AMENDED AND RESTATED SHAREHOLDER
AGREEMENT
dated as of February 25,
2009
GE Capital Equity Investments,
Inc.
AMENDED AND RESTATED SHAREHOLDER
AGREEMENT
AMENDED
AND RESTATED SHAREHOLDER AGREEMENT, dated as of February 25,
2009, (this “Agreement”) among ValueVision Media, Inc.,
a Minnesota corporation (together with its successors, the
“Company”), GE Capital Equity Investments, Inc., a
Delaware corporation (together with its successors, “GE
Capital Equity Investments”), and NBC Universal, Inc., a
Delaware corporation (together with its successors,
“NBC”).
WHEREAS,
the Company and GE Capital Equity Investments entered into an
Investment Agreement dated as of March 8, 1999, as amended by
the First Amendment and Agreement, dated as of April 15, 1999,
pursuant to which GE Capital Equity Investments purchased shares of
Series A Redeemable Convertible Preferred Stock (the
“Series A Preferred Stock”) and a warrant to
purchase Common Stock of the Company (which warrant is no longer
outstanding);
WHEREAS,
the Company and GE Capital Equity Investments have entered into an
Exchange Agreement dated as of the date hereof (the “Exchange
Agreement”), pursuant to which GE Capital Equity Investments
has agreed to exchange its shares of Series A Preferred Stock
for shares of Series B Redeemable Preferred Stock (the
“Series B Preferred Stock”) and a warrant to
purchase shares of Common Stock of the Company (the “2009
Warrant”);
WHEREAS;
the Company and NBC, an Affiliate of the Investor as of
March 8, 1999, entered into the Distribution Agreement (as
defined below), pursuant to which the Company agreed to issue to
NBC or its designee (i) warrants to purchase 1,450,000 shares
of Common Stock of the Company (which warrants are no longer
outstanding) and (ii) at agreed upon times and subject to the
satisfaction of certain conditions contained therein, additional
warrants to purchase Common Stock of the Company (the “Bonus
Distributor Warrants”);
WHEREAS,
this Agreement amends, restates and supersedes all prior agreements
and understandings between the Company, GE Capital Equity
Investments and NBC or any of them, including their respective
predecessors, with respect to shareholder rights and if any
provision of this Agreement relating to shareholder rights
conflicts, or is inconsistent, with the Shareholder Agreement,
dated as of April 15, 1999 among the Company, GE Capital
Equity Investments and NBC, as amended by Amendment No. 1 to
the Shareholder Agreement, dated March 19, 2004 among the
Company, GE Capital Equity Investments and NBC, this Agreement
shall control;
WHEREAS,
the execution and delivery of this Agreement by the parties hereto
is a condition to the closing of the transactions contemplated by
the Exchange Agreement; and
WHEREAS,
the parties hereto deem it in their best interests and in the best
interests of the Company to provide for certain matters with
respect to the
governance of
the Company and desire to enter into this Agreement in order to
effectuate that purpose.
NOW,
THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as
follows:
Section 1.01.
Definitions . As used in this Agreement, the following terms
shall have the meanings set forth below:
“Adjusted
Outstanding Common Stock” shall mean, at any time, the total
number of shares of outstanding Common Stock at such time; provided
that for purposes of such calculation (a) to the extent that
Bonus Distributor Warrants have been issued and are outstanding
(and only to such extent), all shares of Common Stock issuable upon
the exercise of such issued and outstanding Bonus Distributor
Warrants (whether such Bonus Distributor Warrants are vested or
unvested) shall be considered outstanding and (b) the maximum
number of shares of Common Stock then issuable upon exercise of the
2009 Warrants shall be considered outstanding. For the avoidance of
doubt, the calculation of Adjusted Outstanding Common Stock shall
not include the Series B Preferred Stock.
“Affiliate”
shall mean, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by, or is under
common control with, such Person. As used in this definition,
“control” (including its correlative meanings,
“controlled by” and “under common control
with”) shall mean the possession, directly or indirectly, of
power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).
“Agreement”
shall mean this Agreement as in effect on the date hereof and as
hereafter from time to time amended, modified or supplemented in
accordance with the terms hereof.
“Beneficially
Own” shall have the meaning set forth in Rule 13d-3
under the Exchange Act, except that a Person shall be deemed to
“Beneficially Own” all securities that such Person has
a right to acquire, whether such right is exercisable immediately
or only after the passage of time (and without any additional
condition), provided that a Person shall not be deemed to
“Beneficially Own” any shares of Common Stock which are
issuable upon exercise of any Bonus Distributor Warrants unless and
until such Bonus Distributor Warrants are actually issued and
outstanding (at which time such Person shall be deemed to
Beneficially Own all shares of Common Stock which are issuable upon
exercise of such Bonus Distributor Warrants, whether or not they
are vested or unvested). When calculating Beneficial Ownership on
any particular date, the 2009 Warrants will be deemed to represent
Beneficial Ownership of the maximum number of shares of Common
Stock that could be acquired upon exercise of the 2009 Warrants on
such date.
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“Board
of Directors” shall mean the Board of Directors of the
Company as from time to time hereafter constituted.
“Business
Day” shall mean any day, other than a Saturday, Sunday or a
day on which commercial banks in New York, New York are authorized
or obligated by law or executive order to close.
“Certificate
of Designation” shall mean the Certificate of Designation of
the Series B Preferred Stock, filed with the Secretary of
State of the State of Minnesota on or prior to the date
hereof.
“Change
in Control of the Company” shall mean any of the following:
(i) a merger, consolidation or other business combination or
transaction to which the Company is a party if the shareholders of
the Company immediately prior to the effective date of such merger,
consolidation or other business combination or transaction, as a
result of such merger, consolidation or other business combination
or transaction, do not have Beneficial Ownership of voting
securities representing 50% or more of the Total Current Voting
Power of the surviving corporation following such merger,
consolidation or other business combination or transaction;
(ii) an acquisition by any Person (other than the Restricted
Parties and their Affiliates or any 13D Group to which any of them
is a member) of Beneficial Ownership of Voting Stock of the Company
representing 25% or more of the Total Current Voting Power of the
Company, (iii) a sale of all or substantially all the
consolidated assets of the Company to any Person or Persons (other
than Restricted Parties and their Affiliates or any 13D Group to
which any of them is a member); or (iv) a liquidation or
dissolution of the Company.
“Common
Stock” shall mean the common stock, par value $0.01 per
share, of the Company and any securities of the Company into which
such Common Stock may be reclassified, exchanged or
converted.
“Company”
shall have the meaning set forth in the preamble hereto.
“Designee”
shall have the meaning set forth in
Section 2.01(b).
“Disinterested
Shareholders” shall mean any shareholder of the Company who
is not a Restricted Party or an Affiliate of a Restricted Party or
a member of a 13D Group in which a Restricted Party or an Affiliate
of a Restricted Party is also a member.
“Distribution
Agreement” shall mean the Distribution and Marketing
Agreement dated March 8, 1999 between the Company and NBC
pursuant to which NBC has agreed to distribute certain programing
of the Company, as such agreement may be amended from time to
time.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated
thereunder.
“GAAP”
shall mean generally accepted accounting principles in the United
States of America in effect from time to time.
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“GE
Capital” shall mean General Electric Capital Corporation, a
New York corporation, together with its successors by operation of
law.
“Independent
Expert” shall mean an investment banking firm mutually
acceptable to the Company and the Investor.
“Investor”
shall mean GE Capital Equity Investments, a wholly-owned Subsidiary
of GE Capital as of the date hereof and an Affiliate of NBC as of
the date hereof, together with its permitted assigns pursuant to
Section 6.06.
“Investor
Tender Offer” shall mean a bona fide public tender offer
subject to the provisions of Regulation 14d under the Exchange
Act, by a Restricted Party (or any 13D Group that includes a
Restricted Party) to purchase or exchange for cash or other
consideration any Voting Stock and which consists of an offer to
acquire 100% of the Total Current Voting Power of the Company then
in effect (other than Voting Stock owned by Restricted Parties or
any Affiliate of a Restricted Party) and is conditioned (which
condition may not be waived) on a majority of the shares of Voting
Stock held by Disinterested Shareholders being tendered and not
withdrawn with respect to such offer.
“Lien”
shall mean any mortgage, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other) or security agreement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement or any
financing lease having substantially the same effect as any of the
foregoing).
“Market
Capitalization” shall mean the aggregate Market Price of the
outstanding capital stock of the Company.
“Market
Price” shall mean, with respect to a share of capital stock
on any day, except as set forth below in the case that the shares
of such capital stock are not publicly held or listed, the average
of the “quoted prices” of such capital stock for 30
consecutive Trading Days commencing 45 Trading Days before the date
in question. The term “quoted prices” of capital stock
shall mean the last reported sale price on that day or, in case no
such reported sale takes place on such day, the average of the last
reported bid and asked prices, regular way, on that day, in either
case, as reported in the consolidated transaction reporting system
with respect to securities quoted on Nasdaq or, if shares of such
capital stock are not quoted on Nasdaq, as reported in the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on
which shares of such capital stock are listed or admitted to
trading or, if shares of such capital stock are not quoted on
Nasdaq and not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices on such other
nationally recognized quotation system then in use, or, if on any
such day shares of such capital stock are not quoted on any such
quotation system, the average of the closing bid and asked prices
as furnished by a professional market maker selected by the Board
of Directors making a market in the shares of such capital stock.
Notwithstanding the foregoing, if shares of such capital stock are
not publicly held or so listed, quoted or
4
publicly
traded, the “Market Price” shall mean the fair market
value of a share of such capital stock, as determined in good faith
by the Board of Directors; provided, however, that if the Investor
shall dispute the fair market value as determined by the Board of
Directors, the Investor and the Company shall retain an Independent
Expert. The determination of fair market value by the Independent
Expert shall be final, binding and conclusive on the Company and
the Investor. All costs and expenses of the Independent Expert
shall be borne by the Investor unless the determination of fair
market value is more favorable to such Investor by 5% or more, in
which case, all such costs and expenses shall be borne by the
Company.
“Material
Agreement” shall mean any contract, lease, restriction,
agreement, instrument or commitment to which the Company or any
Subsidiary of the Company is a party or by which its properties are
bound (i) which provides a benefit to the Company or any of
its Subsidiaries of, or commits the Company or any Subsidiary of
the Company to expend, $500,000 or more (or, in the case of any
agreement with any customer of the Company or any Company
Subsidiary of the Company, $50,000 or more), (ii) which if
breached by any party thereto would result in liability or loss to
the Company and its Subsidiaries of $500,000 or more (or in the
case of any agreement with any customer of the Company or any
Subsidiary of the Company, $50,000 or more) or (iii) which
provides for the distribution of programming of the Company to more
than 250,000 full-time equivalent homes by any multichannel video
programming distributor, including without limitation, by a cable
television system, MATV and SMATV systems, MMDS, TVRO and other
wireline, wireless or direct broadcast satellite delivery
methods.
“Material
Subsidiaries” shall mean those Subsidiaries of the Company
that constitute “significant subsidiaries” as defined
in Rule 1-02 of Regulation S-X under the Securities
Act.
“Material
Transaction” shall mean (i) the direct or indirect
acquisition or purchase of 5% or more of the assets (based on the
fair market value thereof) of the Company and its Subsidiaries,
taken as a whole, or of 5% or more of any class of equity
securities of the Company or any of its Subsidiaries or any tender
offer or exchange offer (including by the Company or its
Subsidiaries) that if consummated would result in any Person
beneficially owning 5% or more of any class of equity securities of
the Company or any of its Subsidiaries, or (ii) any merger,
consolidation, business combination, sale of all or substantially
all assets, recapitalization, liquidation, dissolution or similar
transaction involving the Company or any of its Subsidiaries other
than the transactions contemplated by the Exchange Agreement or
this Agreement.
“NBC”
shall mean NBC Universal, Inc., a Delaware corporation and
Affiliate of the Investor as of the date hereof and a Subsidiary of
General Electric Company as of the date hereof, together with its
successors by operation of law.
“NBC
Restricted Person” shall mean each of the Persons listed on
Annex A hereto together with their respective
Affiliates.
5
“Options”
shall mean stock options to purchase Common Stock.
“Permitted
Liens” shall mean (i) mechanics’, carriers’,
repairmen’s or other like Liens arising or incurred in the
ordinary course of business, (ii) Liens arising under original
purchase price conditioned sales contracts and equipment leases
with third parties entered into in the ordinary course of business
consistent with past practice, (iii) statutory Liens for Taxes
not yet due and payable and (iv) other encumbrances or
restrictions or imperfections of title which do not materially
impair the continued use and operation of the assets to which they
relate.
“Person”
shall mean an individual, corporation, unincorporated association,
partnership, group (as defined in Section 13(d)(3) of the
Exchange Act), trust, joint stock company, joint venture, business
trust or unincorporated organization, limited liability company,
any governmental entity or any other entity of whatever
nature.
“Registration
Rights Agreement” shall mean the Amended and Restated
Registration Rights Agreement dated as of the date hereof between
the Company, NBC and GE Capital Equity Investments, as it may be
amended from time to time.
“Representatives”
shall mean, with respect to any Person, such Person’s
directors, officers, employees, agents and other representatives
acting in such capacity.
“Restricted
Parties” shall mean each of (i) NBC, its Ultimate Parent
Entity (if any), each Subsidiary of NBC and each Subsidiary of its
Ultimate Parent Entity, (ii) GE Capital, its Ultimate Parent
Entity (if any), each Subsidiary of GE Capital and each Subsidiary
of its Ultimate Parent Entity and (iii) any Affiliate of any
Person that is a Restricted Party if (and only if) such Restricted
Party has the right or power (acting alone or solely with other
Restricted Parties) to either cause such Affiliate to comply with
or prevent such Affiliate from not complying with all of the terms
of this Agreement that are applicable to Restricted
Parties.
“SEC”
shall mean the United States Securities and Exchange
Commission.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
“Series A
Preferred Stock” shall have the meaning set forth in the
recitals hereto.
“Series B
Preferred Stock” shall have the meaning set forth in the
recitals hereto.
“Standstill
Limit” means Beneficial Ownership of 39.9% of the Adjusted
Outstanding Common Stock.
“Standstill
Period” shall mean the period beginning on April 15,
1999 and ending on the occurrence of a Standstill Termination
Event, provided that the Standstill
6
Period shall
recommence immediately upon the occurrence of a Standstill
Reinstatement Event.
“Standstill
Reinstatement Event” shall mean the occurrence of any of the
following (a) the Standstill Period has terminated pursuant to
clause (iii) of the definition of “Standstill
Termination Event” and such Third Party Tender Offer is
withdrawn or terminated (without having been consummated) at any
time during which an Investor Tender Offer is not then pending
(unless the party that commenced such Investor Tender Offer
determines to terminate such Investor Tender Offer in accordance
with Section 4.01(f), in which event a Standstill
Reinstatement Event shall occur at the time of such termination),
or (b) the Standstill Period has terminated pursuant to clause
(iv) of the definition of “Standstill Termination
Event” due to a Change in Control of the Company identified
in clause (ii) of the definition thereof and, within twelve
months after the occurrence of such Change in Control of the
Company, the Person whose Beneficial Ownership of Voting Stock
triggered such Change in Control of the Company no longer
Beneficially Owns 25% or more of the Total Current Voting Power of
the Company or (c) the Standstill Period has terminated
pursuant to clause (ii) of the definition of “Standstill
Termination Event,” the relevant agreement that would have
otherwise resulted in a Change in Control of the Company has been
terminated without a Change in Control of the Company having
occurred and subsequent to the occurrence of such Standstill
Termination Event but prior to the termination of such agreement
(x) the Restricted Parties have not acquired actual ownership
of Voting Stock representing in the aggregate a majority of the
Total Current Voting Power of the Company, (y) no Restricted
Party has made any proposal or offer to the Company regarding an
Investor Tender Offer (other than any such proposal or offer that
has been withdrawn by the party making such proposal or offer or is
no longer being pursued) and (z) no Restricted Party has
commenced any tender or exchange offer that is pending when such
agreement is terminated and that, if completed, would result in the
Restricted Parties having actual ownership of Voting Stock
representing in the aggregate a majority of the Total Current
Voting Power of the Company. Notwithstanding the foregoing, a
Standstill Reinstatement Event will not occur if prior to the
occurrence of the event specified in clause (a), (b) or
(c) above that would otherwise result in a Standstill
Reinstatement Event, another Standstill Termination Event occurs
for which there has not been a related Standstill Reinstatement
Event.
“Standstill
Revised Limit” shall mean the percentage of the Adjusted
Outstanding Common Stock Beneficially Owned by the Restricted
Parties as of the occurrence of a Standstill Reinstatement
Event.
“Standstill
Termination Event” shall mean the earliest to occur of the
following: (i) the ten (10) year anniversary of the date
of this Agreement, (ii) the date the Company enters into an
agreement relating to a transaction that if consummated will result
in a Change in Control of the Company, (iii) a Third Party
Tender Offer, (iv) any Change in Control of the Company
occurs, or (v) the six month anniversary of the date on which the
Investor is no longer entitled to designate any nominees to the
Board of Directors pursuant to Section 2.01; provided, that
the Standstill Period will be immediately reinstated upon the
occurrence of a Standstill Reinstatement Event; provided
7
further that,
upon a Standstill Reinstatement Event, if the Standstill Revised
Limit is greater than the Standstill Limit, then the Standstill
Revised Limit and not the Standstill Limit shall thereafter be
deemed the Standstill Limit for all purposes hereunder.
“Subsidiary”
shall mean, as to any Person, a corporation, partnership, limited
liability company, joint venture or other entity of which shares of
stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned,
directly or indirectly through one or more intermediaries
(including, without limitation, other Subsidiaries), or both, by
such Person.
“Takeover
Transaction” shall mean (A) the direct or indirect
acquisition or purchase of 50% or more of the assets (based on the
fair market value thereof) of the Company and its Subsidiaries,
taken as a whole, or of 50% or more of the Common Stock of the
Company or any of its Subsidiaries or any tender offer or exchange
offer (including by the Company or its Subsidiaries) that if
consummated would result in any Person beneficially owning 50% or
more of the Common Stock of the Company or any of its Subsidiaries,
(B) a sale of all or substantially all of the assets of the
Company and its Subsidiaries or (C) a merger or consolidation
of the Company.
“Third
Party Tender Offer” shall mean a bona fide public offer
subject to the provisions of Regulation 14D under the Exchange
Act, by a Person (which is not made by and does not include any of
the Company, a Restricted Party or any Affiliate of any of them or
any 13D Group that includes the Company, a Restricted Party or any
Affiliate of them) to purchase or exchange for cash or other
consideration any Voting Stock and which consists of an offer to
acquire 25% or more of the then Total Current Voting Power of the
Company.
“13D
Group” means any “group” (within the meaning of
Section 13(d) of the Exchange Act) formed for the purpose of
acquiring, holding, voting or disposing of Voting Stock.
“Total
Current Voting Power” shall mean, with respect to any
corporation the total number of votes which may be cast in the
election of members of the Board of Directors of the corporation if
all securities entitled to vote in the election of such directors
(excluding shares of preferred stock that are entitled to elect
directors only upon the occurrence of customary events of default)
are present and voted (it being understood that the shares of
Series B Preferred Stock will be included in the Total Current
Voting Power of the Company to the extent such shares of
Series B Preferred Stock are entitled to vote in accordance
with Section VII(a) and Section VII(b) of the Certificate
of Designation).
“Trademark
License Agreement” shall mean that certain Trademark License
Agreement, between NBC and the Company, dated as of
November 16, 2000 and as amended on March 28,
2007.
8
“Transfer”
shall have the meaning set forth in Section 4.02.
“Ultimate
Parent Entity” shall mean, with respect to any Person (the
“Subject Person”), the Person (if any) that
(i) owns, directly or indirectly through one or more
intermediaries, or both, shares of stock or other ownership
interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of the Subject Person and (ii) is
not itself a Subsidiary of any other Person or is a natural
person.
“Voting
Stock” shall mean shares of the Common Stock, Series B
Preferred Stock, to the extent such shares of Series B
Preferred Stock are entitled to vote in accordance with
Section VII(a) and Section VII(b) of the Certificate of
Designation, and any other securities of the Company having the
ordinary power to vote in the election of members of the Board of
Directors of the Company.
“Warrants”
shall mean the 2009 Warrants and any outstanding Bonus Distributor
Warrants.
ARTICLE II — CORPORATE
GOVERNANCE
Section 2.01.
Board of Directors .
(a) (i) As
long as the Restricted Parties continue to Beneficially Own an
aggregate number of shares of Common Stock equal to or greater than
50% of the number of shares of Common Stock which the Restricted
Parties Beneficially Own on the date hereof (assuming for purposes
of this clause (i) each share of Series B Preferred Stock
is converted into one share of Common Stock and making equitable
adjustments for any conversions, reclassifications,
reorganizations, stock dividends, stock splits, reverse splits and
similar events which occur with respect to the Common Stock), the
Investor shall be entitled to designate three individuals to be
nominated to the Board of Directors or (ii) if the condition
in clause (i) of this paragraph (b) is not satisfied,
then as long as the Restricted Parties shall continue to
Beneficially Own at least 10% of the Adjusted Outstanding Common
Stock, the Investor shall be entitled to designate two individuals
to be nominated to the Board of Directors.
(b) Any individual
so designated by the Investor pursuant to paragraph (a) of
this Section 2.01 (each a “Designee”) that has not
previously served as a member of the Board of Directors shall be
subject to the reasonable approval of a majority of the members of
the Board of Directors.
(c) As long as a
majority of the outstanding shares of Series B Preferred Stock
are owned by the Restricted Parties and the Investor is otherwise
entitled to designate nominee(s) for election as director(s)
pursuant to Section 2.01, the Designee(s) will be elected to
the Board of Directors by the holders of the Series B
Preferred Stock voting separately as a class, as provided in the
Certificate of Designation. If the Restricted Parties no longer own
a majority of the outstanding shares of Series B Preferred
Stock (or no shares of Series B Preferred Stock are
outstanding) but the
9
Investor is
otherwise entitled to designate nominee(s) for election as
director(s) pursuant to Section 2.01, the Company shall
nominate each such Designee for election as a director as part of
the management slate that is included in the proxy statement (or
consent solicitation or similar document) of the Company relating
to the election of directors, and shall provide the same support
for the election of each such Designee as it provides to other
persons standing for election as directors of the Company as part
of the Company’s management slate.
(d) Subject to
applicable law, in the event that any Designee on the Board of
Directors shall cease to serve as a director for any reason (other
than the failure of the shareholders of the Company to elect such
person as director), the vacancy resulting therefrom shall be
filled by another Designee.
(e) For the
avoidance of doubt, nothing in this Section 2.01 or elsewhere
in this Agreement is intended to prohibit the Restricted Parties
from nominating and electing a majority of the members of the Board
of Directors if the Restricted Parties have actual ownership of
Voting Stock representing in the aggregate a majority of the Total
Current Voting Power and the Standstill Period is no longer in
effect.
(g) As long as the
Investor is entitled to designate three persons for nomination as
directors, the then current Investor may assign pursuant to
Section 6.06 the right to designate pursuant to the terms and
conditions hereof one or two of such nominees to any other
Restricted Party (such that one Restricted Party will have the
right to designate two nominees and the other Restricted Party will
have the right to designate one nominee; it being understood that
in such a case for all purposes of this Agreement where rights or
obligations of the Investor or the Restricted Parties are
determined by the number of nominees the Investor is entitled to
designate, the Investor will be deemed to have the right to
designate three nominees).
Section 2.02.
Board Committees . As long as the Investor has the right to
designate at least two nominees to the Board of Directors, unless
otherwise agreed to by the Investor or otherwise prohibited by
applicable law or the rules and regulations of the securities
exchange or automated quotation system upon which the Common Stock
is listed, (a) so long as applicable law or the rules and
regulations of the securities exchange or automated quotation
system upon which the Common Stock is liste
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