exv10w2



 





			
	 
	 	EXHIBIT 10.2
	 	 	 
	 
	 	EXECUTION VERSION






 





LIMITED LIABILITY COMPANY AGREEMENT




of




Rhapsody America LLC




dated as of August 20, 2007,




among




RealNetworks, Inc.,




RealNetworks Digital Music of California, Inc.,




Viacom International Inc.




and




DMS Holdco Inc.




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 
	 	 	 	 	 	 
	Definitions and Usage

	SECTION 1.01.

	 	Definitions
	 	 	2	 
	SECTION 1.02.

	 	Terms and Usage Generally
	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	The Company

	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Effectiveness of this Agreement
	 	 	16	 
	SECTION 2.02.

	 	Formation and Qualification
	 	 	16	 
	SECTION 2.03.

	 	Name
	 	 	17	 
	SECTION 2.04.

	 	Term
	 	 	17	 
	SECTION 2.05.

	 	Registered Agent and Registered Office
	 	 	17	 
	SECTION 2.06.

	 	Purposes
	 	 	17	 
	SECTION 2.07.

	 	Principal Office and Place of Business
	 	 	17	 
	SECTION 2.08.

	 	Service Exclusivity
	 	 	18	 
	SECTION 2.09.

	 	Annual Media Plan
	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	Members

	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Admission of Members
	 	 	18	 
	SECTION 3.02.

	 	Substitute Members and Additional Members
	 	 	18	 
	SECTION 3.03.

	 	Powers of Members
	 	 	19	 
	SECTION 3.04.

	 	Parent Guarantee
	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 	 	 
	Contributions and Purchases

	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Initial Contributions and Purchases
	 	 	19	 
	SECTION 4.02.

	 	Additional Commitments
	 	 	20	 
	SECTION 4.03.

	 	Reduction of Additional Commitments
	 	 	20	 
	SECTION 4.04.

	 	Contribution Drawdown
	 	 	20	 
	SECTION 4.05.

	 	Contribution Default
	 	 	21	 






- i - 









 





	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 4.06.

	 	Capital Loans
	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	Reports; Auditors

	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Reports to Members
	 	 	22	 
	SECTION 5.02.

	 	Reports to Lenders
	 	 	23	 
	SECTION 5.03.

	 	Books and Records
	 	 	23	 
	SECTION 5.04.

	 	Other Information
	 	 	24	 
	SECTION 5.05.

	 	Auditors
	 	 	24	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	Interests

	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	General
	 	 	24	 
	SECTION 6.02.

	 	Issuance of Interests After the Effective Date
	 	 	25	 
	SECTION 6.03.

	 	Repurchase of Interests after the Effective Date
	 	 	25	 
	SECTION 6.04.

	 	Subsidiaries
	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 	 	 
	Allocations and Other Tax Matters

	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Allocations
	 	 	25	 
	SECTION 7.02.

	 	Treatment of Company as Partnership
	 	 	25	 
	SECTION 7.03.

	 	Tax Matters Member
	 	 	25	 
	SECTION 7.04.

	 	Tax Returns, Tax Elections, Consistency
	 	 	27	 
	SECTION 7.05.

	 	Withholding
	 	 	28	 
	SECTION 7.06.

	 	Fiscal Year
	 	 	28	 
	SECTION 7.07.

	 	Construction and References to Regulations
	 	 	28	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	Distributions

	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Distributions
	 	 	28	 
	SECTION 8.02.

	 	Tax Distributions
	 	 	29	 
	SECTION 8.03.

	 	General Limitations
	 	 	29	 
	SECTION 8.04.

	 	Distributions in Kind
	 	 	29	 






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	 	 	 	 	Page
	ARTICLE IX

	 
	 	 	 	 	 	 
	Management of the Company

	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Joint Committee
	 	 	29	 
	SECTION 9.02.

	 	Joint Committee Meetings
	 	 	30	 
	SECTION 9.03.

	 	Unanimous Approval
	 	 	31	 
	SECTION 9.04.

	 	Contract Party Approval
	 	 	33	 
	SECTION 9.05.

	 	Business Plans
	 	 	34	 
	SECTION 9.06.

	 	Budgets
	 	 	34	 
	SECTION 9.07.

	 	Failure to Approve the Annual Operating Budget
	 	 	35	 
	SECTION 9.08.

	 	Impasse
	 	 	37	 
	SECTION 9.09.

	 	Officers
	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 
	 	 	 	 	 	 
	Transfers of Interests

	 
	 	 	 	 	 	 
	SECTION 10.01.

	 	Restrictions on Transfers
	 	 	40	 
	SECTION 10.02.

	 	Permitted Transfers
	 	 	41	 
	SECTION 10.03.

	 	Put/Call Right
	 	 	42	 
	SECTION 10.04.

	 	Tag-Along Right
	 	 	47	 
	SECTION 10.05.

	 	Drag-Along Right/Right of First Refusal
	 	 	48	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 	 	 
	Limitation on Liability, Exculpation

	 
	 	 	 	 	 	 
	SECTION 11.01.

	 	Limitation on Liability
	 	 	50	 
	SECTION 11.02.

	 	Exculpation of Covered Persons
	 	 	50	 
	SECTION 11.03.

	 	Renunciation of Corporate Opportunities
	 	 	51	 
	SECTION 11.04.

	 	Indemnification
	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 	 	 
	Defaults; Withdrawal; Bankruptcy of a Member

	 
	 	 	 	 	 	 
	SECTION 12.01.

	 	Events of Default
	 	 	53	 
	SECTION 12.02.

	 	Events of Withdrawal
	 	 	53	 






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	 	 	 	 	Page
	ARTICLE XIII

	 
	 	 	 	 	 	 
	Dissolution and Termination

	 
	 	 	 	 	 	 
	SECTION 13.01.

	 	Dissolution
	 	 	53	 
	SECTION 13.02.

	 	Winding Up of the Company
	 	 	54	 
	SECTION 13.03.

	 	Distribution of Property
	 	 	55	 
	SECTION 13.04.

	 	Claims of Members
	 	 	55	 
	SECTION 13.05.

	 	Termination
	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE XIV

	 
	 	 	 	 	 	 
	Miscellaneous

	 
	 	 	 	 	 	 
	SECTION 14.01.

	 	Notices
	 	 	55	 
	SECTION 14.02.

	 	No Third Party Beneficiaries
	 	 	56	 
	SECTION 14.03.

	 	Waiver
	 	 	56	 
	SECTION 14.04.

	 	Integration
	 	 	56	 
	SECTION 14.05.

	 	Headings
	 	 	56	 
	SECTION 14.06.

	 	Counterparts
	 	 	56	 
	SECTION 14.07.

	 	Severability
	 	 	56	 
	SECTION 14.08.

	 	Amendments and Modifications
	 	 	57	 
	SECTION 14.09.

	 	Applicable Law
	 	 	57	 
	SECTION 14.10.

	 	Dispute Resolution
	 	 	57	 
	SECTION 14.11.

	 	Waiver of Jury Trial
	 	 	57	 
	SECTION 14.12.

	 	Confidentiality
	 	 	57	 
	SECTION 14.13.

	 	Publicity
	 	 	58	 
	SECTION 14.14.

	 	Absence of Presumption
	 	 	58	 
	SECTION 14.15.

	 	Expenses
	 	 	58	 
	 
	 	 	 	 	 	 
	Schedules
	Schedule 1 — Initial Cash Contributions
	Schedule 2 — Initial Business Plan
	Schedule 3 — (Reserved)
	Schedule 4 — Members, Interests and Participation Percentages
	Schedule 5 — Initial Member Representatives
	Schedule 6 — Initial Executive Officers
	Schedule 7 — Notices
	Schedule 8 — MTVN Preferred Return Portion Examples
	Schedule 9 — Dispute Resolution
	 
	 	 	 	 	 	 
	Exhibits
	 	 	 	 	 	 
	Exhibit A — Form of Adoption Agreement
	Exhibit B — Form of Capital Loan Promissory Note
	Exhibit C — Form of Budget Loan Promissory Note
	Exhibit D — MTVN Note






- iv - 









 






     LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of
Rhapsody America LLC, a Delaware limited liability company (the
“Company”) dated as of August 20, 2007, among RealNetworks, Inc.,
a Washington corporation (“RN Parent”), RealNetworks Digital Music
of California, Inc., a California corporation (“RN Sub”), Viacom
International Inc., a Delaware corporation (“MTVN Parent”), on
behalf of its MTV Networks Division (“MTVN”), and DMS Holdco Inc.,
a Delaware corporation (“MTVN Sub” and together with RN Sub, the
“Initial Members”).



Preliminary Statement




          WHEREAS, RN Sub is a wholly owned subsidiary of RN Parent and MTVN Sub is a wholly owned
subsidiary of MTVN Parent;




          WHEREAS, RN Parent formed the Company as a Delaware limited liability company pursuant to the
Delaware Limited Liability Company Act, 6 Del. C. §§18-101 et seq. (the “Delaware Act”) by
filing a Certificate of Formation of the Company with the office of the Secretary of State of the
State of Delaware on August 16, 2007 as the vehicle for the joint venture described in this
Agreement;




          WHEREAS, RN Parent, RN Sub, MTVN Parent, MTVN Sub and the Company are parties to the
Transaction, Contribution and Purchase Agreement, dated as of the date hereof, (the
“Transaction, Contribution and Purchase Agreement”) to effect the transfer and contribution
of certain assets to the Company and to establish certain other terms and conditions of the launch
of the joint venture;




          WHEREAS, RN Parent and the Company have entered into an Audio Music Service Brand and Content
License and Distribution Agreement (the “RN Brand and Content Agreement”), dated as of the
date hereof, pursuant to which, on the date hereof, RN Parent shall license certain content,
programming and branding to the Company in support of the operation and promotion of the joint
venture;




          WHEREAS, MTVN Parent and the Company have entered into an Audio Music Service Brand and
Content License, Distribution and Advertising Agreement (the “MTVN Brand and Content
Agreement”), dated as of the date hereof, pursuant to which, on the date hereof, MTVN Parent
shall license certain content, programming and branding and sell advertising and marketing to the
Company in support of the operation and promotion the joint venture;




          WHEREAS, MTVN Parent and the Company have entered into an URGE Brand and Content License
Agreement (the “URGE Brand and Content Agreement”), dated as of the date hereof, pursuant
to which, on the date hereof, MTVN Parent shall license certain content, programming and branding
to the Company in support of the operation and promotion the joint venture;




 









 








          WHEREAS, RN Parent and the Company have entered into a RN-Venture License and Services
Agreement (the “RN License and Services Agreement”), dated as of the date hereof, pursuant
to which, on the date hereof, RN Parent shall provide certain technology licenses and services to
the Company in support of the operation of the Company;




          WHEREAS, RN Parent, MTVN Parent and the Company have entered into a Rhapsody Web Services
Agreement (the “Web Services Agreement”), dated as of the date hereof, pursuant to which,
on the date hereof, RN Parent, MTVN Parent and the Company shall use certain services to power
certain digital audio music services;




          WHEREAS, MTVN Parent and the Company have entered into a Viacom-Venture Services Agreement
(the “Viacom Services Agreement”), dated as of the date hereof, pursuant to which, on the
date hereof, MTVN Parent shall provide certain services to the Company;




          WHEREAS, RN Parent and MTVN Parent have entered into a Stockholder Agreement (the
“Stockholder Agreement”), dated as of the date hereof, pursuant to which, upon the
occurrence of certain conditions specified therein, certain terms and conditions concerning
registration, access to information rights and standstill and transfer restrictions relating to
equity securities of RN Parent beneficially owned by MTVN Parent and certain other matters shall
become effective; and




          WHEREAS, RN Parent, RN Sub, MTVN Parent and MTVN Sub desire to enter into this Agreement to
set forth certain agreements relating to the ownership, management and operation of the Company;




          NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:




ARTICLE I




Definitions and Usage




          SECTION 1.01. Definitions. (a) The following terms shall have the meanings set
forth below for purposes of this Agreement:




          “Additional Venture Services” has the meaning assigned in the MTVN Brand and Content
Agreement.




          “Additional Member” means any Person admitted as a Member of the Company pursuant to
Section 3.02 in connection with the issuance of Interests to such Person.




          “Adjusted RN Parent Enterprise Value” means, at any date, the RN Parent Enterprise
Value at such date, adjusted to reflect any non-operating liabilities and assets of RN Parent (on a
consolidated basis), including pending lawsuits, underfunded pension



2









 






liabilities, minority interests and pending asset sales or acquisitions and any Indebtedness
but only the pro rata portion of the Indebtedness of RN Parent’s majority or minority-owned
subsidiaries based on RN Parent’s percentage ownership of such subsidiaries and any cash and Cash
Equivalents but only the pro rata portion of the cash and Cash Equivalents of RN Parent’s majority
or minority-owned subsidiaries based on RN Parent’s percentage ownership of such subsidiaries.




          “Adoption Agreement” means an agreement, substantially in the form of Exhibit A,
confirming the agreement of a Person to be bound by the terms and provisions of this Agreement.




          “Affiliate” of any specified Person means any other Person directly or indirectly
Controlling, Controlled by or under direct or indirect common Control with such specified Person;
provided, that the Company and its subsidiaries shall not be deemed to be an Affiliate of
any Member or Parent, and provided, further, that “Affiliate”, when used with respect to
MTVN Sub or MTVN Parent or any of their Affiliates, shall only mean Viacom Inc., a Delaware
corporation, and any direct or indirect subsidiaries of Viacom Inc. and shall not include any
direct or indirect stockholder of Viacom Inc. or any of their Affiliates other than Viacom Inc. and
any direct or indirect subsidiaries of Viacom Inc.




          “Aggregate
Loan Cap” means $[ * ].




          “Annual Media Plan” has the meaning assigned in the MTVN Brand and Content Agreement.




          “B2C Audio Music Service” has the meaning assigned in the MTVN Brand and Content
Agreement.




          “Bankruptcy” of a Person means the occurrence of an event where such Person (i) admits
in writing its inability to pay its debts as they become due, fails to satisfy any enforceable,
final and material judgment against it, or otherwise ceases operations of its business in the
ordinary course, (ii) is adjudicated bankrupt or becomes insolvent, (iii) winds up or liquidates
its business voluntarily or otherwise, (iv) applies for, consents to or suffers the appointment of,
or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator or similar
fiduciary of itself or of all or any substantial portion of its assets, (v) makes a general
assignment for the benefit of creditors other than in the ordinary course of financing its ongoing
operations, (vi) commences a voluntary case under any state bankruptcy law or the Bankruptcy Code,
(vii) files a petition seeking to take advantage of any other law providing for the relief of
debtors, (viii) acquiesces to, or fails to have dismissed, within 30 days, any petition filed
against it in any involuntary case pursuant to such bankruptcy laws and/or (ix) takes any action
for the purpose of effecting any of the foregoing. This definition of “Bankruptcy” is
intended to replace the bankruptcy-related events set forth in Sections 18-304 of the Delaware Act.




          “Bankruptcy Code” means the United States Bankruptcy Code of 1978.




 




[
* ] designates portions of this document that have been
omitted pursuant to a request for confidential treatment filed
separately with the Commission.




3









 








          “Beneficial Owner” and “Beneficial Ownership” and words of similar import have
the meaning assigned to such terms in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act
and a Person’s Beneficial Ownership of securities shall be calculated in accordance with the
provisions of such Rules.




          “Budget Loan Interest Rate” as of any date of determination means an interest rate
that is no greater than the lowest rate of any Member’s Parent, as evidenced by each Parent’s then
current revolving credit facility, or if no Parent has a revolving credit facility in place, then
the Three-Month LIBOR as of such date of determination.




          “Business” means the creation and management of the (i) B2C Audio Music Service, (ii)
Additional Venture Services and (iii) the services provided by the Company to MTVN Parent pursuant
to the Web Services Agreement..




          “Business Day” means any day other than a Saturday, a Sunday or a U.S. Federal
holiday.




          “Capital Expenditures” means for any period, with respect to the Company, the
aggregate of all expenditures during such period to the extent appropriately capitalized in
accordance with GAAP, including those for the acquisition or leasing (pursuant to a Capital Lease
Obligation) of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period).




          “Capital Lease Obligation” means, at the time any determination is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on the Company’s balance sheet in accordance with GAAP.




          “Capital Loan Interest Rate” as of any date of determination means an interest rate
that is no greater than the lowest rate of any Member’s Parent, as evidenced by each Parent’s then
current revolving credit facility, or if no Parent has a revolving credit facility in place, then
the Three-Month LIBOR as of such date of determination.




          “Carry-Over Budget Ratio” as of any date of determination means the lesser of (x) [ *
]% and (y) the ratio of the actual Revenue of the Company for the most recently completed Fiscal
Year as set forth in the audited financial statements of the Company over the projected Revenue for
such Fiscal Year as set forth in the Company’s most recently approved Business Plan.




          “Cash Equivalents” means cash equivalents and short-term investments as defined under
GAAP and long-term investments in liquid marketable securities with maturities of five years or
less purchased and held for cash management purposes.




          “Change of Control” with respect to RN Parent means (i) any Person or Group (other
than Robert Glaser), at any point in time, acquiring, having acquired or




 





[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.




4









 







otherwise having Beneficial Ownership of more than the greater of (A) 35% of the Voting Stock of RN
Parent or any resulting parent company of RN Parent and (B) one share more than the number of
shares of Voting Stock of RN Parent or any resulting parent company of RN Parent then Beneficially
Owned by Robert Glaser, or (ii) any direct or indirect acquisition or purchase, in one transaction
or a series of transactions, of assets (including equity securities of any subsidiary of RN Parent)
or businesses that, taken together with all dividends paid by RN Parent during the period beginning
12 months prior to the earliest of such transaction and ending on the date of the latest of such
transaction, represent 60% or more of the revenues, net income or assets, calculated as if any such
dividends had not been paid, of RN Parent and its subsidiaries, taken as a whole, or (iii) any
direct or indirect acquisition or purchase or otherwise having Beneficial Ownership, at any point
in time, in one transaction or a series of transactions, through a tender offer, exchange offer or
otherwise, of more than the greater of (A) 35% of the Voting Stock of RN Parent and (B) one share
more than the number of shares of Voting Stock of RN Parent then Beneficially Owned by Robert
Glaser or (iv) any merger, consolidation, business combination, recapitalization, liquidation,
dissolution, joint venture, binding share exchange or similar transaction involving RN Parent or
any of its subsidiaries pursuant to which, or after which, any Person or the shareholders of any
Person or Group (other than Robert Glaser) would own, at any point in time, more than the greater
of (A) 35% of the Voting Stock of RN Parent or of any resulting parent company of RN Parent and (B)
one share more than the number of shares of Voting Stock of RN Parent or any resulting parent
company of RN Parent then Beneficially Owned by Robert Glaser.




          “Closing” means the closing pursuant to Section 2.04 of the Transaction, Contribution
and Purchase Agreement.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Common Stock” means the common stock, par value $0.001 per share, of RN Parent.




          “Consolidated Current Assets” means, at any date, all amounts (other than cash and
Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total
current assets” (or any similar caption) on the Company’s consolidated balance sheet at such
date.




          “Consolidated Current Liabilities” means, at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any similar
caption) on the Company’s consolidated balance sheet at such date, but excluding the current
portion of any Indebtedness.




          “Consolidated Working Capital” means, at any date, the excess of Consolidated Current
Assets on such date over Consolidated Current Liabilities on such date.




5









 








          “Contribution” means, with respect to any Member, any contribution made by such Member
to the Company pursuant to Section 4.01, Section 4.02, Section 4.05(b) or Section 4.06(a).




          “Control”, means, with respect to any Person, the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such Person, whether
through ownership of securities or partnership, membership, limited liability company, or other
ownership interests, by contract or otherwise and the terms “Controlling” and
“Controlled” have meanings correlative to the foregoing.




          “Corporate Opportunity” means an investment or business opportunity or prospective
economic advantage in which the Company could, but for the provisions of Section 11.03, have an
interest or expectancy.




          “Covered Person” means (i) each Member, (ii) each Affiliate of a Member (including
each Parent), (iii) each Member Representative, (iv) each officer, director, shareholder, partner,
employee, member, manager, representative, agent or trustee of a Member or of an Affiliate of a
Member, excluding any such Person who is an employee of the Company or any subsidiary of the
Company and (v) each officer of the Company or any subsidiary of the Company. For the avoidance of
doubt, Member Representatives shall not be deemed to be officers of the Company.




          “Effective Date” means the date of this Agreement.




          “Equity Rights” means, with respect to any Person, securities or obligations
convertible into or exercisable or exchangeable for, or giving any other Person any right to
subscribe for or acquire, or any options, calls, warrants, performance awards, units, dividend
equivalent awards, deferred rights, “phantom” stock rights or commitments relating to, or any stock
appreciation right or other instrument the value of which is determined in whole or in part by
reference to the market price or value of or which has the right to vote with, shares of capital
stock, or other voting securities or equity interests of such first Person.




          “Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder, as amended.




          “Extraordinary Transaction” means any of the following:





     (A) any extraordinary or special cash or non-cash distribution or dividend;




     (B) any extraordinary repurchase, redemption or other acquisition of RN Parent
Equity (it being understood, however, that neither (i) stock repurchase programs,
which shall not exceed a percentage of RN Parent’s equity during any twelve (12)
month period (calculated based on the number of outstanding shares of RN Parent’s
equity on the first day of such period), which, when taken together with all
repurchases in accordance with clause (ii) below, shall not exceed 15% nor (ii)



6









 






repurchases of stock from RN Parent’s employees or directors or former
employees or directors which shall not exceed a percentage of RN Parent’s equity
during any twelve (12) month period (calculated based on the
number of outstanding shares of RN Parent’s equity on the first day of such period), which, when taken
together with all stock repurchase programs in accordance with clause (i) above,
shall not exceed 15% nor (iii) purchases or acquisitions of stock required by an
employee or director stock ownership or other benefit plan of RN Parent shall be
deemed to be “extraordinary”);




     (C) any incurrence of Indebtedness in excess of 20% or more of the revenues or
assets of RN Parent and its subsidiaries, taken as a whole; or




     (D) or any direct or indirect sale or disposition, in one transaction or a
series of related transactions, of assets (including equity securities of any
subsidiary of RN Parent) or businesses that constitute 25% or more of the revenues,
net income or assets of RN Parent and its subsidiaries, taken as a whole.



          “Financial Test Operating Budget” with respect to any Fiscal Year means the approved
Annual Operating Budget for such Fiscal Year or, if there was not an approved Annual Operating
Budget for such Fiscal Year, then the Carry-Over Annual Operating Budget that would have applied to
such Fiscal Year (regardless of whether RN Sub elected a RN Annual Operating Budget for such Fiscal
Year).




          “Free Cash Flow” means for any period, the excess, if any, of (i) the sum, without
duplication, of (x) Fully Burdened Operating Profit/Loss for such period, (y) the amount of all
Non-Cash Charges deducted in arriving at such Fully Burdened Operating Profit/Loss, and (z) changes
in Consolidated Working Capital for such period over (ii) the aggregate amount actually paid in
cash during such period on account of Capital Expenditures.




          “Fully Burdened Operating Profit/Loss” means, (A) for any completed period, the
aggregate net income (or loss) on a consolidated basis, determined in accordance with GAAP, and (B)
for any budgeted period, the aggregate net income (or loss) on a consolidated basis projected for
such period, determined in accordance with GAAP; provided, however, that if any budgeted figure is
not prepared in accordance with GAAP, then for purposes of this definition, such figure shall be
adjusted to most closely reflect GAAP.




          “Fully Diluted Shares Outstanding” means, at any date, (i) the total number of basic
shares outstanding as indicated in RN Parent’s most recently filed annual report on Form 10-K or
quarterly report on Form 10-Q, as the case may be, plus (ii) the total number of common shares that
would be issued as a result of the exercise of all in-the-money options then outstanding, less
(iii) the total number of common shares deemed



7









 






to be repurchased using the proceeds from exercise of in-the-money options as described in
(ii) above, at the market price of the Common Stock at such date.




          “GAAP” means generally accepted accounting principles in the United States.




          “Group” has the meaning assigned to such term in Section 13(d)(3) of the Exchange Act.




          “Hedging Obligations” means, with respect to any Person, the obligations of such
Person under (i) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements, (ii) interest rate option agreements, foreign currency exchange agreements,
foreign currency swap agreements and (iii) other agreements or arrangements designed to protect
such Person against fluctuations in interest and currency exchange rates.




          “Indebtedness” of any Person means, without duplication, (i) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments or letters of credit
(or reimbursement agreements in respect thereof) or banker’s acceptances, (iii) all obligations of
such Person upon which interest charges are customarily paid, (iv) all obligations representing any
Hedging Obligations, (v) all obligations of such Person in respect of the deferred purchase price
of property or services (excluding current accounts payable incurred in the ordinary course of
business) and (vi) all capital lease obligations of such Person, in each case if and to the extent
any of the preceding items (other than in the case of letters of credit and Hedging Obligations)
would appear as a liability upon such Person’s balance sheet prepared in accordance with GAAP. In
addition, the term “Indebtedness” shall include (A) the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor, (B) all Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (C) all
guarantees by such Person of Indebtedness of others and (D) all Indebtedness of any other entity to
the extent required to be included under GAAP in such Person’s consolidated balance sheet;
provided further that Indebtedness shall not include any Permitted Liens.




          “Interests” means the limited liability company interests of the Company.




          “Investment Bank” means a nationally recognized investment bank.




          “License and Services Agreements” means, collectively, (i) the RN Brand and Content
Agreement, (ii) the MTVN Brand and Content Agreement, (iii) the URGE



8









 






Brand and Content Agreement, (iv) the RN License and Services Agreement, (v) the Web Services
Agreement and (vi) the Viacom Services Agreement.




          “Lien” means any pledge, encumbrance, security interest, purchase option, call or
similar right.




          “Liquid” means a security that (i) is listed or quoted on the New York Stock Exchange,
the NASDAQ, the American Stock Exchange or the Main Market of the London Stock Exchange, (ii) has
an average weekly trading volume on any such stock exchange or trading system (determined over the
preceding two complete calendar quarters) at least equal to the amount of such security to be
delivered to MTVN Sub and its Affiliates and (iii) is freely Transferable (including under an
effective resale shelf registration statement where MTVN Sub has rights substantially equivalent to
those under Article II of the Stockholder Agreement or, in respect of which, the holder has the
right to demand the preparation and filing of such a registration statement under the Securities
Act and other rights substantially equivalent to those under such Article II).




          “Market Value of RN Parent Equity” means, at any date, the product of (i) the Volume
Weighted Average Price of the Common Stock over the 45 trading-day period immediately prior to such
date and (ii) the Fully Diluted Shares Outstanding at such date.




          “Member” means any Initial Member, Additional Member or Substitute Member, in each
case for so long as such Person continues to be a member of the Company.




          “MTVN Note” means a promissory note of MTVN Sub and MTVN Parent attached as Exhibit D
hereto.




          “MTVN Preferred Return Portion” means, at any time with respect to an
amount,





     (i)
if such amount is less than $115 million, then such amount;




     (ii)
if such amount is greater than or equal to $115 million and less
than $345 million, then
the sum of:




     (A) $115 million; and




     (B) one-half of the excess of such amount over $115 million;




     (iii)
if such amount is greater than or equal to $345 million and less
than $460 million, then
$230 million;




9









 






     (iv)
if such amount is greater than or equal to $460 million, then the sum of:




     (A)
$230 million; and




     (B) the product of the Participation Percentage of MTVN Sub and its
Affiliates’ Interests at such time and the excess of such amount over $460 million;



     provided, however, that, upon a Transfer of the Interests of MTVN Sub and its
Affiliates (other than to an Affiliate or Affiliates of MTVN Sub) in accordance with Article X
hereof, MTVN Preferred Return Portion shall thereafter mean, at any time with respect to an amount:




     (i)
if such amount is less than $115 million, then such amount;




     (ii)
if such amount is greater than or equal to $115 million and less than $230 million, then
$115 million;




     (iii)
if such amount is greater than or equal to $230 million and less than $460 million, then
the sum of:




     (A)
$115 million; and




     (B) the product of the Participation Percentage of such Transferee’s and its
Affiliates’ Interests at such time and the excess of such amount
over $230 million;




     (iv)
if such amount is greater than or equal to $460 million and less
than $805 million, then
the sum of:




     (A)
$115 million;




     (B) the product of the Participation Percentage of such Transferee’s and its
Affiliates’ Interests at such time and $230 million; and




     (C) one third of the excess of such amount over $460 million;




     (v)
if such amount is greater than or equal to $805 million, then the sum of:




     (A)
$230 million;




     (B) the product of the Participation Percentage of such Transferee’s and its
Affiliates’ Interests at such time and $230 million; and






10









 






     (C) the product of the Participation Percentage of such Transferee’s and its
Affiliates’ Interests at such time and the excess of such amount
over $805 million.



          For the avoidance of doubt and as examples of the foregoing calculation, the MTVN Preferred
Return Portion with respect to certain amounts are set forth in Schedule 8.




          In the event of a issuance of Interests pursuant to Section 6.02(b) in connection with a
Contribution Default, the MTVN Preferred Return Portion shall be equitably adjusted in order to
achieve the intent of the parties.




          “Music Group” means, with respect to RN Sub, the “RN Music Group” as such term is
defined in the RN Brand and Content Agreement, and with respect to MTVN Sub, the “MTVN Music Group”
as such term is defined in the MTVN Brand and Content Agreement.




          “NASDAQ” means The NASDAQ Stock Market, Inc.




          “Non-Cash Charges” means for any period the sum of (i) depreciation, amortization
(including amortization of goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a prior period) for such
period to the extent that such depreciation, amortization and other non-cash expenses were deducted
in computing Fully Burdened Operating Profit/Loss for such period and (ii) other non-cash charges
from employee compensation expenses arising from the issuance of stock, options to purchase stock,
deferral and stock appreciation rights, employer matching contributions pursuant to any employee
stock ownership plan (excluding any such expenses which relate to options or rights which, at the
option of the holders thereof, may be settled in cash) for such period to the extent that such
non-cash charges were deducted in computing Fully Burdened Operating Profit/Loss for such period.




          “Non-Voting Equity” means a class of equity securities of RN Parent which (i) has no
voting rights (other than customary class voting rights on amendments to terms that affect the
rights, privileges and preferences of such class and voting rights required by law), (ii) otherwise
has dividend, distribution, liquidation and other economic rights identical to the Common Stock and
(iii) will automatically convert into shares of Common Stock at a fixed 1:1 exchange ratio (subject
to adjustment to reflect any stock split, stock dividend or similar transaction) on the earliest to
occur of (A) at such time as MTVN Sub Transfers such shares to a third party, (B) at such time as
any Person commences a tender offer or exchange offer for the shares of Common Stock without






11









 







making a concurrent offer on the same terms for the Non-Voting Equity (or otherwise agreeing to
accept tenders of Non-Voting Equity), provided that such shares shall automatically revert
to Non-Voting Equity if such shares are withdrawn from or not accepted in such tender offer or
exchange offer, or (C) immediately prior to the effective time of any merger, consolidation or
binding share exchange applicable to shares of Common Stock.




          “Parent” means (i) in the case of RN Sub, RN Parent, (ii) in the case of MTVN Sub,
MTVN Parent, (iii) in the case of any Additional Member or Substitute Member, such Member’s direct
or indirect ultimate parent at the time such Member becomes a member of the Company (except to the
extent such Additional Member or Substitute Member is an Affiliate of MTVN Parent in which case the
Parent of such Additional Member or Substitute Member shall continue to mean MTVN Parent) or (iv)
in the case of a Transfer of a Member in accordance with Article X (other than to an Affiliate of
such Member), the new direct or indirect ultimate parent of such Member at the time of such
Transfer.




          “Permitted Liens” means, collectively, (i) all statutory or other Liens for taxes or
assessments which are not yet due or the validity of which is being contested in good faith by
appropriate proceedings, (ii) all mechanics’, materialmen’s, carriers’, workers’ and repairers’
Liens, and other similar Liens imposed by law, incurred in the ordinary course of business, which
allege unpaid amounts that are less than 30 days delinquent or which are being contested in good
faith by appropriate proceedings, and (iii) all other Liens which do not materially detract from or
materially interfere with the marketability, value or present use of the asset subject thereto or
affected thereby.




          “Person” means any individual, firm, corporation, partnership, limited liability
company, trust, joint venture, governmental authority or other entity.




          “Regulations” means the Income Tax Regulations promulgated under the Code, as amended
from time to time.




          “Revenue” means, (A) for any completed period, receipts obtained by operating the
business of the Company (other than those attributable to the Contributions of any Member or the
proceeds from the issuance of any Indebtedness of the Company), determined in accordance with GAAP
and (B) for any budgeted period, the receipts projected to be obtained by operating the business of
the Company (other than those attributable to the Contributions of any Member or the proceeds from
the issuance of any Indebtedness of the Company), determined in accordance with GAAP;
provided, however, that if any budgeted figure is not prepared in accordance with
GAAP, then for purposes of this definition, such figure shall be adjusted to most closely reflect
GAAP.




          “RN Parent Enterprise Value” means, at any date, (i) the Market Value of RN Parent
Equity at such date, plus (ii) the Indebtedness of RN Parent at such date, plus (iii) the stated
liquidation preference of any preferred stock of RN Parent then outstanding, if any, less (iv) the
cash and Cash Equivalents of RN Parent at such date.





12











 





          “RN Parent Equity” means the Common Stock and Non-Voting Equity.




          “Sale Transaction” means (i) any merger, consolidation or binding share exchange with
a third party to which RN Parent or MTVN Parent (or any direct or indirect parent of MTVN Parent)
is a party, (ii) any sale or other disposition of equity securities or sale or other disposition of
all or substantially all of the assets of RN Parent or MTVN Parent (or any direct or indirect
parent of MTVN Parent) or (iii) any transaction involving all or substantially all of the assets of
a Member’s Music Group.




          “Securities Act” means the Securities Act of 1933 and the rules and regulations
promulgated thereunder, as amended.




          “Substitute Member” means any Person admitted as a Member of the Company pursuant to
Section 3.02 in connection with the Transfer of then-existing Interests owned by a Member to such
Person.




          “Territory” means the United States and the territories and possessions thereof.




          “Three-Month LIBOR” means, as of any date, the British Bankers’ Association London
Interbank Offered Rate for deposits in U.S. dollars for a period of three months as reported by any
generally recognized financial information service as of 11:00 a.m. (London time) two Business Days
prior to such date.




          “Transaction Documents” means, collectively, (i) this Agreement, (ii) the Transaction,
Contribution and Purchase Agreement, (iii) the RN Brand and Content Agreement, (iv) the MTVN Brand
and Content Agreement, (v) the RN License and Services Agreement, (vi) the Web Services Agreement,
(vii) the Viacom Services Agreement and (viii) the Stockholder Agreement.




          “Transfer” means any sale, assignment, transfer, exchange, gift, bequest, pledge,
hypothecation, distribution, spin-off, split-off, disposition, encumbrance or other cessation of
interest, direct or indirect, in whole or in part, by operation of law or otherwise, and shall
include all matters deemed to constitute a Transfer under Section 10.01(a); provided,
however, that a Transfer shall not include a Sale Transaction. The terms
“Transferred”, “Transferring”, “Transferor” and “Transferee” have
meanings correlative to the foregoing.




          “Volume Weighted Average Price” over any period means, with respect to the Common
Stock, the volume weighted average price per share for the entire applicable period on the
principal national securities market or exchange on which the Common Stock is listed or quoted.




          “Voting Stock” of any Person means securities having the right to vote generally in
any election of directors of such Person or any securities convertible into or exercisable or
exchangeable for any securities having such right. For purposes of calculating an amount of Voting
Stock and determining whether a Change of Control has


13









 







occurred, if any such shares carry more or fewer than one vote per share they shall be counted
as a number of shares equal to the number of votes.




          (b) The following terms are defined in the Section of this Agreement set forth below.




			
	 	 	Defined in
	Term	 	Section
	“Additional Cash Contributions”
	 	4.02(a)
	“Adjusted Proposed Appraised Value”
	 	10.03(g)(i)
	“Agreement”
	 	Preamble
	“Annual Operating Budget”
	 	9.06(b)
	“Appraised Value”
	 	10.03(g)
	“Bankrupt Member”
	 	13.01(c)(v)
	“Beneficial Economic Rights”
	 	10.02(b)
	“Budget Approval Failure”
	 	9.07(a)
	“Budget Financial Tests”
	 	9.07(a)
	“Budget Loan”
	 	9.07(b)(ii)
	“Business Plan”
	 	9.05(b)
	“Call Notice”
	 	10.03(a)
	“Call Price”
	 	10.03(a)
	“Capital Loan”
	 	4.06(a)
	“Carry-Over Annual Operating Budget”
	 	9.07(c)(i)
	“Cash Cap”
	 	10.03(d)
	“CFO”
	 	9.09(c)
	“Company”
	 	Preamble
	“Contract Party Approval”
	 	9.04
	“Contribution Cap”
	 	4.02(a)
	“Contribution Default”
	 	4.05(a)
	“Deemed Incorporation”
	 	10.03(g)(v)
	“Defaulting Member”
	 	12.01(b)
	“Delaware Act”
	 	Recitals
	“Drag-Along Notice”
	 	10.05(a)
	“Drag-Along Price”
	 	10.05(a)
	“Drag-Along Purchaser”
	 	10.05(a)
	“Drag-Along Right”
	 	10.05(a)
	“Drag-Along Terms”
	 	10.05(a)
	“Drawdown Date”
	 	4.04
	“Drawdown Notice”
	 	4.04
	“Extended Put Notice Period”
	 	10.03(b)(i)(A)
	“Event of Default”
	 	12.01(a)
	“Fiscal Year”
	 	7.06
	“GM”
	 	9.09(c)
	“GM Financial Tests”
	 	9.09(f)
	“Impasse”
	 	9.08(d)
	“Impasse Financial Tests”
	 	9.08(d)






14









 






			
	 	 	Defined in
	Term 	 	Section
	“Initial Appraised Value”
	 	10.03(g)(i)
	“Initial Asset Contribution”
	 	4.01(a)
	“Initial Business Plan”
	 	9.05(a)
	“Initial Cash Contribution
	 	4.01(b)
	“Initial Members”
	 	Preamble
	“Liability Cap”
	 	9.07(b)(ii)
	“Joint Committee”
	 	9.01(a)
	“Member Representatives”
	 	9.01(b)
	“MTVN”
	 	Preamble
	“MTVN Sub”
	 	Preamble
	“MTVN Brand and Content Agreement”
	 	Recitals
	“MTVN Note Value”
	 	10.03(a)
	“MTVN Parent”
	 	Preamble
	“New Capital Contributions”
	 	4.06(a)
	“Participation Percentage”
	 	6.01
	“Participation Period”
	 	10.03(f)
	“Pricing Period”
	 	10.03(f)
	“Put/Call” Closing
	 	10.03(h)
	“Put Notice
	 	10.03(b)
	“Put Price
	 	10.03(b)
	“Quarterly Business Reviews”
	 	9.02(a)
	“Restricted Period”
	 	10.02(b)
	“Right of First Refusal”
	 	10.05(b)
	“RN Annual Operating Budget”
	 	9.07(b)(ii)
	“RN Brand and Content Agreement”
	 	Recitals
	“RN Executive”
	 	9.09(h)
	“RN License and Services Agreement”
	 	Recitals
	“RN Parent”
	 	Preamble
	“RN Sub”
	 	Preamble
	“Stock Cap”
	 	10.03(f)
	“Stockholder Agreement”
	 	Recitals
	“Stub Period”
	 	9.05(a)
	“Tag-Along Notice”
	 	10.04(a)
	“Tag-Along Terms”
	 	10.04(a)
	“Tax Distribution”
	 	8.02
	“Tax Matters Member”
	 	7.03(b)
	“Term”
	 	2.04
	“Third Appraiser”
	 	10.03(g)(i)
	“Transaction, Contribution and Purchase Agreement”
	 	Recitals
	“Unanimous Approval”
	 	9.03
	“URGE Brand and Content Agreement”
	 	Recitals
	“Valuation Date”
	 	10.03(g)(iv)
	“Viacom Services Agreement”
	 	Recitals
	“Web Services Agreement”
	 	Preamble






15









 






          SECTION 1.02. Terms and Usage Generally. (a) The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All
references herein to Articles, Sections, Annexes, Exhibits and Schedules shall be deemed to be
references to Articles and Sections of, Annexes and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. All Annexes, Exhibits and Schedules attached hereto
shall be deemed incorporated herein as if set forth in full herein. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
The word “or” shall not be exclusive. The word “extent” in the phrase “to the extent” shall mean
the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.
References to a Person are also to its permitted successors and permitted assigns. Unless
otherwise expressly provided herein, any agreement, instrument or statute defined or referred to
herein or in any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented, including (in the
case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession
of comparable successor statutes and references to all attachments thereto and instruments
incorporated therein.




          (b) As used in this Agreement, unless otherwise expressly specified herein, any allocation or
distribution to be made among Interests or Members “on a pro rata basis” or “ratably” shall be made
in proportion to the relative Participation Percentages attributable to the Interests of such
Members, in each case determined immediately prior to the transaction with respect to which such
allocation is being made.




          (c) All accounting terms not defined in this Agreement shall have the meanings determined by
GAAP as in effect from time to time.




ARTICLE II




The Company




          SECTION 2.01. Effectiveness of this Agreement. This Agreement constitutes the limited
liability company agreement (as defined in the Delaware Act) of the Company and shall become
effective at the time of the Closing on the Effective Date.




          SECTION 2.02. Formation and Qualification. (a) Pursuant to the provisions of the
Delaware Act, the Company was formed on August 16, 2007, by the filing in the Office of the
Secretary of State of the State of Delaware of a certificate of formation (which filing is hereby
approved and ratified in all respects). The Company shall file and record any amendments or
restatements to the certificate of formation of the Company. The Company shall be qualified in any
jurisdiction in which the Company conducts business where such qualification is required. The
Company shall also file all



16









 






other documents as may be required or appropriate under the laws of the State of Delaware and
of any other jurisdiction in which the Company may conduct business. The Company shall, on
request, provide any Member with copies of each such document as filed and recorded.




          (b) Each officer of the Company appointed by the Joint Committee pursuant to Section 9.09(a)
is hereby designated as an “authorized person”, within the meaning of Section 18-201 of the
Delaware Act, to execute, deliver and file, or cause the execution, delivery and filing of, all
certificates, notices or other instruments (and any amendments and/or restatements thereof)
required or permitted by the Delaware Act to be filed in the office of the Secretary of State of
the State of Delaware and any other certificates, notices or other instruments (and any amendments
or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business and where such qualification is required.




          SECTION 2.03. Name. The name of the Company is Rhapsody America LLC. The Joint
Committee, with Unanimous Approval in accordance with Section 9.03, may change the name of the
Company or adopt such trade or fictitious names as it may determine from time to time.




          SECTION 2.04. Term. The term of the Company began on the date the certificate of
formation of the Company became effective, and the Company shall have a term of 99 years (the
“Term”), unless sooner dissolved pursuant to Article XIII.




          SECTION 2.05. Registered Agent and Registered Office. The name of the registered
agent for service of process is Corporation Service Company, and the address of the registered
agent and the address of the registered office in the State of Delaware is 2711 Centerville Road,
Suite 400, Wilmington, DE 19808, New Castle County. Such office and such agent may be changed from
time to time by the Joint Committee consistent with the requirements of the Delaware Act.




          SECTION 2.06. Purposes. The Company has been formed for the object and purpose of,
and the nature of the business to be conducted and promoted by the Company is, engaging in the
Business in the Territory and any other lawful act or activity that the Joint Committee, with
Unanimous Approval in accordance with Section 9.03, may from time to time determine and for which
limited liability companies may be formed under the Delaware Act, including engaging in any and all
activities necessary or incidental to the foregoing..




          SECTION 2.07. Principal Office and Place of Business. The principal office and place
of business of the Company shall be 2601 Elliott Avenue, Suite 1000, Seattle, Washington 98121.
The distribution activities of the Company shall be conducted in the Territory. The Joint
Committee may change the Company’s principal office or place of business at any time and may
establish other offices or places of business at other locations.




17









 








          SECTION 2.08. Service Exclusivity. Each Member’s Parent shall, in the case of MTVN
Parent, comply with the Article 3 of the MTVN Brand and Content Agreement and in the case of RN
Parent, comply with Article 3 of the RN Brand and Content Agreement.




          SECTION 2.09. Annual Media Plan. The Annual Media Plan shall be subject to the
approval of MTVN Sub.




ARTICLE III




Members




          SECTION 3.01. Admission of Members. On the Effective Date, without the need for any
further action of any Person, the sole Members of the Company shall be the Initial Members, and
each such Person shall be shown as such in the books and records of the Company. Following the
Effective Date, no Person shall be admitted as a Member and no additional Interests shall be issued
except as expressly provided herein.




          SECTION 3.02. Substitute Members and Additional Members. (a) No Transferee of
Interests or Person to whom any Interests are issued after the Effective Date pursuant to this
Agreement shall be admitted as a Member hereunder or acquire any rights hereunder, including any
voting or approval rights or the right to receive distributions and allocations in respect of the
Transferred or issued Interests, as applicable, unless (i) such Interests are Transferred or issued
in compliance with the provisions of this Agreement and (ii) such Transferee or recipient and the
Parent of such Transferee or recipient shall have executed and delivered to the Company an Adoption
Agreement in the form of Exhibit A and such other customary instruments as the Company may
reasonably require, to effectuate the admission of such Transferee or recipient as a Member and to
confirm the agreement of such Transferee or recipient and such Parent to be bound by all the terms
and provisions of this Agreement. Upon complying with clauses (i) and (ii) above, without the need
for any further action of any Person, a Transferee or recipient shall be deemed admitted to the
Company as a Member. Except as otherwise provided in Section 10.02(b), a Substitute Member shall
enjoy the same rights, and be subject to the same obligations, as the Transferor; provided,
that, such Transferor shall not be relieved of any obligation or liability hereunder arising prior
to the consummation of such Transfer. As promptly as practicable after the admission of any Person
as a Member, the books and records of the Company shall be changed to reflect such admission. In
the event of any admission of a Substitute Member or Additional Member pursuant to this Section
3.02(a), this Agreement shall be deemed amended to reflect such admission.




          (b) If a Member shall Transfer all (but not less than all) its Interests, the Member shall
thereupon cease to be a Member of the Company; provided, however, that any such Member shall not
cease to be a Member until a Transferee of such Member’s Interests is admitted to the Company as a
Substitute Member pursuant to Section 3.02(a).




18









 








          SECTION 3.03. Powers of Members. (a) Members shall not have the authority to
transact any business in the Company’s name or bind the Company by virtue of their status as
Members.




          (b) The Members shall only have the voting and approval rights expressly provided for herein.




          (c) No holder of an Interest or Member shall have any interest in specific Company assets,
including any assets contributed to the Company by such Member as part of any Contribution. Each
Member waives any and all rights that it may have to maintain an action for partition of the
Company’s property.




          SECTION 3.04. Parent Guarantee. The Parent of a Member agrees to take all action
necessary to cause such Member to perform all of its respective agreements, covenants and
obligations under this Agreement. The Parent of a Member unconditionally guarantees to each other
Parent the full and complete performance by such Member of its respective agreements, covenants and
obligations under this Agreement and shall be liable for any breach of any agreement, covenant or
obligation of such Member under this Agreement. This is a guarantee of payment and performance and
not collectibility. The Parent of a Member hereby waives diligence, presentment, demand of
performance, filing of any claim, any right to require any proceeding first against such Member,
protest, notice and all demands whatsoever in connection with the performance of its obligations
set forth in this Section 3.04.




ARTICLE IV




Contributions and Purchases




          SECTION 4.01. Initial Contributions and Purchases. (a) Concurrently with the
execution and delivery of this Agreement, the Initial Members are entering into the Transaction,
Contribution and Purchase Agreement whereby each Initial Member shall contribute to the Company the
respective assets set forth therein (with respect to each Member, such Member’s “Initial Asset
Contribution”) and MTVN Sub shall purchase a portion of its Participation Percentage for the
MTVN Note. For the avoidance of doubt, the Initial Asset Contribution of an Initial Member
includes the value of such Member’s License and Services Agreements, and the Initial Asset
Contribution of MTVN Sub does not include the MTVN Note.




          (b) Schedule 1 hereto sets forth the initial cash contribution (with respect to each Member,
such Member’s “Initial Cash Contribution”) to be made by each Initial Member on the date
set forth opposite such cash contribution amounts pursuant to Section 2.01(a) and Section 2.01(b)
of the Transaction, Contribution and Purchase Agreement. For the avoidance of doubt, the Initial
Cash Contribution to be made by each Member on August 24, 2007 shall be such Member’s pro
rata share of the projected losses of the Company for the Fiscal Year of 2007 as set forth
in the Initial Business Plan, and the Initial Cash Contribution to be made by each Member on
December 20, 2007 shall be such Member’s pro rata share of the projected losses of
the Company for the



19









 






Fiscal Years of 2008 and 2009 as set forth in the Initial Business Plan. Schedule 4 hereto
sets forth the portion of MTVN Sub’s Participation Percentage that is being received in exchange
for its Initial Asset Contribution and the portion that is being purchased with the MTVN Note.




          SECTION 4.02. Additional Commitments. (a) After the Effective Date, each Member
shall be obligated to make additional cash contributions as provided in this Article IV (the
“Additional Cash Contributions”) in an aggregate amount not to exceed, in the case of RN
Sub, $[ * ] and in the case of MTVN Sub, $[ * ] (with respect to each Member, such Member’s
“Contribution Cap”).




          (b) During any Fiscal Year for which the Company has an approved Annual Operating Budget, each
Member shall be required to fund, on a pro rata basis, the Additional Cash Contributions set forth
in such Annual Operating Budget (which shall include a working capital allotment), when and as
called by the Joint Committee in accordance with Section 4.04, it being agreed that such Additional
Cash Contributions, together with all other Additional Cash Contributions previously funded by such
Member, shall not exceed such Member’s Contribution Cap. In all other cases, the provisions of
Section 9.07 shall control the funding of Additional Cash Contributions.




          (c) No Member shall have any right or obligation to contribute any cash or assets to the
Company other than as specifically provided for in this Section 4.02, Section 4.04 and Article IX,
except as unanimously agreed by the Members. Neither the Company nor any Member shall have any
obligation or liability to repay any Contribution made by any Member. The value of any non-cash
additional contributions, if any, shall be the fair market value as determined by the Joint
Committee with Unanimous Approval in accordance with Section 9.03.




          SECTION 4.03. Reduction of Additional Commitments. (a) At any time and from time to
time, the Members may unanimously determine to make an irrevocable election to reduce, on a pro
rata basis, each Member’s Contribution Cap (in each case to the extent not previously funded or
utilized). Any such reduction shall not change the applicable Participation Percentage of any
Member’s Interest.




          (b) In the event of any reduction pursuant to this Section 4.03, Schedule 4 hereto shall be
amended and restated to reflect such adjustment.




          SECTION 4.04. Contribution Drawdown. At least 30 days prior to the funding date for
any Additional Cash Contributions, (a “Drawdown Date”), the Joint Committee shall deliver
(or cause to be delivered) to each Member written notice (a “Drawdown Notice”) setting
forth the amount to be funded by such Member as an Additional Cash Contribution and the applicable
Drawdown Date. Each Member shall




 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.


20









 






make an Additional Cash Contribution on such Drawdown Date in the amount so specified for such
Member. All Contributions pursuant to this Section 4.04 shall be paid by 11:00 a.m. (Eastern time)
on the applicable Drawdown Date in immediately available funds to the account of the Company
specified in the applicable Drawdown Notice in United States dollars.




          SECTION 4.05. Contribution Default. (a) If a Member fails to fund all or part of its
required Initial Cash Contribution in accordance with Section 4.01(b) by 11:00 a.m. (Eastern time)
on the applicable date or its required Additional Cash Contribution in accordance with Section 4.04
by 11:00 a.m. (Eastern time) on the applicable Drawdown Date, then such Member shall be in default
hereunder. If such Member fails to cure such default within five Business Days after receipt of
written notice thereof from the Joint Committee or the other Member, then such Member shall be the
subject of both a “Contribution Default” and an Event of Default in accordance with Section
12.01.




          (b) In addition to the provisions of Section 12.01, any Contribution Default shall result in
(x) the Defaulting Member being obligated to pay interest on the amount of the defaulted
Contribution at a rate equal to 12% per annum and (y) the right of the non-defaulting Member to
elect to make up the defaulted funding requirement, with a corresponding dilution of the Defaulting
Member.




          SECTION 4.06. Capital Loans. (a) During any Fiscal Year for which the Company has an
approved Annual Operating Budget, in the event that as part of the budget approval process, RN Sub
proposes that the Members make cash contributions to the Company in excess of each Member’s
Contribution Cap, RN Sub shall provide written notice to MTVN Sub setting forth the aggregate
amount of such proposed cash contributions (the “New Capital Contributions”). Within 15
Business Days after receipt of such notice, MTVN Sub shall provide written notice to RN Sub stating
whether or not MTVN Sub agrees to such New Capital Contributions. If MTVN Sub agrees to such New
Capital Contributions, then Section 4.02(a) shall be amended to correspondingly increase each
Member’s Contribution Cap, and such New Capital Contributions shall be treated as Additional Cash
Contributions for all purposes hereunder. If MTVN Sub does not agree to such New Capital
Contributions, then RN Sub shall only be permitted to fund such New Capital Contributions in the
form of an unsecured loan to the Company (a “Capital Loan”) on the terms set forth in
Section 4.06(b).




          (b) Any Capital Loan shall (i) have a term ending on the later of (y) the sixth anniversary of
the Effective Date or (z) the second anniversary of the date of such Capital Loan, (ii) be in a
principal amount not to exceed $[ * ] (or, if less, the amount specified in the notice
provided to MTVN Sub proposing the applicable New Capital Contributions), (iii) be in a principal
amount that, when added to the aggregate outstanding principal amounts of all other then
outstanding Capital Loans and Budget Loans, does not exceed the Aggregate Loan Cap, (iv) bear
interest at a rate equal to the Capital Loan Interest Rate, and such interest shall be solely
“pay-in-kind” and shall be added to the principal amount annually and (v) be evidenced solely by a
promissory note in the form of Exhibit B.



 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.




21









 








          (c) MTVN Sub shall have the right to participate in any such Capital Loan on a pro rata basis
and on the same terms and conditions applicable to RN Sub. RN Sub shall provide written notice to
MTVN Sub setting forth the proposed interest rate and principal amount for the Capital Loan, and
within six (6) Business Days after receipt of such notice, MTVN Sub shall provide written notice to
RN Sub stating whether MTVN Sub elects to fund its pro rata share thereof. Any Capital Loan shall
be funded within five (5) Business Days after the date of MTVN Sub’s notice to RN Sub.




ARTICLE V




Reports; Auditors




          SECTION 5.01. Reports to Members. (a) Within 15 business days after the end of each
of the first two fiscal months of a fiscal quarter, the Company shall deliver to each Member (i)
unaudited consolidated balance sheets of the Company and its consolidated subsidiaries as at the
end of such month and the related consolidated statements of income of the Company and its
consolidated subsidiaries for the period from the beginning of the Fiscal Year most recently ended
to the end of such month, and such month to the end of such month, in each case that present fairly
in all material respects the financial position and results of operations of the Company as at the
dates and for the periods indicated and (ii) a certificate executed by the CFO to such effect. In
addition, after the end of the second fiscal month of each fiscal quarter, the Company shall
include in its delivery of information above a forecast of the unaudited consolidated statements of
income of the Company and its consolidated subsidiaries for such quarter.




          (b) Within 15 business days after the end of each fiscal quarter of a Fiscal Year, the Company
shall deliver to each Member unaudited consolidated balance sheets of the Company and its
consolidated subsidiaries as at the end of such quarter and the related consolidated statements of
income of the Company and its consolidated subsidiaries for the period from the beginning of the
Fiscal Year most recently ended to the end of such quarter, and such quarter to the end of such
quarter, in each case that present fairly in all material respects the financial position and
results of operations of the Company as at the dates and for the periods indicated.




          (c) In addition, within 30 days after the end of each of the first three fiscal quarters of a
Fiscal Year, the Company shall deliver to each Member (i) unaudited consolidated balance sheets of
the Company and its consolidated subsidiaries as at the end of such quarter and the related
consolidated statements of income and statements of cash flow of the Company and its consolidated
subsidiaries for the period from the beginning of the Fiscal Year most recently ended to the end of
such quarter, and such quarter to the end of such quarter, in each case prepared in accordance with
GAAP (without footnotes) applied on a basis consistent with the audited financial statements of the
Company and its consolidated subsidiaries, subject to changes resulting from audit and normal
year-end adjustments (that are not expected to be material in amount or significance) and (ii) a
certificate executed by the CFO to such effect; provided, however, that for the
fiscal quarters prior to completion of the first annual audit of the Company,



22









 






such financial statements shall be required to be prepared in accordance with GAAP to the
Company’s best knowledge and belief.




          (d) Within 45 days after the end of each of each Fiscal Year, the Company shall deliver to
each Member unaudited consolidated balance sheets of the Company and its consolidated subsidiaries
as at the end of such Fiscal Year and the related unaudited consolidated statements of income of
the Company and its consolidated subsidiaries for such Fiscal Year prepared in accordance with
GAAP.




          (e) Within 60 days after the end of each Fiscal Year, the Company shall deliver to each Member
audited consolidated balance sheets of the Company and its consolidated subsidiaries as at the end
of such Fiscal Year and the related consolidated statements of income and statements of cash flow
of the Company and its consolidated subsidiaries for such Fiscal Year prepared in accordance with
GAAP, all in reasonable detail and accompanied by a report thereon of the Company’s independent
auditors as to such consolidated financial statements presenting fairly in all material respects
the financial position of the Company and its consolidated subsidiaries as at the dates indicated
and as to such audit having been made in accordance with GAAP applied on a basis consistent with
prior years (except as noted in the notes thereto). Concurrently with the delivery of such annual
financial statements, the Company shall deliver (i) a statement to each Member of the balance of
each such Member’s Contribution Cap and aggregate Additional Cash Contributions, (ii) a comparison
of actual results to the Business Plan for such Fiscal Year and (iii) unaudited consolidated
balance sheets of the Company and its consolidated subsidiaries as at the end of the fourth fiscal
quarter that are contained in such annual financial statements and the related consolidated
statements of income and statements of cash flow of the Company and its consolidated subsidiaries
for such quarter.




          SECTION 5.02. Reports to Lenders. The Company shall provide to each Member and its
outside auditor copies of all reports, summaries and other submissions provided to its bank or
other lenders under any credit facility at the same time as such reports, summaries or other
submissions are provided to such bank or lenders; provided, however, that the
Company shall not be obligated to provide any information to such outside auditors until such
outside auditors have executed a confidentiality agreement related to such reports, summaries or
other submissions reasonably satisfactory to the Company.




          SECTION 5.03. Books and Records. At all times during the continuance of the Company,
the Company shall maintain or cause to be maintained proper and complete books and records in which
shall be entered fully and accurately all transactions and other matters relating to the Company’s
business in the detail and completeness customary and usual for businesses of the type engaged in
by the Company. The Company shall provide each Member with access to its books and records upon
such Member’s reasonable request (including for conducting audits, from time to time, at such
Member’s cost).




23









 








          SECTION 5.04. Other Information. (a) The Company shall make available the CFO and
other officers of the Company to respond to questions of the Members relating to the financial
condition of the Company. The Company shall deliver to each Member all other information that such
Member shall reasonably request.




          (b) If the Company (including through the actions of any of its employees or of any of the
employees of RN Parent who provide services to the Company) furnishes any information disclosing
any material change to the business, assets, financial condition or results of operations of the
Company to a Member and such information was not simultaneously provided to the other Member, then
the Company shall, as soon as practicable thereafter, furnish such information to the other Member.




          SECTION 5.05. Auditors. From and after the Effective Date, the independent auditors
of the Company shall be KPMG LLP until replaced in accordance with Section 9.03.




ARTICLE VI




Interests




          SECTION 6.01. General. (a) As of the Effective Date, the participation percentage
(the “Participation Percentage”) of the Interest held by each Member shall be as set forth
on Schedule 4.




          (b) The Participation Percentages shall be subject to adjustment as provided in this Article
VI. The aggregate Participation Percentages of all outstanding Interests shall at all times equal
100%.




          (c) An officer designated by the Joint Committee pursuant to Section 9.09 shall update
Schedule 4 from time to time as necessary to accurately reflect reductions or increases in the
Participation Percentages of the outstanding Interests to reflect the issuance or repurchase of
Interests in accordance with this Agreement. Any reference in this Agreement to Schedule 4 shall
be deemed to be a reference to Schedule 4 as amended and in effect from time to time. The Company
shall provide the Members with any amendment or revision of Schedule 4 (including any subsequent
amendments or revisions thereto) within three Business Days of such amendment or revision.




          (d) The Company shall have a single class of Interests. Each Interest shall have the same
rights and privileges and shall rank equally and be identical in all respects as to all matters.
Subject to the authority of the Joint Committee as set forth in this Agreement, each Interest shall
represent a right to distributions in accordance with Article VIII and Article XIII and the
Delaware Act.




          (e) The Interests shall for all purposes be personal property in accordance with Section
18-701 of the Delaware Act.




          (f) All Interests shall be uncertificated.




24









 








          SECTION 6.02. Issuance of Interests After the Effective Date. (a) After the
Effective Date, the Joint Committee, with Unanimous Approval in accordance with Section 9.03, may
issue additional Interests in return for additional contributions of cash or assets. Such
Unanimous Approval shall set forth the Participation Percentage associated with such Interest and
any other terms thereof. Upon issuance of an additional Interest, the Participation Percentages of
all outstanding Interests shall be reduced in the aggregate by an amount equal to the Participation
Percentage of the Interest issued, in proportion to their relative Participation Percentages
immediately before such issuance.




          (b) In connection with a Contribution Default, the Joint Committee shall issue an additional
Interest to a non-defaulting Member upon such Member’s election to make up the funding requirements
of a Defaulting Member, and shall correspondingly reduce the Participation Percentage of the
Interest held by the Defaulting Member, in accordance with Section 4.05(b).




          SECTION 6.03. Repurchase of Interests after the Effective Date. If the Company shall
repurchase any Interests, then, upon such repurchase of Interests, the Participation Percentages of
the remaining Interests shall be increased in the aggregate by an amount equal to the Participation
Percentages of the Interests so repurchased, in proportion to their relative Participation
Percentages immediately before such repurchase.




          SECTION 6.04. Subsidiaries. All subsidiaries of the Company shall be directly or
indirectly wholly owned by the Company and no equity securities thereof or other interests therein
shall be granted or issued to any other Person without Unanimous Approval in accordance with
Section 9.03.




ARTICLE VII




Allocations and Other Tax Matters




          SECTION 7.01. Allocations. Except as set forth in that certain side letter dated
August 20, 2007, by and between RN Parent and MTVN Parent, relating to stock options granted to
certain individuals, or as otherwise required pursuant to Section 704(c) of the Code, all items of
income, gain, loss, expense and other tax items shall be allocated to the Members on a pro
rata basis.




          SECTION 7.02. Treatment of Company as Partnership. It is the intention of the Members
that the Company be treated as a partnership for Federal, state and local income tax purposes.
None of the Company, the Joint Committee or any Member shall elect, or cause an election to be
made, to treat the Company as a corporation under Treasury Regulation §301.7701-3(c) for Federal
income tax purposes. The Members agree not to take any action or fail to take any action
(including amendment of this Agreement, so long as such amendment does not materially adversely
affect any Member) which action or inaction would be inconsistent with such treatment.




          SECTION 7.03. Tax Matters Member. (a) Designation. RN Sub is hereby
designated as the tax matters partner within the meaning of Section 6231(a)(7) of



25









 






the Code (“Tax Matters Member”). In such capacity, RN Sub shall have all of the
rights, authority and power, and shall be subject to all of the obligations, of a tax matters
partner to the extent provided in the Code and the Regulations. The Tax Matters Member shall take
such action as may be reasonably necessary to cause each other eligible Member to become a “notice
partner” within the meaning of Code Section 6231(a)(8). The Tax Matters Member shall keep the
Members informed of all administrative and judicial proceedings, as required by Section 6223(g) of
the Code, and shall furnish a copy of each notice or other communication received by the Tax
Matters Member from the Internal Revenue Service to each Member, except such notices or
communications as are sent directly to such Member by the Internal Revenue Service.




          (b) State and Local Tax Law. If any state or local tax law provides for a tax matters
member or person having similar rights, powers, authority or obligations, the Tax Matters Member
shall also serve in such capacity. In all other cases, the Tax Matters Member shall represent the
Company in all tax matters to the extent allowed by law.




          (c) Expenses. Expenses incurred by the Tax Matters Member or in a similar capacity as
set forth in this Section 7.03 shall be borne by the Company as the Company’s expenses. Such
expenses shall include, without limitation, fees of attorneys and other tax professionals,
accountants, appraisers and experts, filing fees and reasonable out of pocket costs.




          (d) Election into TEFRA. In the event that the Company is not subject to the
consolidated audit rules of Sections 6221 through 6234 of the Code during any Fiscal Year, each
Person who was a Member at any time during such Fiscal Year hereby agrees to sign an election
pursuant to Section 6231(a)(1)(B)(ii) of the Code and Regulations Section 301.6231(a)(1)-1(b)(2) to
be filed with the Company’s United States federal income tax return for such Fiscal Year to have
such consolidated audit rules apply to the Company.




          (e) Tax Audits and Litigation. The Tax Matters Member shall keep the Joint Committee
apprised of all material developments in any audit, litigation or other adversarial proceeding
pertaining to the Company.




          (f) Best Interests of Members. The Tax Matters Member shall at all times act in the
best interests of the Members as a whole and not in the best interests of a particular Member.
Before taking any action that would have (or would reasonably be expected to have) a significant
adverse effect on either RN Sub or MTVN Sub, the Tax Matters Member shall reasonably consult in
good faith with such Member, and shall make reasonable efforts to reach agreement with such Member
on a course of action and to mitigate to the extent possible any such adverse effect on such
Member.




          (g) No Liability. The Tax Matters Member shall not be liable in its capacity as such
to the Company or the Members for any losses, claims or damages, except for any losses, claims or
damages arising from such the Tax Matters Member’s fraud, bad faith, or wilful misconduct.




26









 








          SECTION 7.04. Tax Returns, Tax Elections, Consistency. (a) Tax Returns. The
Company shall timely cause to be prepared, at the expense of the Company, all Federal, state, local
and foreign tax returns (including information returns) of the Company and its subsidiaries, which
may be required by a jurisdiction in which the Company or any of its subsidiaries operates or
conducts business for each Fiscal Year (or portion thereof) for which such returns are required to
be filed. Prior to any filing, the Company shall provide draft tax returns to all Members in order
to solicit comments and to identify issues that might cause potential adverse consequences to the
Members. After review and approval by the Joint Committee, the Company shall cause such returns to
be timely filed. In addition, where the Tax Matters Member deems it necessary or advisable, the
Company shall be permitted to file such returns on an extended basis following the timely filing of
an application for an automatic six (6)-month extension of time to file as prescribed by United
States Treasury Regulations. As soon as practicable after the end of each Fiscal Year, the Tax
Matters Member shall furnish to each Member such information in the possession of the Company,
including a Schedule K-1 to IRS Form 1065, as is reasonably required by such Member to file any
required Federal, state, local and foreign tax returns. The Tax Matters Member shall determine
whether any particular planned transfer of Beneficial Economic Rights pursuant to the last sentence
of Section 10.02(b) shall be subject to the limitations of Section 10.01(e) (relating to Section
7704 of the Code), and whether a transferee of any particular Beneficial Economic Rights will be
treated as a partner of the Company for tax purposes.




          (b) Tax Elections. Except as provided in Section 7.02, relating to the classification
of the Company for tax purposes, the Tax Matters Member may, on behalf of the Company, make, but
shall not be obligated to make, any tax election provided under the Code, or any provision of
state, local or foreign tax law. Notwithstanding the preceding sentence,





     (i) at the request of a person who becomes a Member of the Company in accordance with
the terms of this Agreement as a result of a sale or exchange of an interest, the Tax
Matters Member shall cause the Company to make an election pursuant to Section 754 of the
Code (and any similar election under applicable state and local law), and




     (ii) the Tax Matters Member shall cause the Company to adopt the “traditional method”
for purposes of Section 704(c) of the Code (and any similar election under applicable state
and local law).



          (c) Best Interests of Members. The Company and the Tax Matters Member shall at all
times act under Sections 7.04(a) and (b) in the best interests of the Members as a whole and not in
the best interests of a particular Member. Before the Company or Tax Matters Member takes any
action that would have (or would reasonably be expected to have) a significant adverse effect on
either RN Sub or MTVN Sub, including, without limitation, any election to capitalize an item that
could be currently deducted, the Tax Matters Member shall reasonably consult in good faith with
such Member, and shall make reasonable efforts to reach agreement with such Member on a



27









 






course of action and to mitigate to the extent possible any such adverse effect on such
Member.




          (d) Consistency. Except in the case where (i) a Member was not consulted as required
by Section 7.04(c) as to a tax return position that would have (or would reasonably be expected to
have) a significant adverse effect on such Member, or (ii) such Member was consulted, but after
raising an objection to such position was unable to reach agreement on such tax return position, no
Member shall file a Federal, state or local tax return (or take any tax position) that is
inconsistent with the corresponding Federal, state or local tax return of the Company or with the
terms of this Agreement.




          SECTION 7.05. Withholding. Notwithstanding any provision herein to the contrary, the
Joint Committee is authorized to take any and all actions that are necessary or appropriate to
ensure that the Company satisfies any and all withholding and tax payment obligations under Section
1441, 1445, 1446 or any other provision of the Code or other applicable law. Without limiting the
generality of the foregoing, the Joint Committee may cause the Company to withhold any amount that
it determines is required to be withheld from amounts otherwise distributable to any Member
pursuant to this Agreement; provided, however, that such amount shall be deemed to
have been distributed to such Member for purposes of applying this Agreement. Each Member will
timely provide any certification or file any agreement that is required by any taxing authority in
order to avoid or mitigate any withholding obligation that would otherwise be imposed on the
Company.




          SECTION 7.06. Fiscal Year. The fiscal year of the Company for tax and financial
statement purposes (“Fiscal Year”) shall be the 12-month (or shorter) period ending on
December 31 of each year, unless otherwise required by the Code, or else determined by the Joint
Committee with Unanimous Approval in accordance with Section 9.03.




          SECTION 7.07. Construction and References to Regulations. The provisions of this
Article VII are intended to comply with the Treasury Regulations promulgated under Section 704 of
the Code and shall be interpreted and applied in a manner consistent with such Treasury
Regulations. Any reference in this Article VII to a provision of the Code or Regulations shall, if
such provision is modified or renumbered, be deemed to refer to the successor provision as so
modified or renumbered, but only to the extent that such successor provision applies to the Company
under the effective date rules applicable to such successor provision.




ARTICLE VIII




Distributions




          SECTION 8.01. Distributions. (a) Any distributions to the Members that are made by
the Company shall require Unanimous Approval in accordance with Section 9.03, and shall be made on
a pro rata basis.




28









 








          (b) No Member shall be entitled to withdraw capital or receive distributions except as
specifically provided herein.




          SECTION 8.02. Tax Distributions. The Company shall, as soon as practicable after the
close of each Fiscal Year, distribute to the Members on a pro rata basis in an
aggregate amount equal to the product of (a) the amount of taxable income allocated to all Members
for such taxable year pursuant to Section 7.02, reduced by the amount of taxable loss allocated to
all Members for all prior taxable years (except to the extent such taxable losses have previously
been taken into account under this sentence) and (b) 38.5%, such percentage to be subject to
adjustment as agreed by the Members from time to time based on changes in tax rates after the
Effective Date (a “Tax Distribution”). The Company may make quarterly distributions during
a Fiscal Year, at the times that estimated tax payments are payable by the Members, based on
estimated tax allocations for the entire Fiscal Year, in which case a “true up” shall be made
between the Company and the Members after the end of such year. Any amounts distributed to a
Member pursuant to this Section 8.02 shall reduce (on a dollar-for-dollar basis until fully
recovered) any distribution to which such Member is otherwise entitled to under Section 8.01(a).
If the Company lacks sufficient cash to make the required Tax Distribution, the Company shall not
be required to borrow any cash for purposes of making such a Tax Distribution, and the Company
shall make an additional Tax Distribution out of the first available cash in subsequent Fiscal
Years to make up for such short fall.




          SECTION 8.03. General Limitations. Notwithstanding anything in this Agreement to the
contrary, the Company shall not make any distributions except to the extent permitted under the
Delaware Act. No Member shall have a right to interest or other compensation with respect to its
Contributions or services provided to the Company, except as expressly provided in the License and
Services Agreements and any other separate agreements duly approved by the Joint Committee.




          SECTION 8.04. Distributions in Kind. The Company shall not distribute any assets in
kind, except as provided in Section 13.03.




ARTICLE IX




Management of the Company




          SECTION 9.01. Joint Committee. (a) The business and affairs of the Company shall be
regularly reviewed by a committee of managers (the “Joint Committee”). The Members hereby
designate the members of the Joint Committee as the managers (within the meaning of the Delaware
Act) of the Company, with exclusive rights and responsibilities to direct the business of the
Company. The Joint Committee shall have the power to do any and all acts necessary or convenient
to or for the furtherance of the purpose described herein, including all powers, statutory or
otherwise, possessed by managers under the laws of the State of Delaware.




          (b) The Joint Committee shall be comprised of four members (the “Member
Representatives”). Each Member Representative shall serve without



29









 






compensation or, subject to Section 11.04, reimbursement of expenses by the Company. RN Sub
shall have the right to appoint two Member Representatives and MTVN Sub shall have the right to
appoint two Member Representatives. Each Member Representative shall be an employee of the
appointing Member or one of its Affiliates, unless otherwise agreed by the Members. Each Member
may remove and replace its own Member Representatives at any time and from time to time as
determined in its sole discretion. No Member shall have the right to remove any Member
Representative appointed by another Member. A Member Representative shall hold office until his or
her successor is designated by the applicable Member or until his or her earlier death, resignation
or removal. The Member Representatives as of the Effective Date are set forth on Schedule 5.




          SECTION 9.02. Joint Committee Meetings. (a) The GM shall attend meetings of the
Joint Committee, subject to the right of the Joint Committee to meet in executive session without
the GM as any Member deems appropriate. The Joint Committee shall hold regular meetings at least
quarterly, and special meetings may be called, on not less than 10 days notice, by any Member
Representative or the GM. A Member may waive notice of any meeting at any time, either before or
after such meeting by a writing signed by a Member Representative of such Member. The attendance
of a Member’s Member Representative at a meeting shall constitute a waiver of notice of such
meeting unless, at the beginning of such meeting, such Member Representative objects to holding
such meeting or the transaction of business at such meeting on the ground that the meeting is not
properly called or convened. In addition, the Members shall meet with the Joint Committee not less
than quarterly (“Quarterly Business Reviews”) to review the progress of the Company,
including financial, business and strategy reviews. Each Quarterly Business Review shall include
reviews at a reasonable level of detail of each specific capital expenditure proposal above $[ *
]. Each Member may decide who will represent such Member at each Quarterly Business Review
depending on the proposed agenda for such Quarterly Business Review. The location of the Quarterly
Business Reviews shall alternate between Seattle, Washington and New York, NY. The initial
Quarterly Business Review shall be in Seattle, Washington.




          (b) Any Member Representative may attend a meeting of the Joint Committee in person, by
telephone or by any other electronic communication device. All matters to be acted upon by the
Joint Committee shall be voted on by the Members, in their capacity as Members, rather than by the
individuals serving as such Members’ Member Representatives. In any such vote, each Member shall
be entitled to a number of votes equal to the Participation Percentage of such Member’s Interest.
Each Member entitled to vote at any meeting of the Joint Committee shall authorize one of its
Member Representatives to act on behalf of that Member to express such Member’s vote. At any
meeting of the Joint Committee, the presence of at least one Member Representative designated by
each Member shall constitute a quorum; provided, that a Member shall not




 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.


30









 






wilfully defeat a quorum by instructing its Member Representatives to refuse to attend a duly
called meeting of the Joint Committee and the presence of Member Representatives designated by a
Defaulting Member shall not be required during the continuance of the Event of Default. The Joint
Committee may act by written consent in lieu of a meeting in accordance with Section 18-404 of the
Delaware Act.




          (c) At any meeting of the Joint Committee, any action (other than actions requiring Unanimous
Approval or Contract Party Approval described below) taken by the Joint Committee shall require (i)
the presence of a quorum and (ii) the approval of Members holding Interests having an aggregate
Participation Percentage of at least 50.1%; provided, that if a Defaulting Member shall
have lost its voting rights pursuant to Section 12.01(b), then during the continuance of the
applicable Event of Default, the approval of the remaining Members holding a majority by
Participation Percentage of the remaining Interests shall be sufficient even if their Interests
have an aggregate Participation Percentage less than 50.1%.




          SECTION 9.03. Unanimous Approval. Neither the Company nor any of its subsidiaries
shall engage in any of the following activities without the prior written consent of each Member
(“Unanimous Approval”); provided, that if a Defaulting Member shall have lost its
voting rights pursuant to Section 12.01(b), then during the continuance of the applicable Event of
Default, such Defaulting Member’s consent shall not be required except to the extent expressly set
forth in Section 12.01(b):




          (a) approval or amendment of the Annual Operating Budget or the Business Plan;




          (b) except as contemplated by the Annual Operating Budget or Carry-Over Annual Operating
Budget (as applicable), incurring any Indebtedness for money borrowed, guaranteeing any obligation
of any Person or granting of any Liens which secure obligations that are, in the aggregate, in
excess of $[ * ] in any Fiscal Year;




          (c) except as contemplated by the Annual Operating Budget or Carry-Over Annual Operating
Budget (as applicable), making any loan or advance to, or investment in, any Person that are, in
the aggregate, in excess of $[ * ] in any Fiscal Year, other than (i) advances to, or investments
in, any Person in the ordinary course of the Company operating the Business and (ii) loans to any
Person in the ordinary course of the Company operating the Business not to exceed $[ * ] for all
such loans in any Fiscal Year;




          (d) making any unbudgeted capital expenditure (or series of related expenditures) that would
result in total capital expenditures in any Fiscal Year exceeding the greater of $[ * ] and 25%
of the amount budgeted for capital expenditures in Annual Operating Budget, RN Annual Operating
Budget or Carry-Over Annual Operating Budget (as applicable) for such Fiscal Year;




 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.



31









 







          (e) selling or otherwise transferring any brand name or trademark of the Company or any of its
subsidiaries (in one or a related series of transactions);




          (f) except as contemplated by the then current Business Plan, entering into any agreement
which (i) has a term of two years or more and cannot be canceled without premium or penalty (other
than in the ordinary course of the Company operating the Business); (ii) requires payments that are
not contemplated by the Annual Operating Budget, RN Annual Operating Budget or Carry-Over Annual
Operating Budget (as applicable) and are, in the aggregate, $[ * ] or more in any Fiscal Year or
$[ * ] or more in the aggregate over the term of such agreement; or (iii) contains non-compete,
exclusivity or similar restrictions on the type of businesses in which the Company or any of its
subsidiaries may engage (other than, in the case of clause (iii), in the ordinary course of the
Company operating the Business; provided, that any such agreement shall also be subject to
Contract Party Approval in accordance with Section 9.04 to the extent applicable);



           (g) 
issuance, sale, repurchase or retirement of any Interest or other equity security or
options or rights to acquire any Interest or other Equity Rights of the Company, including all
terms and conditions in respect thereof;




          (h) admission of any new Member to the Company, other than pursuant to a Transfer of a
Member’s Interests in accordance with Article X;




          (i) the declaration of any distribution (including the distribution of any assets in kind),
other than distributions by a subsidiary of the Company to the Company and Tax Distributions
pursuant to Section 8.02;




          (j) engagement in any business other than as contemplated by the then current Business Plan
(or reasonable extension thereof) or any other substantial divergence from the then current
Business Plan;




          (k) (i) merger, consolidation, share exchange or sale (in one or a related series of
transactions) of all or substantially all of its assets; (ii) the sale or acquisition (in one or a
related series of transactions) of any assets with a sale or acquisition price in excess of $[ *
] (other than, in the case of clause (ii), in the ordinary course of the Company operating the
Business); or (iii) the sale or acquisition (in one or a related series of transactions) of any
businesses with a sale or acquisition price in excess of $[ * ];




          (l) appointment or removal of the Company’s independent certified public accountants, unless
such replacement accountant is the independent certified public accountant of RN Parent and is one
of the “Big Four” accounting firms (i.e., KPMG LLP, PricewaterhouseCoopers LLP, Ernst & Young LLP
and Deloitte & Touche USA LLP);




 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.





32









 





          (m) any material amendment of accounting methods, material amendment of tax policies or
change of the Fiscal Year of the Company to the extent that any of the foregoing will differ from
the accounting methods, tax policies or fiscal year of RN Parent;




          (n) extending the limitation period for assessment of any tax or settling any material tax
issue raised by any taxing authority;




          (o) (i) commencement or settlement of any material litigation, (x) other than commencement or
settlement of litigation in the ordinary course of the Company operating the Business (which shall
be pursuant to clause (ii) below) and (y) other than commencement or settlement of litigation
against a Member or any of its Affiliates (which shall only require approval of the other Member);
provided, however, that (ii) prior to the commencement or settlement of any
material litigation in the ordinary course of the Company operating the Business, the Company shall
provide all material information with respect to such litigation to the Members and shall consult
in good faith with the Members for a period of no fewer than 10 days (or such shorter period as is
required to respond to the particular litigation) unless otherwise agreed by each of the Members;
provided further, that if the Members do not mutually agree to such commencement or
settlement of such litigation, the matter shall be submitted to the Chief Executive Officers of
MTVN Parent and RN Parent, who shall attempt in good faith to resolve such matter within 10 days
(or such shorter period as is required to respond to the particular litigation) unless otherwise
agreed by each of the Members;




          (p) other than as contemplated by the Transaction Documents, entering into or amending any
agreement or transaction between the Company or any of its subsidiaries, on the one hand, and any
Member or any Affiliate of any Member, on the other hand, which agreement or transaction has a
value exceeding $[ * ] (it being understood that any agreement or transaction between the Company
or any of its subsidiaries, on the one hand, and any Member or any Affiliate of any Member, on the
other hand, shall be on an arm’s-length, commercially reasonable basis);




          (q) changing the legal name of the Company or any name under which the Company does business;




          (r) dissolution or filing for voluntary bankruptcy of the Company;




          (s) amendment or modification of this Agreement; or




          (t) any other determination requiring Unanimous Approval as provided for in this Agreement.




          SECTION 9.04. Contract Party Approval. The Company shall not enter into any contract
that would purport to bind any Member or Parent or any of their




 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.




33









 







respective Affiliates without the prior written consent of the Person to be bound (“Contract
Party Approval”).




          SECTION 9.05. Business Plans. (a) The business of the Company shall be conducted in
accordance with the initial business plan attached as Schedule 2 hereto (the “Initial Business
Plan”), which includes a summary operating budget for the period from the date of formation of
the Company to the end of the Fiscal Year in which the Company was formed (the “Stub
Period”) and the first full Fiscal Year of the Term and a five-year strategic outlook for the
Company covering the first five full Fiscal Years of the Term, and such strategic outlook shall
include (i) a target capital contribution schedule for each year in such five-year period and (ii)
financial projections covering projected revenues, projected capital and operating expenditures,
projected fully burdened operating profit/loss and projected free cash flow for each year in such
five-year period and shall, for revenue and net income, follow GAAP, and shall otherwise be
prepared on a basis consistent with the Initial Business Plan so as to enable the Budget Financial
Tests to be calculated on a consistent basis.




          (b) As part of (and concurrent with) the annual budget process described in Section 9.06, the
Company shall deliver to the Joint Committee an updated and revised business plan for the Company
(including an updated summary operating budget and five-year strategic outlook covering the Fiscal
Year being budgeted for and the next four Fiscal Years) containing the same level of detail as the
Initial Business Plan. The Company shall make any revisions necessary in order to obtain
Unanimous Approval of such business plan in accordance with Section 9.03 (the Initial Business Plan
and any such updated and revised business plan and strategic outlook obtaining Unanimous Approval,
the “Business Plan”). Once the Business Plan has received Unanimous Approval, any proposed
amendments to such Business Plan must obtain Unanimous Approval to be effective.




          SECTION 9.06. Budgets. (a) The Company shall be operated in accordance with the
Initial Business Plan during the Stub Period and thereafter in accordance with an operating budget
determined pursuant to Section 9.06(b) or Section 9.07, provided, that, for the avoidance
of doubt, Section 9.07 shall not apply to the Fiscal Year of 2008.




          (b) (i) No later than December 14, 2007 with respect to the Fiscal Year of 2008 and (ii) no
later than January 31 of each Fiscal Year with respect to the Fiscal Year of 2009 and each Fiscal
Year of the Term thereafter, the Company shall deliver to the Joint Committee an operating budget
for the Company for such Fiscal Year plus the first fiscal quarter of the next Fiscal Year, which
shall include projected revenues, projected capital and operating expenditures, projected
fully-burdened operating profit/loss, projected free cash flow, projected cash requirements and
reasonable specificity of individual capital expenditure items, in each case, on a quarterly basis,
shall, for revenue and net income, follow GAAP, and shall otherwise be prepared on a basis
consistent with the Initial Business Plan so as to enable the Budget Financial Tests to be
calculated on a consistent basis. The Company shall use its reasonable efforts to make any
revisions necessary in order to obtain Unanimous Approval of such annual operating budget in




34









 







accordance with Section 9.03 (each annual operating budget obtaining Unanimous Approval, the
“Annual Operating Budget”). Once the Annual Operating Budget has received Unanimous
Approval, any proposed amendments to such Annual Operating Budget must obtain Unanimous Approval to
be effective. For the avoidance of doubt, the purpose of budgeting for five fiscal quarters is so
that the Company will have an operating budget to operate under during the first fiscal quarter of
any Fiscal Year while the budget for that Fiscal Year is being finalized.




          SECTION 9.07. Failure to Approve the Annual Operating Budget. (a) Commencing with
the second full Fiscal Year of the Term, if the Joint Committee fails to approve an annual
operating budget for a Fiscal Year prior to February 15 of such Fiscal Year (an “Budget
Approval Failure”), the annual operating budget of the Company shall be determined, in part, by
the application of the following financial tests (the “Budget Financial Tests”):





     (i) actual Revenue of the Company for the most recently completed Fiscal Year as set
forth in the audited financial statements of the Company is at least 80% of the projected
Revenue as set forth in Financial Test Operating Budget applicable to such Fiscal Year;




     (ii) the difference of (x) the projected Fully Burdened Operating Profit/Loss as set
forth in the Financial Test Operating Budget applicable to the most recently completed
Fiscal Year and (y) the actual Fully Burdened Operating Profit/Loss of the Company for the
most recently completed Fiscal Year calculated from the audited financial statements of the
Company is no greater than 6% of the actual Revenue of the Company for the most recently
completed Fiscal Year as set forth in the audited financial statements of the Company if
such actual Revenue does not exceed $[ * ] or 4% of such actual Revenue if such actual
Revenue exceeds $[ * ]; and




     (iii) the difference of (x) the projected Free Cash Flow as set forth in the Financial
Test Operating Budget applicable to the most recently completed Fiscal Year and (y) the
actual Free Cash Flow of the Company for the most recently completed Fiscal Year calculated
from the audited financial statements of the Company is no greater than 6% of the actual
Revenue of the Company for the most recently completed Fiscal Year as set forth in the
audited financial statements of the Company if such actual Revenue does not exceed $[ * ]
or 4% of such actual Revenue if such actual Revenue exceeds $[ * ].



          (b) In the event of a Budget Approval Failure, if any of the Budget Financial Tests has not
been met, then:





     (i) MTVN Sub shall not be required to make any Additional Cash Contributions, RN Sub
shall not be permitted to make any Additional Cash



 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.




35









 







Contributions and, unless RN Sub shall elect to comply with clause (ii) below, an impasse shall be
deemed to have occurred and the provisions of Section 9.08 shall apply; and





     (ii) notwithstanding the provisions of Section 9.03, without the approval of MTVN Sub,
RN Sub shall have until March 15 of such Fiscal Year, at its option, to cause the Company
to adopt an annual operating budget for such Fiscal Year (the “RN Annual Operating
Budget”) to be funded by RN Sub in the form of an unsecured loan to the Company (a
“Budget Loan”) on terms set forth in Section 9.07(e); provided that in the
event that the Company generates operating losses during such Fiscal Year which exceed the
amount projected under the applicable Carry-Over Annual Operating Budget had it been
implemented, RN Sub shall be required to contribute (without dilution of MTVN Sub) an
amount to the Company sufficient to satisfy the Company’s operating losses for such Fiscal
Year in excess of the losses projected under the applicable Carry-Over Annual Operating
Budget had it been implemented, not to exceed in the aggregate
$[ * ] (the
“Liability Cap”) for such Fiscal Year.



          (c) In the event of a Budget Approval Failure, if all of the Budget Financial Tests have been
met, the Company shall:





     (i) be subject to an operating budget for such Fiscal Year equal to the product of (x)
the Carry-Over Budget Ratio and (y) the projected operating budget for such Fiscal Year as
set forth in the Company’s most recently approved Business Plan (the “Carry Over Annual
Operating Budget”) and the Members shall only be obligated to fund Additional Cash
Contributions for such Fiscal Year equal to the product of (A) the Carry-Over Budget Ratio
and (B) the projected Additional Cash Contributions for such Fiscal Year as set forth in
the Company’s most recently approved Business Plan; and




     (ii) notwithstanding the provisions of Section 9.03, without the approval of MTVN Sub,
RN Sub shall have until March 15 of such Fiscal Year, at its option, to cause the Company
to adopt a RN Annual Operating Budget (in lieu of the Carry-Over Annual Operating Budget)
to be funded by RN Sub by a Budget Loan on terms set forth in Section 9.07(e);
provided that in the event that the Company generates operating losses during such
Fiscal Year which exceed the amount projected under the applicable Carry-Over Annual
Operating Budget had it been implemented, RN Sub shall be required to contribute (without
dilution of MTVN Sub) an amount to the Company sufficient to satisfy the Company’s
operating losses for such Fiscal Year in excess of the losses projected under the
applicable Carry-Over Annual Operating Budget had it been implemented, not to exceed in the
aggregate the Liability Cap for such Fiscal Year.



          (d) Any Additional Cash Contributions to be funded pursuant to Section 9.07(c)(i) shall be
funded in accordance with Section 4.04 and be subject to Section 4.05.



 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.




36









 








          (e) Any Budget Loan shall (i) have a term ending on the later of (y) the sixth anniversary of
the Effective Date or (z) the second anniversary of the date of such Budget Loan, (ii) be in a
principal amount not to exceed $[ * ] annually, (iii) be in a principal amount that, when
added to the aggregate outstanding principal amounts of all other then outstanding Capital Loans
and Budget Loans, does not exceed the Aggregate Loan Cap, (iv) bear interest at a rate equal to the
Budget Loan Interest Rate and such, interest shall be solely “pay-in-kind” and shall be added to
the principal amount annually and (v) be evidenced solely by a promissory note in the form of
Exhibit C.




          (f) MTVN Sub shall have the right to participate in any such Budget Loan on a pro rata basis
and on the same terms and conditions applicable to RN Sub. RN Sub shall provide written notice to
MTVN Sub setting forth the proposed interest rate and principal amount for the Budget Loan, and
within six (6) Business Days after receipt of such notice, MTVN Sub shall provide written notice to
RN Sub stating whether MTVN Sub elects to fund its pro rata share thereof. Any Budget Loan shall
be funded within five (5) Business days after the date of MTVN Sub’s notice.




          SECTION 9.08. Impasse. (a) If (i) for two consecutive Fiscal Years, (y) there has
been a Budget Approval Failure and (z) any of the Impasse Financial Tests as set forth in Section
9.08(d) below have not been met or (ii) an impasse has occurred pursuant to Section 9.07(b)(i), (in
each case, an “Impasse”) then any Member may at any time provide written notice to the
other Member that an Impasse exists.




          (b) Within 10 days of the receipt of such notice of Impasse by the other Member, the Impasse
shall be submitted to the Chief Executive Officers of MTVN Parent and RN Parent, who shall attempt
in good faith to resolve such matter within 30 days, unless otherwise agreed by each Member.




          (c) If an Impasse has not been resolved by application of the provisions of Section 9.08(b),
then at any time after January 1, 2011, RN Sub may deliver a Call Notice pursuant to Section
10.03(a) and MTVN Sub may deliver a Put Notice pursuant to Section 10.03(b).




          (d) The following financial tests (the “Impasse Financial Tests”) shall be applied in
the determination of an Impasse pursuant to Section 9.08(a)(i). Each test shall be applied in
respect of each of the two most recently completed Fiscal Years:





     (i) actual Revenue of the Company for such Fiscal Year as set forth in the audited
financial statements of the Company is at least 75% of the projected Revenue as set forth
in Financial Test Operating Budget applicable to such Fiscal Year;




     (ii) the difference of (x) the projected Fully Burdened Operating Profit/Loss as set
forth in the Financial Test Operating Budget applicable to such Fiscal Year and (y) the
actual Fully Burdened Operating Profit/Loss of the Company for such Fiscal Year calculated
from the audited financial statements of the Company is no greater than 7.5% of the actual
Revenue of the Company for



 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.



37









 







such Fiscal Year as set forth in the audited financial statements of the Company if
such actual Revenue does not exceed $[ * ] or 5% of such actual Revenue if such actual
Revenue exceeds $[ * ]; and




     (iii) the difference of (x) the projected Free Cash Flow as set forth in the Financial
Test Operating Budget applicable to such Fiscal Year and (y) the actual Free Cash Flow of
the Company for such Fiscal Year calculated from the audited financial statements of the
Company is no greater than 7.5% of the actual Revenue of the Company for such Fiscal Year
as set forth in the audited financial statements of the Company if such actual Revenue does
not exceed $[ * ] or 5% of such actual Revenue if such actual Revenue exceeds $[ * ].



          SECTION 9.09. Officers. (a) Subject to Section 9.09(c), the Joint Committee may
from time to time appoint (and subsequently remove) the officers and other individuals to act on
behalf of the Company as “officers” or “agents” of the Company within the meaning of Section 18-407
of the Delaware Act to conduct the day-to-day management of the Company, within the limits
established by this Agreement, the other Transaction Documents, the then-current Annual Operating
Budget and any applicable employment agreement and with such other general or specific authority as
the Joint Committee may specify.




          (b) The Company shall be managed on a stand-alone basis in a manner designed to maximize the
long-term economic value of the Company. Decisions shall be taken in the primary interest of the
Company, subject to the express terms of this Agreement, including Section 11.02, and the other
Transaction Documents unless otherwise agreed by the Members.




          (c) The executive officers of the Company, each of whom shall be employees of the Company,
shall include a General Manager (“GM”), a Chief Financial Officer (“CFO”), a Senior
Marketing Executive and a Senior Programming Executive. The executive officers of the Company as
of the Effective Date are set forth on Schedule 6. Successors to the initial GM shall be
designated by RN Sub, subject to Section 9.09(f). The initial CFO, Senior Marketing Executive and
the Senior Programming Executive, and their successors, shall each be designated by RN Sub, subject
to approval by MTVN Sub.




          (d) The Joint Committee shall establish the compensation arrangements of the executive
officers on an annual basis.




          (e) The GM, CFO, Senior Marketing Executive and the Senior Programming Executive may each be
removed by the Joint Committee.




          (f) The GM shall tender his or her resignation if, at any date of determination, the Company
has failed to meet any of the GM Financial Tests, and the




 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.




38









 







resignation shall be automatically accepted unless otherwise determined by the Joint Committee with
Unanimous Approval in accordance 9.03. In the event the GM is so removed, the designation of the
successor GM shall be subject to approval by MTVN Sub and shall not be subject to the provisions of
this Section 9.09(f) for a period of two Fiscal Years from the date of his or her appointment as
GM. The following financial tests shall constitute the “GM Financial Tests” and the
satisfaction or non-satisfaction of each test shall be determined 30 days after the end of each
fiscal quarter in respect of the period consisting of the four most recently completed fiscal
quarters (ignoring the Stub Period):





     (i) actual aggregate Revenue of the Company for such four-quarter period as set forth
in the quarterly financial statements of the Company for such four-quarter period is at
least 75% of the projected aggregate Revenue as set forth in Financial Test Operating
Budget(s) applicable to such four-quarter period;




     (ii) the difference of (x) the projected aggregate Fully Burdened Operating
Profit/Loss as set forth in the Financial Test Operating Budget(s) applicable to such
four-quarter period and (y) the actual aggregate Fully Burdened Operating Profit/Loss of
the Company for such four-quarter period calculated from the quarterly financial statements
of the Company for such four-quarter period is no greater than 7.5% of the actual aggregate
Revenue of the Company for such four-quarter period as set forth in the quarterly financial
statements of the Company for such four-quarter period if such actual aggregate Revenue
does not exceed $[ * ] or 5% of such actual aggregate Revenue if such actual aggregate
Revenue exceeds $[ * ]; and




     (iii) the difference of (x) the projected aggregate Free Cash Flow as set forth in the
Financial Test Operating Budget(s) applicable to such four-quarter period and (y) the
actual aggregate Free Cash Flow of the Company for such four-quarter period calculated from
the quarterly financial statements of the Company for such four-quarter period is no
greater than 7.5% of the actual aggregate Revenue of the Company for such four-quarter
period as set forth in the quarterly financial statements of the Company for such
four-quarter period if such actual aggregate Revenue does not exceed $[ * ] or 5% of such
actual aggregate Revenue if such actual aggregate Revenue exceeds $[ * ].



          (g) The GM shall manage and control the business and affairs of the Company, subject to the
requirement to obtain Joint Committee Approval, Unanimous Approval and Contract Party Approval (as
applicable), report to the Joint Committee and be responsible for hiring and removing all members
of the senior management of the Company (other than as provided for in this Article IX).




 




[ * ]   designates portions of this document that have been omitted pursuant to a request for
confidential treatment filed separately with the Commission.




39









 








          (h) Subject to Section 9.09(b), the GM shall report directly to a named executive of RN Sub (the
“RN Executive”). The RN Executive shall be designated by, and may be replaced from time to
time by, the Chief Executive Officer of RN Sub. RN Sub shall immediately notify MTVN Sub of any
change in the identity of the RN Executive.




          (i) The CFO shall report to the GM and shall be primarily responsible for accounting and
financial reporting matters of the Company. The Senior Marketing Executive shall report to the GM
and shall be the most senior executive of the Company primarily responsible for marketing
activities of the Company. The Senior Programming Executive shall report to the GM and shall be
the most senior executive of the Company primarily responsible for programming activities of the
Company.




ARTICLE X




Transfers of Interests




          SECTION 10.01. Restrictions on Transfers. (a) Except as expressly provided for by
this Article X, no Member shall Transfer all or any part of its or its subsidiaries’ Interests, or
any right pertaining thereto, including the right to receive capital, profits or distributions of
the Company pursuant thereto. To the fullest extent permitted by law, any Transfer in violation of
this Agreement shall be null and void.




          (b) Except as expressly provided for in this Article X, at all times, a Member must be wholly
owned (directly or indirectly) by its Parent. Subject to Section 10.02(b), if at any time a Member
ceases to be wholly owned (directly or indirectly) by its Parent, then such Person shall
automatically cease to be a Member and shall cease to have any rights hereunder and all Interests
held by such Person shall be deemed to be automatically Transferred to such Parent or to another
wholly owned direct or indirect subsidiary of such Parent designated by such Parent, which
subsidiary shall execute and deliver an Adoption Agreement in the form of Exhibit A. Upon such
Transfer, such Parent or subsidiary shall be substituted for such Member for all purposes hereof.
Notwithstanding anything to the contrary set forth herein, but subject to Section 10.03(e), the
restrictions on Transfer set forth in this Section 10.01 shall not prohibit any Sale Transaction;
provided, that the ultimate parent entity of a Member following such Sale Transaction shall
be substituted as the “Parent” of such Member for all purposes hereof, shall execute and deliver an
Adoption Agreement in the form of Exhibit A, and such Member shall continue to have all the rights
and obligations of a “Member” hereunder (it being agreed that if such Member continues to be an
affiliate of MTVN Parent or RN Parent then such ultimate parent entity shall continue to mean MTVN
Parent or RN Parent, as the case may be).




          (c) It shall be a condition to any Transfer not prohibited by this Article X that such
Transfer shall comply with the provisions of the Securities Act and applicable state securities
laws. Until the Transfer of any Interest has been registered under the Securities Act, such
Interest may not be offered or sold except pursuant to an exemption




40









 







from, or in a transaction not
subject to, the registration requirements of the Securities Act and applicable state securities
laws.




          (d) It shall be a condition to any Transfer not prohibited by this Article X that no
applicable law or judgment issued by any governmental entity which would prohibit such Transfer
shall be in effect, and all consents of, or declarations or filings with, or expirations of waiting
periods imposed by, any governmental entity necessary for the consummation of such Transfer shall
have been obtained or filed or shall have occurred, and each Member agrees to cooperate with the
other Member to provide such information and make such filings as shall be necessary to satisfy as
promptly as practicable the foregoing conditions in connection with a proposed Transfer.




          (e) Notwithstanding anything to the contrary contained herein, no Member shall Transfer any
portion of such Member’s Interest if such Transfer could reasonably cause the Company to be treated
as a “publicly traded partnership” taxable as a corporation within the meaning of Section 7704 of
the Code, as determined by the Joint Committee with Unanimous Approval in accordance with Section
9.03, or as determined by the Tax Matters Member in situations governed by Section 7.04(a).




          SECTION 10.02. Permitted Transfers. (a) The following Transfers shall be permitted
at any time from time to time:





     (i) any Transfer by a Member of its Interests to a wholly owned direct or indirect
subsidiary of such Member’s Parent, subject to the provisions of Section 3.02; and




     (ii) any Transfer by a Member with the prior written consent of the other Member.



          (b) At any time after the fifth anniversary of the Effective Date (the period from the
Effective Date to such fifth anniversary, the “Restricted Period”), (i) any Member may
Transfer all but not less than all its and its Affiliates’ Interests to any other Person and
(ii) the Parent of a Member may Transfer all but not less than all its capital stock, voting
securities, equity interests and Equity Rights in all but not less than all Members for which it is
the Parent to any other Person, in each case, subject to the provisions of this Article X;
provided, that, all references in this Agreement to such Transferring Member (whether RN
Sub or MTVN Sub) or Transferring Parent shall thereafter be deemed to be references to the
applicable Transferee Member or Transferee Parent; provided, further that any Transferee
shall have all rights and obligations of the Transferor under this Agreement, including for the
avoidance of doubt, Article IX and the Put/Call provisions of Section 10.03 and the Tag-Along
provisions of Section 10.04 and the Drag-Along/Right of First Refusal provisions of Section 10.05
to the same extent as the Transferor; provided, further, that if the Transferor is RN
Parent or an Affiliate of RN Parent and the Transferee is not an Affiliate of RN Parent then
thereafter all of the consideration in respect of any Put Notice shall be cash without regard to
the Cash Cap and the provisions of Section 10.03(g)(vi) relating to Adjusted RN Parent Enterprise
Value shall cease to be applicable. Notwithstanding any other provision in this Section




41









 







10.02(b),
at any time after the Restricted Period, any Member may, in one or more transactions, transfer
economic participations in an aggregate of less than 50% of such Member’s and its Affiliates’
beneficial economic rights under this Agreement (the
“Beneficial Economic Rights”) to one or more Persons, and the transfer of such
Beneficial Economic Rights in accordance with this sentence shall not be deemed a Transfer of such
Member’s or its Affiliates’ Interests or rights or obligations under this Agreement, nor will such
transfer trigger any of the put, call, drag-along or tag-along rights hereunder; provided,
that (x) no such transferee shall receive any legal or equitable rights under this Agreement nor
shall any such transferee be an express or implied third party beneficiary of this Agreement and
any such transferee shall look solely to the transferor to enforce its rights pursuant to such
grant; (y) the transferor shall remain fully liable for all its obligations under this Agreement;
and (z) the transferor shall notify each other Member of any such transfer and the identity of the
transferee no later than 30 days prior to such transfer.




          SECTION 10.03. Put/Call Right. (a) (i) During the 30-day period beginning on
January 1 of each of 2013, 2014 and 2015 and every two years thereafter, if MTVN Sub has not issued
a Put Notice pursuant to Section 10.03(b) or (ii) at any time after January 1, 2011, if an Impasse
in accordance with Section 9.08(c) shall have occurred, then RN Sub may deliver to MTVN Sub a
written notice stating that RN Sub is willing to buy all of the Interests held by MTVN Sub and its
Affiliates (the “Call Notice”). If RN Sub delivers a Call Notice, RN Sub shall be
obligated to purchase (directly or through any Affiliate of RN Sub) and MTVN Sub shall be obligated
to sell all of its and its Affiliates’ Interests, at an amount (the “Call Price”) equal to
the greater of (x) the product of the aggregate Participation Percentage of MTVN Sub’s and its
Affiliate’s Interests and the Appraised Value and (y) the original principal amount of the MTVN
Note (the “MTVN Note Value”).




          (b) (i) During the 30-day period beginning on September 1 of the each of 2012, 2013 and 2014
and every two years thereafter, (ii) if, without the prior written consent of MTVN Sub, (A) RN
Parent announces any Extraordinary Transaction during the period from August 1 of any such year to
October 1 of any of 2012, 2013 and 2014 and every two years thereafter, then during the thirty (30)
day period following such announcement (an “Extended Put Notice Period”) or (B) RN Parent
announces any Extraordinary Transaction during an Extended Put Notice Period, then during the
thirty (30) day period following such subsequent announcement, in each case, in addition to and
without limiting MTVN Sub’s rights during the period specified in clause (i) above, or (iii) at any
time after January 1, 2011, if an Impasse in accordance with Section 9.08(c) shall have occurred,
in the case of each of the foregoing clauses (i), (ii) and (iii), MTVN Sub may deliver to RN Sub a
written notice stating that MTVN Sub is willing to sell to RN Sub all of the Interests held by MTVN
Sub and its Affiliates (the “Put Notice”). If MTVN Sub delivers a Put Notice, RN Sub shall
be obligated to purchase (directly or through any Affiliate of RN Sub) and MTVN Sub shall be
obligated to sell all of its and its Affiliates’ Interests at a price equal to the Put Price. The
“Put Price” means, (x) in the case of a Put Notice pursuant to clause (i) or clause (ii) of
the first sentence of this Section 10.03(b), the MTVN Preferred Return Portion with respect to the
Appraised Value and (y) in the case of a Put Notice pursuant to clause (iii) above, the product of
the




42









 







Participation Percentage of MTVN Sub’s and its Affiliates’ Interests and the Appraised Value.




          (c) In the event (i) a Call Notice is delivered, MTVN Sub may elect to receive as
consideration any combination of cash and RN Parent Equity, subject, in the case of RN Parent
Equity, to Section 10.03(f). MTVN Sub shall deliver written notice to RN Sub of its election of
consideration (as a percentage of the total consideration) no later than six (6) Business Days
after the delivery of the Call Notice.




          (d) In the event a Put Notice is delivered, RN Sub (or the purchasing RN Sub Affiliate) shall
provide, in its discretion, as consideration any combination of cash or RN Parent Equity, subject,
in the case of RN Parent Equity, to Section 10.03(e) and Section 10.03(f); provided that RN
Sub (or the purchasing RN Sub Affiliate) shall not provide nor shall it be required to provide as
consideration a number of shares of RN Parent Equity in excess of the Stock Cap or an amount of
cash in excess of the Cash Cap; provided, further, that if the Put Price exceeds
the sum of the Cash Cap and the Stock Cap then, subject to Section 10.03(e) and Section 10.03(f),
RN Sub (or the purchasing RN Sub Affiliate) shall be obligated to provide cash in the amount of the
Cash Cap and RN Parent Equity in the amount of the Stock Cap and the remainder shall be in the form
of subordinated debt of RN Sub on market terms determined by an Investment Bank selected by RN Sub.
In making such determination the Investment Bank shall consider (A) market conditions for issuers
similar to RN Parent and securities similar to those being issued, (B) the actual/estimated credit
rating of RN Parent after giving effect to such issuance and the debt security being issued, (C)
the interest rate environment and credit spreads for similarly issued securities, (F) the current
and projected leverage of RN Parent after giving effect to such issuance and (G) the interest rate,
covenants and other provisions of a comparable security marketed by RN Parent to a third party and
priced at par. RN Sub shall deliver written notice to MTVN Sub of its election of consideration
(as a percentage of the total consideration) no later than six (6) Business Days after the delivery
of the Put Notice. As used herein “Cash Cap” means
the sum of (y) $100 million plus (z) 50% of
the amount by which the unrestricted cash and Cash Equivalents on hand of RN Parent (as determined
on the day before delivery of the Put Notice) exceeds
$150 million (before giving effect to any
deduction of the $100 million referred to in (y) above). For the avoidance of doubt, if the
unrestricted cash and Cash Equivalents on hand of RN Parent on the day before delivery of the Put
Notice is $250 million, the Cash Cap shall mean $150 million.




          (e) In the event that (x) a Change of Control of RN Parent, (y) sale of substantially all
assets of the RN Sub Music Group or (z) any action or transaction that would result in the Common
Stock ceasing to be listed on NASDAQ without a concurrent listing on the New York Stock Exchange or
the American Stock Exchange, is





43









 







approved, announced or consummated, RN Sub shall thereafter be obligated to offer all of the
consideration for any Put Notice (whether delivered before or after such approval, announcement or
consummation) in the form of cash without regard to the Cash Cap.




          (f) In the event that any portion of the consideration to be provided pursuant to a Call
Notice or a Put Notice is in the form of RN Parent Equity, (i) the number of shares of Common Stock
that RN Sub shall be required to deliver to MTVN Sub shall be limited such that MTVN Sub’s holdings
of outstanding shares of Common Stock immediately following the transaction shall account for less
than 20% of the outstanding shares of Common Stock immediately prior to the transaction and (ii) if
the number of shares of Common Stock that would otherwise be delivered to MTVN Sub would exceed 15%
of the total shares of Common Stock outstanding after giving effect to the transaction, then RN Sub
shall be entitled to deliver any such excess shares in the form of Non-Voting Equity (the foregoing
clauses (i) and (ii), collectively, the “Stock Cap”). The number of the shares of RN
Parent Equity to be delivered by RN Sub shall be equal to (A) the dollar amount of RN Parent Equity
to be delivered, divided by (B) the Volume Weighted Average Price of the Common Stock over the 30
trading-day period ending immediately prior to the date of the Put/Call Closing (the “Pricing
Period”); provided further that, if an Extraordinary Transaction is publicly
disclosed during such Pricing Period, the Pricing Period and the Put/Call Closing shall be delayed
as necessary to in order to ensure that such Volume Weighted Average Price reflects the effects of
such Extraordinary Transaction.




          (g) In the event a Call Notice or Put Notice is delivered, the Members shall attempt to
mutually agree on the appraised value of 100% of the Interests in the Company (the “Appraised
Value”). If the Members are unable to reach agreement within 30 days from the date of such
Call Notice or Put Notice, as applicable, then each Member shall retain within 21 days thereafter
an appraiser to determine the Appraised Value and shall notify the other Member in writing of its
selection.





     (i) If either Member fails to notify the other Member of its selection within such
21-day period, the sole appraiser selected shall make the determination and such
determination shall be referred to as the Appraised Value and shall be final for purposes
hereof. If each Member so notifies the other Member, then each Member, in consultation
with its appraiser, shall, simultaneously with the other Member, submit its determination
of the Appraised Value (the “Initial Appraised Value”) in writing to such other
Member within 45 days from the date of the selection of such appraisers. If the
determinations of Initial Appraised Value by the appraisers vary by 10% or less from the
average of such two determinations, the Appraised Value shall be the average of the two
determinations. If such determinations vary by more than 10% from the average of such two
determinations, then five (5) Business Days later, the Members shall simultaneously
exchange their adjusted proposal for the Appraised Value (the “Adjusted Proposed
Appraised Value”). If the Adjusted Proposed Appraised Values vary by less than 10%
from the average of the two Adjusted Proposed Appraised Values, the Appraised Value shall
be the average of the Adjusted Proposed Appraised Values. If the Adjusted Proposed
Appraised Values vary by



44









 







more than 10% from the average of the two Adjusted Proposed Appraised Values, then
five (5) Business Days later, Members shall select a third appraiser (the “Third
Appraiser”) by simultaneously exchanging lists of five Investment Banks that have
experience valuing businesses similar to the Company and that did not participate in the
determination of any Initial Appraised Value. The lists shall rank the Investment Banks
from one to five in order of sequential preference. If such lists contain one or more
common names, the Investment Bank with the lowest combined preferential ranking (the sum of
the sequential preference from each list) shall be the Third Appraiser. If two or more
proposed Investment Banks have identical combined preferential rankings, the Third
Appraiser shall be selected based on the proposed appraiser with the identical lowest
combined preferential ranking by coin flip, lottery, or other random means. If such lists
contain no common name, the Members shall immediately request that the two appraisers
chosen by each Member select the Third Appraiser from among the two highest ranked
Investment Banks on each Member’s list, or if the appraisers are unable to agree, then the
Members shall request that New York office of JAMS select the Third Appraiser. If the
Investment Bank initially selected to be the Third Appraiser is unwilling or unable to
serve as the Third Appraiser (or unwilling to serve for a reasonable fee), then the Third
Appraiser shall be selected using the foregoing process but as if such initially selected
Investment Bank had not been proposed by either Member. Within 45 days from the date of
its selection as such, the Third Appraiser shall select the Adjusted Proposed Appraised
Value that it believes is closest to the fair market value of such interests and notify
each Member of such determination of the Appraised Value.




     (ii) In determining the Appraised Value, the appraisers shall not apply any minority
or liquidity discount and shall not apply any synergy premium, but shall assume an open
market sale of 100% of the Company to a third party and shall utilize one or more of the
following valuation methods: (w) analysis of discounted cash flow, (x) publicly-traded
comparable company multiples, (y) comparable precedent transaction multiples and (z) other
accepted valuation methods for businesses similar to the Company at the time of the
appraisal.




     (iii) In determining the Appraised Value, the appraisers shall be required to consider
the actual historical results of the Company and projections included in the most recently
approved Business Plan as the primary source of financial projections for the Company,
while also giving due consideration to other information submitted by the Members.




     (iv) In determining the Appraised Value, the appraisers (v) shall determine the fair
market value as of the most recently ended fiscal quarter (the “Valuation Date”),
(w) shall assume that the Company will continue to operate in the normal course of business
after consummation of the Put/Call Closing, (x) shall not attribute any additional cost or
loss of value to RN Parent’s ability after the Valuation Date to raise prices for, or RN
Parent’s or the Company’s ability to terminate its provision of, services pursuant to the
RN License and Services Agreement (and the Company’s resulting need to obtain replacement
services),



45









 







but instead shall assume that the Company will continue to have the right to purchase
services from RN Parent pursuant to the RN License and Services Agreement on the terms most
recently in effect between the parties as of the Valuation Date provided that with respect
to an Appraised Value in connection with the exercise of the Put or Call in 2012 or 2013,
such terms shall be those most recently in effect, regardless of what other terms may have
been agreed but have not yet taken effect, (y) shall exclude all business and operations
taxes of the State of Washington applicable to services provided or to be provided by RN
Parent to the Company pursuant to the RN License and Services Agreement, (z) shall also
give consideration to the values the assets might bring in an open market sale, (aa) shall
include any remaining monies due under the MTVN Note as a funding source for the Company’s
purchase of advertising from MTVN and (bb) shall increase the total dollar value of their
appraisals by the excess (if any) of $20 million over the value assigned to the Company’s
international digital radio business.




     (v) In determining the Appraised Value, the appraisers shall assume that the parent
company of the Company is converted from a tax partnership to a stand-alone taxable
“C-corporation” pursuant to a tax-free incorporation transaction at the time the Call
Notice or Put Notice is delivered (“Deemed Incorporation”). Accordingly, the
financial projections shall be adjusted by the appraiser in consultation with management of
the Company to reflect the expected future tax burden associated with the Company being a
C-corporation, the expected future tax benefit of various deductions and future net
operating losses and the resulting Appraised Value should reflect the impact of these
adjustments. In addition, for purposes of calculating the potential future tax burden of
the Company, the assumed tax basis of the assets of the Company shall be equal to the tax
basis of the Company’s assets immediately prior to the Deemed Incorporation.




     (vi) For so long as the Common Stock is listed on NASDAQ, the New York Stock Exchange
or the American Stock Exchange, absent extraordinary circumstances, (A) in the case of a
Put Notice, the Appraised Value minus the MTVN Preferred Return Portion with respect to the
Appraised Value shall not exceed the Adjusted RN Parent Enterprise Value at the date of
delivery of the Put Notice and (B) in the case of a Call Notice, the product of (x) the
aggregate Participation Percentage of RN Sub’s and its Affiliates’ Interests and (y) the
Appraised Value, shall not exceed the Adjusted RN Parent Enterprise Value at the date of
delivery of the Call Notice. If such portion of the Appraised Value exceeds the applicable
limit set forth in clause (A) or (B) above, the Appraised Value shall be reduced to the
extent necessary to comply with the applicable limit.




     (vii) The determination of the Appraised Value in accordance with the foregoing
procedure shall be final and binding on the Members and shall be the Appraised Value.



46









 





          (h) A Transfer pursuant to this Section 10.03 shall be consummated at a closing (the
“Put/Call Closing”), at the offices of the Company, within 45 days of notice pursuant to
Section 10.03(g) of the Appraised Value; provided that such period shall be extended for
such additional periods as shall be necessary to obtain any requisite governmental or regulatory
approvals. At the Put/Call Closing (the date and time of which shall be designated by RN Sub and
provided to MTVN Sub in writing at least seven days prior thereto), (i) RN Sub shall pay MTVN Sub
the Call Price or Put Price being sold in the Call Notice or Put Notice, as applicable, together
with interest on such amount accrued at the Budget Loan Interest Rate from the Valuation Date to
the date of the Put/Call Closing, in the form(s) of consideration required pursuant to this
Section 10.03 and (ii) MTVN Sub shall deliver an assignment of its and its Affiliates’ Interests
duly executed by MTVN Sub and its applicable Affiliates, free and clear of any Liens. Any cash
consideration shall be paid by wire transfer of immediately available funds to the account
specified by MTVN Sub. RN Parent hereby represents and warrants that any shares of RN Parent
Equity issued to MTVN Sub and its Affiliates shall be duly authorized, validly issued, fully paid
and nonassessable, and shall be listed on NASDAQ, the New York Stock Exchange or the American Stock
Exchange. RN Parent and its Board of Directors shall take all actions, including the adoption of
any resolutions, as may be necessary to ensure that any “shareholder rights plan” or similar
takeover defense and anti-takeover statutes are inapplicable to such issuance of shares of RN
Parent Equity, including that none of MTVN Sub or its Affiliates (including for purposes of this
sentence only, Viacom Inc. and its affiliates) will be subject to Section 23B.19 et. seq. of the
Washington Business Corporation Act (including any restriction on “significant business
transactions” with RN Parent under Section 23B.19.40 of the Washington Business Corporation Act) or
any successor statute with respect to or as a result of such issuance of shares of RN Parent
Equity. Concurrent with the delivery of any RN Parent Equity to MTVN Sub and its Affiliates, the
Stockholder Agreement shall become effective.




          SECTION 10.04. Tag-Along Right. (a) At any time and from time to time following the
Restricted Period, if RN Sub or any of its Affiliates seeks to Transfer in any transaction or
series of related transactions all of the Interests of RN Sub and its Affiliates (including an
indirect Transfer through the Transfer of a Member as permitted by Section 10.02(b)(ii)), RN Sub
shall provide written notice (the “Tag-Along Notice”) to MTVN Sub of the identity of the
prospective Transferee, the purchase price, the terms of the prospective Transferee’s financing (if
any and if known), the anticipated date of closing of the proposed Transfer and any other material
terms and conditions of the Transfer (the “Tag-Along Terms”).




          (b) Upon receipt of a Tag-Along Notice, MTVN Sub shall have the right to Transfer all of its
and its Affiliates’ Interests in such proposed Transfer on the Tag-Along Terms, exercisable by
delivering written notice to RN Sub within 10 Business Days from the date of receipt of the
Tag-Along Notice. The right of MTVN Sub pursuant to this Section 10.04(b) shall terminate with
respect to that proposed Transfer if not exercised within such 10-Business Day period.




47









 








          (c) Following the expiration of the 10-Business Day period referred to in Section 10.04(b),
if MTVN Sub shall have exercised its right to participate in such Transfer pursuant to Section
10.04(b), MTVN Sub shall then be entitled and obligated to sell to the prospective Transferee such
all of its and its Affiliates’ Interests on the Tag-Along Terms. All consideration received by RN
Sub, MTVN Sub and their respective Affiliates shall be determined in accordance with Section
10.04(f). MTVN Sub shall be subject, on a several and not a joint basis, to the same
representations and warranties (but only to its knowledge with respect to matters relating to the
Company, it being agreed that the associated indemnity obligation shall be the same as that of RN
Sub), covenants, indemnities (in any event not to exceed the value of consideration to be received
by MTVN Sub and its Affiliates), holdback and escrow provisions, if any, and any similar components
of the Tag-Along Terms to which RN Sub is subject and which have been disclosed as part of the
Tag-Along Notice; provided, however, that neither MTVN Sub nor MTVN Parent nor any
of their respective Affiliates shall be required to be subject to any non-competes, exclusivities
or other restrictions on, or agreements relating to, the businesses of MTVN Parent or any of its
Affiliates, other than the restrictions set forth in Section 2.08 (or a subset thereof), which may
continue to bind MTVN Parent for a reasonable period, not to exceed five (5) years, following the
closing of the Transfer, as disclosed as part of the Tag-Along Notice. Each party shall bear its
own expenses in connection with a Transfer pursuant to this Section 10.04.




          (d) At the closing of the proposed Transfer (which date, place and time shall be designated
by RN Sub and provided to MTVN Sub, if MTVN Sub participates in such Transfer pursuant to Section
10.04(b), in writing at least seven days prior thereto), MTVN Sub shall deliver an assignment
agreement Transferring all of its and its Affiliates’ Interests, duly executed by MTVN Sub and its
applicable Affiliates, free and clear of any Liens, against delivery of the purchase price
therefor.




          (e) In the event that, following delivery of a Tag-Along Notice, the 10-Business Day period
set forth in Section 10.04(b) shall have expired without any exercise of the rights under Section
10.04(b) by MTVN Sub, RN Sub shall have the right, during the 130-day period following the
expiration of such 10-Business Day period, to Transfer to the prospective Transferee the offered
Interests on the Tag-Along Terms, provided, that all consideration received by RN
Sub and its Affiliates shall be determined in accordance with Section 10.04(f). In the event that
RN Sub shall not have consummated such Transfer within such 130-day period, any subsequent Transfer
of the Interests shall once again be subject to the terms of this Section 10.04.




          (f) MTVN Sub shall be entitled to receive the MTVN Preferred Return Portion with respect to
the aggregate value of all consideration payable to MTVN Sub, RN Sub and their respective
Affiliates in connection with all Transfers pursuant to this Section 10.04 in accordance with the
preferred returns set forth in the definition of MTVN Preferred Return Portion.




          SECTION 10.05. Drag-Along Right/Right of First Refusal. (a) At any time following
the Restricted Period, in the event that RN Sub shall have entered into an agreement with any
Person or Persons (such Person, a “Drag-Along Purchaser”)




48









 







regarding the sale of all of its and its Affiliates’ Interests (including the Transfer of a
Member by a Parent as permitted in Section 10.02(b)(ii)) RN Sub shall be entitled, at its option,
to require MTVN Sub to include all of its and its Affiliates’ Interests in such sale (the
“Drag-Along Right”). The Drag-Along Right shall be exercised by written notice (the
“Drag-Along Notice”) to MTVN Sub, at least 30 days prior to signing of the proposed sale,
of the identity of the Drag-Along Purchaser, the consideration offered for RN Sub’s and its
Affiliates’ Interests (the “Drag-Along Price”), the terms of the Drag-Along Purchaser’s
financing (if any and if known), the anticipated date of closing of the proposed Transfer and any
other material terms and conditions of the proposed sale (the “Drag-Along Terms”).




          (b) Upon receipt of the Drag-Along Notice, MTVN Sub shall have the right to purchase and RN
Sub shall be obligated to sell all of its and its Affiliates’ Interests at the Drag-Along Price and
on the Drag-Along Terms (the “Right of First Refusal”), it being agreed that if any portion
of the Drag-Along Price includes non-cash consideration, MTVN Sub may substitute cash or MTVN
Parent stock or debt. The Right of First Refusal shall be exercised by written notice to RN Sub
within 10 Business Days after receipt of the Drag-Along Notice. The Right of First Refusal shall
terminate if not exercised within such 10-Business Day period.




          (c) In the event that the Right of First Refusal is exercised pursuant to Section 10.05(b),
at the closing of such Transfer (which date, place and time shall be designated by MTVN Sub and
provided to RN Sub in writing at least seven days prior thereto; provided that such date
shall be no later than the date of closing proposed in the Drag-Along Terms (subject to reasonable
extension for regulatory filings)), RN Sub shall deliver an assignment agreement Transferring its
and its Affiliates’ Interests, duly executed by RN Sub and its applicable Affiliates, free and
clear of any Liens, against delivery of the purchase price therefor.




          (d) In the event the Right of First Refusal is terminated pursuant to Section 10.05(b), MTVN
Sub shall be obligated to sell all of its and its Affiliates’ Interests to the Drag-Along Purchaser
on the Drag-Along Terms at a price equal to the greater of (i) the product of (x) the ratio of the
Participation Percentage of MTVN Sub’s Interests over the Participation Percentage of RN Sub’s
Interest and (y) the Drag-Along Price and (ii) the MTVN Note Value; provided, that (A) if
(1) the consideration offered to MTVN Sub by the Drag-Along Purchaser is not Liquid, (2) such
consideration would, in the reasonable judgment of MTVN Sub (to be confirmed by MTVN Sub’s outside
counsel if so requested by RN Sub), cause MTVN Sub, MTVN Parent or any of their respective
Affiliates to be subject to any statute, law, ordinance, rule or regulation promulgated by any
Governmental Entity (as defined in the Transaction, Contribution and Purchase Agreement) (other
than securities laws) that would not otherwise restrict such Persons or (3) the exercise of such
Drag-Along Right is related to a transaction or series of transactions involving a Change of
Control of RN Parent, then MTVN Sub shall be entitled to elect to receive 100% of the consideration
in the form of cash in an amount equal to the price determined as set forth above and (B) MTVN Sub,
shall be subject, on a several and not a joint basis, to the same representations and warranties
(but only to its knowledge with respect to matters relating to the Company, it being agreed that
the




49









 







associated indemnity obligation shall be the same as that of RN Sub), indemnities (in any
event not to exceed the value of consideration to be received by MTVN Sub and its Affiliates),
holdback and escrow provisions, if any, and any similar components of the Drag-Along Terms to which
RN Sub is subject and which have been disclosed as part of the Drag-Along Notice to the extent
known at the time of the giving such Drag-Along Notice, provided, however, that
neither MTVN Sub nor MTVN Parent nor any of their respective Affiliates shall be subject to any
non-competes, exclusivities or other restrictions on, or agreements relating to, the businesses of
MTVN Parent or any of its Affiliates. MTVN Sub shall make its election as to form of consideration
by written notice to RN Sub within 10 Business Days after receipt of the Drag-Along Notice. At the
closing of such Transfer (which anticipated date, place and time shall be designated in the
Drag-Along Terms), each of MTVN Sub and RN Sub shall deliver an assignment agreement Transferring
all of its and its Affiliates’ respective Interests, duly executed by MTVN Sub or RN Sub and their
respective applicable Affiliates, as applicable, free and clear of any Liens, against delivery of
the respective purchase price therefor.




          (e) Each party shall bear its own expenses in connection with a Transfer pursuant to this
Section 10.05.




ARTICLE XI




Limitation on Liability, Exculpation




          SECTION 11.01. Limitation on Liability. 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 Covered Person shall be obligated personally for any such
debt, obligation or liability of the Company; provided, however, that the foregoing
shall not alter any Member’s obligation to make Contributions pursuant to Article IV or Article IX
when and to the extent the same shall become due pursuant thereto or any Member’s obligation to
return funds wrongfully distributed to it. Notwithstanding the foregoing, nothing in this
Article XI shall alter or reduce a current or former employee’s obligations or liabilities to the
Company under any employment, non-compete, non-solicitation, or other agreement related to such
Person’s current or former employment by the Company.




          SECTION 11.02. Exculpation of Covered Persons. (a) Except as expressly provided
herein, to the fullest extent permitted by applicable law (including Section 18-1101 of the
Delaware Act), no Covered Person shall be liable, including under any legal or equitable theory of
fiduciary duty or other theory of liability, to the Company or to any other Covered Person for any
losses, claims, damages or liabilities incurred by reason of any act or omission performed or
omitted by such Covered Person on behalf of the Company arising from, related to, or in connection
with, this Agreement or the Company’s business or affairs, except for any losses, claims, damages
or liabilities arising from such Covered Person’s fraud, bad faith, or wilful misconduct.




          (b) Whenever in this Agreement a Member or Member Representative is permitted or required to
make decisions, such Member or Member Representative may




50









 







make such decisions with regard to the interests of the Company or the interests of a Member
and its Affiliates, as such Person may determine in its sole discretion, and such Person shall not
be subject to any other or different standard (including any legal or equitable standard of
fiduciary or other duty) imposed by this Agreement or any relevant provisions of law or in equity
or otherwise. The provisions of this Agreement, to the extent that they restrict or eliminate the
duties and liabilities of a Member or Member Representative otherwise existing at law or in equity,
are agreed by the parties hereto to replace such other duties and liabilities of such Member or
Member Representative.




          (c) Officers and employees of the Company shall be expected to perform their duties and make
decisions in furtherance of the best interests of the Company, regardless of whether such officers
or employees are designated by a particular Member. Such officers and employees shall be subject
to (i) the same fiduciary duties of care and loyalty as are employees and officers of corporations
under the law of the State of Delaware and (ii) notwithstanding the provisions of Section 11.02(a),
liability for losses, claims, damages or liabilities arising from such person’s gross negligence in
the performance of such duties (in addition to any liabilities arising from such person’s fraud,
bad faith or wilful misconduct).




          (d) A Covered Person shall be fully protected in relying in good faith upon the records of
the Company and upon such information, opinions, reports or statements presented to the Company,
the Joint Committee or management of the Company by any Person as to matters the Covered Person
reasonably believes are within such Person’s professional or expert competence.




          SECTION 11.03. Renunciation of Corporate Opportunities. (a) If any Member or any
employee, officer, director, agent, stockholder, member, manager, partner or Affiliate of any of
the foregoing (other than an employee or officer of the Company) acquires knowledge of a potential
transaction or matter which may be a Corporate Opportunity or otherwise is then exploiting any
Corporate Opportunity, the Company shall have no interest in such Corporate Opportunity and no
expectancy that such Corporate Opportunity be offered to the Company, any such interest or
expectancy being hereby renounced, so that, as a result of such renunciation, and for the avoidance
of doubt, such Person (i) shall have no duty to communicate or present such Corporate Opportunity
to the Company, (ii) shall have the right to hold any such Corporate Opportunity for its (and/or
its officers’, directors’, agents’, stockholders’, members’, managers’, partners’ or Affiliates’)
own account or to recommend, sell, assign or transfer such Corporate Opportunity to Persons other
than the Company or any subsidiary of the Company and (iii) shall not breach any fiduciary or other
duty to the Company, in such Person’s capacity as a Member or otherwise, by reason of the fact that
such Person pursues or acquires such Corporate Opportunity for itself, directs, sells, assigns or
transfers such Corporate Opportunity to another Person, or does not communicate information
regarding such Corporate Opportunity to the Company.




          (b) Notwithstanding the provisions of this Section 11.03, the Company does not renounce any
interest or expectancy it may have in any Corporate Opportunity that is offered to an employee or
officer of the Company who is also a director, officer or




51









 







employee of any Member or their respective Affiliates if such opportunity is expressly offered
to such Person in his or her capacity as an employee or officer of the Company.




          (c) Except as otherwise expressly provided in any other agreement to which the Members may be
a party, (i) the Members and their employees, officers, directors, agents, stockholders, members,
managers, partners and Affiliates may engage or invest in, independently or with others, any
business activity of any type or description, including those that might be the same as or similar
to the Company’s business or the business of any subsidiary of the Company, (ii) none of the
Company, any subsidiary of the Company or any Person Beneficially Owning Interests shall have any
right in or to such business activities or ventures or to receive or share in any income or
proceeds derived therefrom and (iii) to the extent required by applicable law in order to
effectuate the purpose of this Section 11.03, the Company shall have no interest or expectancy, and
specifically renounces any interest or expectancy, in any such business activities or ventures.




          SECTION 11.04. Indemnification. (a) The Company shall, to the fullest extent
permitted under the Delaware Act as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the Company to provide
broader indemnification rights than said law permitted the Company to provide prior to such
amendment), indemnify and hold harmless each Covered Person (and the Company shall be authorized
with approval of the Joint Committee in accordance with Section 9.02(c) to indemnify any employee
of the Company or any subsidiary of the Company) against all losses, claims, damages, liabilities
and expenses (including attorneys’ fees, judgments, fines or penalties and amounts paid or to be
paid in settlement) incurred or suffered by him or her arising from any threatened, pending or
completed action, suit, investigation or proceeding relating to the Company’s business and affairs,
except (i) for direct or derivative claims of the Company or any of its subsidiaries against such
Covered Person or claims of a Member against such Covered Person or (ii) where such losses, claims,
damages, liabilities or expenses resulted from the fraud, bad faith or wilful misconduct of such
indemnified Person or a breach by such indemnified Person of the covenants and express obligations
set forth in this Agreement or the representations, warranties, covenants or obligations set forth
in any other Transaction Document. The right to indemnification conferred in this Agreement shall
be a contract right and shall include the right to be paid by the Company, the expenses (including
attorney’s fees) incurred in defending any such proceeding in advance of its final disposition,
such advances to be paid by the Company within 20 days after the receipt by the Company of a
statement or statements from the claimant requesting such advance or advances from time to time,
subject to the Company’s receipt of a written undertaking of the indemnified Person to repay any
such advances if it shall be finally judicially determined that such Person was not entitled to be
indemnified by the Company in connection with such suit, investigation or proceeding.




          (b) The obligations of the Company under this Section 11.04 shall be satisfied solely out of
and to the extent of the Company’s assets, and no Covered Person shall have any personal liability
on account thereof.





52












 





          (c) The Company may maintain insurance, at its expense, to protect itself and any Member,
Member Representative, officer, employee or agent of the Company or another limited liability
company, corporation, partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Company would have the power to indemnify such Person against
such expense, liability or loss under the Delaware Act.




ARTICLE XII




Defaults; Withdrawal; Bankruptcy of a Member




          SECTION 12.01. Events of Default. (a) An “Event of Default” with respect to
a Member shall include:





     (i) a Transfer by such Member of its Interests other than in accordance with this
Agreement;




     (ii) a Contribution Default of such Member;




     (iii) the Bankruptcy of such Member or its Parent; and




     (iv) any material breach by such Member of a material provision of this Agreement that
remains uncured for a period of 30 days after written notice from the Company or the other
Member specifying in detail the nature of such breach.



          (b) Upon and during the continuance of an Event of Default with respect to a Member (a
“Defaulting Member”), such Defaulting Member shall lose its rights to vote with respect to
decisions requiring approval of the Joint Committee and its rights of Unanimous Approval pursuant
to Section 9.03, other than (A) its right to approve amendments to this Agreement that would (x)
impose new obligations or liabilities on such Defaulting Member or the Parent of such Defaulting
Member or any of their Affiliates or (y) have a disproportionately adverse effect on the rights of
such Defaulting Member under this Agreement relative to the effect of such amendment on the other
Member and (B) its right to approve matters described in Section 10.01(e).




          (c) The rights and remedies referred to in this Section 12.01 shall be in addition to, and not
in limitation of, any other rights or remedies available to any non-defaulting Member or the
Company under this Agreement or at law or in equity.




          SECTION 12.02. Events of Withdrawal. Except as otherwise provided in this Agreement,
no Member shall withdraw from the Company.




ARTICLE XIII




Dissolution and Termination




          SECTION 13.01. Dissolution. (a) The Company shall not be dissolved by the admission
of Additional Members or Substitute Members pursuant to Section 4.02.




53









 








          (b) Subject to Section 12.02, no Member shall withdraw from the Company and, to the fullest
extent permitted by applicable law, no Member shall take any action to dissolve, terminate or
liquidate the Company or to require apportionment, appraisal or partition of the Company or any of
its assets, or to file a bill for an accounting, except as specifically provided in this Agreement,
and each Member, to the fullest extent permitted by applicable law, hereby waives any rights to
take any such actions (or have such actions taken on its behalf) under applicable law, including
any right to petition a court for judicial dissolution under Section 18-802 of the Delaware Act.




          (c) The Company shall be dissolved and its business wound up upon the earliest to occur of any
one of the following events:





     (i) the sale or other disposition of all or substantially all the assets of the
Company;




     (ii) at the time there are no Members;




     (iii) the written agreement of all the Members;




     (iv) the entry of a decree of judicial dissolution under Section 18-802 of the
Delaware Act, in contravention of this Agreement;




     (v) the Bankruptcy, insolvency or dissolution of a Member or the occurrence of any
other event that terminates the continued membership of a Member (in either case, the
“Bankrupt Member”), unless RN Sub, if MTVN Sub is the Bankrupt Member, or MTVN Sub,
if RN Sub is the Bankrupt Member, or each of RN Sub and MTVN Sub, if any other Member is
the Bankrupt Member, agrees to continue the Company within 90 days of such Bankruptcy,
insolvency or dissolution or unless each of the other Members agrees to continue the
Company within 90 days of such Bankruptcy, insolvency or dissolution; and




     (vi) the end of the Term.



          SECTION 13.02. Winding Up of the Company. (a) Upon dissolution, the Company’s
business shall be liquidated in an orderly manner. Members holding a majority of the Interests may
approve one or more liquidation trustees to act as the liquidation trustee in carrying out such
liquidation. In performing its duties, the liquidation trustee is authorized to sell, distribute,
exchange or otherwise dispose of the assets of the Company in accordance with the Delaware Act and
in any reasonable manner that the liquidation trustee shall determine to be in the best interest of
the Members with the goal of maximizing the proceeds to the Members.




          (b) The proceeds of the liquidation of the Company shall be distributed in the following order
and priority:





     first, to the creditors (including any Members or their respective
Affiliates that are creditors) of the Company in satisfaction of all of the
Company’s liabilities (whether by payment or by making reasonable



54









 






provision for payment thereof, including the setting up of any reserves which
are, in the judgment of the liquidation trustee, reasonably necessary therefor);
and




(i) second, to the Members on a pro rata basis.




(c) Upon liquidation, the License and Services Agreements shall be terminated.



          SECTION 13.03. Distribution of Property. In the event it becomes necessary in
connection with the liquidation of the Company to make a distribution of property in kind, subject
to the priority set forth in Section 13.02, the liquidation trustee shall have the right to compel
each Member to accept a distribution of any asset in kind, so long as the portion of such asset to
be distributed is determined based upon the amount of cash that would be distributed to such Member
if such property were sold for an amount of cash equal to the fair market value of such property,
as determined by the liquidation trustee in good faith.




          SECTION 13.04. Claims of Members. No Member shall have a right to demand a return of
any Contribution made pursuant to this Agreement or the Transaction Agreement.




          SECTION 13.05. Termination. The Company shall terminate when all of the assets of the
Company, after payment of or reasonable provision for the payment of all debts and liabilities of
the Company, shall have been distributed to the Members in the manner provided for in this Article
XIII and when permitted by this Agreement, and the certificate of formation of the Company shall
have been canceled in the manner required by the Delaware Act.




ARTICLE XIV




Miscellaneous




          SECTION 14.01. Notices. Except as otherwise expressly provided in this Agreement, all
notices, requests and other communications to any party hereunder shall be in writing (including a
facsimile or similar writing) and shall be given to such party at the address or facsimile number
set forth for such party in Schedule 7 hereto or as such party shall hereafter specify for the
purpose by notice to the other parties. Each such notice, request or other communication shall be
effective (i) if given by facsimile, at the time such facsimile is transmitted and the appropriate
confirmation is received (or, if such time is not during a Business Day, at the beginning of the
next such Business Day), (ii) if given by mail, five Business Days (or, (x) if by overnight
courier, one Business Day, or (y) if to an address outside the United States, seven Business Days)
after such communication is deposited in the mails with first-class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered at the address specified pursuant
to this Section 14.01.




55









 








          SECTION 14.02. No Third Party Beneficiaries. This Agreement shall be binding upon and
inure to the benefit of all the parties hereto and their successors and assigns, and their legal
representatives. No Member may assign this Agreement or any of its rights, interests or
obligations in connection with a Transfer of Interests hereunder except to the extent such rights,
interests and obligations relate to Interests and the Transfer of such Interests is in accordance
with this Agreement and is provided for or contemplated herein. Except as provided in Article XI,
this Agreement is not intended to confer any rights or remedies hereunder upon, and shall not be
enforceable by, any Person other than the parties hereto.




          SECTION 14.03. Waiver. No failure by any party to insist upon the strict performance
of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy
consequent upon a breach of such or any other covenant, agreement, term or condition shall operate
as a waiver of such or any other covenant, agreement, term or condition of this Agreement. Any
party by notice given in accordance with Section 14.01 may, but shall not be under any obligation
to, waive any of its rights or conditions to its obligations hereunder, or any duty, obligation or
covenant of any other party. No waiver shall affect or alter the remainder of this Agreement but
each and every covenant, agreement, term and condition hereof shall continue in full force and
effect with respect to any other then existing or subsequent breach. The rights and remedies
provided by this Agreement are cumulative and the exercise of any one right or remedy by any party
shall not preclude or waive its right to exercise any or all other rights or remedies.




          SECTION 14.04. Integration. This Agreement, the other Transaction Documents and all
other written agreements contemporaneously entered into herewith by the parties constitute the
entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all
prior agreements and understandings of the parties in connection herewith, and no covenant,
representation or condition not expressed in this Agreement shall affect, or be effective to
interpret, change or restrict, the express provisions of this Agreement.




          SECTION 14.05. Headings. The titles of Articles and Sections of this Agreement are
for convenience only and shall not be interpreted to limit or amplify the provisions of this
Agreement.




          SECTION 14.06. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which, taken together, shall constitute one
and the same instrument and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties.




          SECTION 14.07. Severability. Each provision of this Agreement shall be considered
separable and if for any reason any provision or provisions hereof are determined to be invalid and
contrary to any existing or future law, such invalidity shall not impair the operation of or affect
those portions of this Agreement which are valid; provided, however, that in such
case the Members shall endeavor to amend or modify this




56









 







Agreement to achieve to the extent reasonably practicable the purpose of the invalid
provision.




          SECTION 14.08. Amendments and Modifications. Subject to Section 3.02(a), this
Agreement may be amended or modified at anytime and from time to time with Unanimous Approval in
accordance with Section 9.03 and subject to Section 12.01(b) and shall be set forth in a written
instrument executed by each party to be bound (subject to Section 12.01(b)).




          SECTION 14.09. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the conflicts of law
principles thereof.




          SECTION 14.10. Dispute Resolution. Any and all disputes arising out of or relating to
any aspect of this Agreement shall be resolved pursuant the provisions set forth in Schedule 9.




          SECTION 14.11. Waiver of Jury Trial. Each of the parties to this Agreement
irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated by this Agreement.




          SECTION 14.12. Confidentiality. Each Member expressly acknowledges that such Member
may receive confidential and proprietary information relating to the Company, including information
relating to the Company’s financial condition and business plans, and that the disclosure of such
confidential information to a third party would cause irreparable injury to the Company. Except
with the prior written consent of the Company, no Member shall disclose any such information to a
third party (other than on a “need to know” basis to any Affiliate or any employee, agent,
representative or contractor of such Member or its Affiliates), and each Member shall use
reasonable efforts to preserve the confidentiality of such information. The obligations of a
Member under this Section 14.12 shall survive the termination of this Agreement or cessation of a
Member’s status as a Member for a period of two years. Information exchanged between Members shall
be non-confidential unless exchanged pursuant to a separate confidentiality agreement executed
between such Members. Notwithstanding the foregoing, a Member shall not be bound by the
confidentiality obligations in this Section 14.12 with respect to any information that is currently
or becomes (a) required to be disclosed by such Member pursuant to applicable law, including
Federal or state securities laws, or a domestic national securities exchange rule (but in each case
only to the extent of such requirement), (b) required to be disclosed in order to protect such
Member’s Interests or enforce such Member’s rights under this Agreement (but in each case only to
the extent of such requirement and only after consultation with the Company), (c) publicly known or
available in the absence of any improper or unlawful action on the part of such Member or (d) known
or available to such Member via legitimate means other than through or on behalf of the Company or
the other Members.




57









 








          SECTION 14.13. Publicity. Neither the Company nor any Member shall issue any public
release or make any press statement about the Company, its business or the other transactions
contemplated thereby without the consent of each Member, except as otherwise required by applicable
law or a domestic national securities exchange rule.




          SECTION 14.14. Absence of Presumption. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement and, in the event of ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted jointed by such
parties and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.




          SECTION 14.15. Expenses. Each Member shall be responsible for its own expenses
incurred in connection with this Agreement, other than reasonable out-of-pocket expenses of the Tax
Matters Member pursuant to 7.03(c) which shall be borne by the Company.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




58









 





          IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day
and year first above written.




	 	 	 	 	 	 	 
	 	 	RealNetworks, Inc.,
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	 
	 

	 	 	 	 	 	     /s/ ROBERT GLASER
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Robert Glaser
	 

	 	 	 	 	 	Title: Chief Executive Officer
	 
	 	 	 	 	 	 
	 	 	RealNetworks Digital Music of California, Inc,
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	 
	 

	 	 	 	 	 	     /s/ ROBERT GLASER
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Robert Glaser
	 

	 	 	 	 	 	Title: President & CEO
	 
	 	 	 	 	 	 
	 	 	Viacom International Inc.,
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	 
	 

	 	 	 	 	 	     /s/ MICHAEL D. FRICKLAS
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Michael D. Fricklas
	 

	 	 	 	 	 	Title: Executive Vice President,
 General Counsel and Secretary
	 
	 	 	 	 	 	 
	 	 	DMS Holdco Inc.,
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	 
	 

	 	 	 	 	 	     /s/ MICHAEL D. FRICKLAS
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Michael D. Fricklas
	 

	 	 	 	 	 	Title: Executive Vice President






59









 






SCHEDULE 9




DISPUTE RESOLUTION




Article I



Dispute Resolution. (a) Any and all disputes arising out of or relating to any provision
of this Agreement, except as set forth in paragraph (g), shall be resolved exclusively pursuant to
arbitration conducted in Seattle, Washington and administered by JAMS or any successor entity
thereto (“JAMS”), in accordance with its Comprehensive Rules and Procedures (“JAMS Rules”) as
modified by the provisions herein. The arbitration shall be conducted by a panel of three (3)
arbitrators (the “panel”). Each party shall select one arbitrator (a “party arbitrator”) and the
two party arbitrators shall select a third arbitrator, who will be the Chairperson. The persons
considered for selection as arbitrators hereunder shall not be limited to persons identified by
JAMS. All three arbitrators shall be neutral and independent of the appointing party. There shall
be no ex parte communications with the party arbitrators after the first organizational meeting.
The confidentiality of all proceedings related to any arbitration shall be strictly maintained, as
shall the confidentiality of any documents, deposition testimony, or other information exchanged in
relation to the arbitration proceedings (except as information may be required in any judicial
proceeding brought to enforce these arbitration provisions or any award rendered hereunder).



(b) Without limiting the generality of paragraph (a), it is understood that this Article does not
apply to any disputes concerning intellectual property rights, other than to disputes arising out
of any express grant or license of any intellectual property rights owned or controlled by any of
the parties to this Agreement and made or allegedly made to one another or to the Company pursuant
to any of the transaction documents entered into in connection with the creation of the Company,
including but not limited to disputes relating to the scope, nature or duration of such grant or
license, whether there has been a grant or license of certain intellectual property rights, and/or
the applicable terms, conditions, limitations, representations and warranties and indemnities
relating to or arising from any such grant or license, all of which disputes, for the avoidance of
doubt, shall be subject to arbitration pursuant to the terms hereof.



(c) Prior to commencing arbitration, a party shall deliver notice of the applicable dispute to the
other parties and the parties shall meet and discuss possible resolution of such dispute. Within
thirty (30) days of delivery of notice of a dispute, senior executives of the MTVN Music Group and
RN Parent shall meet and attempt to negotiate a resolution. After notice and the expiration of
such thirty (30) day period either party may commence arbitration.



(d) The panel shall be requested to use reasonable efforts to render its decision and award within
six (6) months of the first organizational meeting. The panel shall allow reasonable discovery,
relevant to the issues before it, subject to the goal of completing the proceedings within the
specified time frame. Except with respect to custodial depositions, depositions shall be limited
to a maximum total number of fifty hours for each party, except in extraordinary cases. The
decision of the panel shall be final.




 









 








SCHEDULE 9



(e) The panel shall render findings of fact and conclusions of law and a written opinion setting
forth the basis and reasons for any decision reached. In rendering an award, the panel shall
determine the rights and obligations of the parties according to the substantive laws of the State
of Delaware and of the United States.



(f) The panel shall have the authority to grant any equitable or legal relief that would be
available in any judicial proceeding instituted to resolve the disputed matter, including interim
relief, but the panel shall not have the authority to grant any remedies the parties have waived in
the Agreement or to award punitive or exemplary damages. The panel shall have the authority to
award costs, including reasonable attorneys fees, of any arbitration.



(g) Each of the parties agrees that it will not bring any action relating to the interpretation,
application or enforcement of the provisions of this Article or seeking emergency or temporary
relief prior to appointment of the panel in any court other than a Federal or state court sitting
in the State of Delaware, and the laws of the State of Delaware shall apply to any such action.
With respect to any such action, each of the parties hereby consents to and submits itself and its
property to the personal jurisdiction of any Federal or state court located in the State of
Delaware. Each of the parties hereby waives any rights such party may have to personal service of
a summons, complaint or other process in connection with such an action and agrees that service may
be made by registered or certified mail addressed to such party and sent in accordance with the
provisions of this Agreement. The parties acknowledge and agree that upon appointment of the
panel, it shall have the exclusive authority to grant relief.



(h) The parties hereby also consent to the personal jurisdiction of any Federal or state court in
the County of New York or in Seattle, Washington, for the purpose of confirming any award and
entering judgment thereon. The parties hereby waive any and all objections that they may have as
to jurisdiction or venue in any of such courts.