
Definitive Documentation illegal or otherwise prohibiting or restraining the
consummation of the transactions contemplated hereby or thereby.
(i) Definitive Documentation. Each of the Company and CM shall have
executed and delivered to the NBCU Entities the Definitive Documentation to
which it is a party, and the NBCU Entities shall be reasonably satisfied as to
the form and substance of such Definitive Documentation.
(j) Performance of Covenants. CM shall have performed in all material
respects all covenants and agreements required to be performed by it under this
Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of NBCU Entities. Each NBCU
Entity hereby represents and warrants to CM as follows:
(a) Existence; Compliance with Law. Each NBCU Entity is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all necessary power and authority to
enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. Each NBCU Entity is duly
licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation
of its business makes such licensing or qualification necessary, except to
the extent that the failure to be so licensed or qualified and in good
standing would not adversely affect the ability of such NBCU Entity to carry
out its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery by each NBCU Entity of this Agreement, the
performance by each NBCU Entity of its obligations hereunder and the
consummation by each NBCU Entity of the transactions contemplated hereby have
been duly authorized by all requisite action on the part of such NBCU Entity.
This Agreement has been duly executed and delivered by each NBCU Entity, and
(assuming due authorization, execution and delivery by CM) this Agreement
constitutes legal, valid and binding obligations of each NBCU Entity,
enforceable against each NBCU Entity in accordance with its terms, subject to
the effect of any applicable bankruptcy, insolvency (including all laws relating
7
to fraudulent transfers), reorganization,moratorium or similar laws affecting
creditors' rights generally and subject to the effect of general principles of
equity (regardless of whether considered in a proceeding at law or in equity).
Each of the Call Agreement, the Escrow Agreement and the Noncompete Agreements
is in full force and effect and constitutes the legally valid and binding
obligation of the NBCU Entities that entered into such agreement and, to the
knowledge of each of the NBCU Entities, each of the other parties thereto.
Except as disclosed in (i) the Current Report on Form 8-K filed by the Company
with the SEC on November 7, 2005 or (ii) Amendment No. 2 to the Schedule 13D/A
filed by NBCU with the SEC on November 9, 2005 (together, the "SEC Filings"),
there are no side letters or agreements which relate to any of the Call
Agreement, the Escrow Agreement or the Noncompete Agreements. True copies of
each of the Call Agreement, the Escrow Agreement and the Noncompete Agreements,
as amended to date, have been filed with the SEC in the SEC Filings or provided
to CLP by NBCU.
(b) Authorization; Enforceable Obligations. Assuming that all consents,
approvals, authorizations and other actions described in Section 4.1(c) hereof
have been obtained, all filings and notifications have been made and any
applicable waiting period has expired or been terminated, and except as may
result from any facts or circumstances relating solely to CM or its Affiliates,
the execution, delivery and performance of this Agreement does not and will not
(i) violate, conflict with or result in the breach of the certificate of
incorporation or by laws (or similar organizational documents) of such NBCU
Entity, (ii) conflict with or violate any law or Governmental Order applicable
to such NBCU Entity or (iii) conflict with, result in any breach of, constitute
a default (or event which with the giving of notice or lapse of time, or both,
would become a default) under, require any consent under, or give to others any
rights of termination, acceleration or cancellation of, any note, bond, mortgage
or indenture, contract, agreement, lease, sublease, license, permit, franchise
or other instrument or arrangement to which such NBCU Entity or any of its
Affiliates is a party, except, in the case of clauses (ii) and (iii), as would
not materially and adversely affect the ability of such NBCU Entity to carry out
its obligations hereunder and to consummate the transactions contemplated
hereby. Each of the Call Agreement, the Escrow Agreement and the Noncompete
Agreements is assignable by the NBCU Entity that is a party thereto and, except
as described in Section 4.1(c) of this Agreement, such assignment does not
require the consent of any Person.
(c) Governmental Consents. The execution, delivery and performance by
each NBCU Entity of this Agreement do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to, any Governmental Authority, except (i) filings with the SEC
pursuant to Sections 13(d) and 16 of the Exchange Act by the NBCU Entities, (ii)
where failure to obtain such consent, approval, authorization or action, or to
make such filing or notification, would not prevent or materially delay the
consummation by such NBCU Entity of the transactions contemplated by this
Agreement or (iii) as may be necessary as a result of any facts or circumstances
relating solely to the Company or CM or any of their respective Affiliates.
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Section 4.2 Representations and Warranties of CM. CM hereby represents
and warrants to the NBCU Entities as follows:
(a) Existence; Compliance with Law. CM is duly organized, validly
existing and in good standing under the laws of Delaware and has all necessary
power and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. CM is duly
licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation of
its business makes such licensing or qualification necessary, except to the
extent that the failure to be so licensed or qualified and in good standing
would not adversely affect the ability of CM to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery by CM of this Agreement, the performance by CM of its obligations
hereunder and the consummation by CM of the transactions contemplated hereby
have been duly authorized by all requisite action on the part of CM. This
Agreement has been duly executed and delivered by CM, and (assuming due
authorization, execution and delivery by each NBCU Entity) this Agreement
constitutes legal, valid and binding obligations of CM, enforceable against CM
in accordance with its terms, subject to the effect of any applicable
bankruptcy, insolvency (including all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting creditors' rights generally
and subject to the effect of general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
(b) Authorization; Enforceable Obligations. Assuming that all consents,
approvals, authorizations and other actions described in Section 4.2(c) hereof
have been obtained, all filings and notifications have been made and any
applicable waiting period has expired or been terminated, and except as may
result from any facts or circumstances relating solely to the NBCU Entities, the
execution, delivery and performance of this Agreement does not and will not (i)
violate, conflict with or result in the breach of the certificate of
incorporation or by laws (or similar organizational documents) of CM, (ii)
conflict with or violate any law or Governmental Order applicable to CM or (iii)
conflict with, result in any breach of, constitute a default (or event which
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to others any rights of termination,
acceleration or cancellation of, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which CM or any of its Affiliates is a party,
except, in the case of clauses (ii) and (iii), as would not materially and
adversely affect the ability of CM to carry out its obligations hereunder and to
consummate the transactions contemplated hereby.
(c) Governmental Consents. The execution, delivery and performance by
CM of this Agreement do not and will not require any consent, approval,
authorization or other order of, action by, filing with or notification to, any
Governmental Authority, except (i) filing of the FCC Application with the FCC,
(ii) filings with the SEC (A) pursuant to Sections 13(d) and 16 of the Exchange
Act by CM, and such other compliance with the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated by this
Agreement, or (B) a tender offer statement on Schedule TO or such other
documents otherwise required in connection with the transactions contemplated by
this Agreement, (iii) the pre-merger notification and waiting period
requirements of the HSR Act in connection with the commencement of the Tender
Offer, (iv) the grant of the FCC Application by a Final Order of
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the FCC in connection with the acquisition of the Call Shares by CM from the
Xxxxxx Stockholders, (v) where failure to obtain such consent, approval,
authorization or action, or to make such filing or notification, would not
prevent or materially delay the consummation by CM of the transactions
contemplated by this Agreement, (vi) such filings and approvals as may be
required by any applicable state securities or "blue sky" laws, or (vii) as may
be necessary as a result of any facts or circumstances relating solely to the
Company or the NBCU Entities or any of their respective Affiliates.
Section 4.3 FCC Application; Inconsistent Actions; Final Order. As
promptly as practicable following the date hereof, CM shall cooperate with the
Company to file the FCC Application in accordance with Section 2.2(b) of the
Call Agreement. Neither the NBCU Entities nor CM shall take any action that
would reasonably be expected to delay or hinder the grant of the FCC
Application. The NBCU Entities hereby agree that they will not, and they shall
not permit their Affiliates, to file a petition to deny or otherwise object to
or oppose the grant of the FCC Application.
Section 4.4 Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, each party hereto shall use reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to perform the obligations of such party under
this Agreement and to consummate the transactions contemplated hereby.
Section 4.5 Amendment of Agreements. No NBCU Entity shall amend or
waive (other than immaterial waivers) any of the provisions of the Call
Agreement, the Escrow Agreement or the Noncompete Agreements to which it is a
party without the prior written consent of CM. NBCU shall provide CM prompt
written notice of any immaterial waivers granted by NBCU under such agreements.
Section 4.6 No Performance until Assignment Closing. Each of the NBCU
Entities acknowledges that the execution and delivery of this Agreement does not
and will not create or impose any obligations on CM to perform any of the
obligations or transactions contemplated to be performed by a permitted
transferee under any of the Call Agreement, the Escrow Agreement or the
Noncompete Agreements until the consummation of the Assignment Closing.
Section 4.7 Restrictions on Assignment. So long as this Agreement is in
effect and has not been terminated in accordance with its terms, each of the
NBCU Entities shall not, without the prior written consent of CM, Transfer or
attempt to Transfer the Call Right to any other Person.
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ARTICLE V
MISCELLANEOUS
Section 5.1 Termination. (a) This Agreement shall terminate in its
entirety on the earlier to occur of the following: (i) the date on which the
Company notifies any party hereto or publicly announces that it has determined
to cease to participate in discussions, conversations, negotiations or other
communications with CLP, NBCU or their respective Affiliates and representatives
with respect to the Transaction, or (ii) on May 7, 2007 if any of the conditions
in Sections 3.1 and 3.2 of this Agreement (other than the conditions in Sections
3.1(e) and 3.2(e)) has not been satisfied or waived as of May 7, 2007; provided,
that in the event the Board of Directors does not approve the Transaction on or
prior to March 31, 2007, NBCU shall have the right to terminate this Agreement.
(b) In the event this Agreement is terminated pursuant to Section
5.1(a) hereof, it shall become void and of no further effect and no party hereto
(or any of its Affiliates, directors, officers, representatives or agents) shall
have any liability or further obligation to any other party to this Agreement,
except that the termination of this Agreement shall not relieve any party of any
liability arising out of or resulting from any knowing, willful or intentional
breach of this Agreement by such party prior to such termination.
Section 5.2 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered
personally, by fax or sent by overnight courier as follows:
(a) If to the NBCU Entities, to:
NBC Universal, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx.
Tel: 000-000-0000
Fax: 000-000-0000
(b) If to CM, to:
CIG Media LLC
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
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with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
Section 5.3 Entire Agreement; Amendment. This Agreement, the Definitive
Documentation, the Letter of Intent, dated as of January 17, 2007, between NBCU
and CLP and any other documents described therein or attached or delivered
pursuant thereto set forth the entire agreement between the parties hereto with
respect to the transactions contemplated by this Agreement. Any provision of
this Agreement may be amended or modified in whole or in part at any time only
by an agreement in writing signed by all of the parties hereto. No failure on
the part of any party to exercise, and no delay in exercising, any right shall
operate as a waiver thereof nor shall any single or partial exercise by any
party of any right preclude any other or future exercise thereof or the exercise
of any other right.
Section 5.4 Successors and Assigns; Third Party Beneficiaries. No party
hereto may assign any of its rights or delegate any of its obligations under
this Agreement without the prior written consent of each of the other parties
hereto. Any purported assignment in violation of this Section 5.4 shall be null
and void. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any Person, other than the parties hereto and their
respective successors, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and for
the benefit of no other Person.
Section 5.5 Other Provisions. The provisions of Sections 5.3
(Severability), 5.4 (Counterparts), 5.5 (Governing Law; Jurisdiction; Waiver of
Jury Trial), 5.7 (Remedies), 5.8 (Further Assurances) and 5.9 (Headings,
Captions and Table of Contents) of the Call Agreement are incorporated herein by
reference and shall apply to the terms and conditions of this Agreement and the
parties hereto mutatis mutandis.
12
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto or by their respective duly authorized representative all as of the date
first above stated.
NBC PALM BEACH INVESTMENT II, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President and
General Counsel
NBC UNIVERSAL, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President and
General Counsel
CIG MEDIA LLC
By: Citadel Limited Partnership,
its Manager
By: Citadel Investment Group, L.L.C.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director and
Deputy General Counsel
