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EXHIBIT 4.51
EXECUTION COPY
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SERIES A WARRANT
TO PURCHASE COMMON STOCK OF
GRANITE BROADCASTING CORPORATION
ISSUANCE DATE: MAY 31, 2000
NO. OF SHARES OF COMMON STOCK: 2,500,000
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NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT OR LAWS, THE RULES AND
REGULATIONS THEREUNDER OR THE PROVISIONS OF THIS WARRANT.
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF ARE SUBJECT TO A
REGISTRATION RIGHTS AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THIS WARRANT OR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY
BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT. THE HOLDER OF THIS WARRANT AGREES TO BE BOUND BY ALL OF THE
PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
NO. OF SHARES OF COMMON STOCK: 2,500,000
SERIES A WARRANT
TO PURCHASE COMMON STOCK OF
GRANITE BROADCASTING CORPORATION
This is to certify that NATIONAL BROADCASTING COMPANY, INC., a
Delaware corporation ("NBC"), or registered assigns, is entitled at any time on
or after the Effective Date (as hereinafter defined) and on or prior to the
Expiration Date (as hereinafter defined), to purchase from GRANITE BROADCASTING
CORPORATION, a Delaware corporation (the "COMPANY"), TWO MILLION FIVE HUNDRED
THOUSAND (2,500,000) shares of Common Stock (as hereinafter defined and subject
to adjustment as provided herein), in whole or in part, including fractional
parts, at the Exercise Price per share (subject to adjustment as set forth
herein), all on the terms and conditions and pursuant to the provisions
hereinafter set forth.
ARTICLE 1.
DEFINED TERMS
SECTION 1.1 DEFINITIONS. Capitalized terms used and not defined herein shall
have the meanings assigned to them in the Supplemental Agreement. As used
herein, the following terms shall have the following meanings:
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"AFFILIATE" means, with respect to any Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with, such specified
Person, for so long as such Person remains so associated to the specified
Person.
"AFFILIATION AGREEMENT" means that certain Affiliation
Agreement, dated as of May 31, 2000 (as amended, restated or otherwise modified
from time to time), between the Company and NBC.
"BOARD" means the Board of Directors of the Company.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by law to be closed in
The City of New York.
"CASHLESS EXERCISE RATIO" means a fraction, the numerator of
which is the excess of the Market Value per share of Common Stock on the date of
exercise over the Exercise Price per share as of the date of exercise and the
denominator of which is the Market Value per share of the Common Stock on the
date of exercise.
"CHANGE OF CONTROL" shall mean (a) the failure of the
Permitted Holders to own collectively, directly, beneficially and of record,
more than 50% of the issued and outstanding voting stock of the Company or (b)
the occurrence of a "change of control" under and as defined in any indenture or
agreement in respect of Company indebtedness as in effect from time to time.
"COMMON STOCK" means the non-voting common stock, par value
$.01 per share, of the Company, together with any other equity securities that
may be issued by the Company in substitution therefor.
"COMPANY LIQUIDATION" means any transaction that effects a
voluntary or involuntary liquidation, dissolution, recapitalization,
reorganization or winding up of the Company.
"COMPANY SALE" means any transaction that (i) involves a sale
by the Company of all or substantially all of its assets to another Person, (ii)
effects any merger, consolidation or business combination of the Company with
another Person where such other Person shall be the surviving entity and that
results in a Change of Control of the Company or (iii) results in a Change of
Control of the Company.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH"), with respect to the relationship between or among two or
more Persons, means the possession, directly or indirectly, of the power to
direct or cause the direction of the affairs or management of a Person, whether
through the ownership of voting securities, as trustee or executor, by contract
or otherwise.
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"EFFECTIVE DATE" means the earlier of (i) December 31, 2000,
(ii) a Company Sale and (iii) a Company Liquidation.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended and the rules and regulations thereunder.
"EXERCISE PRICE" means, at any date herein, the price at which
a share of Common Stock may be purchased pursuant to this Warrant on such date.
On the date of original issuance of this Warrant, the Exercise Price is $12.50
per share of Common Stock.
"EXPIRATION DATE" means December 31, 2011.
"GROUP" has the meaning assigned to it in Section 13(d)(3) of
the Exchange Act.
"HOLDER" means the duly registered holder of this Warrant
under the terms hereof.
"INDEPENDENT INVESTMENT BANKING FIRM" means an investment
banking firm of nationally recognized standing that is, in the reasonable
judgment of the Person engaging such firm, qualified to perform the task for
which it has been engaged.
"MAJORITY HOLDERS" means the Holders of Warrants exercisable
for in excess of 50% of the aggregate number of shares of Common Stock then
purchasable upon exercise of all Warrants, whether or not then exercisable.
"MARKET VALUE" means, with respect to capital stock or other
equity securities, the last reported sales price on the date of determination
or, in case no such sale takes place on such day, the average of the closing bid
and asked prices regular way for such day, in each case (i) on the principal
national securities exchange on which the shares of such capital stock or other
equity interest are listed or to which such shares are admitted for trading or
(ii) if such capital stock or other equity interest is not listed or admitted
for trading on a national securities exchange, in the over-the-counter market as
reported by the National Association of Securities Dealers, Inc. National Market
System ("NASDAQ") or any comparable system, or (iii) if such capital stock or
other equity interest is not listed on NASDAQ or a comparable system, as
furnished by two members of the National Association of Securities Dealers, Inc.
("NASD") selected from time to time in good faith by the Board for that purpose.
In the absence of all of the foregoing, or if for any other reason the Market
Value per share cannot be determined pursuant to the foregoing provisions or if
the consideration to be received by the holders of Common Stock consists of
evidences of indebtedness, other property, warrants, options or subscription of
purchase rights, the Market Value shall be the fair market value thereof as
determined by an Independent Investment Banking Firm selected by the Company and
reasonably acceptable to NBC and its Permitted Transferees holding a majority of
the applicable capital stock or equity securities. The reasonable fees and
expenses of any Independent Investment Banking Firm involved in the
determination of Market Value shall be borne equally by the Company and the
Holder. For the purpose of any computation of Market Value under Section 2.5 and
Article 3, the "MARKET VALUE" per share of Common Stock (in cases where the
Market Value is determined based on a trading price in accordance with clauses
(i) through (iii)
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above) at any date shall be (x) for purposes of Section 2.5, the last reported
sales price on the Business Day immediately prior to the date of the exercise of
this Warrant pursuant to Article 2 and (y) for purposes of Article 3, the
average of the last reported sales prices for the shorter of (i) the 5
consecutive trading days ending seven trading days prior to the Time of
Determination (as defined below) on the exchange or market specified in the
first sentence of this definition and (ii) the period commencing on the date
next succeeding the first public announcement of the issuance, sale,
distribution or granting in question through such last full trading day prior to
the Time of Determination. The term "TIME OF DETERMINATION" as used herein shall
be the time and date of the earlier to occur of (A) the date as of which the
Market Value is to be computed and (B) the last full trading day on such
exchange or market before the commencement of "ex-dividend" trading in the
Common Stock relating to the event giving rise to the adjustment required by
Article 3.
"PERMITTED HOLDER" means (i) W. Don Cornwell and Stuart J.
Beck, (ii) the members of the immediate family of either of the persons referred
to in clause (i) above, (iii) any trust or other Person created for the benefit
of the persons described in clause (i) or (ii) above or any of their estates or
(iv) any corporation or other Person that is controlled by any person described
in clause (i), (ii) or (iii) above.
"PERMITTED TRANSFEREE" has the meaning set forth in the
Registration Rights Agreement.
"PERSON" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivisions thereof or any Group comprised of two or more of the
foregoing.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date of original issuance of this Warrant between the
Company and NBC, as the same may be amended, supplemented or modified from time
to time.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended
and the rules and regulations thereunder.
"SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement,
dated as of May 31, 2000, between the Company and NBC, as the same may be
amended, supplemented or modified from time to time.
"WARRANT SHARES" means the shares of Common Stock of the
Company received, or issued and received, as the case may be, upon exercise of
the Warrants.
"WARRANTS" means this Warrant and all Warrants issued upon
transfer, division or combination of, or in substitution for, any thereof. All
Warrants shall at all times be identical as
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to terms and conditions and date, except as to the number of shares of Common
Stock for which they may be exercised.
ARTICLE 2.
EXERCISE TERMS
SECTION 2.1 EXERCISE PERIODS. At any time from and after the
Effective Date and until 5:00 p.m., New York City time, on the Expiration Date,
the Holder may exercise this Warrant, on any Business Day, for all or any part
of the number of shares of Common Stock purchasable hereunder.
SECTION 2.2 EXPIRATION. This Warrant shall terminate and
become void as of the earlier of (i) 5:00 p.m., New York City time, on the
Expiration Date and (ii) the time and date this Warrant is exercised in full.
The Company shall give notice not less than 90, and not more than 120, days
prior to the Expiration Date to the Holder hereof to the effect that this
Warrant will terminate and become void as of the close of business on the
Expiration Date. This Warrant shall terminate and become void after the
Expiration Date, notwithstanding the Company's failure to give such notice.
SECTION 2.3 MANNER OF EXERCISE. (a) In order to exercise this
Warrant, in whole or in part, Holder shall deliver to the Company at its
principal office at 767 Third Avenue, 34th Floor, New York, New York 10017 or at
the office or agency designated by the Company pursuant to Article 6, (i) a
written notice of Holder's election to exercise this Warrant, which notice shall
specify the number of Warrant Shares to be purchased and shall be substantially
in the form of the subscription form appearing at the end of this Warrant as
Exhibit A, (ii) payment of the Exercise Price for the number of Warrant Shares
in respect of which such Warrant is then exercised; PROVIDED that no such
payment need be delivered if the Holder elects to exercise the Warrant pursuant
to the Cashless Exercise provided in subsection (b) below, and (iii) this
Warrant. Payment of the Exercise Price shall be made in cash or by certified or
official bank check payable to the order of the Company or by wire transfer of
funds to an account designated by the Company for such purpose. The rights
represented by this Warrant shall be exercisable at the election of the Holders
thereof either in full at any time or in part from time to time and, in the
event that this Warrant is surrendered for exercise in respect of less than all
the Warrant Shares purchasable on such exercise at any time prior to the
Expiration Date, the Company shall, at the time of delivery of the certificate
or certificates representing the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased shares of
Common Stock called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant, or at the request of the Holder,
appropriate notation may be made on this Warrant and the same returned to the
Holder.
(b) In lieu of payment of the Exercise Price in cash, at the
option of the Holder, as indicated on the subscription form appearing at the end
of this Warrant as Exhibit A, the Holder may demand that the Company reduce the
number of shares of Common Stock to be delivered to such Holder upon exercise of
the Warrants then being exercised so that the Holder
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receives a number of shares of Common Stock equal to the product of (1) the
number of shares of Common Stock for which such Warrant would otherwise then be
nominally exercised if payment of the Exercise Price as of the date of exercise
were being made in cash and (2) the Cashless Exercise Ratio. An exercise of a
Warrant in accordance with this clause (b) is herein called a "CASHLESS
EXERCISE". The Holder may use the Cashless Exercise option whether this Warrant
is being exercised in full or in part.
SECTION 2.4 ISSUANCE OF WARRANT SHARES. Subject to Section
2.5, upon the surrender of this Warrant and payment of the per share Exercise
Price (or in accordance with Section 2.3(b)), as set forth in Section 2.3, the
Company shall, as promptly as practicable, and in any event within five (5)
Business Days thereafter, issue or cause there to be issued and deliver or cause
to be delivered to or upon the written order of the Holder and in such name or
names as the Holder may designate in the notice provided pursuant to Section
2.3, a certificate or certificates for the number of full Warrant Shares so
purchased upon the exercise of such Warrants or other securities or property to
which it is entitled, registered or otherwise to the Person or Persons entitled
to receive the same, together with cash as provided in Section 2.5 in respect of
any fractional Warrant Shares otherwise issuable upon such exercise. Such
certificate or certificates shall be deemed to have been issued and any Person
so designated to be named therein shall be deemed to have become a holder of
record of such Warrant Shares as of the date of the delivery of the notice
provided pursuant to Section 2.3, the surrender of this Warrant and, subject to
Section 2.3(b), payment of the per share Exercise Price.
SECTION 2.5 FRACTIONAL WARRANT SHARES. The Company shall not
be required to issue fractional Warrant Shares on the exercise of Warrants. If
any fraction of a Warrant Share would, except for the provisions of this Section
2.5, be issuable on the exercise of this Warrant (or specified portion thereof),
the Company shall pay an amount in cash equal to the Market Value for one
Warrant Share on the Business Day immediately preceding the date the Warrant is
exercised, multiplied by such fraction, computed to the nearest whole cent. For
purposes of determining the Market Value, if in accordance with such term, an
Independent Investment Banking Firm would be required to be hired to determine
the Market Value and but for this Section 2.5, an Independent Investment Banking
Firm is not otherwise required to be retained to determine Market Value at such
time, then Market Value shall be determined in good faith by the Board.
SECTION 2.6 RESERVATION OF WARRANT SHARES. (a) The Company
shall at all times on and following the Closing Date keep reserved out of its
authorized shares of Common Stock a number of shares of Common Stock sufficient
to provide for the exercise in full of all outstanding Warrants. The registrar
for the Common Stock shall at all times on and following the Closing Date and
until the Expiration Date, or the time at which all Warrants have been exercised
or canceled, reserve such number of authorized shares as shall be required for
such purpose. All Warrant Shares which may be issued upon exercise of this
Warrant shall be duly and validly authorized, validly issued, fully paid,
nonassessable, free of preemptive rights and free from all Liens (as defined in
the Supplemental Agreement) other than those created by or through the Holders.
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(b) Before taking any action which would cause an adjustment
pursuant to Article 3 to reduce the Exercise Price below the then par value (if
any) of the Common Stock, the Company shall take any and all corporate action
which may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue fully paid and nonassessable shares of Common
Stock at the Exercise Price as so adjusted.
SECTION 2.7 COMPLIANCE WITH LAW. If any shares of Common Stock
required to be reserved for purposes of exercise of Warrants would require,
under any other federal or state law or applicable governing rule or regulation
of any national securities exchange, registration with or approval of any
governmental authority, or listing on any such national securities exchange
before such shares may be issued upon exercise, the Company will cause such
shares to be duly registered or approved by such governmental authority or
listed on the relevant national securities exchange, at its expense.
SECTION 2.8 CONTINUED VALIDITY. A Holder of Warrant Shares
shall continue to be entitled with respect to such shares to all rights and
subject to all obligations to which it would have been entitled or subject as
Holder under Section 4.5 and Article 8 of this Warrant. The Company will, at the
time of each exercise of this Warrant, in whole or in part, upon the request of
the Holder of the Warrant Shares issued upon such exercise hereof, acknowledge
in writing in form reasonably satisfactory to such Holder, its continuing
obligation to afford to such Holder all such rights; PROVIDED, HOWEVER, that if
such Holder shall fail to make any such request, such failure shall not affect
the continuing obligation of the Company to afford to such Holder all such
rights.
SECTION 2.9 LISTING OF WARRANT SHARES. The Company shall cause
the Warrant Shares to be (a) listed on each securities exchange, if any, on
which similar securities issued by the Company are then listed, or (b)
authorized to be quoted and/or listed (to the extent applicable) on the NASDAQ
National Market if the Warrant Shares so qualify.
ARTICLE 3.
ADJUSTMENT PROVISIONS
SECTION 3.1 CHANGES IN COMMON STOCK. In the event that at any
time or from time to time after the date hereof, the Company shall (i) pay a
dividend or make a distribution on its Common Stock in shares of its Common
Stock or other shares of capital stock, (ii) subdivide its outstanding shares of
Common Stock into a larger number of shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock or (iv) increase or decrease the number of shares of Common Stock
outstanding by reclassification of its Common Stock (in each case, other than a
transaction to which Section 3.3 or 3.4 is applicable), then the number of
shares of Common Stock purchasable upon exercise of this Warrant immediately
after the happening of such event shall be adjusted so that, after giving effect
to such adjustment, the Holder of this Warrant shall be entitled to receive the
number of shares of Common Stock upon exercise that such Holder would have owned
or have been entitled to receive had this Warrant been exercised immediately
prior to the happening of the events described above (or, in the case of a
dividend or distribution of Common Stock,
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immediately prior to the record date therefor), and the Exercise Price shall be
adjusted in inverse proportion. An adjustment made pursuant to this Section 3.1
shall become effective immediately after the effective date, retroactive to the
record date therefor in the case of a dividend or distribution in shares of
Common Stock, and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification.
SECTION 3.2 CASH DIVIDENDS AND OTHER DISTRIBUTIONS. In case at
any time or from time to time after the date hereof, the Company shall
distribute to all holders of Common Stock (i) any dividend or other distribution
of cash, evidences of its indebtedness, shares of its capital stock or any other
properties or securities or (ii) any options, warrants or other rights to
subscribe for or purchase any of the foregoing (other than, in each case set
forth in (i) and (ii), (x) any dividend or distribution described in Section 3.1
or 3.4 or (y) any rights, options, warrants or securities described in Section
3.3 or 3.4), then (i) the number of shares of Common Stock purchasable upon the
exercise of this Warrant shall be increased to a number determined by
multiplying the number of shares of Common Stock purchasable upon the exercise
of this Warrant immediately prior to the record date for any such dividend or
distribution by a fraction, (A) the numerator of which shall be the Market Value
per share of Common Stock on the record date for such distribution, and (B) the
denominator of which shall be such Market Value per share of Common Stock less
the sum of (x) any cash distributed per share of Common Stock and (y) the fair
value (the "FAIR VALUE") (as determined in good faith by the Board, whose
determination shall be evidenced by a Board resolution, a certified copy of
which will be sent to Holders) of the portion, if any, of the distribution
applicable to one share of Common Stock consisting of evidences of indebtedness,
shares of stock, securities, other property, warrants, options or subscription
or purchase rights and (ii) the Exercise Price shall be adjusted to a number
determined by dividing the Exercise Price immediately prior to such record date
by the above fraction. Such adjustments shall be made whenever any distribution
is made and shall become effective as of the date of distribution, retroactive
to the record date for any such distribution; PROVIDED, HOWEVER, that the
Company is not required to make an adjustment pursuant to this Section 3.2 if at
the time of such distribution the Company makes the same distribution to Holders
of Warrants as it makes to holders of Common Stock pro rata based on the number
of shares of Common Stock for which such Warrants are exercisable. No adjustment
shall be made pursuant to this Section 3.2 which shall have the effect of
decreasing the number of shares of Common Stock purchasable upon exercise of
each Warrant or increasing the Exercise Price.
SECTION 3.3 RIGHTS ISSUE. In the event that at any time or
from time to time after the date hereof, the Company shall issue, sell,
distribute or otherwise grant any rights to subscribe for or to purchase, or any
options or warrants for the purchase of, or any securities convertible or
exchangeable into, Common Stock to all holders of Common Stock, entitling such
holders to subscribe for or purchase shares of Common Stock or stock or
securities convertible into Common Stock (other than pursuant to a transaction
described in Section 3.4), whether or not immediately exercisable, convertible
or exchangeable, as the case may be, and the subscription or purchase price per
share of Common Stock or the price per share of Common Stock issuable upon
exercise, conversion or exchange thereof is lower at the record date for such
issuance than the then Market Value per share of Common Stock, the number of
shares of Common Stock thereafter purchasable upon the exercise of this Warrant
shall be determined by
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multiplying the number of shares of Common Stock purchasable upon the exercise
of this Warrant prior to the record date by a fraction, (A) the numerator of
which shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights, options, warrants or securities plus the number of
additional shares of Common Stock offered for subscription or purchase or into
or for which such securities are convertible or exchangeable, and (B) the
denominator of which shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, options, warrants or securities plus the
total number of shares of Common Stock which could be purchased at the Market
Value with the aggregate consideration received through the issuance of such
rights, warrants, options, or convertible securities. In the event of any such
adjustment, the Exercise Price shall be adjusted to a number determined by
dividing the Exercise Price immediately prior to such date of issuance by the
above fraction. Such adjustment shall be made whenever such rights, options or
warrants are issued and shall become effective retroactively immediately after
the record date for the determination of stockholders entitled to receive such
rights, options, warrants or securities.
If the Company at any time shall issue two or more securities
as a unit and one or more of such securities shall be rights, options or
warrants for or securities convertible or exchangeable into, Common Stock
subject to this Section 3.3, the consideration allocated to each such security
shall be determined in good faith by a Board resolution, a certified copy of
which shall be delivered to the Holder.
SECTION 3.4 REORGANIZATION, RECLASSIFICATION, MERGER,
CONSOLIDATION OR DISPOSITION OF ASSETS. In case the Company shall reorganize its
capital, reclassify its capital stock, consolidate or merge with or into another
Person (where the Company is not the surviving entity or where there is a change
in or distribution with respect to the Common Stock of the Company), or sell,
transfer or otherwise dispose of all or substantially all its property, assets
or business to another Person and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of assets (each, a
"REORGANIZATION TRANSACTION"), shares of common stock of the successor or
acquiring Person, or any cash, shares of stock or other securities or property
of any nature whatsoever (including warrants or other subscription or purchase
rights) in addition to or in lieu of common stock of the successor or acquiring
Person ("OTHER PROPERTY"), are to be received by or distributed to the holders
of Common Stock of the Company, then each Holder shall have the right thereafter
to receive, upon exercise of such Warrant, the number of shares of common stock
of the successor or acquiring Person or of the Company, if it is the surviving
entity, and Other Property receivable upon or as a result of such Reorganization
Transaction by a holder of the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such event. In the event that any
such Reorganization Transaction results in a Change of Control, the Company may
require that all Holders exercise their Warrants upon consummation of such event
giving rise to such adjustment. In case of any Reorganization Transaction in
which the Warrants are not required to be exercised pursuant to the preceding
sentence, the successor or acquiring Person (if other than the Company) shall
expressly assume the due and punctual observance and performance of each and
every covenant and condition of this Warrant to be performed and observed by the
Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined by resolution of the
Board) in order to provide for adjustments of shares of the Common Stock for
which this Warrant is exercisable which shall be as nearly
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equivalent as practicable to the adjustments provided for in this Article 3. For
purposes of this Section 3.4 "common stock of the successor or acquiring Person"
shall include stock of such Person of any class which is not preferred as to
dividends or assets over any other class of stock of such Person and which is
not subject to redemption and shall also include any evidences of indebtedness,
shares of stock or other securities which are convertible into or exchangeable
for any such stock, either immediately or upon the arrival of a specified date
or the happening of a specified event and any warrants or other rights to
subscribe for or purchase any such stock. The foregoing provisions of this
Section 3.4 shall similarly apply to successive Reorganization Transactions.
SECTION 3.5 OTHER EVENTS. If any event occurs as to which the
foregoing provisions of this Article 3 are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board, fairly
and adequately protect the purchase rights of the Warrants in accordance with
the essential intent and principles of such provisions, then the Board shall
make such adjustments in the application of such provisions, in accordance with
such essential intent and principles, as shall be reasonably necessary, in the
good faith opinion of the Board, to protect such purchase rights as aforesaid.
SECTION 3.6 SUPERSEDING ADJUSTMENT. Upon the expiration of any
rights, options, warrants or conversion or exchange privileges which resulted in
the adjustments pursuant to this Article 3, if any thereof shall not have been
exercised, the number of Warrant Shares purchasable upon the exercise of each
Warrant shall be readjusted as if (A) the only shares of Common Stock issuable
upon exercise of such rights, options, warrants, conversion or exchange
privileges were the shares of Common Stock, if any, actually issued upon the
exercise of such rights, options, warrants or conversion or exchange privileges
and (B) shares of Common Stock actually issued, if any, were issuable for the
consideration actually received by the Company upon such exercise plus the
aggregate consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or conversion or
exchange privileges whether or not exercised and the Exercise Price shall be
readjusted inversely; PROVIDED, HOWEVER, that no such readjustment shall (except
by reason of an intervening adjustment under Section 3.1 or, if applicable,
Section 3.5) have the effect of decreasing the number of Warrant Shares
purchasable upon the exercise of each Warrant or increasing the Exercise Price
by an amount in excess of the amount of the adjustments to the number of Warrant
Shares purchasable and the Exercise Price initially made in respect of the
issuance, sale or grant of such rights, options, warrants or conversion or
exchange privileges.
SECTION 3.7 MINIMUM ADJUSTMENT. The adjustments required by
the preceding Sections of this Article 3 shall be made whenever and as often as
any specified event requiring an adjustment shall occur, except that no
adjustment of the Exercise Price or the number of shares of Common Stock
purchasable upon exercise of the Warrants that would otherwise be required shall
be made (except in the case of a subdivision or combination of shares of Common
Stock, as provided for in Section 3.1) unless and until such adjustment either
by itself or with other adjustments not previously made increases or decreases
by at least 1% the Exercise Price or the number of shares of Common Stock
purchasable upon exercise of the Warrants immediately prior to the making of
such adjustment. Any adjustment representing a change of less than such minimum
amount shall be carried forward and made as soon as such
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adjustment, together with other adjustments required by this Article 3 and not
previously made, would result in a minimum adjustment. For the purpose of any
adjustment, any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence. In computing adjustments under this
Article 3, fractional interests in Common Stock shall be taken into account to
the nearest one-hundredth of a share.
SECTION 3.8 OTHER PROVISIONS REGARDING ADJUSTMENTS. In the
event that at any time, as a result of an adjustment made pursuant to Section
3.1 hereof, the holder of this Warrant shall become entitled to receive any
shares of capital stock of the Company other than shares of Common Stock,
thereafter the number of such other shares of capital stock so receivable upon
exercise of this Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in Article 3 and the provisions contained
elsewhere herein with respect to Common Stock shall apply on like terms to any
such other shares.
SECTION 3.9 CHALLENGE TO GOOD FAITH DETERMINATION. Whenever
the Board shall be required to make a determination in good faith of the Fair
Value of any item under this Article 3, the Majority Holders may challenge such
determination in good faith by notifying the Board in writing of the Majority
Holders' determination of the Fair Value of such item. Any such dispute shall be
resolved by an Independent Investment Banking Firm selected by the Majority
Holders and reasonably acceptable to the Company. The expenses of any challenge
made by the Majority Holders hereunder to be paid by the Company shall be the
amount obtained by multiplying (a) the aggregate amount of such expenses and (b)
the percentage up to 100% obtained by dividing (i) the difference between the
Fair Value determined by the Independent Investment Banking Firm and the Fair
Value claimed by the Company by (ii) the difference between the Fair Value
claimed by the Majority Holders and the Fair Value claimed by the Company. Any
remaining amounts will be paid by the Majority Holders.
SECTION 3.10 NOTICE OF ADJUSTMENT. Whenever the Exercise Price
or the number of shares of Common Stock and other property, if any, purchasable
upon exercise of Warrants is adjusted, as herein provided, the Company shall
deliver to the Holders a certificate of a firm of independent accountants (who
may be the regular accountants employed by the Company) or the Chief Financial
Officer of the Company setting forth, in reasonable detail, the event requiring
the adjustment and the method by which such adjustment was calculated (including
a description of the basis on which the Board determined the fair market value
of any evidences of indebtedness, other securities or property or warrants or
other subscription or purchase rights), and specifying the Exercise Price and
the number of shares of Common Stock purchasable upon exercise of Warrants after
giving effect to such adjustment.
SECTION 3.11 NOTICE OF CERTAIN TRANSACTIONS. In the event that
the Company shall resolve or agree (a) to pay any dividend payable in securities
of any class to the holders of its Common Stock or to make any other
distribution to the holders of its Common Stock, (b) to offer the holders of its
Common Stock rights to subscribe for or to purchase any securities convertible
into shares of Common Stock or shares of Common Stock or shares of stock of any
class or any other securities, rights or options, (c) to effect any
reclassification of its Common Stock, capital reorganization, merger,
consolidation or disposition of assets or (d) to effect any of
<PAGE>
12
the transactions described in Sections 3.1, 3.2, 3.3 and 3.4 above, the Company
shall within 10 business days send to the Holders, a notice of such proposed
action or offer, such notice to be mailed to the Holders, which shall specify
the record date for the purposes of such dividend, distribution or rights, or
the date such issuance or event is to take place and the date of participation
therein by the holders of Common Stock, if any such date is to be fixed, and
shall briefly indicate the effect of such action on the Common Stock and on the
number and kind of any other shares of stock and on other property, if any, and
the number of shares of Common Stock and other property, if any, purchasable
upon exercise of each Warrant and the Exercise Price after giving effect to any
adjustment which will be required as a result of such action. Such notice shall
be given by the Company as promptly as possible.
ARTICLE 4.
TRANSFER, DIVISION AND COMBINATION
SECTION 4.1 TRANSFER. Subject to compliance with Section 4.5,
transfer of this Warrant and all rights hereunder, in whole or in part, shall be
registered on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant at the principal office of the Company referred to in
Section 2.3 or the office or agency designated by the Company pursuant to
Article 6, together with a written assignment of this Warrant substantially in
the form of Exhibit B hereto duly executed by Holder or its agent or attorney
and funds sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company shall,
subject to Section 4.5, execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees and in the denomination specified in such
instrument of assignment, and shall issue to the assignor a new Warrant
evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be canceled. A Warrant, if properly assigned in compliance with Section
4.5, may be exercised by a new Holder for the purchase of shares of Common Stock
without having a new Warrant issued. If requested by the Company, a new Holder
shall acknowledge in writing, in form reasonably satisfactory to the Company,
such Holder's continuing obligations under Section 4.5 and Article 8.
SECTION 4.2 DIVISION AND COMBINATION. Subject to Section 4.5,
this Warrant may be divided or combined with other Warrants upon presentation
hereof at the aforesaid office or agency of the Company, together with a written
notice specifying the names and denominations in which new Warrants are to be
issued, signed by Holder or its agent or attorney. Subject to compliance with
Section 4.1 and with Section 4.5, as to any transfer which may be involved in
such division or combination, the Company shall execute and deliver a new
Warrant or Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice.
SECTION 4.3 EXPENSES. The Company shall prepare, issue and
deliver at its own expense (other than transfer taxes) the new Warrant or
Warrants under this Article 4.
<PAGE>
13
SECTION 4.4 MAINTENANCE OF BOOKS. The Company agrees to
maintain, at its aforesaid office or agency, books for the registration or
transfer of the Warrants.
SECTION 4.5 RESTRICTION ON TRANSFER. (a) This Warrant and the
Warrant Shares issuable upon exercise hereof are subject in all respects to the
terms and conditions of the Registration Rights Agreement. No transfer, sale,
assignment, hypothecation or other disposition of this Warrant or the Warrant
Shares issuable upon exercise hereof may be made except in accordance with the
provisions of the Registration Rights Agreement (it being understood that any
transfer of Common Stock permitted under the provisions of the Registration
Rights Agreement shall be a permitted transfer with respect to this Warrant and
the Warrant Shares). The Holder, by acceptance of this Warrant, agrees to be
bound by the applicable provisions of the Registration Rights Agreement and all
applicable benefits of the Registration Rights Agreement shall inure to such
Holder.
(b) (i) Except as otherwise provided in this Section 4.5, each
certificate for Warrant Shares initially issued upon the exercise of this
Warrant, and each certificate for Warrant Shares issued to any transferee of any
such certificate, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED IN
VIOLATION OF SUCH ACT OR LAWS OR THE RULES AND REGULATIONS
THEREUNDER.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
REGISTRATION RIGHTS AGREEMENT (A COPY OF WHICH IS ON FILE WITH
THE SECRETARY OF THE COMPANY). NO TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT. THE HOLDER OF THESE SECURITIES AGREES TO BE BOUND
BY ALL OF THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT.
(ii) Except as otherwise provided in this Section 4.5, each
Warrant shall be stamped or otherwise imprinted with a legend in substantially
the following form:
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY
<PAGE>
14
NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT OR LAWS, THE RULES
AND REGULATIONS THEREUNDER OR THE PROVISIONS OF THIS WARRANT.
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
ARE SUBJECT TO A REGISTRATION RIGHTS AGREEMENT (A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY). NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THIS WARRANT OR THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF MAY BE MADE EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT. THE HOLDER
OF THIS WARRANT AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF
SUCH REGISTRATION RIGHTS AGREEMENT.
(c) Notwithstanding the provisions of Section 4.5(b), (i) the
Company shall deliver Warrants or certificates for Warrant Shares without the
first paragraph of the legend set forth in any such clause if the securities
referred to in such clause shall have been registered under the Securities Act
or if such legend is otherwise not required under the Securities Act, and if
such legend has been set forth on any previously delivered certificates, such
legend shall be removed from any certificates at the request of the Holder if
the securities referred to in such clause have been registered under the
Securities Act, or if such legend is not otherwise required under the Securities
Act, and (ii) the Company shall deliver Warrants or certificates for Warrant
Shares without the second paragraph of the legend set forth in such clause if
such legend is no longer required pursuant to the terms of the Registration
Rights Agreement.
ARTICLE 5.
LOSS OR MUTILATION
Upon receipt by the Company from any Holder of evidence
reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and indemnity reasonably satisfactory
to it (it being understood that the written agreement of the NBC or its
Permitted Transferees shall be sufficient indemnity) and in case of mutilation
upon surrender and cancellation hereof, the Company will execute and deliver in
lieu hereof a new Warrant of like tenor to such Holder (without expense to the
Holder); PROVIDED, in the case of mutilation, no indemnity shall be required if
this Warrant in identifiable form is surrendered to the Company for
cancellation.
<PAGE>
15
ARTICLE 6.
OFFICE OF THE COMPANY
As long as any of the Warrants remain outstanding, the Company
shall maintain an office or agency (which may be the principal executive offices
of the Company) where the Warrants may be presented for exercise, registration
of transfer, division or combination as provided in this Warrant.
ARTICLE 7.
LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative action by
the Holder hereof to purchase shares of Common Stock, and no enumeration herein
of the rights or privileges of the Holder hereof, shall give rise to any
liability of such Holder for the purchase price of any Common Stock or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
ARTICLE 8.
MISCELLANEOUS
SECTION 8.1 NONWAIVER AND EXPENSES. No course of dealing or
any delay or failure to exercise any right hereunder on the part of the Holder
hereof shall operate as a waiver of such right or otherwise prejudice such
Holder's rights, powers or remedies. If the Company fails to make, when due, any
payments provided for hereunder, or fails to comply with any other provision of
this Warrant, the Company shall pay to the Holder hereof such amounts as shall
be sufficient to cover any reasonable costs and expenses including, but not
limited to, reasonable attorneys' fees, including those of appellate
proceedings, incurred by such Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
SECTION 8.2 FINANCIAL INFORMATION. The Company will file on or
before the required date (including any permitted extensions) all required
regular or periodic reports (pursuant to the Exchange Act) with the Commission
and the Company will deliver to each Holder of a Warrant or Warrant Shares
promptly upon their becoming available one copy of each report, notice or proxy
statement sent by the Company to its stockholders generally.
SECTION 8.3 UNEXERCISED WARRANTS. Except as otherwise
specifically required herein, holders of unexercised Warrants are not entitled
(i) to receive dividends or other distributions, (ii) to receive notice of or
vote at any meeting of the stockholders, (iii) to consent to any action of the
stockholders, (iv) to receive notice of any other proceedings of the Company or
(v) to exercise any other rights as stockholders of the Company.
<PAGE>
16
SECTION 8.4 AMENDMENT. This Warrant and all other Warrants may
be amended with the written consent of the Company and the Majority Holders;
PROVIDED, HOWEVER, that no such Warrant may be amended to reduce the number of
shares of Common Stock for which such Warrant is exercisable or to increase the
Exercise Price (before giving effect to any adjustment as provided therein)
without the prior written consent of the Holder thereof. In determining whether
the Holders of the required number of Warrants have concurred in any direction,
waiver or consent, Warrants owned by the Company or any Subsidiary of the
Company shall be disregarded and deemed not to be outstanding. Also, subject to
the foregoing, only Warrants outstanding at the time shall be considered in any
such determination.
SECTION 8.5 NOTICES. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail to the addresses
set forth in the Supplemental Agreement with respect to the Company and the
Holder on the date hereof and if to any subsequent Holder, at its last known
address appearing on the books of the Company maintained for such purposes.
The Company and any Holder by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
SECTION 8.6 REMEDIES. The Company and the Holder hereof each
stipulates that the remedies at law of each party hereto in the event of any
default or threatened default by the other party in the performance or
compliance with any of the terms of this Warrant are not and will not be
adequate and that, to the fullest extent permitted by law, such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
SECTION 8.7 GOVERNING LAW. The laws of the State of New York
shall govern this Warrant.
SECTION 8.8 SUCCESSORS. Subject to Section 4.5 hereof, this
Warrant and the rights evidenced hereby shall inure to the benefit of and be
binding upon the successors and assigns of the Company and the Holder hereof,
and shall be enforceable by any such successors and assigns.
SECTION 8.9 COUNTERPARTS. This Warrant Agreement may be
executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
SECTION 8.10 TABLE OF CONTENTS. The table of contents and
headings of the Articles and Sections of this Warrant Agreement have been
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
SECTION 8.11 SEVERABILITY. The provisions of this Warrant are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such
<PAGE>
17
clause or provision, or part thereof, and shall not in any manner affect such
clause or provision in any other jurisdiction or any other clause or provision
of this Warrant in any jurisdiction.
<PAGE>
18
IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed and its corporate seal to be impressed hereon and attested by its
Secretary or an Assistant Secretary.
GRANITE BROADCASTING CORPORATION
By: /s/ W. Don Cornwell
-------------------------------------
Name: W. Don Cornwell
Title: Chief Executive Officer
Attest:
By: /s/ Stuart J. Beck
-------------------------------
Name: Stuart J. Beck
Title: President
<PAGE>
19
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Series A Warrant
("Warrant") irrevocably exercises this Warrant for the purchase of [up to]
______________ Shares of Common Stock of GRANITE BROADCASTING CORPORATION and
[herewith makes payment therefor] [requests that the Company withhold the
number of Shares from the Common Stock receivable by the undersigned in
accordance with the Cashless Exercise option specified in Section 2.2 of this
Warrant](1), all at the price and on the terms and conditions specified in this
Warrant and requests that certificates for the shares of Common Stock hereby
purchased (and any securities or other property issuable upon such exercise)
be issued in the name of and delivered to _________________________ whose
address is ____________________________ and, if such shares of Common Stock
shall not include all of the shares of Common Stock issuable as provided in
this Warrant, that a new Warrant of like tenor and date for the balance of
the shares of Common Stock issuable hereunder be delivered to the undersigned.
--------------------------------------
(Name of Registered Owner)
--------------------------------------
(Signature of Registered Owner)
--------------------------------------
(Street Address)
--------------------------------------
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
----------
(1) To be inserted if Cashless Exercise is requested.
<PAGE>
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this
Series A Warrant ("Warrant") hereby sells, assigns and transfers unto the
Assignee named below all of the rights of the undersigned under this Warrant,
with respect to the number of shares of Common Stock set forth below:
No. of Shares of
Name and Address of Assignee of Common Stock
---------------------------- ---------------
and does hereby irrevocably constitute and appoint
__________________________attorney-in-fact to register such transfer on the
books of GRANITE BROADCASTING CORPORATION maintained for the purpose, with full
power of substitution in the premises.
Dated:
------------------------------------
Name:
------------------------------------
(Print)
Signature:
------------------------------------
Witness:
------------------------------------
NOTICE: The signature on this subscription must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
