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EXHIBIT 10.190
LIMITED LIABILITY COMPANY AGREEMENT
OF
THE TRAVEL CHANNEL, L.L.C.
Dated as of November 24, 1997
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TABLE OF CONTENTS
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SECTION 1 FORMATION OF THE LIMITED LIABILITY COMPANY........................ 1
1.1 Formation......................................................... 1
1.2 Place of Business................................................. 1
1.3 Registered Office and Registered Agent ........................... 1
1.4 Qualification in Other Jurisdictions.............................. 2
1.5 Term.............................................................. 2
1.6 Status of Company for Tax Purposes................................ 2
1.7 Authorized Person................................................. 2
1.8 Single Class of Membership........................................ 2
SECTION 2 PURPOSE; POWERS................................................... 2
2.1 Purpose of the Company; Description of the Network................ 2
2.2 Powers............................................................ 3
SECTION 3 CAPITAL CONTRIBUTIONS; LIMITED LIABILITY COMPANY
INTEREST; CAPITAL ACCOUNTS........................................ 3
3.1 Interests......................................................... 3
3.2 Capital Contributions............................................. 3
3.3 Capital Accounts.................................................. 4
3.4 Maintenance of Capital Accounts................................... 5
3.5 Withdrawal from Capital Accounts.................................. 5
3.6 Interest on Capital Accounts...................................... 5
3.7 Use of Capital Accounts........................................... 5
3.8 Assignment, Assumption and Prorations............................. 5
SECTION 4 INITIAL LOAN; ADDITIONAL CAPITAL; ADJUSTMENTS..................... 7
4.1 The PDI Loan...................................................... 7
4.2 Additional Capital Generally...................................... 7
4.3 Adjustments....................................................... 8
SECTION 5 DISTRIBUTIONS..................................................... 8
5.1 Distributions..................................................... 8
5.2 Limitation on Distributions....................................... 8
5.3 Distributions in Kind............................................. 8
SECTION 6 ALLOCATIONS OF PROFITS AND LOSSES................................. 8
6.1 Timing............................................................ 8
6.2 Allocation of Profits............................................. 9
6.3 Allocation of Losses.............................................. 9
6.4 Allocations under Section 704(c) of the Code...................... 9
6.5 Qualified Income Offset........................................... 10
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SECTION 7 MEMBERS.......................................................... 10
7.1 Limited Liability................................................ 10
7.2 Limitation on Members............................................ 10
7.3 Indemnification.................................................. 10
SECTION 8 MANAGEMENT OF THE COMPANY........................................ 11
8.1 Management Committee............................................. 11
8.2 Managing Director................................................ 12
8.3 Books and Records................................................ 14
8.4 Accounting; Fiscal Year.......................................... 14
8.5 Tax Reporting.................................................... 14
8.6 Inspection....................................................... 15
8.7 Compensation..................................................... 15
8.8 Bank Accounts.................................................... 15
SECTION 9 TERMINATION...................................................... 15
9.1 Events Causing Termination....................................... 15
9.2 Winding Up....................................................... 16
SECTION 10 TRANSFER OF INTEREST............................................. 17
10.1 General.......................................................... 17
10.2 Violative Transfers.............................................. 18
10.3 Preemptive Right................................................. 18
10.4 TCAC's Tag-Along Right........................................... 19
10.5 TCAC Put Right................................................... 19
10.6 Termination of Rights............................................ 20
10.7 PDI's Call Right................................................. 20
10.8 PDI's Lobby Purchase Option...................................... 20
10.9 Appraised Fair Market Value...................................... 21
10.10 Covenant of DCI.................................................. 22
10.11 Covenant of PCC.................................................. 23
SECTION 11 ADMISSION OF MEMBERS; RESIGNATIONS............................... 23
11.1 Admission of Members............................................. 23
11.2 Conditions....................................................... 23
11.3 Resignations..................................................... 23
SECTION 12 EVENTS OF DEFAULT................................................ 23
12.1 Events of Default................................................ 23
12.2 Notice and Cure.................................................. 24
12.3 Remedies......................................................... 24
12.4 Purchase of Defaulting Members' Interest......................... 25
SECTION 13 NON-COMPETE...................................................... 25
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13.1 Non-Compete........................................................ 25
SECTION 14 EXCULPATION; INDEMNIFICATION; LIABILITY............................ 27
14.1 Exculpation........................................................ 27
14.2 Indemnification.................................................... 27
SECTION 15 ADDITIONAL COVENANTS AND AGREEMENTS................................ 29
15.1 Network Programming and Commercial Breaks.......................... 29
15.2 Sublicense Rights.................................................. 29
SECTION 16 PRECONDITIONS; EFFECTIVE DATE...................................... 31
SECTION 17 MISCELLANEOUS...................................................... 32
17.1 Entire Agreement................................................... 32
17.2 Amendments......................................................... 32
17.3 Confidentiality.................................................... 32
17.4 Representations and Warranties..................................... 32
17.5 Validity and Severability.......................................... 32
17.6 Fair Market Value.................................................. 33
17.7 Press Release...................................................... 33
17.8 Headings and Usage................................................. 33
17.9 Counterparts....................................................... 33
17.10 Successors and Assigns; Survival of Representations and Warranties. 33
17.11 Venue.............................................................. 33
17.12 Further Assurances................................................. 34
17.13 Notices............................................................ 34
17.14 Governing Law...................................................... 34
SCHEDULE
Schedule 3.2(a)
Exhibit A Software License Agreement
Exhibit B PDI License Agreement
Exhibit C Programming License Agreement
Exhibit D Note
Exhibit E Security Agreement
Exhibit F Management Agreement
Exhibit G Consulting Agreement
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LIMITED LIABILITY COMPANY AGREEMENT
OF
THE TRAVEL CHANNEL, L.L.C.
Limited Liability Company Agreement, dated as of November 24, 1997
(this "Agreement"), of THE TRAVEL CHANNEL, L.L.C., between Project Discovery,
Inc., a Delaware corporation ("PDI") and Travel Channel Acquisition Corporation,
a Delaware corporation ("TCAC"; and each of PDI and TCAC a "Member," and,
together with any other entity or individual who may, pursuant to this
Agreement, become a Member, collectively, the "Members").
RECITAL
TCAC and PDI desire to establish a Delaware limited liability company
pursuant to the Delaware Limited Liability Company Act, as amended from time to
time (6 Del. C., Section 18-101 et seq.; the "Act") and further desire, pursuant
to this Agreement, to set forth, among other things, the management structure of
such limited liability company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties hereto hereby agrees as
follows:
SECTION 1
FORMATION OF THE LIMITED LIABILITY COMPANY
1.1 Formation. By execution and delivery of this Agreement and
by filing a certificate of formation (the "Certificate") with the Office of the
Secretary of State of the State of Delaware, the Members hereby form a Delaware
limited liability company named "The Travel Channel, L.L.C." (the "Company"),
pursuant to the Act, for the purposes described in Section 2 below.
1.2 Place of Business. The location of the Company's principal
place of business shall be at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or such other location as shall be selected from time to time by the Management
Committee.
1.3 Registered Office and Registered Agent. The name of the
registered agent of the Company in the State of Delaware shall be Corporation
Service Company, located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
registered office of the Company in the State of Delaware shall be located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Management Committee may at
any time appoint another registered agent and/or registered office.
1.4 Qualification in Other Jurisdictions. The Managing
Director (defined below) shall cause the Company to be qualified or registered
to do business under
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the laws of any jurisdiction in which such qualification or registration is
required or desirable. Any Authorized Person (defined below) may execute,
deliver and file any certificates (and any amendments and/or restatements
thereof) necessary for the Company to qualify to do business in a jurisdiction
in which the Company may wish to conduct business.
1.5 Term. The term of the Company shall commence on the date
the Certificate is filed in the Office of the Secretary of State of the State of
Delaware and shall continue in existence until the Company is dissolved and its
affairs wound up in accordance with the provisions of this Agreement.
1.6 Status of Company for Tax Purposes. For federal, state and
local tax purposes, the Members intend that the Company be treated as a
partnership. All provisions of the Certificate and this Agreement shall be
interpreted and construed so as to effectuate such treatment, and the Managing
Director shall take appropriate action to ensure such treatment. However, the
Members intend that the Company not be a partnership, limited partnership or
joint venture for any purpose other than federal, state and local income tax
purposes and intend that this Agreement shall not be construed to suggest
otherwise.
1.7 Authorized Person. For purposes of executing, delivering
and filing any certificates, documents and other instruments that the Management
Committee deems necessary or appropriate to form, qualify or continue the
existence or qualification of the Company in the State of Delaware and in all
other jurisdictions in which the Company may conduct business or own property,
an authorized person (as such term is used in the Act) shall be any officer or
manager of the Company and any other person specifically authorized by the
Management Committee ("Authorized Person").
1.8 Single Class of Membership. There shall be only one class
of Members.
SECTION 2
PURPOSE; POWERS
2.1 Purpose of the Company: Description of the Network. The
purpose of the Company is to own and operate a cable and satellite programming
network (the "Network") to be called "Travel Channel," "Discovery Travel
Network," or such other name as is agreed upon by the Members, and to operate
other directly related businesses that support or receive support from the
Network. It is the further intent of the Members that the Company may do all
things specified in the Act, and may have and exercise all powers conferred by
the laws of the State of Delaware, as the laws are now in effect or may at any
time hereafter be amended to the extent necessary or appropriate to fulfill its
purposes.
The Network shall be distributed domestically, i.e., within the United
States of America and the territories and possessions thereof (the "Territory").
The Network will consist of programming relating to travel.
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2.2 Powers. The Company shall have all powers and privileges
granted by the Act or by any other applicable law, together with any powers
incidental thereto, and is empowered to do any and all acts necessary,
appropriate, proper, advisable, incidental or convenient to or for the
furtherance of the purposes and business of the Company and for the protection
and benefit of the Company (except to the extent specifically limited by the
terms of this Agreement), including, without limitation, any and all of the
powers which may be exercised on behalf of the Company by the Managing Director
in accordance with Section 8 of this Agreement, and including, without
limitation, buying, selling and holding real and personal property and entering
into and executing agreements in its own name. All real and personal property
(including intangible property acquired by the Company after the date hereof) of
the Company shall be held in the Company's name, and not in the name of any of
the Members, and no Member shall have any individual ownership rights in such
property except for its rights as a Member.
SECTION 3
CAPITAL CONTRIBUTIONS; LIMITED LIABILITY COMPANY
INTEREST; CAPITAL ACCOUNTS
3.1 Interests. "Interest" shall mean a Member's ownership
interest in the Company, and the ratio, stated as a percentage, of a Member's
interest in the Profits (defined below) and Losses (as defined below) of the
Company and in the right to receive distributions of the Company's assets, as
determined pursuant to the provisions of this Agreement and all of such Member's
other rights under this Agreement and the Act. Subject to adjustment as provided
in Section 4.3, TCAC shall have a 30% Interest and PDI shall have a 70%
Interest.
3.2 Capital Contributions. Simultaneously with the execution
and delivery of this Agreement, the Members shall make capital contributions
("Initial Capital Contributions" and, together with all Additional Capital
Contributions (defined herein), "Contributions") to the capital of the Company
in accordance with the provisions set forth below:
(a) TCAC shall contribute the following: (i) its 75% undivided
interest in the assets which comprise, or are otherwise used in
connection with, the cable television network presently known as "The
Travel Channel" (the "Channel"), as such assets are more specifically
described in Schedule 3.2(a) hereto, and subject to any exclusions and
prorations set forth in Section 3.8 below ("Travel Channel Assets"),
(ii) a 100% interest in the "World Travelers Network," ("WTN"), as more
specifically described in Schedule 3.2(a); and (iii) pursuant to a
license agreement between the Company and TCAC substantially in the
form attached hereto as Exhibit A (the "Software License Agreement,"),
a ten year, royalty-free, nonexclusive license to use, within the
Territory, the proprietary software of PCC which interfaces with
"Oracle(TM)" software for shopping, mail order and travel transactions.
In addition, simultaneously herewith, TCAC shall cause to be assigned
to the Company, and the Company shall assume therefrom, subject to the
consent of Landmark Communications, Inc. ("LCI"), all of the right,
title and interest in, and all of the
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obligations of, ▇▇▇▇▇▇ Communications Corporation ("PCC") (the parent
company of TCAC) under and pursuant to that certain Asset Acquisition
Agreement, dated as of June 13, 1997 (the "Landmark Agreement") by and
among LCI, The Travel Channel, Inc. and PCC, and the Services Agreement
dated as of June 13, 1997, among LCI, The Travel Channel, Inc., PCC and
the Weather Channel, Inc. The Members agree that the property
contributed to the Company by TCAC as TCAC's Initial Capital
Contribution shall have an aggregate book value of $55,000,000.
(b) PDI shall contribute the following: (x) its 25% undivided
interest in that portion of the Travel Channel Assets purchased thereby
from TCAC pursuant to the Asset Purchase Agreement, dated of even date
herewith, between PDI and TCAC (the "PDI Purchase Agreement"); (y)
pursuant to a sublicense agreement, substantially in the form attached
hereto as Exhibit B, between the Company and PDI (the "PDI License
Agreement,") a royalty-free, nonexclusive license to use, within the
Territory, the name "Discovery" in connection with the operation and
distribution by the Company of the Network and all related activities
thereof (e.g., website, magazine, other publications, affinity cards,
etc.); and pursuant to a sublicense agreement, substantially in the
form attached hereto as Exhibit C, between the Company and PDI (the
"Programming License Agreement,") a royalty-free, nonexclusive license,
to distribute, within the Territory, subject to the terms and
conditions set forth in such sublicense agreement, the travel-oriented
programming listed on Schedule A to such Programming License Agreement,
which was produced by PDI or sublicensed to PDI by, and was produced
and is owned by, Discovery Communications, Inc. ("DCI"), PDI's parent
company, or any subsidiary thereof, prior to the Effective Date
(defined below). The Members agree that the property contributed to the
Company by PDI as PDI's Initial Capital Contribution shall have an
aggregate book value of $128,333,333.
3.3 Capital Accounts. The Company shall establish and maintain
a separate Capital Account for each Member. Each Member's Capital Account will
be increased by (i) the amount of money contributed by such Member to the
Company; (ii) the fair market value of property contributed by such Member to
the Company (net of liabilities secured by such contributed property that the
Company is considered to assume or take subject to under Section 752 of the
Internal Revenue Code of 1986, as amended ("Code")); (iii) allocations of
Profits to such Member; and (iv) allocations to such Member of income described
in Section 705(a)(1)(B) of the Code. Each Member's Capital Account will be
decreased by (i) the amount of money distributed to such Member by the Company;
(ii) the fair market value of property distributed to such Member by the Company
(net of liabilities secured by such distributed property that such Member is
considered to assume or take subject to under Section 752 of the Code); (iii)
allocations of Losses to such Member; and (iv) allocations to such Member of
expenditures described in Section 705(a)(2)(B) of the Code. TCAC's Capital
Account shall initially be $55,000,000 and PDI's Capital Account shall initially
be $128,333,333.
3.4 Maintenance of Capital Accounts. The manner in which
Capital Accounts are to be maintained pursuant to this Section 4.4 is intended
to comply with the
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requirements of Section 704(b) of the Code and the Treasury Regulations
promulgated thereunder and is intended to properly reflect each Member's
"interest in the partnership" pursuant to such Treasury Regulations. If, in the
opinion of the Company's accountants, the manner in which Capital Accounts are
to be maintained pursuant to the provisions of this Section 4.4 should be
modified, in order to comply with section 704(b) of the Code and the Treasury
Regulations promulgated thereunder and in order to properly reflect each
Member's "interest in the partnership," then, notwithstanding anything to the
contrary contained in the preceding provisions of this Section 3.4 the method in
which Capital Accounts are maintained shall be so modified; provided, however,
that any change in the manner of maintaining Capital Accounts shall not
materially alter the economic agreement between or among the Members.
3.5 Withdrawal from Capital Accounts. Except as specifically
provided by law, no Member shall have the right to withdraw any part of its
Capital Account or to demand or receive the return of any of its Capital
Contributions from the Company.
3.6 Interest on Capital Accounts. No Member shall be entitled
to receive any interest in respect of either its Capital Contributions or its
Capital Account.
3.7 Use of Capital Accounts. The aggregate of all Capital
Contributions of the Members to the Company shall be available to the Company to
carry out the objects and purposes of the Company.
3.8 Assignment Assumption and Prorations.
(a) Unless otherwise defined in this Agreement, capitalized
terms used in this Section 3.8 shall have the meanings assigned thereto in the
PDI Purchase Agreement. Upon the contribution of the Travel Channel Assets to
the Company in accordance with Section 3.2, the Company assumes and undertakes
to pay, discharge, and perform (i) regardless of whether any Consent to the
assignment of any License or Assumed Contract to the Company has been obtained,
all obligations and liabilities of TCAC and PDI relating to the business and
operations of the Channel and the use and operation of the Travel Channel
Assets, including obligations and liabilities of TCAC and of PDI (if any) under
the Licenses and Assumed Contracts (as defined in the PDI Purchase Agreement),
to the extent that (1) such obligations and liabilities relate to the time after
the Effective Date, or (2) the Company received a credit under Section 3.8(c)
for deferred expenses, and (ii) all obligations and liabilities of TCAC and PDI
to pay severance or other similar benefits to any employees of "The Travel
Channel" who are terminated at or after the Effective Date provided that the
Company retains its right to exercise its rights under the Landmark Agreement
(defined herein) for such obligation, (iii) payments to any party to an
affiliate agreement (each, an "MSO"), which payments constitute indemnification
of damages suffered by such MSO and/or a repayment of affiliate fees paid by
such MSO prior to the Effective Date (whether as a result of such MSO enforcing
the "most favored nation" provision of the relevant affiliate agreement, or
otherwise), and (iv) free or reduced rate advertising time which the Company is
required to provide to advertisers on the Network (i.e. "make good" time), as a
result of the inability of TCAC to have provided to such advertiser the number
of
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subscribers for the advertising time purchased and used by such advertiser prior
to the Effective Date.
(b) Concurrently with the contribution of the Assets to the
Company in accordance with Section 3.2, TCAC will transfer, convey, assign, and
deliver to the Company (i) all security deposits under any Assumed Contract; and
(ii) all prepaid and deferred expenses of the Channel as of the Closing Date.
(c) All security deposits and prepaid and deferred expenses
arising from the operation of the Channel and assigned by TCAC pursuant to
Section 3.8(b) or assumed by the Company pursuant to Section 3.8(a), including
business and license fees, utility charges, real and personal property taxes and
assessments levied against the Assets, property and equipment rentals,
applicable copyright or other fees, sales and service charges, and similar
prepaid and deferred items, but excluding severance obligations and any
obligations set forth in Section 3.8(a)(iii) and (iv), shall be prorated between
TCAC and the Company in accordance with the principle that TCAC shall be
responsible for all expenses, costs, liabilities, and obligations allocable to
the operations of the Channel for the period prior to the Effective Date, and
the Company shall be responsible for all expenses, costs, liabilities, and
obligations allocable to the operations of the Channel for the period after the
Effective Date. To effectuate the proration of expenses pursuant to this Section
3.8(c), TCAC shall receive a credit equal to the amount of any security deposits
assigned to the Company and any expenses, costs, liabilities, or obligations
that are paid or incurred by TCAC and are allocable to the operations of the
Channel for the period after the Effective Date and the Company shall receive a
credit equal to the amount of any expenses, costs, liabilities, or obligations
that are paid or incurred by the Company and are allocable to the operations of
the Channel for the period before the Effective Date. TCAC and the Company will
use good faith efforts to agree on the prorations. Within fifteen Business Days
after the date on which the prorations are finally determined pursuant to this
Section 3.8(c). TCAC shall pay or cause to be paid to or for the account of the
Company, in immediately available funds, the amount, if any, by which the sum of
the credits to the Company pursuant to this Section 3.8(c) exceeds the sum of
the credits to TCAC pursuant to this Section 3.8(c), and the Company shall pay
or cause to be paid to or for the account of TCAC, in immediately available
funds, the amount, if any, by which the sum of the credits to TCAC pursuant to
this Section 3.8(c), exceeds the sum of the credits to the Company pursuant to
this Section 3.8(c).
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SECTION 4
INITIAL LOAN; ADDITIONAL CAPITAL; ADJUSTMENTS.
4.1 The PDI Loan. Simultaneously with the execution and
delivery of this Agreement, PDI is making available to the Company a secured
line of credit of a maximum amount of $20,000,000 (the "PDI Loan"), as evidenced
by a note, made by the Company in favor of PDI in the form of Exhibit D hereto
(the "Note") and a security agreement, made by the Company in favor of PDI in
the form of Exhibit E hereto (the "Security Agreement"). The proceeds of the PDI
Loan shall be used by the Company for the capital needs of the Company. The
obligation of the Company to repay the PDI Loan shall be senior in right to the
obligation of the Company to repay additional loans made by Members pursuant to
Section 4.2, below, or otherwise.
4.2 Additional Capital Generally. If any business plan or
budget approved by the Management Committee in accordance with the terms of this
Agreement requires additional capital to finance the Company beyond the Initial
Capital Contributions and the PDI Loan, the Management Committee may make a call
for additional Capital Contributions, of cash only ("Additional Capital
Contributions"). The Management Committee shall send a notice to the Members
identifying the amount and purpose of such Additional Capital Contributions and
specifying a date, not less than 30 days after the date of the notice (the
Notice Period), on which such Additional Capital Contributions shall be made.
Each of the Members shall have the option to contribute up to its pro rata share
of such Additional Capital Contributions, in accordance with the Percentage
Interests of the Members at the time such Additional Capital Contribution is
required. If a Member declines or fails to contribute its pro rata share of any
additional capital requirements by the expiration of such Notice Period, the
other Member shall have the right, but not the obligation, to make up the
shortfall of additional capital, either in the form of an Additional Capital
Contribution or a loan secured by the assets of the Company ("Additional Loan")
to the Company. Each such Additional Loan shall bear interest at a rate of 15%
per annum and shall be for a term of ten years, as reasonably determined by such
Member, mandatorily prepayable as set forth below and voluntarily prepayable
without premium or penalty thereon. In the event Additional Loans are made
pursuant to this Section 4.2, the repayment thereof, and the security granted
thereunder, shall be subordinate in right and time to the repayment of the PDI
Loan and of any previous Additional Loans ("Previous Loans") made pursuant to
this Section 4.2. (With respect to property of the Company in which a Member has
been granted a security interest as security for the PDI Loan or any Additional
Loan (hereinafter, "Collateral"), any and all decisions regarding such
Collateral, and the disposition thereof, shall be made at the reasonable
discretion of the holder of the most senior security interest in such
Collateral, as such intercreditor rights may be more specifically set forth in
an intercreditor agreement, upon the making of an Additional Loan by an entity
other than the entity which has made a Previous Loan, which is still
outstanding.) Subject to the foregoing subordination provision, each such
Additional Loan made pursuant to this Section 4.2, shall be mandatorily
prepayable, in successive annual installments, commencing on the last day of the
second year after which the PDI Loan and all Previous Loans shall have been
prepaid in full, and on each anniversary thereof. Each such prepayment shall be
in an amount equal to the "excess cash flow" of the Company for
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the immediately preceding fiscal year of the Company. For purposes hereof,
"excess cash flow" shall mean, for any period, the gross operating revenues of
the Company for such period derived in the ordinary course of business, minus
all operating, programming, selling and general and administrative expenses,
debt service (exclusive of prepayments of principal made in respect of the PDI
Loan and the Previous Loans) and capital expenditures for such period, less
reserves for expenses or expenditures during subsequent periods as reasonably
determined by the Management Committee.
4.3 Adjustments. Immediately following any Additional Capital
Contributions which are not made pro rata, the Interests held by each Member
shall be redetermined by dividing (x) the aggregate Capital Contributions made
by such Member through the date of such calculation, by (y) the sum of all
Capital Contributions made by all Members through the date of such calculation.
For purposes of this Section 4.3, TCAC's initial 30 % Interest shall be based on
aggregate Initial Capital Contributions deemed to be $55,000,000 and PDI's
initial 70% Interest shall be based on aggregate Initial Capital Contributions
deemed to be $128,333,333. Additional Loans made by any Member pursuant to
Section 4.2, above shall not be considered Additional Capital Contributions and
shall not result in an adjustment of Interests.
SECTION 5
DISTRIBUTIONS
5.1 Distributions. Distributions shall be made to the Members
at the times and in the aggregate amounts determined by the Management
Committee. Such distributions shall be allocated to the Members in the same
proportion as their Interests at the time of distribution.
5.2 Limitation on Distributions. Notwithstanding the
foregoing, no distribution shall be declared and paid unless, after giving
effect thereto, the assets of the Company exceed the Company's liabilities each
as determined by the Management Committee.
5.3 Distributions in Kind. All distributions of property of
the Company in kind shall be valued at their fair market value as of the date of
the distribution, and the amount of any gain or loss that would be realized by
the Company if it were to sell such property at such fair market value shall be
allocated to the Members in accordance with Section 6 hereof. The Company shall
not distribute property in kind without the unanimous approval of the Members.
SECTION 6
ALLOCATIONS OF PROFITS AND LOSSES
6.1 Timing. Profits and Losses shall be determined annually,
promptly following the close of each fiscal year.
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6.2 Allocation of Profits. For each taxable year of the
Company, subject to the provisions of Sections 6.4 and 6.5, hereof, the taxable
income of the Company as determined for federal income tax purposes under
Section 703(a) of the Code, including items separately stated pursuant to
Section 703(a)(1) of the Code, ("Profits") shall be allocated as follows:
(a) First, pro rata among the Members in accordance with the
aggregate Losses previously allocated to them under Section 6.3(c) of
this Agreement, in an amount equal to the excess of such previously
allocated Losses over any Profits previously allocated under this
Section 6.2(a);
(b) Second, pro rata among the Members in accordance with the
aggregate Losses previously allocated to them under Section 6.3(b) of
this Agreement, in an amount equal to the excess of such previously
allocated Losses over any Profits previously allocated under this
Section 6.2(b); and
(c) Third, pro rata among the Members in proportion to each
Member's Interests.
6.3 Allocation of Losses. For each taxable year of the
Company, subject to the provisions of Sections 6.4 and 6.5 hereof, the taxable
loss of the Company as determined for federal income tax purposes under Section
703(a) of the Code, including items separately stated pursuant to Section
703(a)(1) of the Code, ("Losses") shall be allocated as follows:
(a) First, pro rata among the Members in proportion to each
Member's Interests until the Capital Account of any Member is zero;
(b) Second, pro rata among the Members having positive Capital
Accounts until the Capital Accounts of the remaining Members are zero;
and
(c) Third, pro rata among the Members in proportion to each
Member's Interests.
6.4 Allocations under Section 704(c) of the Code. Pursuant to
Section 704(c) of the Code and the Regulations thereunder, income, gain, loss,
and deduction with regard to any property contributed to the capital of the
Company shall, solely for tax purposes, be allocated between the Members so as
to take into account any variation between the adjusted basis of such property
to the Company for federal income tax purposes and its fair market value at the
time of contribution in accordance with Treas. Reg. Section 1.704-3(b). In the
event the book value of any property of the Company is adjusted pursuant to this
Agreement, subsequent allocations of income, gain, loss, and deduction shall
take into account any variation between the adjusted basis of the property and
its adjusted book value in the same manner as under Section 704(c) of the Code
and the Regulations thereunder.
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6.5 Qualified Income Offset. If a Member unexpectedly receives
any adjustments, allocations, or distributions described in Treasury Regulations
Section 1.704-l(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain
shall be specially allocated to such Member in an amount and manner sufficient
to eliminate the deficit balance in such Member's Capital Account created by
such adjustments, allocations or distributions as promptly as possible;
provided, however, that for this purpose, a Capital Account shall be increased
by the Member's share of Company Minimum Gain (as defined in the Code) as of the
end of the taxable year. It is the intention of the Members that this Section
6.5 be treated as a "qualified income offset" within the meaning of Treas. Reg.
Section 1.7041(b)(2)(ii)(d). In any such event, the Management Committee is
hereby authorized to make subsequent allocations of other items of income, gain,
loss and deduction among the Members so as, to the extent possible, to
counteract the effect of special allocations pursuant to the first sentence of
this Section 6.5.
SECTION 7
MEMBERS
7.1 Limited Liability. Except as otherwise provided by the Act
or expressly set forth in this Agreement, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the Company and no Member shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member or acting as a Manager of the Company.
7.2 Limitation on Members. No Member, in its capacity as a
Member, may act for or on behalf of the Company, without the prior authorization
of the Management Committee, except to the extent such authorization is
specifically authorized in this Agreement or required by the Act. No Member
shall hold itself out as having any authority or agency to act on behalf of any
other Member in any capacity or in any other manner except as specifically
authorized in this Agreement or by the Management Committee, and no Member shall
become liable by reason of any representation, action or omission of any other
Member contrary to the provisions of this Agreement. In no event shall a Member
have any obligation or liability for any contractual obligation or liabilities
of the other Member, with respect to any matter outside the scope of this
Agreement.
7.3 Indemnification. Each Member shall indemnify, defend and
hold harmless the Company and/or each other Member, its directors, officers and
employees from and against any and all losses, claims, damages, liabilities and
expenses arising out of (i) any act or omission or any assumption of liability
by the indemnifying Member on behalf of the indemnified Member taken in
contravention of the terms of the Act and/or this Agreement; (ii) any other
breach of the Act and/or this Agreement by the indemnifying Member; or (iii) the
willful misfeasance or gross negligence of the indemnifying Member.
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SECTION 8
MANAGEMENT OF THE COMPANY
8.1 Management Committee.
(a) The business, property and affairs of the Company shall be
managed by and under the direction of a management committee (the
"Management Committee"). The Management Committee shall be made up of
four individuals (each, a "Manager"), who shall be deemed to be
"managers" within the meaning of the Act. Initially, three of the
Managers shall be appointed by PDI and one Manager shall be appointed
by TCAC. If at any time PDI shall hold 50% or less of the total
Interests; PDI shall be required to relinquish (and shall be deemed to
have done so) to TCAC its right to appoint one Manager. If at any time
TCAC shall hold less than 15% of the total Interests, TCAC shall be
required to relinquish (and shall be deemed to have done so) to PDI its
right to appoint one Manager. Initially, the individuals appointed by
PDI as Managers shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇,
and the individual appointed by TCAC as a Manager shall be ▇▇▇▇▇▇
▇▇▇▇▇▇. If a Member shall, pursuant hereto, be deemed to have
relinquished the right to appoint a Manager, such Member shall request
that one of the Managers previously appointed thereby resign, and such
Manager shall be replaced with a Manager appointed by the other Member.
The appointment of each Manager shall be affirmed annually, provided
that each Manager shall serve until such Manager is removed by the
Member that appointed him, with or without cause, or until he or she
resigns. Any Manager may resign at any time by giving written notice of
his resignation to all the Members, or to the Member who appointed such
Manager. Such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt, and, unless otherwise
specified therein, the acceptance of a resignation shall not be
necessary to make it effective. Each Member may fill any vacancy
existing from time to time in their respective designees to the
Management Committee. No action may be taken by the Management
Committee at any meeting unless a quorum is present, and the
affirmative vote of a majority of such quorum of the Management
Committee shall be required for any act or decision thereof. A quorum
for any meeting of the Management Committee must include Managers
appointed by both Members, unless pursuant to this Section 8.1(a), (x)
a Member does not, at such time, have the right to appoint a Manager,
or (y) (i) the Manager(s) who failed to attend received at least five
(5) business days' prior written notice of the meeting, in which case
the Managers present at such meeting shall constitute a quorum for all
the purposes of that meeting. The aggregate vote cast by all Managers
appointed by a Member shall have a value equal to the Interests held by
such Member at the time the votes are cast: i.e., the "Total Management
Committee Votes" shall equal 100% and if, for example, the aggregate
votes of all Managers appointed by a Member owning 75% of the
Interests at the time of the vote shall count as 75% of Total
Management Committee Votes.
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(b) The Management Committee will hold regular meetings, at
least quarterly, at such place as the Management Committee may agree
upon. The Managing Director shall give at least ten (10) business days'
notice to all Managers of such regular meetings, which notice may be
waived by any and all Managers. Any Member or Manager may call a
special meeting of the Management Committee upon at least ten (10)
business days prior notice to all Managers. Any notice of a regular or
special meeting shall contain a description of the agenda for such
meeting. No business shall be conducted at a meeting which is not
referred to in the notice for such meeting except with the unanimous
consent of the Management Committee.
(c) Managers shall have the right to participate in any
meeting of the Management Committee by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear one another, and such
participation shall constitute presence in person at such meeting.
(d) Each Manager may vote in person or by proxy at any
meeting. A Manager may provide to the Management Committee, in writing,
the names of up to five individuals who may have such Manager's proxy.
The attendance of any meeting by any of such individuals, or the
execution of a consent by any such individual, shall be deemed for all
purposes to have been authorized for such purpose as a holder of the
proxy of the Manager who provided the name of such individual, unless
the Management Committee shall have received written notice, prior to
such meeting or consent execution, that such individual no longer holds
such Manager's proxy.
8.2 Managing Director.
(a) The Company shall be managed primarily by a managing
director, who shall also be known as the "President" of the Company
(the "Managing Director"). The Management Committee shall select the
Managing Director, who may be an employee of PDI or an Affiliate
thereof. The Managing Director shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇▇. The
Managing Director shall serve until removed by the Management
Committee, with or without cause, or until he or she resigns upon
notice to the Company. Such resignation shall be in writing and shall
take effect at the time specified therein, and if no time be specified,
at the time of its receipt by the Management Committee. The Managing
Director shall be responsible for the day-to-day operations of the
Company and will report to the Management Committee regarding the same.
The Managing Director shall be authorized to execute and deliver
contracts and agreements on behalf of the Company in the ordinary
course of its business, and all other contracts and agreements upon the
direction of the Management Committee, and the Managing Director may
delegate such powers to other officers, employees and representatives
of the Company.
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(b) The Managing Director shall have such powers and
responsibilities as may be designated by and shall be paid such salary
and entitled to such benefits as shall be determined by the Management
Committee.
(c) The Managing Director may not, without the prior approval
of a majority of the Management Committee:
(i) invest or borrow money on behalf of the Company in
excess of limits set forth by the Members;
(ii) expend or authorize any expenditure on behalf of the
Company in excess of amounts provided for in any business plan or
budget approved by the Management Committee; or
(iii) enter into contracts on behalf of the Company in the
ordinary course of business which exceed the financial limits set
forth by the Management Committee from time to time.
(d) In addition, the Managing Director shall not, without the
prior approval of all of the Managers, take, or permit the Company to
take, any of the following actions:
(i) Issuance or redemption of Interests, other than
pursuant to Section 11, or Paragraph 12.3 below;
(ii) Entering into material transactions with Affiliates
(defined below) of either Member outside of the ordinary course of
business (programming acquisitions and affiliate agreements are
deemed to be within the ordinary course of business, provided that
the Company shall enter into such agreements only on terms at
least as favorable to the Company as an unrelated willing third
party would agree to) (For purposes of this Agreement, Affiliate
shall mean, as to any entity or person, (a) any other entity or
person which directly or indirectly is in control of, is
controlled by, or is under common control with, such entity or
person, or (b) any person who is a director, officer or employee
(i) of such entity or person or (ii) of any other entity or person
described in the preceding clause (a). For purposes of this
definition and the definition of "Controlled Affiliated" set forth
below in Section 9.1, control of an entity or shall mean (a) the
power, directly or indirectly, to direct or cause the direction of
the management or policies of such entity (whether through the
ownership of securities or partnership or other ownership
interests of any other entity or person, by contract or
otherwise), or (b) the ownership, direct or indirect, of 10% or
more of the securities having voting power for the election of
directors or other governing body of a corporation or of the
partnership or other ownership interests of any other entity or
person other than as a limited partner of any such entity);
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(iii) Incurrence of indebtedness for borrowed money,
exclusive of the PDI Loan and Additional Loans, in excess of
$1,000,000;
(iv) Significant (in terms of dollars and effect on the
Company) acquisitions and dispositions, exclusive of acquisitions
(such as programming) in the ordinary course;
(v) Dissolution of the Company prior to the stated
termination date, other than pursuant to Paragraph 12.3 of this
Agreement;
(vi) Any material change in the operation of the
business of the Company and/or in the programming theme of the
Network;
(vii) Any merger or consolidation of the Company with or
into any other person or entity;
(viii) Any sale or other disposal of all or substantially
all of the assets of the Company; and
(ix) Any voluntary liquidation, dissolution, winding-up,
recapitalization or reorganization of the Company.
(e) In addition to the foregoing, the Management Committee may
elect to cause the Company to terminate the TCAC Consulting Agreement
(defined below) only at such time as TCAC shall no longer own at least
15% of the Interests.
8.3 Books and Records. At all times during the continuance of
the Company, the Company shall maintain, at the principal place of business of
the Company, or at such other place as the Members shall determine, books and
records which shall be adequate and appropriate for the business of the Company
and in which each transaction of the Company shall be entered fully and
accurately. The Company shall maintain such other books and records as may be
required by applicable law, at such places as may be specified by such law.
8.4 Accounting: Fiscal Year. The books and records, and the
financial statements and reports, of the Company, for Federal, state and local
tax purposes, and for purposes of reports to the Members, shall be kept on an
accrual basis unless the Management Committee determines otherwise. The fiscal
year of the Company shall be the calendar year unless the Management Committee
determines otherwise.
8.5 Tax Reporting.
(a) The Members hereby designate PDI as the "tax matters
partner" (as such term is defined in Section 6231(a)(7) of the Code) or
any successor Member selected by vote of the Members and agree that PDI
shall have all of the powers and obligations of a tax matters partner
pursuant to the Code.
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(b) The Managing Director shall cause the Company to file all
income tax returns required to be filed by the Company for each
calendar year or part thereof. On or prior to April 1 of each year, the
Managing Director shall cause each Member to be furnished with
information relating to the Company necessary for preparing such
Member's income tax returns. A copy of the Company's federal income tax
return and other tax returns will be made available for inspection and
copying by any Member at the office of the Company.
(c) No election at the Company level shall be made to be
excluded from the application of Subchapter K of the Code, or from any
similar provision of state law. The Managing Director is authorized to
cause the Company to make such other elections for federal income tax
purposes as the Company deems advisable, except that an election
pursuant to Code Section 754 shall be made by the Managing Director, on
behalf of the Company, at the request of any Member.
8.6 Inspection. Any Member, and any person which it may
designate, may examine the books, records, reports and other papers of the
Company, make copies and take extracts therefrom, and discuss the affairs,
finances and accounts of the Company with the Managing Director, or with the
Company's accountants, for any purpose reasonably related to such Member's
Interest, all at such reasonable times and as often as may be reasonably
requested.
8.7 Compensation. No Manager shall receive any compensation
for services rendered to the Company except as determined by the Members. The
Management Committee shall make all determinations with respect to compensation,
including salaries and bonuses, of all employees of the Company.
8.8 Bank Accounts. All funds of the Company shall be deposited
in one or more separate bank accounts in the name of the Company. The Management
Committee shall determine the institution or institutions at which the accounts
will be opened and maintained, the types of accounts, and the persons who will
have authority with respect to the accounts and the funds therein.
SECTION 9
TERMINATION
9.1 Events Causing Termination.
(a) Notwithstanding anything to the contrary contained herein,
the Company shall be dissolved and its affairs wound up upon the
occurrence of any of the following events:
(i) the election of all of the Members to dissolve the
Company;
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(ii) the occurrence of any event which shall make it
unlawful for a Member to be a Member or a party to this Agreement,
unless such Member shall elect to transfer its Interest to a
Controlled Affiliate (defined below) which may lawfully be a
Member;
(iii) an election by a Member pursuant to Section 12.3(a);
(iv) upon sale or liquidation of the Company upon
election of the Members in accordance with the terms of this
Agreement;
(v) any other event which causes dissolution under the
Act unless, pursuant to the Act, Members holding at least a
majority of the total Interests may elect to continue the Company
within 90 days of such event, and such election is made within
such 90 day period.
For purposes of this Agreement, a "Controlled Affiliate" of
any entity or person means any other entity or person that, through
ownership of voting equity securities, controls, is controlled by or is
under common control with, such entity or person.
(b) The dissolution of the Company shall be effective on the
day on which the event giving rise to the dissolution occurs, but the
Company shall not terminate until the business of the Company shall be
wound up and liquidated and the assets of the Company have been
distributed as provided in Section 9.2 and the Certificate shall have
been cancelled in the manner required by the Act. In the event of a
dissolution pursuant to Section 9.l(a)(ii) or 9.l(a)(vi), the remaining
Members may elect to continue the Company, alone or with new Members
admitted thereby, and/or such remaining and new Members may purchase
the Interests of any Member which is no longer continuing as a Member
in accordance with the terms of this Agreement. Notwithstanding the
dissolution of the Company, the business and affairs of the Company
shall continue to be governed by this Agreement.
9.2 Winding Up. If the Company is dissolved pursuant to the
preceding Section, the Company shall be wound up and liquidated in accordance
with the Act and the following provisions:
(a) A final audit shall be made by the independent certified
public accountants for the Company. The Management Committee shall
arrange for any non-cash assets of the Company to be sold by public or
private sale, at the discretion of and on terms set by the Management
Committee, at which any Member may bid for such assets.
(b) The assets of the Company shall be liquidated by the
Management Committee as promptly as possible, but in an orderly and
businesslike manner so as not to involve undue sacrifice.
Notwithstanding the foregoing, in the event the Management Committee
shall reasonably determine in good faith that an
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immediate sale of part or all of the Company's assets would cause undue
loss to the Members, or would cause undue loss to the Management
Committee, in order to avoid such loss or violation, the Management
Committee may, to the extent not then prohibited by the Act, either
defer liquidation of, and withhold from distribution, and continue to
use for a reasonable time any assets of the Company, or distribute the
assets to the Member in kind (subject to Section 5.3). If any assets of
the Company are to be distributed in kind, such assets shall be
distributed based on fair market value.
(c) The proceeds from any liquidation of the Company shall be
applied and distributed as follows:
(i) first, to the payment of debts and liabilities of the
Company and the expenses of liquidation, including without
limitation, the PDI Loan, any Additional Loans, and the setting up
of any reserves that are reasonably necessary for any contingent,
conditional, unmatured or unforeseen liabilities or obligations of
the Company or of the Members arising out of, or in connection
with, the Company; and
(ii) second to the Members in accordance with their
respective Capital Accounts.
SECTION 10
TRANSFER OF INTEREST
10.1 General. Except for a transfer to a Controlled Affiliate
and except for a Qualified Public Offering, as consented to by the Members
pursuant to the terms of this Agreement, during the five year period following
the Effective Date, a Member shall not transfer, grant, assign, encumber, pledge
or otherwise commit or dispose of ("Transfer") all or any part of its Interests.
After the end of such five year period, a Member may Transfer its Interests, or
a portion thereof, only upon the following terms and conditions:
(a) A Transfer may be made only upon compliance with Section
10.3 below;
(b) The Transfer will not require registration of Interests
under any federal or state securities laws;
(c) No transferee of all or part of the Interest of a Member
(the "Transferee") in the Company shall have the rights of a Member
unless and until the transferring Member (the "Transferor") has
provided to the other Member notice of the Transfer and the Transferee,
as of the effective date of the Transfer, has committed in writing to
be bound by this Agreement to the same extent and nature as the
Transferor;
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(d) No Member, without the consent of the other Member, shall
make a Transfer which shall cause the Company to be classified other
than as a partnership for U.S. Federal income tax purposes;
(e) No Transfer permitted by this Section 10 shall relieve
the Transferor of any liability, whether accruing before or after such
Transfer, which arises out of acts of the Transferor conducted prior to
such Transfer; and
(f) The Transferor and the Transferee shall bear all tax
consequences of the Transfer.
If, contrary hereto, a Transfer is made which causes the
Company to be classified other than as a partnership for U.S. Federal income tax
purposes, the Transferor shall indemnify, defend and hold harmless the other
Members from and against any and all tax, loss, cost, expense or damage in
connection therewith.
10.2 Violative Transfers. Any Transfer made in violation of
this Section 10 shall be deemed to be invalid, null and void, and shall be
without effect. The Managing Director may request officer certificates,
representations and warranties from the Transferee and Transferor and an opinion
of counsel as to the matters set forth in (b) and (d) above of Section 10.1 and
such other factual matters as the Managing Committee may reasonably request.
10.3 Preemptive Right. If a Member desires to Transfer all or
any part of its Interests in the Company (such Member, the "Transferor"), the
other Member (the "Purchasing Member") shall have a preemptive right to acquire
such Interests at the same price and on substantially the same terms and
conditions as agreed to by any proposed Transferee (the "Terms"), provided,
however, that with respect to those Terms which are not monetary (i.e. consist
of payment of cash) and which, by their nature, could not be performed by the
Purchasing Member, the Purchasing Member shall have the right to substitute cash
having the equivalent economic value of such Terms (and the Members shall
thereafter use their best efforts to come to an agreement regarding the
equivalent value of such non-economic Terms, and if they are not so able to, the
Members shall retain an independent outside financial advisor, acceptable to
both Members, to arbitrate the same). The Transferor shall give to the
Purchasing Member notice of the terms and conditions of the proposed Transfer,
including the Transferor's determination of the equivalent economic value of
such non-monetary Term and including the entity or individual to which such
Interests are intended to be transferred (the "Proposed Purchaser"). A Member
wishing to exercise its preemptive right may elect to do so by written notice to
the Transferor within thirty (30) days of such Member's receipt of the notice of
proposed Transfer (such notice which will contain such Member's determination of
the equivalent economic value of any such non-monetary Terms, if applicable.) If
at such time there are more than two Members, the Interests of the Transferor
may be allocated among the electing Member(s) in any manner to which they agree,
or absent an agreement shall be allocated in proportion to their respective
Interests immediately prior to the exercise of the preemptive right. No election
to exercise the preemptive right shall be effective unless the electing
Member(s) collectively
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elect to purchase all of the Interests of the Transferor being offered hereby.
Any purchase by the electing Member(s) shall occur on the terms set forth in the
Transferor's notice, except that the closing date may be postponed by thirty
(30) days at the request of any electing Member. If the Purchasing Member(s)
decline to acquire the portion of the Transferor's Interest that the Transferor
proposes to Transfer, the Transferor may Transfer such portion of its Interest
to the Proposed Purchaser on the terms set forth in the Transferor's notice. If
PDI is the Transferor, the terms on which TCAC may acquire PDI's Interest shall
include any continuation of rights under the PDI License Agreement or the
Programming Licensing Agreement that PDI or any of its Controlled Affiliates has
offered to the Proposed Purchaser.
10.4 TCAC's Tag-Along Right. In the event that PDI intends to
Transfer its Interests in the Company pursuant to this Section 10 (exclusive of
Transfers to Controlled Affiliates), and TCAC has declined to exercise its
preemptive right pursuant to Paragraph 10.3 above, TCAC shall have the right, in
its sole discretion, to also sell to the Proposed Purchaser, as a condition to
such sale by PDI, at the same price per Interests percentage, and on the same
terms and conditions as involved in such sale by PDI, the same percentage of its
Interests as equals the percentage of its Interests to be sold by PDI to the
Proposed Purchaser represent with respect to the Interests owned by PDI
immediately prior to the sale of any portion of its Interests to the Proposed
Purchaser (i.e., if PDI intends to sell 20% of its 70% Interests, TCAC may
require as a condition to such sale that the Proposed Purchaser purchase from
TCAC 20% of its 30% of Interests, i.e. 6% of the total Interests). The exercise
or non-exercise by TCAC of its rights pursuant to this Paragraph 10.4 shall be
without prejudice to its rights under this Paragraph 10.4 to any future
Transfers proposed to be made by PDI. If TCAC wishes to so participate in any
Transfer pursuant to this Paragraph 10.4 it shall notify PDI by written notice
within the thirty (30) days following TCAC's receipt of the notice of proposed
Transfer pursuant to Paragraph 10.3 above. In the event that the transaction
between PDI and such Proposed Purchaser contains terms which are non-monetary
and which cannot be similarly performed by or for the benefit of TCAC, as
applicable, TCAC, PDI and such proposed Purchaser shall arrive at the equivalent
economic value of such non-monetary terms, pursuant to the methods set forth
above in 10.3.
10.5 TCAC Put Right. On the fifth anniversary of the Effective
Date, and every two years thereafter (each, a "Put Date"), unless and until the
Company, or a successor thereto, shall have effected a Qualified Public Offering
(defined below), TCAC will have the right (the "Put Right") to require PDI to
purchase all, but not less than all, of TCAC's Interests, by delivery to PDI of
a written notice by TCAC of its election to so require PDI to purchase its
Interests, not later than 30 days prior to each Put Date. The purchase price for
TCAC's Interests shall be paid in cash upon consummation of such purchase and
the transfer to PDI of TCAC's Interests, and shall equal the Appraised Fair
Market Value (defined below) of TCAC's Interests as of the Put Date, provided
that the Appraised Fair Market Value of the Company shall be determined as if
the Company's license to use the "Discovery" name had an indefinite term. If the
Company, or a successor thereof, has effected a consummation of an underwritten
public offering of shares of the same class as those held by TCAC and
representing at least 20% of the total equity of the
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Company (or its successor) (a "Qualified Public Offering") pursuant to a
registration statement filed and declared effective under the Securities Act of
1933, as amended (the "Act") and applicable state securities laws, prior to
exercise by TCAC of its Put Right, in lieu of such Put Right, TCAC will have the
right to require PDI to agree to cause the Company, within a reasonable time
after such request is made, to register for sale pursuant to the Act and any
applicable state statutes, all or any part of the shares of stock then held by
TCAC in the Company (or its successor), provided that, if the underwriter for
such registration advises the Company that marketing considerations require a
limitation on the number of shares offered pursuant to any registration
statement, then the Company may so limit the number of shares held by TCAC to be
so registered so long as no securities other than shares held by TCAC are
included in such registration. TCAC acknowledges and agrees that the Company
shall select the underwriter for an offering made pursuant to a Qualified Public
Offering and any registration of TCAC's shares. The Company (or its successor)
will also register shares held by TCAC in connection with the initial public
offering or any subsequent public offering by the Company (or its successor) at
TCAC's request, subject to customary standstill provisions required by the
managing underwriter of any such offering.
10.6 Termination of Rights. The rights and obligations of TCAC
and PDI under Paragraph 10.3 and of TCAC under Paragraphs 10.4 of this Agreement
shall terminate on the date of the consummation of a Qualified Public Offering
by the Company or a successor thereto.
10.7 PDI's Call Right. On the seventh anniversary of the
Effective Date and on each subsequent two year anniversary thereafter, PDI shall
have the right (the "Call Right") to require TCAC to sell to PDI all, but not
less than all, of TCAC's Interests, at a price equal to 110% of the then
Appraised Fair Market Value of TCAC's Interests, provided that the Appraised
Fair Market Value of the Company shall be determined as if the Company's license
to use the "Discovery" name had an indefinite term. The purchase price shall be
payable in cash, upon consummation of such sale to PDI.
10.8 PDI's Lobby Purchase Option.
(a) The parties hereto agree that it would be counter to the
interests of the Company for any Member, or an Affiliate thereof, to lobby for
changes in the U.S. regulatory environment which would benefit broadcast
stations to the potential detriment to the carriage of the Network. For example,
it would be counter to the interests of the Company for any Member or an
Affiliate thereof to lobby for "must carry" status for digital broadcast
signals. Accordingly, in the event that TCAC or any of its Affiliates lobbies
for any such change in the U.S. regulatory environment which would benefit
broadcast stations to the potential detriment to the carriage of the Network,
PDI shall have the right to purchase (the "Lobby Purchase Option") TCAC's
Interests, at a price (the "Appraised Interest Price") based on the then
Appraised Fair Market Value of the Company, provided that the Appraised Fair
Market Value of the Company shall be determined as if the Company's license to
use the "Discovery" name had an indefinite term, provided, further, that if such
Lobby Purchase Option is exercised at any time prior to the two year anniversary
of the Effective Date (such
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two year period, the "Guaranty Period"), PDI shall pay to TCAC, in addition to
the Appraised Interest Price, that amount (the "Make Good Amount"), if any,
equal to the difference between (x) that amount which, in accordance with the
definition of Appraised Fair Market Value, would have been arrived at as the
amount which would have been received by TCAC upon a liquidation of the Company
had the initial Capital Account of TCAC been $55,000,000 and the initial Capital
Account of PDI been $20,000,000, and (y) the aggregate amount actually
determined as the price to be paid to TCAC, based on the Capital Accounts of the
Members as of the time of such determination; provided, however, that in no
event shall the aggregate amount of the Make Good Amount plus the Appraised
Interest Price payable by PDI hereunder be in excess of the amount which would
have been paid by PDI for such Interests upon exercise of the Lobby Purchase
Option, had PDI's initial Capital Account been $20,000,000 and TCAC's initial
Capital Account been $55,000,000. Notwithstanding the foregoing, the parties
agree that such lobbying shall not, however, constitute a violation of this
Agreement or otherwise subject TCAC or any of its Affiliates to any liability to
the Company, PDI or its Affiliates.
(b) In the event that TCAC's lobbying activities are in
response to changes sought by representatives of the cable industry in
the current regulatory environment as it relates to broadcasters (e.g.,
representatives of the cable industry for a Congressional repeal of
broadcasters' current "must carry" rights for analog signals) and TCAC
lobbies in response to this, if PDI shall exercise its Lobby Purchase
Option pursuant to Paragraph 10.8(a) above, and the purchase price for
TCAC's Interests is less than $55,000,000, in addition to the purchase
price payable to TCAC as provided in Paragraph 10.8 (a) above, TCAC
shall also be entitled to a "Contingent Payment" right with an initial
value of the difference between the purchase price determined under
Paragraph 10.8(a) above and $55,000,000 (the "Initial Value"). Such
right shall entitle TCAC to be paid, at the next opportunity PDI would
have to exercise its Call Right as provided in Paragraph 10.7 above, an
amount equal to (i) the Initial Value multiplied by (ii) 100% plus
(iii) the percentage increase in the Appraised Fair Market Value from
the time of PDI's exercise of the Lobby Purchase Option and
consummation of the purchase of TCAC's Interest pursuant thereto to the
time of the making of such "Contingent Payment", provided that in no
event shall TCAC be entitled to receive more than $55,000,000 as a
"Contingent Payment".
(c) For purposes of this Section 10.8, (i) TCAC, PCC, or an
Affiliate thereof shall not be considered to have engaged in lobbying
as a result of non-substantive conversations between representatives of
TCAC, PCC, or an Affiliate thereof and public officials, lobbying
activities conducted by any organization (such as the National
Association of Broadcasters), in which TCAC or any Affiliate of TCAC
may be a member or otherwise affiliated, or lobbying activities
conducted by individuals who may be attorneys or other representatives
or agents of TCAC, but who are in such instance not being paid by, nor
acting at the direction or on behalf of, TCAC or PCC or an Affiliate
thereof at the time of such lobbying activities, and (ii) PDI may not
elect the Lobby Purchase Option unless it can affirmatively demonstrate
by material evidence that TCAC, PCC, or an Affiliate thereof has
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engaged in lobbying as described in Section 10.8(a) and qualified by
this Section 10.8(c).
10.9 Appraised Fair Market Value. For purposes of any
provision of this Agreement that refers to the "Appraised Fair Market Value" of
a Member's Interest:
(a) PDI and TCAC shall each designate an independent
investment banker, and the two investment bankers so designated shall
designate a third independent investment banker, to determine
independently the fair market value of the Company's assets. In
determining the fair market value of the Company's assets, each
investment banker shall (i) assume the fair market value of any asset
is the price at which such asset (as a going concern, if applicable)
would change hands between a willing buyer and a willing seller,
neither being under any compulsion to buy or sell and each having
reasonable knowledge of all relevant facts; (ii) assume a sale of such
asset for cash; and (iii) use valuation techniques then prevailing in
the applicable industry, and (iv) in all instances where this Agreement
specifically states the same, Appraised Fair Market Value shall be
determined as if the Company's license to use the "Discovery" name has
an indefinite term.
(b) After each investment banker has determined the fair
market value of the Company's assets, each investment banker shall then
calculate the amount that would be distributed to each Member in
liquidation of the Company (the "Liquidation Amount"), if (i) the
assets of the Company were sold for such investment banker's
determination of their fair market value, without reduction for filing
fees, transfer taxes, sales taxes, and other transaction costs, (ii)
net profit and net loss, including any gain or loss resulting from the
liquidating sales described in clause (i), were allocated in accordance
with this Agreement, (iii) the Company paid its accrued, but unpaid,
liabilities (but not any prepayment premiums or penalties or other
similar costs attributable to the payment of any such liabilities), and
(iv) the Company distributed the remaining proceeds received by it
(without establishing reserves for contingent or unknown liabilities)
to the Members in liquidation.
(c) The "Appraised Fair Market Value" of a Member's Interest
shall be determined as follows:
(i) If the difference between the Liquidation Amount
determined by the investment banker designated by PDI and the
Liquidation Amount determined by the investment banker designated
by TCAC is less than or equal to five percent of the higher of
such Liquidation Amounts, the "Appraised Fair Market Value" of the
Member's Interest shall be the average of such Liquidation
Amounts.
(ii) In all other cases, the "Appraised Fair Market
Value" of the Member's Interest shall be the average of the two
closest of the Liquidation Amounts determined by the three
investment bankers.
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10.10 Covenant of DCI. DCI agrees that it will not cause or
permit to occur any transaction or series of transactions if, after giving
effect to such transaction or series of transactions, it would not own, directly
or indirectly, more than fifty percent of the outstanding equity interests in
PDI (or any Controlled Affiliate of PDI to which PDI has Transferred its
Interest) or would not directly or indirectly control PDI (or any Controlled
Affiliate of PDI to which PDI has Transferred its Interest).
10.11 Covenant of PCC. PCC agrees that it will not cause or
permit to occur any transaction or series of transactions if, after giving
effect to such transaction or series of transactions, it would not own, directly
or indirectly, more than fifty percent of the outstanding equity interests in
TCAC (or any Controlled Affiliate of TCAC to which TCAC has Transferred its
Interest) or would not directly or indirectly control TCAC (or any Controlled
Affiliate of PDI to which TCAC has Transferred its Interest).
SECTION 11
ADMISSION OF MEMBERS; RESIGNATIONS
11.1 Admission of Members. Additional or substitute Members
(other than Controlled Affiliates) may be admitted to the Company only as
expressly permitted by this Agreement.
11.2 Conditions. As a condition to the admission of any
person or entity as an additional or substituted Member, any person to be
admitted shall execute and acknowledge such instruments, in form and substance
satisfactory to the Management Committee, as the Management Committee may deem
necessary or advisable to effectuate such admission, and shall confirm that such
person or entity to be admitted as such Member has agreed to be bound by all of
the covenants, terms and conditions of this Agreement, as the same shall have
been amended from time to time.
11.3 Resignations. No Member may resign from the Company if
such resignation shall cause the Company to be classified other than as a
partnership for U.S. Federal income tax purposes, and except upon the Transfer
of its entire Interests to a person or entity admitted as a substitute Member or
to an existing Member.
SECTION 12
EVENTS OF DEFAULT
12.1 Events of Default. Upon the occurrence of any of the
following, there shall be deemed to have occurred an Event of Default, and the
Member in respect of which such event shall have occurred shall be deemed to be
in default hereunder and shall be referred to as the Defaulting Member, and the
other Member shall be referred to as the Non-Defaulting Member:
(a) A Member commences a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar
laws now or hereafter in effect or
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seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its
property, or consents to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or makes a general assignment for the
benefit of creditors, or fails generally to pay its debts as they
become due, or takes any action to authorize any of the foregoing;
(b) An involuntary case or other proceeding is commenced
against a Member seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, and such involuntary
case or other proceeding remains undismissed and unstayed for a period
of ninety (90) days, or an order for relief is entered against a Member
under the federal bankruptcy laws, or similar applicable laws of
another country, as now or hereafter in effect;
(c) A substantial portion of the Interest of a Member is
seized by a creditor of such Member, and the same is not released from
seizure or bonded out within ninety (90) days from the date of notice
of seizure; or
(d) Subject to the notice and cure provision of Section 12.2
below, a Member commits a material breach of any of its obligations
under this Agreement.
12.2 Notice and Cure. Any Non-Defaulting Member shall have the
right to give the Defaulting Member a Notice of Default occurring under
Paragraph 12.1(d) (a "Notice") which shall be in writing, shall set forth the
nature of the default and, if applicable, the obligations that the Defaulting
Member has not performed or has breached. The date for cure shall be thirty (30)
days after receipt of the Notice. If, within the period specified in the Notice,
the Defaulting Member cures such Default, the Notice shall be inoperative and
the Defaulting Member shall lose no rights hereunder. If, within such specified
period, the Defaulting Member does not cure such default, any Non-Defaulting
Member, at the expiration of such period, shall have the rights hereinafter
specified.
12.3 Remedies. Upon the occurrence and expiration of any
applicable cure period with respect to an Event of Default, the Non-Defaulting
Member shall have the option, in its sole discretion, by decision of the
Non-defaulting Members holding at least a majority of the Interests, exclusive
of Interests held by the Defaulting Member, to:
(a) dissolve the Company (but the Company shall not so
dissolve, regardless of the Event of Default which has occurred unless
such Non-Defaulting Member shall elect to so dissolve);
(b) expel the Defaulting Member and purchase on a date
specified by such Non-Defaulting Member in a written notice, which date
shall be not more than sixty (60) days from the date of such notice,
all of the Defaulting Member's Interest in accordance with Paragraph
12.4;
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(c) cure the default, and the cost of such curing shall be
charged against the Defaulting Member's Capital Account and credited to
the Non-Defaulting Member's Capital Account, and the Interest of the
Non-Defaulting Member shall be increased in proportion to the foregoing
adjustments to the Capital Accounts; and
(d) enforce its rights by suit in equity, action at law
and/or other appropriate proceedings, whether for damages or the
specific performance of any covenant or agreement contained herein.
The remedies of the Members set forth herein are cumulative, and may be
exercised singly or concurrently.
12.4 Purchase of Defaulting Members' Interest. After expulsion
of a Defaulting Member pursuant to Paragraph 12.3(b), a Non-Defaulting Member
may purchase the Defaulting Member's Interests at a price which for such
purposes shall be equal in amount to the Appraised Fair Market Value of the
Defaulting Member's Interests, provided that such amount shall be determined by
an independent investment banker selected by the Non-Defaulting Member, taking
account of any distributions by the Company of cash or assets made since the end
of such month, and after deducting any amounts payable to the Company by the
Defaulting Member, any costs of remedying the default and any damages or costs
to the Company or Non-Defaulting Member resulting from the Default. Payment to
the Defaulting Member may take the form of a two (2) year note with interest at
8%. If the Company suffers any liability in respect of a period prior to the
expulsion of the Defaulting Member which liability had not been accrued on the
books of the Company on the date that the purchase price of the Defaulting
Member's Interests was determined, the payment provided for above shall be
reduced by an amount equal to the Defaulting Member's pro rata interest (based
on the Interests held thereby) in such liability.
SECTION 13
NON-COMPETE
13.1 Non-Compete.
(a) The parties hereby agree that the Network will be the
exclusive vehicle for themselves and their respective Controlled
Affiliates within the Territory, (exclusive of Puerto Rico, where it
shall be the non-exclusive vehicle) for providing programming (for
distribution by broadcast, cable, satellite or other means) that is
predominately travel-oriented and for seeking transactional revenue
*** Confidential Treatment Requested
from travel programming, provided that in no event shall such
exclusivity be deemed to prohibit airing of a limited amount of travel
programming on other networks or media owned in whole or in part by
PDI,TCAC, PCC, DCI or their Controlled Affiliates defined below), or
prohibit the airing of programming as described in Paragraph 15.2 of
this Agreement, or from seeking transactional revenue in connection
with the airing thereof, nor does it prevent either PCC, DCI or their
Affiliates from licensing to third parties travel oriented programs
owned thereby, nor does it apply to DCI's shareholders or their
Affiliates (exclusive of DCI and its subsidiaries, if applicable),
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to the extent the same might in any way be deemed to constitute a
Controlled Affiliate.
In addition, except for the license granted to PDI to permit a
sublicense thereby to the Company, DCI shall not grant a license for
the Territory (exclusive of Puerto Rico) to any third party to use the
"Discovery" name or logo in connection with a television programming
service the content of which is primarily travel related.
(b) At all times after the date hereof, no Member, Manager or
any Affiliate thereof shall disclose or use any Confidential
Information (as defined below), provided, however, that:
(i) a Member shall be permitted to disclose Confidential
Information to those of its agents, representatives, and employees
who need to be familiar with such information in connection with
such Member's investment in the Company, the performance of its
obligations under this Agreement, or the exercise of its rights
under this Agreement;
(ii) a Member shall be permitted to disclose Confidential
Information to its Affiliates;
(iii) a Member shall be permitted to disclose Confidential
Information to the extent required by law, including federal or
state securities laws or regulations, or by the rules and
regulations of any stock exchange or association on which
securities of such Member or any of its Affiliates are traded; and
(iv) a Member shall be permitted to disclose Confidential
Information to a potential purchaser of its Interest so long as
such potential purchaser agrees (in writing which provides the
Company with an independent right of enforcement) to be bound by
the provisions of this Section 13.1(b).
As used in this Agreement, the term "Confidential Information"
shall include, without limitation, trade secrets, confidential or
proprietary information, owned, developed or possessed by the Company,
a Manager, Member or an Affiliate thereof, whether in tangible or
intangible form, which pertains, in any manner, to subjects which
include, but which are not limited to, such entity's or individual's
research, operations, customers (including identities of customers and
prospective customers, identities of individual contacts at customers,
preferences, business or habits), business relationships, products
(including prices, costs, sales or content and including realized or
unrealized products), financial information, marketing or promotion
information, business methods, future business plans, databases,
computer programs, designs, models, operating procedures, knowledge of
the organization, and information received from others that such entity
or individual is obligated to treat as confidential.
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Notwithstanding the foregoing, Confidential Information shall
not include knowledge, information, documents or materials which any
such Member, Manager or Affiliate thereof can establish: (i) have
entered the public domain without such entity's or individual's breach
of any obligation owed to such entity or individual; (ii) have become
known to such entity or person prior to such entity's or individual's
disclosure of such information to such entity or person; (iii) are
permitted to be disclosed by the prior written consent of such entity
or individual; (iv) have become known to such person or entity from a
source other than such entity or individual other than by breach of an
obligation of confidentiality owed to the Company and known to such
Manager, Member or Affiliate; (v) are disclosed by such entity or
individual to a third party without restrictions on its disclosure; or
(vi) are independently developed by such person or entity without
breach of this Agreement.
(c) Because the Company and the Members do not have an
adequate remedy at law to protect the Company's business from any
breach of the obligations set forth in this Section 13, each of them
shall be entitled to injunctive relief, in addition to such other
remedies and relief that would, in such event, be available to it or
them.
SECTION 14
EXCULPATION; INDEMNIFICATION; LIABILITY
14.1 Exculpation. A Member or Manager exercising management
powers or responsibilities for or on behalf of the Company shall not have
personal liability to the Company or its Members for damages for any breach of
duty in such capacity; provided, however, that nothing in this Section shall
eliminate or limit the liability of any such Member or Manager if a judgment or
other final determination adverse to him or her establishes that his or her acts
or omissions were in bad faith or involved intentional misconduct or a knowing
violation of law or a breach of this Agreement. Except as otherwise provided by
the Act or expressly set forth in this Agreement, the debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company and no
Managing Director, Member or Manager shall be obligated personally for any such
debt, obligation or liability of the Company solely by reason of being Manager,
Managing Director, or a Member of the Company.
14.2 Indemnification. (i) To the fullest extent permitted by
law, the Company shall indemnify any Person and/or entity (an "Indemnitee") who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding brought by or against the Company or
otherwise, whether civil, criminal, administrative or investigative, including,
without limitation, an action by or on behalf of the Company to procure a
judgment in its favor, by reason of the fact that such Indemnitee is or was a
Member, Manager or agent of a Member, or that such Indemnitee is or was serving
at the request of the Company as a partner, director, officer, trustee, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against all expenses, including attorneys' fees and disbursements,
judgments, fines and amounts paid in settlement
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actually and reasonably incurred by such Indemnitee in connection with such
action, suit or proceeding. Notwithstanding the foregoing, no indemnification
shall be provided to or on behalf of any Indemnitee if a judgment or other final
determination adverse to such Indemnitee establishes that his or her acts or
omissions were in bad faith or involved intentional misconduct, or a knowing
violation of the law or a breach of this Agreement.
(a) Any indemnification under the preceding subsection of this
Paragraph 14.2 (unless ordered by a court of competent jurisdiction)
shall be made by the Company only as authorized in the specific case
upon a determination that the indemnification of an Indemnitee is
proper under the circumstances because he or she has met the applicable
standard of conduct set forth in the preceding subsection of this
Paragraph 14.2. Such determination shall be made by the Members or, if
the Members so direct, by independent legal counsel in a written
opinion.
(b) The Company will, at the discretion of the Members, pay
expenses incurred in defending any action, suit or proceeding described
in the first subsection of this Paragraph 14.2 in advance of the final
determination of such action, suit or proceeding, provided that the
Indemnitee shall agree to reimburse the Company if after final
determination, the Indemnitee was not entitled to be indemnified as set
forth herein.
(c) The Company may, at the discretion of the Members,
purchase and maintain insurance on behalf of any Indemnitee against any
liability asserted against him or her, whether or not the Company would
have the power to indemnify him or her against such liability by law.
(d) The indemnification provided by this Section shall not be
deemed exclusive of any other rights to indemnification to which those
seeking indemnification may be entitled under any agreement,
determination of Members or otherwise. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted
pursuant to, this Section shall continue as to an Indemnitee who has
ceased to be a Member (or other Person indemnified hereunder) and shall
inure to the benefit of the executors, administrators, legatees and
distributees of such Person.
(e) The provisions of this Section shall be a contract between
the Company and each Indemnitee who served in such capacity at any time
while this Section is in effect pursuant to which the Company and each
such Indemnitee intend to be legally bound. No repeal or modification
of this Section shall affect any rights or obligations with respect to
any state of facts then or theretofore existing or thereafter arising
or any proceeding theretofore or thereafter brought or threatened based
in whole or in part upon such state of facts.
(f) To the extent that, at law or in equity, an Indemnitee has
duties (including fiduciary duties and liabilities relating thereto) to
the Company or to any Member, an Indemnitee acting under this Agreement
shall not be liable to the
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Company or any Member for its good faith reliance on the provisions of
this Agreement or on the interpretation thereof given to such
Indemnitee by its counsel. The provisions of this Agreement, to the
extent that they restrict the duties and liabilities of an Indemnitee
otherwise existing, at law or in equity, are agreed by the Members to
replace such other duties and liabilities of such Indemnitee.
SECTION 15
ADDITIONAL COVENANTS AND AGREEMENTS
15.1 Network Programming and Commercial Breaks. The Network
content will consist of programming relating to travel and, as may be determined
by the Management Committee, living. The programming will include a number of
commercial breaks consistent with the norms of other cable networks. Such
commercials will include spots designed to create transactional revenue from
travel agencies or others, to the extent such transactional revenue is expected
to exceed traditional advertising revenue that would otherwise be available. The
programming will also include, as appropriate, solicitations of viewers to
contact the Company or its agents (by telephone, web browser, or other means)
for information as a means of stimulating transactions that will create
transactional revenue for the Company.
15.2 Sublicense Rights. Upon issuance of FCC licenses to
permit broadcasters to distribute over the air additional digital signals, and
upon commencement of such digital distribution by PCC, TCAC or any Controlled
Affiliate thereof (each a "PCC Broadcaster"), such entity will be permitted to
sublicense certain programming from the Company, pursuant to a sublicense
agreement in form and substance satisfactory to PDI, as discussed in
subparagraph (a) below, for use thereby on the digital broadcast station or
stations thereof, subject to the following conditions:
(a) Subject to Subparagraphs (b) and (f) below, programming
which airs on the Network and which is in the travel genre ("Network
Travel Programming") and in which the broadcast rights for the
Territory are owned by DCI or a Controlled Affiliate thereof, will be
further sublicensed by the Company, without additional charge, to the
PCC Broadcasters. DCI will coordinate with PCC regarding the
acquisition by such PCC Broadcasters of broadcast rights for the
Territory in Network Travel Programming for which neither DCI nor a
Controlled Affiliate thereof has such broadcast rights for the
Territory, provided that PCC, on behalf of the PCC Broadcasters, shall
bear all costs for such broadcast rights, and shall seek reimbursement
therefor from the PCC Broadcasters, and further provided that DCI is
required only to coordinate the acquisition of such rights, and only
where commercially reasonable, and DCI is under no obligation to
acquire the same on behalf of the PCC Broadcasters. TCAC and PCC, by
execution of this Agreement, each acknowledge that such rights may not
be available for all Network Travel Programming.
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(b) Distribution of Network Travel Programming by any PCC
Broadcaster will not be permitted if cable operators are required by
law or regulation to carry any such additional digital signals.
(c) No PCC Broadcaster may use the "Discovery" brand or any
other trademark of DCI, PDI, or any other Affiliate of DCI, without the
prior approval of DCI.
(d) Other than Network Travel Programming for which the PCC
Broadcasters have had to purchase broadcast rights, one-half of the
commercial time in each hour of Network Travel Programming aired by a
PCC Broadcaster on a digital broadcast station pursuant to this
Paragraph 15.2, will be available for resale by such PCC Broadcasters,
with the remainder of such commercial time to be retained for resale by
the Company. With respect to Network Travel Programming aired by a PCC
Broadcaster, on a digital broadcast station pursuant to this Paragraph
15.2 for which the PCC Broadcasters have had to purchase broadcast
rights, the Company shall not retain any such commercial time.
(e) All transaction sales, whether as a result of
solicitations of viewers to contact the Company or its agents (by
telephone, web browser, or other means) or by other means, will be
arranged by the Company for both the cable feed and other means of
distribution of the Network and for any broadcast redistribution
thereof or of any Network Travel Programming; provided that, any
transaction revenue arising from broadcast distribution by a PCC
Broadcaster of Network Travel Programming in accordance with this
Paragraph 15.2, will be split equally between the Company and such PCC
Broadcasters. To the extent that the Company shall receive
transactional revenue which pursuant to this Section (e) are for the
account of a PCC Broadcaster, such amounts shall be paid to PCC for the
account of such PCC Broadcaster.
(f) To the extent the Network has cable distribution in a
market and such distribution is dropped in favor of distribution of the
digital signal (as evidenced by such drop occurring within the 12-month
period following the date such distribution of the digital signal has
commenced), all transactional and other advertising revenue relating to
Network Travel Programming aired on the broadcast signal will belong
to, and shall be arranged/sold by, the Company.
(g) The rights of the PCC Broadcaster's representative to
elect, on behalf of the PCC Broadcasters, to so license Network Travel
Programming (the "Programming Election") may be exercised thereby only
prior to the tenth anniversary of the Effective Date; provided that (i)
the right of such representative to exercise the Programming Election
shall immediately terminate if TCAC ceases to be a Member of the
Company as a result of the exercise by PDI of the Lobby Purchase
Option, and (ii) the right of such representative to exercise the
Programming Election shall terminate on the fifth anniversary of the
Effective Date if PDI gives notice to TCAC of its election to so
terminate the same prior to the fourth anniversary of the
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Effective Date. Except where the PCC Broadcasters' right to exercise
the Programming Election is terminated as a result of PDI's exercise of
the Lobby Purchase Option, any license arrangement relating to
broadcast distribution of Network Travel Programming shall have a
ten-year term and shall survive the termination of the Company. Where
such representative right to exercise the Programming Election on
behalf of the PCC Broadcasters is terminated as a result of PDI's
exercise of the Lobby Purchase Option, any license arrangement relating
to broadcast distribution of Network Travel Programming shall terminate
immediately.
SECTION 16
PRECONDITIONS; EFFECTIVE DATE
The provisions of this Agreement shall become effective on the
date (the "Effective Date") which shall be the date on which (i) counterparts of
this Agreement shall have been executed and delivered by the PDI and TCAC, and
by Discovery Communications, Inc. and ▇▇▇▇▇▇ Communications Corporation with
respect to certain specific obligations and rights thereof as set forth herein;
and (ii) the following conditions precedent shall have been, or shall
simultaneously with the execution and delivery of this Agreement be, fulfilled:
*** Confidential Treatment Requested
(a) The transactions contemplated by the PDI Purchase
Agreement, pursuant to which PDI shall have purchased a 25% undivided
interest in the Travel Channel Assets, shall have been consummated;
(b) The Software License Agreement shall have been executed
and delivered by TCAC and the Company;
(c) The PDI License Agreement shall have been executed and
delivered by PDI and the Company;
(d) The Programming License Agreement shall have been executed
and delivered by PDI and the Company;
(e) The Security Agreement and the Note shall have been
executed and delivered by the Company;
(f) The Company and PDI shall have executed and delivered a
management agreement substantially in the form of Exhibit F hereto,
pursuant to which, subject to the authority of the board of directors
of the Company, PDI will, in conjunction with the Manager, manage all
aspects of the business of the Company on a day to day basis.
(g) The Company and PCC shall have executed and delivered a
consulting agreement, substantially in the form of Exhibit G hereto
(the "Consulting Agreement"), pursuant to which PCC shall provide
consulting services to the
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Company with respect to transactional aspects of travel, and shall
receive a consulting fee equal to $300,000 per year, plus pre-approved
expenses for such services.
SECTION 17
MISCELLANEOUS
17.1 Entire Agreement. This Agreement embodies the entire
understanding and agreement among the parties concerning the matters addressed
herein and supersedes all prior and contemporaneous negotiations, understandings
or agreements in regard thereto.
17.2 Amendments. This Agreement may not be modified or amended
except by an instrument in writing signed by all of the Members.
17.3 Confidentiality. Except as may be required in connection
with filings with governmental agencies or courts or except as may be required
under applicable law, each party shall keep strictly confidential and shall not
disclose to any other person or entity other than to its officers and employees
on a must-know basis, or to its respective lawyers or accountants, the material
terms and provisions of this Agreement To the extent that information with
respect to this Agreement is revealed pursuant to this Section, each party shall
use its best efforts to ensure that each person or entity receiving such
information shall maintain it in confidence.
17.4 Representations and Warranties. Each Member represents
and warrants to the other that: (i) it has all requisite power and authority to
enter into this Agreement and perform its obligations hereunder; (ii) the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Member; the execution, delivery and performance of
this Agreement will not conflict with or result in a breach or violation of any
provision of corporate charter or the bylaws thereof, or of any order, writ,
injunction, judgment, decree, law, statute, rule or regulation of any
governmental authority applicable to such Member; and (iii) assuming due
authorization, execution and delivery by the other Member, this Agreement is a
legal, valid and binding obligation of such Member enforceable against such
Member in accordance with its terms.
17.5 Validity and Severability. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under pertinent
present or future laws effective during the term of this Agreement, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Agreement and the remaining provisions of this
Agreement shall remain in full force and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from this Agreement.
17.6 Fair Market Value. Except as otherwise set forth in this
Agreement or agreed to by the Members, fair market value of any asset
distributed by, or contributed to, the Company, shall be determined by the
Members, or in the event the
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Members fail to agree, by an independent third party appraiser selected by
agreement of the Members. If the Members fail to agree on selection of an
independent third party appraiser, the Members shall each select one independent
outside appraiser, and those appraisers shall appoint another appraiser, who
shall make the determination of fair market value.
17.7 Press Release. All press releases and other public
statements regarding this agreement and any venture other than those issued in
the ordinary course of business shall be approved by each of the parties hereto.
17.8 Headings and Usage. Paragraph and subparagraph headings
have been inserted herein for convenience only and shall not be construed to be
a part hereof or thereof. Unless the context otherwise requires, words in the
singular include the plural, and words in the plural include the singular.
17.9 Counterparts. This Agreement may be executed in any one
or more counterparts, each of which shall be an original and all of which shall
constitute one and the same agreement.
17.10 Successors and Assigns: Survival of Representations and
Warranties. This Agreement shall be binding upon and inure to the benefit of the
Members and their respective successors and assigns; provided, however, that
except as specifically provided herein, no Member may assign or otherwise
dispose of any of its rights or obligations hereunder. All covenants,
agreements, warranties and representations made herein and in all certificates
or other documents delivered in connection with this Agreement shall survive the
execution and delivery hereof, and all such covenants, agreements,
representations and warranties shall inure to the respective successors and
assigns of the Members, whether or not so expressed.
17.11 Venue. Any judicial proceeding brought against either
Member with respect to this Agreement may be brought in any court of competent
jurisdiction located in the State of Maryland. By execution and delivery of this
Agreement, the Members accept, generally and unconditionally, the exclusive
jurisdiction of such courts and any related appellate court, and irrevocably
agrees to be bound by any judgment rendered thereby in connection therewith,
subject to any right of appeal thereof.
17.12 Further Assurances. Each of the Members hereby agrees to
do such other acts and things as the other Member may reasonably request in
order fully to effect the purposes of this Agreement.
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17.13 Notices. All notices, requests, consents, demands and
other communications hereunder shall be in writing delivered by any of the
following: personal delivery; first class certified or registered mail; return
receipt requested; U.S. Express mail, or an express overnight service (such as
Federal Express), addressed to the respective parties to the Agreement at the
addresses set forth under the signature line of such party or to such other
person or address as a party hereto shall designate to the other party hereto
from time to time in writing forwarded in like manner. Any notice, request,
consent, demand or communication given in accordance with the provisions of this
paragraph shall be deemed to have been given and effective when actually
received.
17.14 Governing Law. The validity, interpretation and
enforcement of this Agreement shall be governed by the laws of the State of
Delaware without giving effect to the conflict of law principles thereof.
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IN WITNESS WHEREOF, this Agreement has been executed by the
undersigned as of the date first written above.
TRAVEL CHANNEL ACQUISITION
CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: SECRETARY
c/o Paxson Communications Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
PROJECT DISCOVERY, INC.
/s/
---------------------------------------
By:
Its:
c/o Discovery Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
DISCOVERY COMMUNICATIONS, INC.,
solely with respect to the limited rights and
obligations thereof set forth herein.
/s/
---------------------------------------
By:
Its:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
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▇▇▇▇▇▇ COMMUNICATIONS CORPORATION,
solely with respect to the limited rights and
obligations thereof set forth herein.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: SECRETARY
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
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