EXHIBIT 14
EXECUTION COPY
CALL AGREEMENT
CALL AGREEMENT, dated as of November 7, 2005 (this "Agreement"), by and
among XX. XXXXXX X. XXXXXX, SECOND XXXXXXX XXXXXXX LIMITED PARTNERSHIP, a Nevada
limited partnership, XXXXXX ENTERPRISES, INC., a Nevada corporation
(collectively, the "Call Stockholders"), and NBC PALM BEACH INVESTMENT II, INC.,
a California corporation ("Palm Beach II" or the "Investor").
W I T N E S S E T H:
WHEREAS, on September 15, 1999, NBC Universal, Inc. (f/k/a National
Broadcasting Company, Inc.), a Delaware corporation ("NBC Universal"), and
certain of its Affiliates, invested $415,000,000 (the "Initial Investment") in
Xxxxxx Communications Corporation, a Delaware corporation (the "Company"), and,
in connection with the Initial Investment,
1. the Company and NBC Universal entered into an Investment Agreement
(the "Original Investment Agreement"), pursuant to which NBC
Universal purchased certain securities from the Company;
2. the Company, NBC Universal and the Call Stockholders entered into
a Stockholder Agreement (the "Original Stockholder Agreement"), to
provide for certain matters with respect to the governance of the
Company;
3. the Call Stockholders and Palm Beach II entered into a Call
Agreement (the "Original Call Agreement"), pursuant to which the
Call Stockholders granted Palm Beach II an option to purchase
certain securities of the Company held by them; and
4. the Company and NBC Universal entered into a Registration Rights
Agreement (the "Original Registration Rights Agreement" and,
together with the Original Investment Agreement, the Original
Stockholder Agreement and the Original Call Agreement, the
"Existing Agreements"), pursuant to which the Company granted NBC
Universal and certain of its Affiliates certain registration
rights with respect to certain shares of Class A Common Stock (as
defined below) held or acquired by NBC Universal and certain of
its Affiliates;
WHEREAS, NBC Universal, the Company and Xxxxxx X. Xxxxxx have
determined to restructure the Initial Investment and in connection with such
restructuring, NBC Universal, the Company and Xxxxxx X. Xxxxxx have agreed to
terminate or amend and restate the Existing Agreements, and enter into certain
other agreements;
WHEREAS, the Call Stockholders and Palm Beach II wish to terminate the
Original Call Agreement effective as of the date hereof;
WHEREAS, the Call Stockholders have agreed to grant the Investor the
right to purchase the Call Shares subject to the terms and conditions of this
Agreement; and
WHEREAS, the Call Stockholders are the record and beneficial owners of
8,311,639 shares of Class B Common Stock ("Class B Common Stock"), par value
$0.001 per share, of the Company and 15,455,062 shares of Class A Common Stock
("Class A Common Stock" and, together with Class B Common Stock, "Common
Stock"), par value $0.001 per share, of the Company, representing all of the
shares of Common Stock held and owned by the Call Stockholders.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, receipt of which is 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:
"Affiliate" means, with respect to any Person, any other Person that
controls, is controlled by, or is under common control with, such Person,
including the executive officers and directors of such Person. As used in
this definition, "control" (including its correlative meanings, "controlled
by" and "under common control with") means the possession, directly or
indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).
"Board of Directors" has the meaning assigned to it in Section 2.5.
"Business Day" means any day, other than a Saturday, Sunday or a day on
which commercial banks in New York, New York are authorized or obligated by
law or executive order to close.
"Call Closing" has the meaning assigned to it in Section 2.3.
"Call Deadline" has the meaning assigned to it in Section 2.3.
"Call Notice" has the meaning assigned to it in Section 2.2.
"Call Period" means the period commencing on the Effective Date and
ending on the earlier of (i) 11:59 P.M. Eastern Time on May 6, 2007 and (ii)
the 75th day following the Early Tender Offer Consummation Date, provided
that the Call Period shall end at 11:59 P.M. Eastern Time on May 6, 2007 if
the Board of Directors fails to approve, within 75 days after the
consummation of an Early Tender Offer, a Transfer of the Call
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Right by the Investor to a Permitted Transferee pursuant to Section 2.5 of
this Agreement.
"Call Price" has the meaning assigned to it in Section 2.1.
"Call Right" has the meaning assigned to it in Section 2.1.
"Call Shares" means the 8,311,639 shares of Class B Common Stock and
15,455,062 shares of Class A Common Stock owned by the Call Stockholders,
and any shares of common stock of the Company or other securities that may
be received by the Call Stockholders with respect to such Call Shares (x) as
a result of a stock dividend or distribution on, stock split or reverse
stock split of, or similar event with respect to Call Shares or (y) on
account of Call Shares in a merger, consolidation, combination,
reclassification, recapitalization or similar transaction involving the
Company.
"Certificate of Designation" means the Amended and Restated Certificate
of Designation of the Powers, Preferences and Relative, Participating,
Optional and Other Special Rights of the 11% Series B Convertible
Exchangeable Preferred Stock and Qualifications, Limitations and
Restrictions Thereof, dated as of the date hereof, as from time to time
amended, modified or supplemented.
"Communications Act" means the Communications Act of 1934, as amended
(including, without limitation, the Cable Communications Policy Act of 1984
and the Cable Television Consumer Protection and Competition Act of 1992)
and all rules and regulations of the FCC, in each case as from time to time
in effect.
"Conflicting Provision" has the meaning assigned to it in Section 5.3.
"Early Tender Offer" has the meaning assigned to it in Section 3.5(b)
of the Stockholder Agreement.
"Early Tender Offer Consummation Date" means the first scheduled
expiration date following the date on which all of the conditions to the
consummation of the Early Tender Offer have been satisfied or waived by the
Offeror.
"Effective Date" means the date hereof.
"Escrow Agent" means the escrow agent named in the Escrow Agreement, or
any successor thereto.
"Escrow Agreement" means the Escrow Agreement to be entered into among
NBC Universal, the Call Stockholders and the Escrow Agent in accordance with
Section 2.10, as from time to time amended, modified or supplemented.
"Escrow Amount" has the meaning assigned to it in Section 2.10.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
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"Existing Notes" means the (i) Senior Secured Floating Rate Notes; (ii)
12 1/4% Senior Subordinated Discount Notes; and (iii) 10 3/4% Senior
Subordinated Notes, collectively.
"Existing Preferred Stock" means the (i) 14 1/4% Cumulative Junior
Exchangeable Preferred Stock and (ii) 9 3/4% Series A Convertible Preferred
Stock, collectively.
"FCC" means the Federal Communications Commission and any successor
governmental entity performing functions similar to those performed by the
Federal Communications Commission on the date hereof.
"FCC Application" means the application to be filed pursuant to Section
2.2(b) in connection with the exercise of the Call Right by the Investor or
a Permitted Transferee, as applicable.
"Final Order" means an action or actions by the FCC that have not been
reversed, stayed, enjoined, set aside, annulled, or suspended, and with
respect to which no requests are pending for administrative or judicial
review, reconsideration, appeal, or stay, and the time for filing any such
requests and the time for the FCC to set aside the action on its own motion
have expired.
"14 1/4% Cumulative Junior Exchangeable Preferred Stock" means the 14
1/4% Cumulative Junior Exchangeable Preferred Stock, par value $0.001 per
share, issued pursuant to the Certificate of Designation of the Powers,
Preferences and Relative, Participating, Optional and Other Special Rights
of 13 1/4% Cumulative Junior Exchangeable Preferred Stock and
Qualifications, Limitations and Restrictions Thereof, filed on August 7,
1998.
"Governmental Authority" means any federal, national, supranational,
state, provincial, local, or similar government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Initial Call Deadline" has the meaning assigned to it in Section 2.3.
"Investor Call Right Termination" means the termination, pursuant to
Section 2.8 hereof, of the right of the Investor or a Permitted Transferee,
as applicable, to acquire the Call Shares pursuant to this Agreement.
"Lien" means any mortgage, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other) or security agreement of any kind or
nature whatsoever (including, without limitation, any conditional sale or
other title retention agreement or any financing lease having substantially
the same effect as any of the foregoing).
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"Master Agreement" means the Master Transaction Agreement, dated as of
the date hereof, among the Company, the Call Stockholders, Xxxxxx Management
Corporation, the Investor, NBC Palm Beach Investment I, Inc. and NBC
Universal, as from time to time amended, modified or supplemented.
"9 3/4% Series A Convertible Preferred Stock" means the 9 3/4% Series A
Convertible Preferred Stock, par value $0.001 per share, issued pursuant to
the Certificate of Designation of the Powers, Preferences and Relative,
Participating, Optional and Other Special Rights of 9 3/4% Series A
Convertible Preferred Stock and Qualifications, Limitations and Restrictions
Thereof, dated as of June 9, 1998.
"Offer Price" has the meaning assigned to it in the Stockholder
Agreement.
"Xxxxxx Estate Planning Affiliates" means collectively (i) all limited
partners of Second Xxxxxxx Xxxxxxx Limited Partnership, other than Xxxxxx X.
Xxxxxx and Xxxxxx Enterprises, Inc., and (ii) Xxxxx X. Xxxxxx, the children
or other lineal descendants (whether adoptive or biological) of Xxxxxx X.
Xxxxxx and any revocable or irrevocable inter vivos or testamentary trust
(including any trustee of such trust in his or her capacity as trustee) or
the probate estate (including any executor or executrix of such estate in
his or her capacity as such) of any such individual, so long as one or more
of the foregoing individuals is the principal beneficiary of such trust or
probate estate, or any corporation, partnership, limited liability company
or other entity in which any of the foregoing individuals has a controlling
interest.
"Permitted Transferee" has the meaning assigned to it in Section 2.5.
"Person" means an individual, corporation, unincorporated association,
partnership, group (as defined in subsection 13(d)(3) of the Exchange Act),
trust, joint stock company, joint venture, business trust or unincorporated
organization, limited liability company, any governmental entity or any
other entity of whatever nature.
"Restricted Period" has the meaning assigned to it in Section 2.4.
"Senior Secured Floating Rate Notes" means the Company's Senior Secured
Floating Rate Notes due 2010 issued pursuant to the Indenture, dated as of
January 12, 2004, among the Company, the subsidiary guarantors named therein
and The Bank of New York, as trustee.
"Series B Preferred Stock" means the 11% Series B Convertible
Exchangeable Preferred Stock of the Company issued pursuant to the
Certificate of Designation.
"Stockholder Agreement" means the Amended and Restated Stockholder
Agreement, dated as of the date hereof, among the Company, NBC Universal and
the Call Stockholders, as from time to time amended, modified or
supplemented.
"10 3/4% Senior Subordinated Notes" means the Company's 10 3/4% Senior
Subordinated Notes due 2008 issued pursuant to the Indenture, dated as of
July 12, 2001,
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among the Company, the subsidiary guarantors named therein and The Bank of
New York, as trustee.
"Tender Offer" has the meaning assigned to it in the Stockholder
Agreement.
"Transaction Agreements" has the meaning assigned to it in the Master
Agreement.
"Transfer" means, with respect to the Call Shares or the Call Right,
any direct or indirect sale, assignment, pledge, offer or other transfer or
disposal of any interest in such shares or right.
"12 1/4% Senior Subordinated Discount Notes" means the Company's 12
1/4% Senior Subordinated Discount Notes due 2009 issued pursuant to the
Indenture, dated as of January 14, 2002, among the Company, the subsidiary
guarantors named therein and The Bank of New York, as trustee.
ARTICLE II
CALL RIGHT
Section 2.1 Call Right. (a) The Call Stockholders hereby grant to the
Investor an irrevocable right to purchase from the Call Stockholders all of the
Call Shares on the terms and conditions set forth herein (the "Call Right"). In
consideration for the grant of the Call Right, on the Effective Date, the
Investor shall pay to the Call Stockholders, in cash by wire transfer in
immediately available funds to an account or accounts designated by the Call
Stockholders, an amount equal to $25,013,446.85, being the sum of (i) $1.15
multiplied by the 8,311,639 shares of Class B Common Stock owned by the Call
Stockholders on the Effective Date and (ii) $1.00 multiplied by the 15,455,062
shares of Class A Common Stock owned by the Call Stockholders on the Effective
Date.
(b) At any time during the Call Period, the Investor or a Permitted
Transferee, as applicable, may exercise the Call Right, in whole but not in
part, and subject to the terms and conditions set forth herein, purchase from
the Call Stockholders the Call Shares for a purchase price (the "Call Price")
equal to the sum of (i) $0.29 multiplied by all of the shares of Class B Common
Stock owned by the Call Stockholders on the Effective Date and delivered at the
Call Closing and (ii) $0.25 multiplied by all of the shares of Class A Common
Stock owned by the Call Stockholders on the Effective Date and delivered at the
Call Closing. The price per share of Class B Common Stock and Class A Common
Stock specified in the previous sentence and the Call Price shall be equitably
adjusted to reflect any conversions, reclassifications, reorganizations, stock
dividends, stock splits, reverse splits and similar events which occur with
respect to the Common Stock after the date hereof and on or prior to the Call
Closing.
(c) In the event an Early Tender Offer is consummated pursuant to
Section 3.5 of the Stockholder Agreement, NBCU or its Permitted Transferee, as
applicable, shall, subject to Section 3.5(b) of the Stockholder Agreement,
exercise the Call Right prior to the end of the Call Period.
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Section 2.2 Exercise of Call Right; Call Notice. (a) Exercise of the
Call Right shall be accomplished by the Investor or a Permitted Transferee, as
applicable, sending notice of such exercise (the "Call Notice") to the Call
Stockholders at the address provided for in Section 5.1 of this Agreement at any
time during the Call Period. The Call Notice shall state the Call Price and the
place at which the Call Closing will be conducted.
(b) As promptly as practicable, but in no event later than 10 Business
Days after the giving of the Call Notice, the parties shall cause to be filed
with the FCC an application requesting that the FCC consent to the Transfer of
the Call Shares pursuant to this Agreement. The FCC Application shall not
include a request for any waivers other than requests for not more than an
aggregate of six waivers of the FCC's then-effective media ownership rules of
not more than 12 months' duration (but in no event may the FCC Application
include a request for a television triopoly waiver or a waiver of the national
audience reach limitation), provided, that any request to continue any waivers
of the local television multiple ownership rule then held by the Company
pursuant to the FCC's "satellite" station policy shall not be counted toward
this limit. If the parties determine that any other application or approval is
required under applicable law with respect to the Transfer of the Call Shares
pursuant to this Agreement, the parties shall make such filing as promptly as
practicable following delivery of the Call Notice.
Section 2.3 Call Closing. (a) The closing (the "Call Closing") of the
exercise of the Call Right and the purchase and sale of the Call Shares shall
occur as promptly as practicable following the delivery of the Call Notice and
in any event within three Business Days following the receipt of any required
consent, approval, authorization or other order of, action by, or any required
filing with or notification to, any Governmental Authority or any required
material third party consent, including, without limitation, (i) the expiration
or termination of any waiting period (and any extension thereof) under the HSR
Act applicable to the purchase of the Call Shares and (ii) approval by the FCC
of the purchase of the Call Shares pursuant to Section 310(d) of the
Communications Act, which approval shall have become a Final Order, subject to
the penultimate sentence of this Section 2.3(a). The Call Closing shall occur at
the place designated in the Call Notice. In the event the Call Closing does not
occur within eighteen (18) months following the filing of the FCC Application
(the "Initial Call Deadline"), the right of the Investor or a Permitted
Transferee, as applicable, to purchase the Call Shares pursuant to the Call
Right shall terminate; provided, however, that the Investor or a Permitted
Transferee, as applicable, may, at its election, extend the Initial Call
Deadline for an additional six (6)-month period (the "Call Deadline") if, prior
to the Initial Call Deadline, the FCC has approved the purchase of the Call
Shares by the Investor or such Permitted Transferee, as applicable, but such
approval has not become a Final Order, by delivering a notice of extension to
the Call Stockholders not later than the date of the Initial Call Deadline. The
requirement for a Final Order may be waived by the Investor or a Permitted
Transferee, as applicable, in its sole discretion. If at the Call Deadline, a
Final Order has not been issued, and the Investor or a Permitted Transferee, as
applicable, has not waived the requirement for a Final Order and proceeded with
the Call Closing, the Call Right shall expire and Investor or the Permitted
Transferee, as applicable, shall have no further rights or obligations under
this Agreement.
(b) The obligation of the Call Stockholders to deliver the Call Shares
to the Investor or a Permitted Transferee, as applicable, at the Call Closing
shall be conditioned on the consummation of the Tender Offer.
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(c) At the Call Closing, (i) the Call Stockholders shall deliver to the
Investor or a Permitted Transferee, as applicable, certificates representing all
of the Call Shares, duly endorsed in blank or accompanied by stock powers duly
executed in blank, with all necessary stock transfer stamps affixed thereto and
(ii) the Investor or a Permitted Transferee, as applicable, shall pay the Call
Price by wire transfer in immediately available funds to the account or accounts
specified by the Call Stockholders. The Call Stockholders shall furnish
necessary account information at least three Business Days prior to the Call
Closing. The obligation of the Investor or a Permitted Transferee, as
applicable, to pay the Call Price shall be subject to the receipt by the
Investor or a Permitted Transferee, as applicable, of all the Call Shares free
and clear of any Lien.
Section 2.4 Limitation on Transfer of the Call Shares by the Call
Stockholders. From the date hereof until the earlier of (i) the Call Closing or
(ii) the date of the Investor Call Right Termination (the "Restricted Period"),
the Call Stockholders shall not Transfer any of the Call Shares; provided,
however, that the Call Stockholders may Transfer, pursuant to prior FCC
consents, the Call Shares to one or more Xxxxxx Estate Planning Affiliates so
long as following such Transfer, the Call Stockholders or a Xxxxxx Estate
Planning Affiliate remains the single majority shareholder of the Company under
applicable FCC rules and each Xxxxxx Estate Planning Affiliate to whom any of
the Call Shares are Transferred by a Call Stockholder agrees in writing to be
bound by the Transaction Agreements to which such Transferring Call Stockholder
is a party in its capacity as a Call Stockholder. The Call Stockholders and any
Xxxxxx Estate Planning Affiliate to whom any or all of the Call Shares are
Transferred by a Call Stockholder hereby acknowledge that the immediately
preceding sentence of this Section 2.4 will restrict their ability to tender the
Call Shares in a Tender Offer commenced pursuant to Section 3.5 of the
Stockholder Agreement.
Section 2.5 Transfer of Call Right . (a) At any time prior to the
expiration of the Call Period, the Investor may Transfer the Call Right to a
third party which the board of directors of the Company (the "Board of
Directors") approves in the reasonable exercise of its business judgment. In
making such determination, the Board of Directors shall, in the reasonable
exercise of its fiduciary duties, principally take into account that such
proposed transferee: (i) is, and, subject to obtaining waivers of the FCC rules
and regulations permitted by Section 2.2(b) of this Agreement, upon consummation
of the Call Closing shall be, in compliance with applicable FCC rules relating
to ownership and operation of the full-service television stations owned and
operated by the Company; and (ii) is able to fulfill the financial obligations
arising in connection with the exercise of the Call Right and the consummation
of the Tender Offer (and such proposed transferee shall have delivered to the
Board of Directors a proposal for satisfying any rights that holders of any debt
securities of the Company may have in connection with such exercise and
consummation); provided, however, that in considering the request for approval,
the Board of Directors shall not consider the Offer Price; provided, further,
however, that the foregoing shall not limit the ability of the Board of
Directors to consider the Offer Price when making any recommendation required to
be included in any Solicitation/Recommendation Statement on Schedule 14D-9 in
connection with the Tender Offer; and, provided, however, that the Board of
Directors shall approve such Person as a Permitted Transferee if the Board of
Directors determines in the reasonable exercise of its fiduciary duties that
such Person otherwise satisfies the standard in this sentence and either
provides reasonably satisfactory evidence that it has sufficient liquid
financial resources to fulfill
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the financial obligations referred to in clause (ii) of this sentence without
the need for external financing or presents firm commitments in customary form
from nationally recognized sources for such financing. Any proposed transferee
that is approved by the Board of Directors shall be a "Permitted Transferee."
Any Transfer of the capital stock of the Investor to a Person, other than an
Affiliate of NBC Universal, shall be deemed to be a Transfer of the Call Right;
provided, however, that any Transfer of the capital stock of NBCU Universal to a
Person, other than an Affiliate of General Electric Company, shall not be deemed
to be a Transfer of the Call Right.
(b) Concurrently with the effectiveness of the Transfer of the Call
Right to a Permitted Transferee, such Permitted Transferee shall deliver a Call
Notice to the Call Stockholders, and, unless an Early Tender Offer has been
consummated pursuant to Section 3.5(b) of the Stockholder Agreement, the Offeror
(as defined in Section 3.5(c) of the Stockholder Agreement) will commence a
Tender Offer pursuant to and subject to the terms and conditions of Section 3.5
of the Stockholder Agreement.
Section 2.6 Conversion of Call Shares. During the Restricted Period,
the Call Stockholders shall not convert any of the Call Shares into any other
security of the Company.
Section 2.7 Legends. The Call Stockholders agree to the imprinting, for
so long as appropriate, of substantially the following legends on certificates
representing any of the Call Shares:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF AN
AMENDED AND RESTATED STOCKHOLDER AGREEMENT, DATED AS OF NOVEMBER 7, 2005,
AMONG XXXXXX COMMUNICATIONS CORPORATION, XXXXXX X. XXXXXX, SECOND XXXXXXX
XXXXXXX LIMITED PARTNERSHIP, XXXXXX ENTERPRISES, INC. AND NBC UNIVERSAL,
INC.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A
CALL AGREEMENT DATED AS OF NOVEMBER 7, 2005, AMONG XX. XXXXXX X. XXXXXX,
SECOND XXXXXXX XXXXXXX LIMITED PARTNERSHIP, XXXXXX ENTERPRISES, INC. AND NBC
PALM BEACH INVESTMENT II, INC.
Section 2.8 Termination of the Investor Call Right. The right of the
Investor or a Permitted Transferee, as applicable, to purchase the Call Shares
pursuant to this Agreement shall terminate upon the earliest to occur of the:
(i) expiration of the Call Period prior to the delivery of the Call Notice by
the Investor or a Permitted Transferee, as applicable, to the Call Stockholders;
(ii) expiration of the Initial Call Deadline or, if applicable, the Call
Deadline, prior to the occurrence of the Call Closing; and (iii) written consent
of the parties hereto.
Section 2.9 Termination of the Original Call Agreement. Effective as of
the Effective Date, the Original Call Agreement is hereby terminated and shall
have no further force or effect.
Section 2.10 Escrow. Within three Business Days following the Effective
Date, pursuant to and in accordance with Section 3(a) of the Master Agreement,
the Call Stockholders
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shall deposit all of the shares of Class A Common Stock owned by the Call
Stockholders on the Effective Date into escrow, and NBCU shall deposit
$3,863,765.50 (the "Escrow Amount") with the Escrow Agent in respect of the
shares of Class A Common Stock owned by the Call Stockholders. Promptly
following the exercise of the Call Right, the parties hereto shall deliver a
joint notice to the Escrow Agent pursuant to the Escrow Agreement instructing
the Escrow Agent to release the Escrow Amount to the Call Stockholders. Promptly
following the occurrence of the Investor Call Right Termination, the Call
Stockholders shall deliver a notice to the Escrow Agent instructing the Escrow
Agent to release the Escrow Amount to the Call Stockholders.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Call Stockholders.
Each Call Stockholder represents and warrants to the Investor as follows:
(a) Existence; Compliance with Law. Each of the Call Stockholders that
is an individual has full legal right and capacity to execute and deliver this
Agreement and each of the Call Stockholders that is not an individual is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and each of the Call Stockholders has all
necessary power and authority to enter into this Agreement, to carry out its
obligations and to consummate the transactions contemplated hereby. Each of the
Call Stockholders that is not an individual is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the properties
owned or leased by it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to be so licensed
or qualified and in good standing would not adversely affect the ability of such
Call Stockholder to carry out its obligations under, and to consummate the
transactions contemplated by, this Agreement. The execution and delivery by each
Call Stockholder of this Agreement, the performance by each Call Stockholder of
its obligations hereunder and the consummation by each Call Stockholder of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of each Call Stockholder and its stockholders or partners, as
the case may be. This Agreement has been duly executed and delivered by each
Call Stockholder, and (assuming due authorization, execution and delivery by the
other parties) this Agreement constitutes legal, valid and binding obligations
of each Call Stockholder, enforceable against each Call Stockholder in
accordance with its terms, subject to the effect of any applicable bankruptcy,
insolvency (including all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting creditors' rights generally
and subject to the effect of general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
(b) Authorization; Enforceable Obligations. Assuming that all consents,
approvals, authorizations and other actions described in Section 3.1(c) have
been obtained, all filings and notifications listed on Schedule 3.1(c) 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
Investor, the execution, delivery and performance of this Agreement does
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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 Call Stockholder (other than Xx. Xxxxxx X. Xxxxxx), (ii) conflict with or
violate any law or Governmental Order applicable to such Call Stockholder or
(iii) conflict with, result in any breach of, constitute a default (or event
which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of
termination, acceleration or cancellation of, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which such Call Stockholder or any of its
subsidiaries is a party, except, in the case of clauses (ii) and (iii), as would
not materially and adversely affect the ability of such Call Stockholder to
carry out its obligations under, and to consummate the transactions contemplated
by, this Agreement.
(c) Governmental Consents. The execution, delivery and performance by
each Call Stockholder of this Agreement and the transactions contemplated hereby
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) as described in Schedule 3.1(c), (ii) the pre-merger notification and
waiting period requirements of the HSR Act and the approval by the FCC pursuant
to Section 310(d) of the Communications Act in connection with the exercise of
the Call Right, (iii) where failure to obtain such consent, approval,
authorization or action, or to make such filing or notification, would not
prevent or materially delay the consummation by such Call Stockholder of the
transactions contemplated by this Agreement or (iv) as may be necessary as a
result of any facts or circumstances relating solely to the other parties
hereto.
(d) Capitalization; Ownership. Such Call Stockholder owns the Call
Shares set forth opposite his name on Schedule 3.1(d) attached hereto, free and
clear of all Liens. Upon delivery of and payment for the Call Shares at the Call
Closing as provided herein, the Investor shall acquire good title to the Call
Shares delivered by such Call Stockholder, free and clear of all Liens. Such
Call Stockholder is not a party to, and has no knowledge of, any voting trust,
proxy or any other agreement or understanding with respect to the Call Shares
other than as created by the Transaction Agreements. Upon delivery of and
payment for the Call Shares at the Call Closing as provided herein, the Investor
or a Permitted Transferee, as applicable, shall own all of the outstanding
shares of Class B Common Stock held by the Call Stockholders.
Section 3.2 Survival of Representations and Warranties. All
representations and warranties made herein shall survive for a period of three
years after the termination of this Agreement.
ARTICLE IV
OTHER AGREEMENTS
Section 4.1 Governmental Filings. In addition to the FCC Application,
each of the Call Stockholders and the Investor or a Permitted Transferee, as
applicable, will make, as promptly as practicable following the request of any
other party, all other filings required to be made by the Call Stockholders and
the Investor or a Permitted Transferee, as applicable, under the applicable law,
including, without limitation, the Communications Act, the HSR Act and any
11
similar requirement of foreign law and the rules and regulations related
thereto, with regard to the transactions contemplated by this Agreement
(including, without limitation, the purchase and holding of the Call Shares
pursuant to this Agreement) and each of the parties hereto will take all
reasonable steps within its control (including providing information to the FCC)
to obtain any required consents or approvals as promptly as practicable. The
Call Stockholders and the Investor or a Permitted Transferee, as applicable,
will each provide information and cooperate in all respects to assist the other
parties in making its or their required filings under the Communications Act.
Section 4.2 Inconsistent Actions. Once the FCC Application has been
filed, neither the Investor or a Permitted Transferee, as applicable, nor any
Call Stockholder shall take any action that could reasonably be expected to
delay or hinder the grant of the FCC Application. NBC Universal hereby agrees
that it will not, and NBC Universal shall not permit any of the NBCU Entities
(as defined in the Master Agreement) to, file a petition to deny or otherwise
object to or oppose the grant of the FCC Application.
Section 4.3 Tax Treatment. The parties agree that the Call Stockholders
may treat the transactions contemplated hereby for federal, state and local tax
purposes as a sale of the Call Shares by the Call Stockholders as of the
Effective Date.
Section 4.4 NBC Guaranty. NBC Universal hereby unconditionally and
absolutely guarantees the timely payment and performance by Palm Beach II of all
of its obligations under this Agreement. Such guarantee shall automatically
expire and have no further force and effect upon a Transfer of the Call Right to
a Permitted Transferee in the manner provided by this Agreement, without any
further action being required by or on behalf of the parties hereto, in which
event NBC Universal shall be released from any further obligation hereunder.
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered
personally, by telecopier or sent by overnight courier as follows:
(a) If to the Investor, to:
NBC PALM BEACH INVESTMENT II, INC.
c/o NBC Universal, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
12
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 the Call Stockholders, to:
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxxx Xxxxx, 00X
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Wiley, Rein & Fielding LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
and
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
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 5.2 Entire Agreement; Amendment. The Transaction Agreements and
the documents described therein or attached or delivered pursuant thereto set
forth the entire agreement between the parties thereto with respect to the
transactions contemplated by such agreements. 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. 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.
13
Section 5.3 Severability. If one or more provisions of this Agreement
or the application thereof to any Person or circumstances is determined by a
court or agency of competent jurisdiction to violate any law or regulation,
including, without limitation, any rule or policy of the FCC, or to be invalid,
void or unenforceable to any extent (a "Conflicting Provision"), the Conflicting
Provision shall have no further force or effect, but the remainder of this
Agreement and the application of the Conflicting Provision to other Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable shall not be affected thereby and shall be enforced to
the greatest extent permitted by law, so long as any such violation, invalidity
or unenforceability does not change the basic economic or legal positions of the
parties. In such event, the parties shall negotiate in good faith such changes
in other terms as shall be practicable in order to effect the original intent of
the parties.
Section 5.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same document.
Section 5.5 Governing Law; Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts executed and performed within such
state, and each party hereby submits to the jurisdiction of the Delaware
Chancery Court. In the event the Delaware Chancery Court does not have
jurisdiction over any dispute arising out of this Agreement, each party hereby
submits to the jurisdiction of the United States District Court for the Southern
District of New York, provided that in the event such court does not have
jurisdiction over any dispute arising out of this Agreement, each party hereby
submits to the jurisdiction of the Supreme Court of the State of New York, New
York County. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER
THIS AGREEMENT.
Section 5.6 Successors and Assigns; Third Party Beneficiaries. The Call
Stockholders may not assign any of their rights or delegate any of their duties
under this Agreement without the prior written consent of the Investor, provided
that the Call Stockholders may assign their rights and delegate their duties to
Xxxxxx Estate Planning Affiliates in connection with any Transfer in accordance
with Section 2.4 of this Agreement (in which event such applications as may be
required shall be filed with the FCC for consent to the transfer of control of
the station licenses held by subsidiaries of the Company); but no such
assignment or delegation shall relieve such Call Stockholder of any of its
obligations hereunder. The Investor may not assign any of its rights or delegate
any of its duties under this Agreement without the prior written consent of the
Call Stockholders, provided that the Investor may assign its rights and delegate
its duties to (i) an Affiliate, but no such assignment or delegation shall
relieve the Investor of any of its obligations hereunder, and (ii) any Permitted
Transferee in accordance with Section 2.5. The Investor shall not assign any
rights under this Agreement unless such assignee expressly assumes all of the
obligations of the Investor associated with the rights proposed to be assigned.
Any purported assignment in violation of this Section 5.6 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 and permitted assignees, any
14
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 permitted assignees, and for
the benefit of no other Person.
Section 5.7 Remedies. No right, power or remedy conferred upon any
party in this Agreement shall be exclusive, and each such right, power or remedy
shall be cumulative and in addition to every other right, power or remedy
whether conferred in this Agreement or now or hereafter available at law or in
equity or by statute or otherwise. No course of dealing among the Investor, the
Company and the Call Stockholders and no delay in exercising any right, power or
remedy conferred in this Agreement or now or hereafter existing at law or in
equity or by statute or otherwise shall operate as a waiver or otherwise
prejudice any such right, power or remedy. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and 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 in
addition to any other remedy to which they are entitled at law or in equity.
Section 5.8 Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of the terms of this Agreement and the transactions contemplated
hereby.
Section 5.9 Headings, Captions and Table of Contents. The section
headings, captions and table of contents contained in this Agreement are for
reference purposes only, are not part of this Agreement and shall not affect the
meaning or interpretation of this Agreement.
15
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.
SECOND XXXXXXX XXXXXXX LIMITED PARTNERSHIP
By: Xxxxxx Enterprises, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
The undersigned hereby executes this Agreement
solely for purposes of Sections 4.2 and 4.4 of
this Agreement
NBC UNIVERSAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
NBC PALM BEACH INVESTMENT II, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director and President
SCHEDULE 3.1(c)
GOVERNMENTAL CONSENTS
1. One or more notices of consummation required to be filed with the FCC
following the Call Closing.
2. A copy of this Agreement required to be filed with the FCC within 30 days
following the execution of this Agreement.
3. Filings with the Securities and Exchange Commission pursuant to Section 16
of the Exchange Act.
SCHEDULE 3.1(d)
CAPITALIZATION TABLE OF CALL SHARES
------------------------------------------------------ --------------------------------- --------------------------------
Call Stockholder Number of Shares of Class A Number of Shares of Class B
Common Stock Common Stock
------------------------------------------------------ --------------------------------- --------------------------------
Xxxxxx X. Xxxxxx 100 0
Second Xxxxxxx Xxxxxxx Limited Partnership 14,695,725 7,487,401
Xxxxxx Enterprises, Inc. 759,237 824,238
--------------------------------- --------------------------------
Total 15,455,062 8,311,639
================================= ================================