EXHIBIT 10.18
Post-Closing Agreement
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This Post-Closing Agreement ("Agreement") is made and entered into this
10th day of July, 1998 (the "Effective Date") by and between MEDIAAMERICA, INC.
("MAI"), ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇";
collectively with Hartenbaum, the "Shareholders"), ▇▇▇▇▇ INTERNATIONAL NETWORKS,
LTD. ("New Company") and ▇▇▇▇▇ INTERNATIONAL, LTD. ("International").
R e c i t a l s
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a. The parties hereto, except for International, are also certain of the
parties to an agreement dated June 2, 1998 (the "Exchange Agreement") pursuant
to which certain assets and liabilities of MAI are to be or have been
transferred to New Company for a consideration consisting in part of shares of
Class A Common Stock $.01 par value of New Company. By this Agreement the
parties desire to set forth their agreement concerning a number of matters which
arise after the closing of the Exchange Agreement and which are related to New
Company and the disposition of such shares of Class A Common Stock.
▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ own all of the outstanding capital stock of
MAI and, contemporaneously with the execution and delivery of this Agreement,
they will enter into employment agreements with New Company.
c. International is the principal shareholder of New Company.
Now, therefore, the parties agree as follows:
1. The Initial Public Offering. For purposes of this Agreement, the term
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"IPO" means a completed, underwritten initial public offering of shares of Class
A Common Stock $.01 par value of New Company pursuant to an effective
registration statement filed pursuant to the Securities Act of 1933, as amended.
The Company agrees that the Class A Common Stock will be the class of stock
offered in New Company's initial public equity offering.
2. The Shares. As a result of the consummation of the transactions
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contemplated by the Exchange Agreement, MAI owns of record and beneficially
400,000 shares (subject to the Working Capital Adjustment (as defined in the
Exchange Agreement)) of Class A Common Stock $.01 par value of New Company, and
may earn additional such shares pursuant to the Exchange Agreement pursuant to
the Earnout (as defined in the Exchange Agreement).
Such shares of Class A Common Stock $.01 par value of New Company held by MAI
from time to time are hereinafter referred to as the "Shares". The Shares may be
distributed by MAI to Hartenbaum and ▇▇▇▇▇▇▇▇▇ and, in such event, the rights
and obligations of MAI under this Agreement with respect to the Shares shall,
where appropriate, apply to Hartenbaum and ▇▇▇▇▇▇▇▇▇ as the successors in
interest to MAI of the Shares.
3. Put and Call Rights.
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(a) The Put. Commencing on the date which is three (3) years from and
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after the Closing Date (as such term is defined in the Exchange Agreement) and
following the Determination (as defined below) as set forth in Section 3(c), MAI
shall have the right (the "Put") to cause New Company to purchase, and, New
Company shall purchase, all or part of the Shares upon written notice (the "Put
Notice") to New Company, which shall specify the number of Shares proposed to be
sold, which shall not be less than 50,000 shares (unless the number of shares
owned is less than 50,000, in which event the number specified must be all
shares owned). The purchase price for such Shares shall be an amount equal to
the fair market value thereof (as determined pursuant to Section 3(c) below) on
the date that notice is given of the exercise of the Put, or the Intention
Notice, whichever is first delivered.
(b) The Call. Commencing on the date which is three (3) years from
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and after the Closing Date and following the Determination as set forth in
Section 3(c), New Company shall have the right (the "Call") to cause MAI to
sell, and MAI shall sell, to New Company all or a part of the Shares upon
written notice (the "Call Notice") to MAI, which shall specify the number of
Shares proposed to be purchased, but not less than 50,000 (unless the number of
Shares owned by MAI is less than 50,000, in which event the number specified
must be all Shares owned by MAI). The purchase price for such Shares shall be
an amount equal to the fair market value thereof (as determined pursuant to
Section 3(c)) on the date that notice is given of the exercise of the Call.
(c) Determination of Fair Market Value. Unless there has been a
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Determination within the prior three (3) months, in which case such
Determination shall be the fair market value for the purposes of such Put Notice
or Call Notice, as the case may be, if MAI or New Company gives written notice
to the other party of an intention to exercise the Put or Call, as the case may
be (which intention shall be non-binding on either party) (the "Intention
Notice") for a period of 30 days following receipt of the Intention Notice the
parties shall make a good faith effort to agree on the fair market value of the
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Shares. Failing agreement at the conclusion of such period, at the request of
the party which gave the Intention Notice the fair market value of the Shares
(the "Determination") shall be determined by an appraisal made by a major
investment banking firm with expertise in the valuation of media assets and/or
media companies and which has no material interest or affiliation with New
Company or any party to this Agreement. Such investment banking firm shall be
selected by agreement between MAI and New Company. In the absence of such an
agreement, the choice of an investment banking firm shall be made by lot (by
MAI) from the names of the firms (which should be deemed to include any
successors thereto should any of such firms merge or be acquired) which are set
forth on Exhibit A hereto, if such firm at such time does not have, or has not
had for a period of two (2) years prior thereto, a business relationship with
New Company, or any of its affiliates, or any party to this Agreement. The
Determination shall be made without any discount for the minority interest
involved or for any illiquidity of the Shares and shall assume the existence of
a willing buyer. The Determination shall be valid for a period of three (3)
months after the receipt thereof and shall be the Determination in connection
with any exercise of a Put or Call within such period. The Determination by
such firm shall be conclusive and binding upon the parties. "Determination"
means any determination of fair market value (whether by agreement or appraisal)
pursuant to this Section 3(c). No party may request a Determination within
twelve (12) months after a prior request for a Determination.
(d) Cooperation. The parties agree to cooperate with the investment
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banking firm making the appraisal and shall make their representatives available
at all reasonable times to assist in such appraisal. Such cooperation shall
include the provision of relevant records and other information.
(e) Conditions Regarding Availability of Cash and Legal Requirements.
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New Company shall not be required to purchase any of the Shares following
exercise of the Put unless New Company has "Unrestricted Cash" available to it;
provided, however, that following the date which is seven (7) years and three
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(3) months after the Closing Date, the Shareholders' right to Put shall no
longer be subject to the provisions of this Section 3(e). "Unrestricted Cash"
shall mean cash or cash equivalents of New Company and cash which can be made
available through the use of its borrowing capacity under one or more agreements
with lenders in existence at the time of the Put Notice that is not (i)
restricted by the terms of one or more agreements with lenders (including the
holders of New Company's high yield notes) in existence at the time of the Put
Notice. New Company agrees that the covenant in the high yield notes being
offered concurrently herewith restricting the payment of
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dividends or redemption of stock shall be materially consistent with the terms
set forth within the caption "Restricted Payments" in the Term Sheet for such
notes dated April 21, 1998. In the event that New Company has insufficient
Unrestricted Cash to fund the purchase of the number of Shares MAI has proposed
to sell in either an Intention Notice or Put Notice, New Company shall promptly
notify MAI in writing of its inability to fund the purchase of the proposed
number of the Shares. Such written notification shall also specify the number of
Shares for which New Company has Unrestricted Cash to purchase Shares. In such
event, (i) MAI may, in its sole discretion, exercise its right to Put such
number of Shares for which New Company has sufficient Unrestricted Cash to
purchase Shares, or (ii) if a Put Notice has been delivered, (A) MAI may either
withdraw such Put Notice, or (B) MAI may require New Company to purchase
pursuant to such Put Notice the number of Shares for which New Company has
sufficient Unrestricted Cash to purchase Shares. New Company agrees that in the
event it has insufficient Unrestricted Cash to purchase all the Shares proposed
to be sold in the Intention Notice, it will promptly notify MAI as soon as it
has sufficient Unrestricted Cash to purchase the remaining Shares.
Notwithstanding any other provision of this Agreement, New Company shall not be
required to purchase any Shares in violation of any lawful restriction
applicable to share repurchases under the Colorado Business Corporation Act.
(f) Effect of the IPO. At such time as New Company notifies MAI in
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writing ("IPO Notice") that it is commencing preparation for the IPO, rights to
exercise the Put and the Call shall be suspended for a period of one hundred
twenty (120) days ("Suspension Period") after delivery of the IPO Notice. The
Suspension Period may be extended for an additional sixty (60) days upon notice
from the Company, accompanied by a writing from the proposed managing
underwriter stating that the offering is proceeding and reasonably is expected
to be completed within the Suspension Period, as extended. Immediately upon
the earlier to occur of (i) written notification by New Company that preparation
for such IPO has terminated, which notification shall be given promptly, or (ii)
the expiration of the Suspension Period, all rights and procedures related to
the Put and Call set forth in this Agreement shall be reinstated. New Company
may not initiate a new Suspension Period for a period of twelve (12) months
after the end of another Suspension Period (regardless of whether such
Suspension Period was extended). Both the Put and the Call shall be
extinguished and be of no further force and effect upon the consummation of the
IPO.
(g) Closing Matters. The Put or the Call, as the case may be, shall
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be closed and the consideration for the Shares paid no later than thirty (30)
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days after the delivery of the Put Notice or Call Notice, as the case may be.
Closing shall take place at the offices of New Company, or such other time or
place as the parties mutually agree at which time the certificates representing
the Shares shall be delivered by appropriate endorsement and transfer
documentation free and clear of any and all liens, claims and encumbrances to
New Company (or its designee) in exchange for cash in the amount determined by
the appraisal. Payment shall be made by wire transfer or by certified or bank
cashier's check.
(h) Fees and Expenses of Investment Banking Firm. The fees and
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expenses of any investment banking firm which conducts the appraisal of the fair
market value of the Shares for any purpose of this Agreement shall be borne
equally by New Company and MAI.
(i) Top-Up Rights. In the event that within six (6) months after the
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closing of a Call (but not the Put), (i) (A) a Change of Control (as defined in
Section 4(a) below) occurs, or any agreement which would have the effect of
resulting in a Change of Control is entered into, or (B) New Company (or any of
its subsidiaries) Transfers (as defined in Section 4(b) below), or enters into
an agreement to Transfer, all or substantially all of the assets or business of
New Company (a "Substantially All Sale"), and (ii) the Class A shareholders of
New Company receive, (or deemed to have been received pursuant to Section 3(j))
in connection with any such transaction, with respect to any of their shares a
per share amount (such amount, in the case of a Substantially All Sale, to be
equal to the proceeds to be received by the Class A shareholders of New Company
as a result of such Substantially All Sale and any subsequent related
transaction, including, without limitation, any liquidation or special dividend)
higher than that paid for Shares purchased pursuant to the Call (the difference
between the amount per share received (or deemed to have been received pursuant
to Section 3(j)) in connection with the Change of Control or the Substantially
All Sale and such amount paid for Shares is referred to as the "Per Share
Difference"), then the amount of the Per Share Difference, multiplied by the
number of Shares which were sold in the Call, shall be paid by New Company to
MAI within thirty (30) days after the closing of such transaction.
(j) In the event of a Change of Control pursuant to which less than
all of the Class A Common Stock is transferred to the acquirer (including any
persons acting together as a group with the acquirer), for purposes of Section
3(i), the Class A shareholders of New Company shall be deemed to have received,
in connection with any such transaction, with respect to any of their shares, a
per share amount equal to the Determined Price (as defined below). The
"Determined Price" shall mean the value, determined by the parties, or an
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investment banking firm selected as set forth herein, of each share of Class A
Common Stock of New Company in the context of a sale of all shares of Common
Stock of New Company to a willing buyer in a Change of Control Transaction. If
a transaction described in this Section 3(j) occurs, the parties shall meet and
attempt to agree in good faith on the Determined Price. If, within 20 days
after the consummation of such transaction, the parties are unable to agree as
to the Determined Price, the Determined Price shall be determined by the
investment banking firm, if any, which delivered an appraisal pursuant to
Section 3(c). If there has been no appraisal, an investment banking firm shall
be selected (in the manner prescribed by Section 3(c)) to determine the
Determined Price. Any determination of the Determined Price shall be completed
within sixty (60) days after consummation of the Change of Control transaction
to which such determination relates. Payment of the Per Share Difference shall
be made by wire transfer or by certified or bank cashier's check within five (5)
days of the determination of the Determined Price.
(k) Notwithstanding Section 8 hereof, the provisions set forth in
Section 3(i) and Section 3(j) shall survive for six (6) months following the
closing of the Call.
4. Tag-Along Rights Regarding a Change of Control.
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In the event that, prior to the completion of the IPO, there shall be a
"Change of Control" (as hereinafter defined) of New Company, then MAI shall have
the "tag-along" rights set forth in this Section.
(a) Change of Control. For purposes of this Agreement, a "Change of
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Control" of New Company shall occur at such time as International and/or its
affiliates (including without limitation, New Company") have sold or otherwise
transferred (whether by means of a sale of stock, merger or otherwise) in one or
more related transactions (a "Transfer") to one person (or to a group of persons
acting together for the purpose of the transaction) the beneficial interest in
that number of shares of Class A Common Stock and/or Class B Common Stock of New
Company which would allow the transferee to thereafter have the ability to elect
a majority of the members of the Board of Directors of New Company.
(b) No later than twenty (20) days before the occurrence of a Change
of Control, International shall give written notice ("Tag-Along Notice") thereof
to MAI, setting forth (i) all material terms and conditions of the Change of
Control including the identity of the buyer, which identity shall be provided at
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least fifteen (15) days before the Change of Control transaction is to close and
(ii) the number and class of shares of Common Stock of New Company proposed to
be Transferred. Within ten (10) days after receipt of the Tag-Along Notice, MAI
shall notify International whether it desires that the Shares be part of such
transaction. If MAI gives notice that it desires to include the Shares as part
of such transaction, International shall then, at its option (a) cause the
Shares to be included in the transaction or (b) otherwise provide for the
purchase of the Shares by such party as it designates. The price to be paid for
the Shares pursuant to the previous sentence shall be at MAI's option, either
(1) the price paid for the shares of Class A Common Stock transferred by
International or (2) the Determined Price (as defined in Section 3(j)) as
determined by the parties hereto, or, if within twenty (20) days after the
Change of Control the parties are unable to agree on such price, by an
investment firm selected in the manner prescribed by Section 3(c). Any
determination of the Determined Price shall be completed within sixty (60) days
after receipt of the Tag-Along Notice. Payment for the Shares shall be made by
wire transfer or by certified or bank cashier's check simultaneously with the
consummation of the Change of Control transaction, or if the determination of
the Determined Price is to be made hereunder, within five (5) days after such
determination.
5. Boards of Directors Seats.
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(a) Hartenbaum shall have the right to designate one person and
▇▇▇▇▇▇▇▇▇ shall have the right to designate one person to serve on the Board of
Directors of Galactic Radio, Inc. (a subsidiary of New Company which owns all of
the shares of ▇▇▇▇▇ Radio Network, Inc.) and, to the extent that Galactic Radio
is not the holding company directly or indirectly owning or controlling the
subsidiary of New Company which holds all or part of the Assets (as defined in
the Exchange Agreement) of MAI ("New MAI"), such right to designate shall apply
also to New MAI.. In addition, Hartenbaum and ▇▇▇▇▇▇▇▇▇ shall have the right,
collectively, to designate one person to serve on the Board of Directors of New
Company. Should the Board of Directors of New Company be increased to more than
eight (8) members, then, in lieu of the previous sentence, Hartenbaum shall have
the right to designate one person and ▇▇▇▇▇▇▇▇▇ shall have the right to
designate one person to the Board of Directors of New Company for so long as the
size of such Board remains at more than eight (8) members. International agrees
to vote sufficient of its shares of Class A Common Stock or its shares of Class
B Common Stock of New Company (which such class to be so voted shall be in
International's sole discretion) in favor of the designee or designees, as the
case may be, of Hartenbaum and ▇▇▇▇▇▇▇▇▇ to the Board of Directors of New
Company and to cause its subsidiaries to vote their shares of Class A Common
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Stock or Class B Common Stock of New Company accordingly, so as to cause, to the
best of its ability, the election of such person or persons. In addition, New
Company agrees to vote its shares and to cause its subsidiaries to vote their
shares of Galactic Radio, Inc. and New MAI, as applicable, in favor of the
designees of Hartenbaum and ▇▇▇▇▇▇▇▇▇ to the Board of Directors of Galactic
Radio, Inc. and New MAI, as applicable.
(b) Notwithstanding any other provision of this Section 5, or
otherwise, neither Hartenbaum nor ▇▇▇▇▇▇▇▇▇, as the case may be, shall have the
right to nominate anyone to the Board of Directors of Galactic Radio, Inc.
pursuant to this Section 5 if he is no longer an employee of New Company. In
addition, without the written consent of New Company, the only person Hartenbaum
can nominate is himself and the only person ▇▇▇▇▇▇▇▇▇ can nominate is himself
and, collectively, to the extent required by this provision, they can only
designate either Hartenbaum or ▇▇▇▇▇▇▇▇▇. It is also agreed that no person
designated by the Shareholders can be removed by other than the Shareholders,
except for "Cause", as defined in the Employment Agreements between New Company
and each of Hartenbaum and ▇▇▇▇▇▇▇▇▇. So long as the Shareholders have the
right to designate persons for board seats under this Section 5, then such
designees shall have the right (but not the obligation) to be a member of each
operating committee of New Company, Galactic Radio and New MAI, as applicable.
An operating committee shall mean any committee charged with carrying out the
responsibilities of the board of directors as to operating matters or with
carrying out the responsibilities of a board itself between regularly scheduled
meetings of the board. An operating committee shall not include any audit
committee, compensation committee, stock option or similar committee, but a
Shareholder may become a member of any such committee by invitation of the board
involved.
(c) New Company shall reimburse the directors designated by the
Shareholders for travel and out-of-pocket expenses incurred as a result of
attending meetings of the Board of Directors of Galactic Radio, Inc., New MAI or
New Company or committees thereof.
(d) In the event that Galactic Radio is no longer the entity owned by
New Company which has the principal ownership and oversight of the radio
programming operations of New Company, then the rights of the Shareholders under
this Section 5 regarding Galactic Radio shall instead be fully applicable to the
entity owned by New Company which then possesses such ownership and oversight.
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6. Concerning the Class A Common Stock of New Company.
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International agrees that, as the principal shareholder of New Company at the
date of this Agreement, it will take no action to amend New Company's Articles
of Incorporation to affect in a manner materially adverse to the Class A Common
Stock as a class the relative rights and preferences of New Company's Class A
Common Stock and Class B Common Stock as reflected in Exhibit D hereto; provided
that a change in the number of authorized shares of Class A Common Stock or
Class B Common Stock shall not be considered an amendment having such effect.
International agrees not to transfer any of its shares of New Company to any
affiliated company, affiliated entity or affiliated person for the purpose of
avoiding the obligations imposed by this Section 6. Any such affiliated company,
affiliated entity or affiliated person to which shares of New Company are
transferred shall agree to the provisions of this Section 6 to the same extent
as applicable to International.
7. Consideration for Shares, Arms-Length Transaction.
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(a) New Company agrees it will not offer or issue any shares of any
class of its stock, or grant any right to receive any of such shares, at a
purchase price or exercise price, as the case may be, which is below the fair
market value of the shares involved (as determined by the Board of Directors of
New Company), except in transactions with the owners of cable television systems
or other distribution systems who receive such shares in connection with
programming agreements with affiliates of New Company, or in connection with
stock-related employee benefit plans. New Company also agrees that from and
after the date of this Agreement, its transactions with affiliated parties shall
be on substantially the same terms and conditions as could have been obtained
from an unaffiliated third party (provided that New Company need not submit the
matter for bids or proposals) , it being understood and agreed that all
transactions to date with New Company or any of its subsidiaries or affiliates
and International or any of its subsidiaries or affiliates shall be deemed to
have been on such basis , and any non-material amendments to, or extensions of
any such agreements shall likewise to be deemed to have been on such basis.
During the term of this Agreement, International agrees (itself and on
behalf of its affiliates, excluding ▇▇▇▇▇ Intercable, Inc.) to refer to New
Company any opportunity to acquire or develop any radio programming or
advertising representation services for radio-related advertising. The
opportunity so referred shall be exclusive to New Company for a period of thirty
(30) days, after which New Company shall notify International that it either
will make such acquisition or do such development or that it has elected not to
do so.
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8. Term.
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(a) The term of this Agreement shall commence on the date first set
forth above.
(b) Except as otherwise specifically provided in Section 8(b)(iv) ,
Section 5, 6 and 7 hereof shall terminate upon the earliest to occur of the
following:
(i) When MAI, Hartenbaum and ▇▇▇▇▇▇▇▇▇ collectively own less
than ten percent (10%) of the total number of outstanding shares of all classes
of stock of New Company and Hartenbaum and ▇▇▇▇▇▇▇▇▇ are no longer employees of
New Company; or
(ii) When MAI, Hartenbaum and ▇▇▇▇▇▇▇▇▇ collectively own less
than five percent (5%) of the total number of outstanding shares of all classes
of stock of New Company regardless of whether Hartenbaum and ▇▇▇▇▇▇▇▇▇ are
employees of New Company; or
(iii) The ninth anniversary of the Effective Date; or
(iv) Closing of the IPO, as set forth under Section 1 of this
Agreement, except with respect to Section 5 of this Agreement.
(c) The provisions of Sections 3 and 4 of this Agreement shall survive
until the earlier to occur of (i) the ninth anniversary of the Effective Date;
or (ii) Closing of the IPO, as set forth in Section 1 of this Agreement.
(d) For so long as any of the provisions of this Agreement enumerated
above ("Sections 3-7") have not been terminated, the remaining provisions hereof
not so terminated shall survive until all of Sections 3-7 have terminated as
herein provided.
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9. Notices.
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All notices, requests, demands, and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if (i) mailed, registered or certified mail,
return receipt requested, postage prepaid, (ii) delivered by hand, (iii) sent by
facsimile transmission, or (iv) delivered by courier, to the following
addresses, or at such other address as a party may designate by notice given in
accordance with this Section:
(a) If to New Company: ▇▇▇▇▇ International
Networks, Ltd.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(b) If to International: ▇▇▇▇▇ International, Ltd.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(c) If to MAI: MediaAmerica, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
With copy to: Fried, Frank, Harris,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(d) If to Hartenbaum ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and/or ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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With copy to: Fried, Frank, Harris,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notices delivered personally or by courier shall be effective upon delivery
to the intended recipient. Notices transmitted by facsimile transmission shall
be deemed to have been given when confirmation of transmission is received.
Notices delivered by registered or certified mail shall be deemed to have been
given on the delivery date set forth on the receipt of registered or certified
mail, or three (3) business days after deposit in the mail, whichever is
earlier.
10. Miscellaneous.
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(a) Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
(b) Entire Agreement, No Waiver. This Agreement and the documents and
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instruments referred to herein constitute the entire agreements between the
parties hereto pertaining to the subject matter hereof and supersede all prior
and contemporaneous agreements and understandings of the parties, and there are
no warranties, representations or other agreements among the parties in
connection with the subject matter hereof except as specifically set forth
herein. No supplement, modification or waiver or termination of this Agreement
shall be binding unless executed in writing by the parties hereto, except that
any of the terms or provisions of this Agreement may be waived in writing at any
time by the party against whom it is asserted and delivered by that party to
each of the other parties. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions thereof
(whether or not similar), nor shall such waiver constitute a continuing waiver.
(c) Headings. The title or headings of the various sections and
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paragraphs hereof are intended solely for convenience of reference and are not
intended and shall not be deemed for any purpose whatsoever to modify or explain
or place any construction upon any of the provisions of this Agreement.
-12-
(d) Use of the Plural, etc. Throughout this Agreement, wherever the
----------------------
context so requires the singular shall include the plural, and the masculine
gender shall include the feminine and neuter genders, and vice versa.
(e) Assignment. No party may assign this Agreement or any interest
----------
herein without the prior written consent of all other parties. All of the terms
and provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective permitted transferees,
successors, and assigns.
(f) Governing Law. The parties agree that this Agreement has been
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executed and delivered in the State of Colorado and shall be construed, enforced
and governed by the laws thereof, without giving effect to the principles of
conflicts of law of such State.
(g) No Third Party Beneficiaries. This Agreement shall not confer any
----------------------------
rights, claims or remedies upon anyone not a party to this Agreement or the
permitted successors and assigns of such a party.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
MEDIAAMERICA, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Director
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
(EXECUTION PAGE CONTINUES)
-13-
▇▇▇▇▇ INTERNATIONAL NETWORKS, LTD.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ INTERNATIONAL, LTD.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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-14-
EXHIBIT A
▇▇▇▇▇▇ Brothers Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Toronto Dominion Securities
▇▇▇▇▇▇ ▇▇▇▇
BT ▇▇▇▇ ▇▇▇▇▇
The Strategis Group
CS First Boston
Bear, ▇▇▇▇▇▇▇
▇▇▇▇▇ Securities
Credit Lyonnais Securities
SBC Warburg Dillon Read Inc.
▇▇▇▇▇▇▇▇ & Co.
