exv4w1





Exhibit 4.1


Execution Version


AMENDED AND RESTATED SHAREHOLDER AGREEMENT


dated as of February 25, 2009


among


ValueVision Media, Inc.


GE Capital Equity Investments, Inc.


and


NBC Universal, Inc.


 








 








AMENDED AND RESTATED SHAREHOLDER AGREEMENT




          AMENDED AND RESTATED SHAREHOLDER AGREEMENT, dated as of February 25, 2009, (this “Agreement”)
among ValueVision Media, Inc., a Minnesota corporation (together with its successors, the
“Company”), GE Capital Equity Investments, Inc., a Delaware corporation (together with its
successors, “GE Capital Equity Investments”), and NBC Universal, Inc., a Delaware corporation
(together with its successors, “NBC”).



W I T N E S S E T H :




          WHEREAS, the Company and GE Capital Equity Investments entered into an Investment Agreement
dated as of March 8, 1999, as amended by the First Amendment and Agreement, dated as of April 15,
1999, pursuant to which GE Capital Equity Investments purchased shares of Series A Redeemable
Convertible Preferred Stock (the “Series A Preferred Stock”) and a warrant to purchase Common Stock
of the Company (which warrant is no longer outstanding);



          WHEREAS, the Company and GE Capital Equity Investments have entered into an Exchange Agreement
dated as of the date hereof (the “Exchange Agreement”), pursuant to which GE Capital Equity
Investments has agreed to exchange its shares of Series A Preferred Stock for shares of Series B
Redeemable Preferred Stock (the “Series B Preferred Stock”) and a warrant to purchase shares of
Common Stock of the Company (the “2009 Warrant”);



          WHEREAS; the Company and NBC, an Affiliate of the Investor as of March 8, 1999, entered into
the Distribution Agreement (as defined below), pursuant to which the Company agreed to issue to NBC
or its designee (i) warrants to purchase 1,450,000 shares of Common Stock of the Company (which
warrants are no longer outstanding) and (ii) at agreed upon times and subject to the satisfaction
of certain conditions contained therein, additional warrants to purchase Common Stock of the
Company (the “Bonus Distributor Warrants”);



          WHEREAS, this Agreement amends, restates and supersedes all prior agreements and
understandings between the Company, GE Capital Equity Investments and NBC or any of them, including
their respective predecessors, with respect to shareholder rights and if any provision of this
Agreement relating to shareholder rights conflicts, or is inconsistent, with the Shareholder
Agreement, dated as of April 15, 1999 among the Company, GE Capital Equity Investments and NBC, as
amended by Amendment No. 1 to the Shareholder Agreement, dated March 19, 2004 among the Company, GE
Capital Equity Investments and NBC, this Agreement shall control;



          WHEREAS, the execution and delivery of this Agreement by the parties hereto is a condition to
the closing of the transactions contemplated by the Exchange Agreement; and



          WHEREAS, the parties hereto deem it in their best interests and in the best interests of the
Company to provide for certain matters with respect to the



 









 







governance of the Company and desire to enter into this Agreement in order to effectuate that
purpose.



          NOW, THEREFORE, in consideration of the mutual agreements and understandings set forth herein,
the parties hereto hereby agree as follows:



ARTICLE I — DEFINITIONS




          Section 1.01. Definitions. As used in this Agreement, the following terms shall have
the meanings set forth below:



          “Adjusted Outstanding Common Stock” shall mean, at any time, the total number of shares of
outstanding Common Stock at such time; provided that for purposes of such calculation (a) to the
extent that Bonus Distributor Warrants have been issued and are outstanding (and only to such
extent), all shares of Common Stock issuable upon the exercise of such issued and outstanding Bonus
Distributor Warrants (whether such Bonus Distributor Warrants are vested or unvested) shall be
considered outstanding and (b) the maximum number of shares of Common Stock then issuable upon
exercise of the 2009 Warrants shall be considered outstanding. For the avoidance of doubt, the
calculation of Adjusted Outstanding Common Stock shall not include the Series B Preferred Stock.



          “Affiliate” shall mean, with respect to any Person, any other Person that directly or
indirectly controls, is controlled by, or is under common control with, such Person. As used in
this definition, “control” (including its correlative meanings, “controlled by” and “under common
control with”) shall mean the possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise).



          “Agreement” shall mean this Agreement as in effect on the date hereof and as hereafter from
time to time amended, modified or supplemented in accordance with the terms hereof.



          “Beneficially Own” shall have the meaning set forth in Rule 13d-3 under the Exchange Act,
except that a Person shall be deemed to “Beneficially Own” all securities that such Person has a
right to acquire, whether such right is exercisable immediately or only after the passage of time
(and without any additional condition), provided that a Person shall not be deemed to “Beneficially
Own” any shares of Common Stock which are issuable upon exercise of any Bonus Distributor Warrants
unless and until such Bonus Distributor Warrants are actually issued and outstanding (at which time
such Person shall be deemed to Beneficially Own all shares of Common Stock which are issuable upon
exercise of such Bonus Distributor Warrants, whether or not they are vested or unvested). When
calculating Beneficial Ownership on any particular date, the 2009 Warrants will be deemed to
represent Beneficial Ownership of the maximum number of shares of Common Stock that could be
acquired upon exercise of the 2009 Warrants on such date.



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          “Board of Directors” shall mean the Board of Directors of the Company as from time to time
hereafter constituted.



          “Business Day” shall mean any day, other than a Saturday, Sunday or a day on which commercial
banks in New York, New York are authorized or obligated by law or executive order to close.



          “Certificate of Designation” shall mean the Certificate of Designation of the Series B
Preferred Stock, filed with the Secretary of State of the State of Minnesota on or prior to the
date hereof.



          “Change in Control of the Company” shall mean any of the following: (i) a merger,
consolidation or other business combination or transaction to which the Company is a party if the
shareholders of the Company immediately prior to the effective date of such merger, consolidation
or other business combination or transaction, as a result of such merger, consolidation or other
business combination or transaction, do not have Beneficial Ownership of voting securities
representing 50% or more of the Total Current Voting Power of the surviving corporation following
such merger, consolidation or other business combination or transaction; (ii) an acquisition by any
Person (other than the Restricted Parties and their Affiliates or any 13D Group to which any of
them is a member) of Beneficial Ownership of Voting Stock of the Company representing 25% or more
of the Total Current Voting Power of the Company, (iii) a sale of all or substantially all the
consolidated assets of the Company to any Person or Persons (other than Restricted Parties and
their Affiliates or any 13D Group to which any of them is a member); or (iv) a liquidation or
dissolution of the Company.



          “Common Stock” shall mean the common stock, par value $0.01 per share, of the Company and any
securities of the Company into which such Common Stock may be reclassified, exchanged or converted.



          “Company” shall have the meaning set forth in the preamble hereto.



          “Designee” shall have the meaning set forth in Section 2.01(b).



          “Disinterested Shareholders” shall mean any shareholder of the Company who is not a Restricted
Party or an Affiliate of a Restricted Party or a member of a 13D Group in which a Restricted Party
or an Affiliate of a Restricted Party is also a member.



          “Distribution Agreement” shall mean the Distribution and Marketing Agreement dated March 8,
1999 between the Company and NBC pursuant to which NBC has agreed to distribute certain programing
of the Company, as such agreement may be amended from time to time.



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



          “GAAP” shall mean generally accepted accounting principles in the United States of America in
effect from time to time.



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          “GE Capital” shall mean General Electric Capital Corporation, a New York corporation, together
with its successors by operation of law.



          “Independent Expert” shall mean an investment banking firm mutually acceptable to the Company
and the Investor.



          “Investor” shall mean GE Capital Equity Investments, a wholly-owned Subsidiary of GE Capital
as of the date hereof and an Affiliate of NBC as of the date hereof, together with its permitted
assigns pursuant to Section 6.06.



          “Investor Tender Offer” shall mean a bona fide public tender offer subject to the provisions
of Regulation 14d under the Exchange Act, by a Restricted Party (or any 13D Group that includes a
Restricted Party) to purchase or exchange for cash or other consideration any Voting Stock and
which consists of an offer to acquire 100% of the Total Current Voting Power of the Company then in
effect (other than Voting Stock owned by Restricted Parties or any Affiliate of a Restricted Party)
and is conditioned (which condition may not be waived) on a majority of the shares of Voting Stock
held by Disinterested Shareholders being tendered and not withdrawn with respect to such offer.



          “Lien” shall mean any mortgage, pledge, hypothecation, assignment, encumbrance, lien
(statutory or other) or security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement or any financing lease having
substantially the same effect as any of the foregoing).



          “Market Capitalization” shall mean the aggregate Market Price of the outstanding capital stock
of the Company.



          “Market Price” shall mean, with respect to a share of capital stock on any day, except as set
forth below in the case that the shares of such capital stock are not publicly held or listed, the
average of the “quoted prices” of such capital stock for 30 consecutive Trading Days commencing 45
Trading Days before the date in question. The term “quoted prices” of capital stock shall mean the
last reported sale price on that day or, in case no such reported sale takes place on such day, the
average of the last reported bid and asked prices, regular way, on that day, in either case, as
reported in the consolidated transaction reporting system with respect to securities quoted on
Nasdaq or, if shares of such capital stock are not quoted on Nasdaq, as reported in the principal
consolidated transaction reporting system with respect to securities listed on the principal
national securities exchange on which shares of such capital stock are listed or admitted to
trading or, if shares of such capital stock are not quoted on Nasdaq and not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices on such other nationally recognized quotation system
then in use, or, if on any such day shares of such capital stock are not quoted on any such
quotation system, the average of the closing bid and asked prices as furnished by a professional
market maker selected by the Board of Directors making a market in the shares of such capital
stock. Notwithstanding the foregoing, if shares of such capital stock are not publicly held or so
listed, quoted or



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publicly traded, the “Market Price” shall mean the fair market value of a share of such
capital stock, as determined in good faith by the Board of Directors; provided, however, that if
the Investor shall dispute the fair market value as determined by the Board of Directors, the
Investor and the Company shall retain an Independent Expert. The determination of fair market value
by the Independent Expert shall be final, binding and conclusive on the Company and the Investor.
All costs and expenses of the Independent Expert shall be borne by the Investor unless the
determination of fair market value is more favorable to such Investor by 5% or more, in which case,
all such costs and expenses shall be borne by the Company.



          “Material Agreement” shall mean any contract, lease, restriction, agreement, instrument or
commitment to which the Company or any Subsidiary of the Company is a party or by which its
properties are bound (i) which provides a benefit to the Company or any of its Subsidiaries of, or
commits the Company or any Subsidiary of the Company to expend, $500,000 or more (or, in the case
of any agreement with any customer of the Company or any Company Subsidiary of the Company, $50,000
or more), (ii) which if breached by any party thereto would result in liability or loss to the
Company and its Subsidiaries of $500,000 or more (or in the case of any agreement with any customer
of the Company or any Subsidiary of the Company, $50,000 or more) or (iii) which provides for the
distribution of programming of the Company to more than 250,000 full-time equivalent homes by any
multichannel video programming distributor, including without limitation, by a cable television
system, MATV and SMATV systems, MMDS, TVRO and other wireline, wireless or direct broadcast
satellite delivery methods.



          “Material Subsidiaries” shall mean those Subsidiaries of the Company that constitute
“significant subsidiaries” as defined in Rule 1-02 of Regulation S-X under the Securities Act.



          “Material Transaction” shall mean (i) the direct or indirect acquisition or purchase of 5% or
more of the assets (based on the fair market value thereof) of the Company and its Subsidiaries,
taken as a whole, or of 5% or more of any class of equity securities of the Company or any of its
Subsidiaries or any tender offer or exchange offer (including by the Company or its Subsidiaries)
that if consummated would result in any Person beneficially owning 5% or more of any class of
equity securities of the Company or any of its Subsidiaries, or (ii) any merger, consolidation,
business combination, sale of all or substantially all assets, recapitalization, liquidation,
dissolution or similar transaction involving the Company or any of its Subsidiaries other than the
transactions contemplated by the Exchange Agreement or this Agreement.



          “NBC” shall mean NBC Universal, Inc., a Delaware corporation and Affiliate of the Investor as
of the date hereof and a Subsidiary of General Electric Company as of the date hereof, together
with its successors by operation of law.



          “NBC Restricted Person” shall mean each of the Persons listed on Annex A hereto together with
their respective Affiliates.



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          “Options” shall mean stock options to purchase Common Stock.



          “Permitted Liens” shall mean (i) mechanics’, carriers’, repairmen’s or other like Liens
arising or incurred in the ordinary course of business, (ii) Liens arising under original purchase
price conditioned sales contracts and equipment leases with third parties entered into in the
ordinary course of business consistent with past practice, (iii) statutory Liens for Taxes not yet
due and payable and (iv) other encumbrances or restrictions or imperfections of title which do not
materially impair the continued use and operation of the assets to which they relate.



          “Person” shall mean an individual, corporation, unincorporated association, partnership, group
(as defined in Section 13(d)(3) of the Exchange Act), trust, joint stock company, joint venture,
business trust or unincorporated organization, limited liability company, any governmental entity
or any other entity of whatever nature.



          “Registration Rights Agreement” shall mean the Amended and Restated Registration Rights
Agreement dated as of the date hereof between the Company, NBC and GE Capital Equity Investments,
as it may be amended from time to time.



          “Representatives” shall mean, with respect to any Person, such Person’s directors, officers,
employees, agents and other representatives acting in such capacity.



          “Restricted Parties” shall mean each of (i) NBC, its Ultimate Parent Entity (if any), each
Subsidiary of NBC and each Subsidiary of its Ultimate Parent Entity, (ii) GE Capital, its Ultimate
Parent Entity (if any), each Subsidiary of GE Capital and each Subsidiary of its Ultimate Parent
Entity and (iii) any Affiliate of any Person that is a Restricted Party if (and only if) such
Restricted Party has the right or power (acting alone or solely with other Restricted Parties) to
either cause such Affiliate to comply with or prevent such Affiliate from not complying with all of
the terms of this Agreement that are applicable to Restricted Parties.



          “SEC” shall mean the United States Securities and Exchange Commission.



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



          “Series A Preferred Stock” shall have the meaning set forth in the recitals hereto.



          “Series B Preferred Stock” shall have the meaning set forth in the recitals hereto.



          “Standstill Limit” means Beneficial Ownership of 39.9% of the Adjusted Outstanding Common
Stock.



          “Standstill Period” shall mean the period beginning on April 15, 1999 and ending on the
occurrence of a Standstill Termination Event, provided that the Standstill



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Period shall recommence immediately upon the occurrence of a Standstill Reinstatement Event.



          “Standstill Reinstatement Event” shall mean the occurrence of any of the following (a) the
Standstill Period has terminated pursuant to clause (iii) of the definition of “Standstill
Termination Event” and such Third Party Tender Offer is withdrawn or terminated (without having
been consummated) at any time during which an Investor Tender Offer is not then pending (unless the
party that commenced such Investor Tender Offer determines to terminate such Investor Tender Offer
in accordance with Section 4.01(f), in which event a Standstill Reinstatement Event shall occur at
the time of such termination), or (b) the Standstill Period has terminated pursuant to clause (iv)
of the definition of “Standstill Termination Event” due to a Change in Control of the Company
identified in clause (ii) of the definition thereof and, within twelve months after the occurrence
of such Change in Control of the Company, the Person whose Beneficial Ownership of Voting Stock
triggered such Change in Control of the Company no longer Beneficially Owns 25% or more of the
Total Current Voting Power of the Company or (c) the Standstill Period has terminated pursuant to
clause (ii) of the definition of “Standstill Termination Event,” the relevant agreement that would
have otherwise resulted in a Change in Control of the Company has been terminated without a Change
in Control of the Company having occurred and subsequent to the occurrence of such Standstill
Termination Event but prior to the termination of such agreement (x) the Restricted Parties have
not acquired actual ownership of Voting Stock representing in the aggregate a majority of the Total
Current Voting Power of the Company, (y) no Restricted Party has made any proposal or offer to the
Company regarding an Investor Tender Offer (other than any such proposal or offer that has been
withdrawn by the party making such proposal or offer or is no longer being pursued) and (z) no
Restricted Party has commenced any tender or exchange offer that is pending when such agreement is
terminated and that, if completed, would result in the Restricted Parties having actual ownership
of Voting Stock representing in the aggregate a majority of the Total Current Voting Power of the
Company. Notwithstanding the foregoing, a Standstill Reinstatement Event will not occur if prior to
the occurrence of the event specified in clause (a), (b) or (c) above that would otherwise result
in a Standstill Reinstatement Event, another Standstill Termination Event occurs for which there
has not been a related Standstill Reinstatement Event.



          “Standstill Revised Limit” shall mean the percentage of the Adjusted Outstanding Common Stock
Beneficially Owned by the Restricted Parties as of the occurrence of a Standstill Reinstatement
Event.



          “Standstill Termination Event” shall mean the earliest to occur of the following: (i) the ten
(10) year anniversary of the date of this Agreement, (ii) the date the Company enters into an
agreement relating to a transaction that if consummated will result in a Change in Control of the
Company, (iii) a Third Party Tender Offer, (iv) any Change in Control of the Company occurs, or (v)
the six month anniversary of the date on which the Investor is no longer entitled to designate any
nominees to the Board of Directors pursuant to Section 2.01; provided, that the Standstill Period
will be immediately reinstated upon the occurrence of a Standstill Reinstatement Event; provided



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further that, upon a Standstill Reinstatement Event, if the Standstill Revised Limit is
greater than the Standstill Limit, then the Standstill Revised Limit and not the Standstill Limit
shall thereafter be deemed the Standstill Limit for all purposes hereunder.



          “Subsidiary” shall mean, as to any Person, a corporation, partnership, limited liability
company, joint venture or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time owned, directly or
indirectly through one or more intermediaries (including, without limitation, other Subsidiaries),
or both, by such Person.



          “Takeover Transaction” shall mean (A) the direct or indirect acquisition or purchase of 50% or
more of the assets (based on the fair market value thereof) of the Company and its Subsidiaries,
taken as a whole, or of 50% or more of the Common Stock of the Company or any of its Subsidiaries
or any tender offer or exchange offer (including by the Company or its Subsidiaries) that if
consummated would result in any Person beneficially owning 50% or more of the Common Stock of the
Company or any of its Subsidiaries, (B) a sale of all or substantially all of the assets of the
Company and its Subsidiaries or (C) a merger or consolidation of the Company.



          “Third Party Tender Offer” shall mean a bona fide public offer subject to the provisions of
Regulation 14D under the Exchange Act, by a Person (which is not made by and does not include any
of the Company, a Restricted Party or any Affiliate of any of them or any 13D Group that includes
the Company, a Restricted Party or any Affiliate of them) to purchase or exchange for cash or other
consideration any Voting Stock and which consists of an offer to acquire 25% or more of the then
Total Current Voting Power of the Company.



          “13D Group” means any “group” (within the meaning of Section 13(d) of the Exchange Act) formed
for the purpose of acquiring, holding, voting or disposing of Voting Stock.



          “Total Current Voting Power” shall mean, with respect to any corporation the total number of
votes which may be cast in the election of members of the Board of Directors of the corporation if
all securities entitled to vote in the election of such directors (excluding shares of preferred
stock that are entitled to elect directors only upon the occurrence of customary events of default)
are present and voted (it being understood that the shares of Series B Preferred Stock will be
included in the Total Current Voting Power of the Company to the extent such shares of Series B
Preferred Stock are entitled to vote in accordance with Section VII(a) and Section VII(b) of the
Certificate of Designation).



          “Trademark License Agreement” shall mean that certain Trademark License Agreement, between NBC
and the Company, dated as of November 16, 2000 and as amended on March 28, 2007.



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          “Transfer” shall have the meaning set forth in Section 4.02.



          “Ultimate Parent Entity” shall mean, with respect to any Person (the “Subject Person”), the
Person (if any) that (i) owns, directly or indirectly through one or more intermediaries, or both,
shares of stock or other ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of the Subject Person and (ii) is not
itself a Subsidiary of any other Person or is a natural person.



          “Voting Stock” shall mean shares of the Common Stock, Series B Preferred Stock, to the extent
such shares of Series B Preferred Stock are entitled to vote in accordance with Section VII(a) and
Section VII(b) of the Certificate of Designation, and any other securities of the Company having
the ordinary power to vote in the election of members of the Board of Directors of the Company.



          “Warrants” shall mean the 2009 Warrants and any outstanding Bonus Distributor Warrants.



ARTICLE II  — CORPORATE GOVERNANCE




          Section 2.01. Board of Directors.




     (a) (i) As long as the Restricted Parties continue to Beneficially Own an aggregate number
of shares of Common Stock equal to or greater than 50% of the number of shares of Common Stock
which the Restricted Parties Beneficially Own on the date hereof (assuming for purposes of this
clause (i) each share of Series B Preferred Stock is converted into one share of Common Stock
and making equitable adjustments for any conversions, reclassifications, reorganizations, stock
dividends, stock splits, reverse splits and similar events which occur with respect to the
Common Stock), the Investor shall be entitled to designate three individuals to be nominated to
the Board of Directors or (ii) if the condition in clause (i) of this paragraph (b) is not
satisfied, then as long as the Restricted Parties shall continue to Beneficially Own at least
10% of the Adjusted Outstanding Common Stock, the Investor shall be entitled to designate two
individuals to be nominated to the Board of Directors.




     (b) Any individual so designated by the Investor pursuant to paragraph (a) of this Section
2.01 (each a “Designee”) that has not previously served as a member of the Board of Directors
shall be subject to the reasonable approval of a majority of the members of the Board of
Directors.




     (c) As long as a majority of the outstanding shares of Series B Preferred Stock are owned
by the Restricted Parties and the Investor is otherwise entitled to designate nominee(s) for
election as director(s) pursuant to Section 2.01, the Designee(s) will be elected to the Board
of Directors by the holders of the Series B Preferred Stock voting separately as a class, as
provided in the Certificate of Designation. If the Restricted Parties no longer own a majority
of the outstanding shares of Series B Preferred Stock (or no shares of Series B Preferred Stock
are outstanding) but the



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Investor is otherwise entitled to designate nominee(s) for election as director(s)
pursuant to Section 2.01, the Company shall nominate each such Designee for election as a
director as part of the management slate that is included in the proxy statement (or consent
solicitation or similar document) of the Company relating to the election of directors, and
shall provide the same support for the election of each such Designee as it provides to other
persons standing for election as directors of the Company as part of the Company’s management
slate.




     (d) Subject to applicable law, in the event that any Designee on the Board of Directors
shall cease to serve as a director for any reason (other than the failure of the shareholders
of the Company to elect such person as director), the vacancy resulting therefrom shall be
filled by another Designee.




     (e) For the avoidance of doubt, nothing in this Section 2.01 or elsewhere in this
Agreement is intended to prohibit the Restricted Parties from nominating and electing a
majority of the members of the Board of Directors if the Restricted Parties have actual
ownership of Voting Stock representing in the aggregate a majority of the Total Current Voting
Power and the Standstill Period is no longer in effect.




     (f) [Reserved]




     (g) As long as the Investor is entitled to designate three persons for nomination as
directors, the then current Investor may assign pursuant to Section 6.06 the right to designate
pursuant to the terms and conditions hereof one or two of such nominees to any other Restricted
Party (such that one Restricted Party will have the right to designate two nominees and the
other Restricted Party will have the right to designate one nominee; it being understood that
in such a case for all purposes of this Agreement where rights or obligations of the Investor
or the Restricted Parties are determined by the number of nominees the Investor is entitled to
designate, the Investor will be deemed to have the right to designate three nominees).




     (h) [Reserved]



          Section 2.02. Board Committees. As long as the Investor has the right to designate at
least two nominees to the Board of Directors, unless otherwise agreed to by the Investor or
otherwise prohibited by applicable law or the rules and regulations of the securities exchange or
automated quotation system upon which the Common Stock is listed, (a) so long as applicable law or
the rules and regulations of the securities exchange or automated quotation system upon which the
Common Stock is listed do not permit the Investor’s Designees to serve on the Audit Committee,
Human Resources and Compensation Committee or Corporate Governance and Nominating Committees
pursuant to the independence requirements of such law or rules and regulations or otherwise, the
Investor shall have the right to designate one observer to each of the Audit Committee, Human
Resources and Compensation Committee and Corporate Governance and Nominating Committee of the Board
of Directors; provided, however, that in the event such law or rules and regulations in the future
do permit the Investor’s Designees to serve on such Committees, effective as of the time of such
change in applicable law or



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rules and regulations, the Investor shall have the right to designate at least one Designee to
each of the Audit Committee, Human Resources and Compensation Committee, and Corporate Governance
and Nominating Committee, and (b) each other committee of the Board of Directors shall contain a
number of Designees (to the extent available), rounded upward to the nearest whole number, equal to
the total number of directors on such committee multiplied by the percentage of the entire Board of
Directors who are Designees.



          Section 2.03. Reimbursement of Expenses; Attendance at Board Meetings;
Indemnification. The Company will reimburse each Designee that serves as a director for all
reasonable costs and expenses (including travel expenses) incurred in connection with such
director’s attendance at meetings of the Board of Directors or any committee of the Board of
Directors upon which such director serves. The Company will not pay such director annual fees and
fees for attending Board of Directors or committee meetings. The Company shall indemnify each such
director to the same extent it indemnifies its other directors pursuant to its organizational
documents and applicable law.



          Section 2.04. Consultation and Other Rights. As long as the Investor has the right to
designate at least two nominees to the Board of Directors, it shall have: (i) the right to examine
the books and records of the Company and (ii) the right to have its representative consult with the
Company’s executive officers regarding business strategies, operating priorities and other major
corporate issues.



ARTICLE III — CERTAIN AGREEMENTS




          Section 3.01. Financial Statements and Other Reports. For so long as the Investor is
entitled to designate two persons to be nominated for election to the Board of Directors pursuant
to Section 2.01, the Company will deliver, or cause to be delivered to the Investor:



     (a) between 30 days prior to and 60 days after the end of each fiscal year, a budget (on a
monthly basis) for the Company and its Subsidiaries for the following fiscal year (including
consolidating and consolidated statements of operations);



     (b) as soon as available and in any event within 45 days after the end of each month,
consolidating and consolidated statements of operations of the Company and its Subsidiaries for
such month and for the period from the beginning of the current fiscal year to the end of such
month and a consolidated balance sheet of the Company and its Subsidiaries as at the end of such
period and setting forth, in each case, in comparative form, figures for the corresponding month
and period in the preceding fiscal year and the budget for such month and for the period from the
beginning of the current fiscal year to the end of such month, all in reasonable detail and
certified by an authorized financial officer of the Company as fairly presenting in all material
respects the financial condition and results of operations of the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP;



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     (c) as soon as practicable and in any event within 45 days after the end of each fiscal
quarter of the Company, consolidating and consolidated statements of operations and cash flow of
the Company and its Subsidiaries for such quarter and for the period from the beginning of the
current fiscal year to the end of such quarter and a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, setting forth, in each case, in comparative form,
figures for the corresponding quarter in the preceding fiscal year and the budget for such quarter,
all in reasonable detail, and certified by an authorized financial officer of the Company as fairly
presenting in all material respects the financial condition and results of operations of the
Company and its Subsidiaries on a consolidated basis in accordance with GAAP;



     (d) as soon as available and in any event within 120 days after the end of each fiscal year,
consolidating and consolidated statements of operations, shareholders’ equity and cash flow of the
Company and its Subsidiaries for such fiscal year, and the related consolidating and consolidated
balance sheets of the Company and its Subsidiaries as at the end of such fiscal year, setting
forth, in each case, in comparative form, corresponding consolidated and consolidating figures from
the preceding fiscal year, all in reasonable detail and accompanied (i) in the case of such
consolidated statements and balance sheet of the Company, by an opinion thereon of independent
certified public accountants of recognized national standing (which shall be generally recognized
as one of the “Big Four” independent public accounting firms), which opinion shall state that such
consolidated financial statements fairly present the consolidated financial condition and results
of operations of the Company and its Subsidiaries as at the end of, and for, such fiscal year in
accordance with GAAP, and (ii) in the case of such consolidating statements and balance sheets, by
a certificate of an authorized financial officer of the Company, which certificate shall state that
such consolidating financial statements fairly present, in all material respects, the respective
individual unconsolidated financial condition and results of operations of the Company and of each
of its Subsidiaries, in each case in accordance with GAAP, consistently applied, as at the end of,
and for, such fiscal year;



     (e) promptly upon transmission thereof to the shareholders of the Company generally or to any
other security holder of the Company, including, without limitation, any holder of debt, copies of
all financial statements, notices, certificates, annual reports and proxy statements so
transmitted;



     (f) promptly upon receipt thereof, a copy of each other report submitted to the Company or any
of its Subsidiaries by independent accountants in connection with any annual, interim or special
audit of the books of the Company or any of its Subsidiaries made by such accountants, or any
management letters or similar document submitted to the Company or any of its Subsidiaries by such
accountants;



     (g) promptly upon any material revision to the budgets referred to in paragraph (a) above,
such monthly budgets, as revised;



12









 





     (h) promptly upon any officer of the Company obtaining knowledge thereof, notice of any event
of default under any credit agreement, loan agreement or indenture that the Company is party to;
and



     (i) with reasonable promptness, such other information and data with respect to the Company or
any of its Subsidiaries as the Investor may reasonably request.



          Section 3.02. Certain Transactions with NBC Restricted Persons. (a) The Company agrees
for the benefit of the Restricted Parties that except with the prior written consent of the
Investor and except as may be expressly permitted by this Agreement, the Company and its
Subsidiaries shall not, directly or indirectly:




     (i) issue or sell to any NBC Restricted Person, or authorize or propose the issuance
or sale to any NBC Restricted Person of, any capital stock, partnership or limited
liability company interests or other equity securities of the Company or any Subsidiary of
the Company or any options, warrants or other rights (including, without limitation, any
convertible or exchangeable securities) to acquire, any such capital stock, partnership or
limited liability interests or other equity securities;




     (ii) form, enter into or join any partnership or joint venture with, sell or dispose
of any business or any assets (other than inventory and any other assets disposed of in the
ordinary course consistent with past practice of such business) to, or make any investment
in any NBC Restricted Person;




     (iii) enter into any transaction involving the incurrence of indebtedness (other than
in the ordinary course of business consistent with past practice) involving any NBC
Restricted Person;




     (iv) authorize, enter into or approve any Material Transaction with any NBC Restricted
Person or enter into any discussions or negotiations relating to any inquiry, proposal or
offer relating thereto;




     (v) enter into any joint marketing or co-branding arrangement with any NBC Restricted
Person, license or otherwise grant to any NBC Restricted Person the right to utilize any
trademark, tradename or brand of the Company or any Subsidiary of the Company or grant to
any NBC Restricted Person any rights to have a branded presence on any media of the Company
or its Subsidiaries or rights to cross-promote home shopping transactions; or




     (vi) authorize or commit or agree to take any of the foregoing actions.



     (b) The provisions of this Section 3.02 shall terminate and be of no further force or effect
at the earlier of (i) such time as the Investor is no longer entitled to designate at least two
persons to be nominated for election to the Board of Directors pursuant to Section 2.01 and (ii)
the effective date of expiration or termination of the Trademark License Agreement.



13









 





          Section 3.03. Certain Other Transactions.



     (a) The Company agrees that except with the prior written consent of the Investor, the Company
and its Subsidiaries shall not, directly or indirectly:




     (i) issue or sell, or authorize or propose the issuance or sale, of any capital stock
of the Company, or any options, warrants or other rights (including, without limitation,
any convertible or exchangeable securities) to acquire capital stock of the Company other
than (i) pursuant to Options outstanding on the date hereof or issued pursuant to clause
(ii) below, (ii) Options to be issued to officers, directors, employees or consultants of
the Company or any of its Subsidiaries pursuant to any plan or arrangement approved by the
Company’s shareholders, (iii) pursuant to the Warrants, (iv) the issuance of Common Stock
and other Voting Stock in an aggregate amount not to exceed (x) during any twelve month
period 15% of the Total Current Voting Power of the Company as of the first day of such
twelve month period and (y) during any twenty-four month period 25% of the Total Current
Voting Power of the Company as of the first day of such twenty-four month period, provided
that no issuance will be made to any Person pursuant to this clause (iv) who, together with
its Affiliates, to the knowledge of the Company after reasonable inquiry, would
Beneficially Own securities representing 10% or more of the Total Current Voting Power of
the Company following such issuance and (v) issuances of non-voting capital stock that does
not violate the terms of the Series B Preferred Stock;




     (ii) (A) declare or pay any dividends or distributions to holders of Common Stock (1)
while there are any shares of Series B Preferred Stock outstanding or (2) if there are no
shares of Series B Preferred Stock outstanding, in any fiscal quarter exceeding in the
aggregate 5% of the Market Capitalization of the Company as of the first day of such fiscal
quarter or (B) repurchase or redeem any Common Stock except (1) repurchases and redemption
of Common Stock from officers, directors, employees or consultants of the Company and its
Subsidiaries, (2) once no shares of Series B Preferred Stock are outstanding, repurchases
and redemptions of Common Stock in any fiscal quarter that, when aggregated with all
distributions and dividends on the Common Stock in such fiscal quarter, do not exceed 5% of
the Market Capitalization of the Company as of the first day of such fiscal quarter, and
(3) repurchases and redemptions of Common Stock consummated at any time during the twelve
(12) month period ending February 25, 2010 that, when aggregated with all distributions and
dividends on, and redemptions of, the Common Stock in such twelve (12) month period, do not
(x) exceed $1,500,000, inclusive of all out of pocket costs incurred or otherwise payable
by the Company in connection therewith, (y) result in the Restricted Parties’ Beneficial
Ownership exceeding 38% of the Adjusted Outstanding Common Stock or (z) constitute a tender
offer under the Securities Exchange Act of 1934, as amended;




     (iii) enter into or effect any single or related series of acquisitions of businesses
or assets or investments therein (including, without limitation,



14








 







forming, entering into or joining any joint venture), other than money market
instruments and trade receivables, pursuant to which the fair market value of the aggregate
purchase price paid, or investment made, by the Company and its Subsidiaries will exceed
the greater of (x) $20 million or (y) 10% of the Market Capitalization of the Company at
the time the Company or its Subsidiaries enter into an agreement to effect such acquisition
or investment;




     (iv) enter into or effect any single or related series of sales, leases or other
dispositions of assets having a fair market value in excess of the greater of (x) $20
million or (y) 10% of the Market Capitalization of the Company at the time the Company or
its Subsidiaries enter into an agreement to effect such sale, lease or other disposition;




     (v) incur indebtedness for borrowed money that would cause the Company’s consolidated
indebtedness to exceed the greater of (x) $20 million and (y) an amount equal to 30% of the
Company’s total capitalization; for purposes of this clause (e) “total capitalization”
means the sum of consolidated shareholders equity and consolidated indebtedness; provided
that no written consent of the Investor is required in connection with any incurrence of
indebtedness for borrowed money by the Company or any of its Subsidiaries if the net
proceeds of such indebtedness are used to redeem all of the outstanding shares of Series B
Preferred Stock in accordance with the provisions of the Certificate of Designation;




     (vi) issue any series or class of capital stock having (i) voting rights that are
disproportionate relating to its economic interest or (ii) a separate class vote on any
Takeover Transaction; enter into any business, either directly or indirectly, except for
those businesses in which the Company and/or its Subsidiaries and/or its Affiliates are
engaged in on the date hereof and those businesses which are ancillary, complementary or
reasonably related thereto;




     (vii) amend the Restated Articles of Incorporation of the Company, as amended and in
effect on the date of this Agreement (the “Articles of Incorporation”) so as to adversely
affect the Restricted Parties (it being understood that increases in the authorized capital
stock of the Company and/or creation of a staggered Board of Directors will not be deemed
to adversely affect the Restricted Parties); or




     (viii) authorize or commit or agree to take any of the foregoing actions.



     (b) The provisions of this Section 3.03 shall terminate and be of no further force or effect
at the later of (i) such time as the Investor is no longer entitled to designate three persons to
be nominated for election to the Board of Directors pursuant to Section 2.01 and (ii) such time as
the Restricted Parties no longer Beneficially Own any shares of Series B Preferred Stock.



15









 





          Section 3.04. Other Covenants. (a) The Company agrees that except with the prior
written consent of the Investor and except as otherwise expressly permitted by this Agreement, it
and its Subsidiaries shall not, directly or indirectly:




     (i) adopt any shareholders rights plan, or amend any of its organizational documents
or enter into any Material Agreement with a third party or issue any capital stock or other
securities, the provisions of which, upon the acquisition of all of the outstanding Common
Stock or any portion thereof by any Restricted Party would be violated or breached, or
which would require a consent, approval or notice thereunder, or which would result in a
default thereof (or an event which, with notice or lapse of time or both, would constitute
a default), or which would result in the termination thereof or accelerate the performance
required thereby, or would result in a right of termination or acceleration thereunder, or
result in the creation of any Lien (except Permitted Liens) upon any of the properties or
assets of the Company or Material Subsidiaries thereunder or disadvantage the Restricted
Parties relative to other shareholders on the basis of the size of their shareholdings or
otherwise restrict or impede the ability of the Restricted Parties to acquire additional
shares of Voting Stock or dispose of such Voting Stock in any manner permitted by Section
4.02 to any Restricted Party or to any Person that would Beneficially Own (together with
such Person’s Ultimate Parent Entity, Subsidiaries and Affiliates) less than 10% of the
Adjusted Outstanding Common Stock;




     (ii) Take any action that would result in any Restricted Party being deemed to be in
violation of Section 73.3555 of the rules and regulations of the Federal Communications
Commission, as the same may be amended from time to time.



     (b) The provisions of Section 3.04(a)(i) shall terminate and be of no further force or effect
at such time as the Investor is no longer entitled to designate at least two persons to be
nominated for election to the Board of Directors pursuant to Section 2.01.



          Section 3.05. No Reinstatement of Rights. Anything in this Agreement to the contrary
notwithstanding, to the extent the Restricted Parties fail to satisfy any ownership threshold set
forth herein so that any rights of the Investor under this Agreement and/or obligations of the
Company under this Agreement terminate, such terminated rights and/or obligations will not be
reinstated if the Restricted Parties thereafter satisfy such ownership threshold.



ARTICLE
IV — STANDSTILL AGREEMENTS


          Section 4.01. Standstill Agreement.



     (a) During the Standstill Period (and during the Standstill Period only), no Restricted Party
will, directly or indirectly, nor will it authorize or direct any of its Representatives to (and
will take appropriate action against such Representatives to discourage), in each



16








 




case unless specifically requested to do so in writing in advance by the Board of Directors:


     (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired,
ownership of any assets or businesses of the Company or any of its Subsidiaries having a
fair market value in excess of 10% of the fair market value of all of the Company’s and its
Subsidiaries’ assets, or any rights or options to acquire any such ownership (including
from a third party);


     (ii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired,
Beneficial Ownership of any Common Stock of the Company or any of its Subsidiaries, or any
options, warrants or other rights (including, without limitation, any convertible or
exchangeable securities) to acquire any such Common Stock, in any case other than the
Warrants and any Common Stock issuable upon exercise of the Warrants; provided, however,
the Restricted Parties may acquire or agree, offer, seek or propose to acquire, or cause to
be acquired, shares of Common Stock of the Company (or any convertible or exchangeable
securities to acquire any such Common Stock) if such acquisition would not increase the
Restricted Parties’ aggregate Beneficial Ownership of shares of Adjusted Outstanding Common
Stock to more than the Standstill Limit (other than due to the issuance of additional Bonus
Distributor Warrants; provided that if the issuance of additional Bonus Distributor
Warrants results in the Restricted Parties’ aggregate Beneficial Ownership of shares of
Common Stock exceeding the Standstill Limit, then at any time during the Standstill Period
(and only during the Standstill Period) when the Standstill Limit is so exceeded, the
Restricted Parties shall not exercise any Bonus Distributor Warrants unless (A) such
exercise occurs during the six months prior to the expiration or termination of such Bonus
Distributor Warrants or (B) immediately upon such exercise, the Restricted Parties’
aggregate actual ownership of outstanding shares of Common Stock would not exceed 39.9% of
the total outstanding shares of Common Stock, treating as outstanding and actually owned
for such purpose shares of Common Stock issuable upon the exercise of the 2009 Warrant, but
no shares of Common Stock issuable upon exchange, exercise or conversion of any other
rights, warrants, options or other securities). Notwithstanding the foregoing, during the
Standstill Period, no holder of Warrants will disclaim Beneficial Ownership of such
Warrants and for as long as the 2009 Warrants are outstanding and exercisable, no
Restricted Party will acquire actual ownership of any shares of Common Stock other than (x)
through exercise of the Warrants and (y) other acquisitions of shares of Common Stock at a
price per share equal to or greater than the applicable price set forth in Section 8 of the
2009 Warrant;


     (iii) make, or in any way participate in, any “solicitation” of “proxies” (as such
terms are used in the proxy rules of the SEC) with respect to the voting of any securities
of the Company or any of its Subsidiaries, provided that the limitation contained in this
clause (iii) shall not apply to any Takeover Transaction to be voted on by the Company’s
shareholders that is not instituted or proposed by any Restricted Party or any Affiliate of
a Restricted Party or any 13D


17








 







Group of which any Restricted Party or any Affiliate of a Restricted Party is a
member;




     (iv) deposit any securities of the Company or any of its Subsidiaries in a voting
trust or subject any such securities to any arrangement or agreement with any Person (other
than one or more Restricted Parties);




     (v) form, join, or in any way become a member of a 13D Group with respect to any
voting securities of the Company or any of its Subsidiaries (other than a “group”
consisting solely of Restricted Parties);




     (vi) arrange any financing for, or provide any financing commitment specifically for,
the purchase of any voting securities or securities convertible or exchangeable into or
exercisable for any voting securities or assets of the Company or any of its Subsidiaries,
except for such assets as are then being offered for sale by the Company or such
Subsidiary;




     (vii) otherwise act, whether alone or in concert with others, to seek to propose to
the Company any tender or exchange offer, merger, business combination, restructuring,
liquidation, recapitalization or similar transaction involving the Company or any of its
Subsidiaries, or nominate any person as a director of the Company who is not nominated by
the then incumbent directors, or propose any matter to be voted upon by the shareholders of
the Company; provided that the Restricted Entities may nominate directors in accordance
with Section 2.01 and, provided further, the provisions of this clause (vii) will not
prohibit or restrict any Restricted Party from entering into any agreement, arrangement or
understanding relating to the Transfer of any securities in accordance with Section 4.02 or
engaging in an discussion or negotiations relating to any potential Transfer of any
securities in accordance with Section 4.02;




     (viii) solicit, initiate, encourage or knowingly or intentionally facilitate the
taking of any action by any Affiliate of a Restricted Party (that is not itself a
Restricted Party) that would be prohibited by this Section 4.01 if that Affiliate were a
Restricted Party; or




     (ix) publicly announce or disclose any intention, plan or arrangement inconsistent
with the foregoing.



          (b) In addition, during the Standstill Period (and only during the Standstill Period), no
Restricted Party will, nor will they authorize or direct any of their respective Representatives
to, take any action that they reasonably believe based on the advice of outside counsel would
require the Company to make a public announcement regarding any of the matters set forth in Section
4.01(a) (other than in connection with the transactions contemplated by the Exchange Agreement).



          (c) If, at any time during the Standstill Period, (i) any Person other than a Restricted Party
or any Affiliate thereof or any 13D Group of which any Restricted Party is a member has made any
inquiry, proposal or offer relating to a Takeover Transaction or



18









 







Change in Control of the Company which has not been rejected by the Board of Directors, (ii)
the Board of Directors has determined to pursue a Takeover Transaction or other Change in Control
of the Company and the Board of Directors has not resolved to stop pursuing such Takeover
Transaction or other Change in Control of the Company or (iii) the Board of Directors or the
Company has engaged in any discussions or negotiations with, or provided any information to, any
Person other than a Restricted Party or any Affiliate thereof or any 13D Group of which any
Restricted Party is a member with respect to a potential Takeover Transaction or other Change in
Control of the Company or any potential inquiry, proposal or offer relating thereto and the Board
of Directors has not resolved to terminate all such discussions, negotiations and provision of
information, then, for so long as such condition continues to apply, the limitation on the actions
described in clause (a)(vii) above shall not be applicable to the Restricted Parties (but all other
provisions of this Agreement will, subject to Section 4.01(d), continue to apply).



          (d) Anything in this Section 4.01 to the contrary notwithstanding, this Section 4.01 shall not
prohibit or restrict any of the following: (x) actions taken by the Investor’s nominees on the
Board of Directors in such capacity, (y) the exercise by the Restricted Parties of their voting
rights (i.e., their right to vote their shares but not their right to make nominations, to the
extent prohibited by this Agreement, or take other related actions otherwise prohibited by this
Section 4.01) with respect to any shares of Voting Stock they Beneficially Own and (z) any
disclosure pursuant to Section 13(d) of the Exchange Act which a Restricted Party reasonably
believes, based on the advice of outside counsel, is required in connection with any action taken
by a Restricted Party pursuant to Section 4.01(c).



          (e) Following the expiration of the Standstill Period pursuant to clause (i) of the definition
of Standstill Termination Event and for two years following the expiration of the Standstill Period
pursuant to clause (v) of the definition of Standstill Termination Event, no Restricted Party will
purchase or otherwise acquire any shares of Common Stock if such acquisition would increase the
Restricted Parties’ aggregate Beneficial Ownership of shares of Common Stock to more than 39.9% of
the Adjusted Outstanding Common Stock except (x) increases in Beneficial Ownership resulting from
issuance of the Warrants or the exercise of the Warrants or (y) pursuant to an Investor Tender
Offer.



          (f) If the Standstill Period terminates pursuant to clause (iii) of the definition of
“Standstill Termination Event” and the subject Third Party Tender Offer is terminated at any time
during which an Investor Tender Offer is then pending, unless otherwise agreed by the Company, the
Restricted Party that commenced such Investor Tender Offer (the “Tendering Restricted Party”) will
not complete such Investor Tender Offer until at least the sixth Business Day after the termination
of such Third Party Tender Offer. If, within two Business Days after termination of the subject
Third Party Tender Offer, the Company requests in writing that the Tendering Restricted Party
terminate its Investor Tender Offer and by the end of the second Business Day after the receipt of
such request the Tendering Restricted Party has not terminated its Investor Tender Offer, then the
provisions of Section 3.04(a)(i) shall no longer prohibit the Company from amending its then
existing shareholders rights plan or adopting a shareholders rights plan that could be



19









 







triggered by the Restricted Parties if (and, only if) they subsequently acquired Beneficial
Ownership of additional Voting Stock that would increase the Restricted Parties’ aggregate
Beneficial Ownership of shares of Common Stock to more than the Standstill Limit (determined for
these purposes as if a Standstill Reinstatement Event had occurred on such date) other than as a
result of the acquisition of Beneficial Ownership of additional shares of Common Stock upon the
issuance or exercise of additional Bonus Distributor Warrants.



          Section 4.02. Transfer Restrictions.



     (a) Unless the Restricted Parties Beneficially Own in the aggregate less than 5% of the
Adjusted Outstanding Common Stock or until the Restricted Parties Beneficially Own in the aggregate
at least 90% of the Adjusted Outstanding Common Stock, the Restricted Parties shall not, directly
or indirectly, sell, transfer or otherwise dispose of (collectively, “Transfer”) any of the Series
B Preferred Stock, Warrants or shares of Common Stock Beneficially Owned by such Persons, except
for Transfers: (i) to Restricted Parties or to Affiliates who agree to be Restricted Parties bound
by the provisions of this Agreement, (ii) which have been consented to by the Company, (iii)
pursuant to a Third Party Tender Offer, provided that the Restricted Parties may not Transfer
pursuant to this clause (iii) any shares of Common Stock acquired upon exercise of the 2009
Warrants on or after the date of commencement of such Third Party Tender Offer or the public
announcement by the offeror thereof or that such offeror intends to commence such Third Party
Tender Offer, (iv) pursuant to a merger, consolidation or reorganization to which the Company is a
party, (v) in a underwritten public offering pursuant to an effective registration statement, (vi)
pursuant to Rule 144 of the Securities Act or (vii) in a private sale or pursuant to Rule 144A of
the Securities Act; provided that, (A) in the case of any Transfer by NBC pursuant to clause (v),
(vi) or (vii), such Transfer does not result in, to the knowledge of NBC after reasonable inquiry,
any other Person acquiring, after giving effect to such Transfer, Beneficial Ownership,
individually or in the aggregate with such Person’s Ultimate Parent Entity, Subsidiaries and
Affiliates, of more than 20% of the Adjusted Outstanding Common Stock without the prior written
consent of the Company, which shall not be unreasonably withheld, and (B) in the case of any
Transfer by any Restricted Party other than NBC pursuant to clause (v), (vi) or (vii), such
Transfer does not result in, to the knowledge of the Restricted Parties after reasonable inquiry,
any other Person acquiring, after giving effect to such Transfer, Beneficial Ownership,
individually or in the aggregate with such Person’s Ultimate Parent Entity, Subsidiaries and
Affiliates, of more than 10% of the Adjusted Outstanding Common Stock.



     (b) Subject to the provisions of Section 4.02(a), if any Restricted Party decides to dispose
of any of the Series B Preferred Stock or any Warrants (or the Common Stock issuable upon exercise
of any Warrants), each Restricted Party understands and agrees that it may do so only pursuant to
an effective registration statement under the Securities Act and applicable registration under
state securities laws or pursuant to an exemption from registration under the Securities Act and
applicable state securities laws. Each Restricted Party agrees to the imprinting, so long as
appropriate, of substantially the following legends on certificates representing any of the
securities referenced in the preceding sentence:



20









 






     NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES ISSUABLE
UPON EXERCISE OF THE SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAW, AND
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF AN AMENDED AND RESTATED SHAREHOLDER AGREEMENT, DATED AS OF FEBRUARY
25, 2009, AMONG VALUEVISION MEDIA, INC., GE CAPITAL EQUITY INVESTMENTS, INC. AND NBC
UNIVERSAL, INC., AS THEREAFTER AMENDED FROM TIME TO TIME.




     THE RESTATED ARTICLES OF INCORPORATION, AS AMENDED, OF THE COMPANY PROVIDE THAT,
EXCEPT AS OTHERWISE PROVIDED BY LAW, SHARES OF STOCK IN THE COMPANY SHALL NOT BE
TRANSFERRED TO “ALIENS” UNLESS, AFTER GIVING EFFECT TO SUCH TRANSFER, THE AGGREGATE NUMBER
OF SHARES OF STOCK OWNED BY OR FOR THE ACCOUNT OF “ALIENS” WILL NOT EXCEED 20% OF THE
NUMBER OF SHARES OF OUTSTANDING STOCK OF THE COMPANY, AND THE AGGREGATE VOTING POWER OF
SUCH SHARES WILL NOT EXCEED 20% OF THE AGGREGATE VOTING POWER OF ALL OUTSTANDING SHARES OF
VOTING STOCK OF THE COMPANY. NOT MORE THAN 20% OF THE AGGREGATE VOTING POWER OF ALL SHARES
OUTSTANDING ENTITLED TO VOTE MAY BE VOTED BY OR FOR THE ACCOUNT OF “ALIENS.” IF,
NOTWITHSTANDING SUCH RESTRICTION ON TRANSFERS TO “ALIENS,” THE AGGREGATE NUMBER OF SHARES
OF STOCK OWNED BY OR FOR THE ACCOUNT OF “ALIENS” EXCEEDS 20% OF THE NUMBER OF SHARES OF
OUTSTANDING STOCK OF THE COMPANY OR IF THE AGGREGATE VOTING POWER OF SUCH SHARES EXCEEDS
20% OF THE AGGREGATE VOTING POWER OF ALL OUTSTANDING SHARES OF VOTING STOCK OF THE COMPANY,
THE COMPANY HAS THE RIGHT TO REDEEM SHARES OF ALL CLASSES OF CAPITAL STOCK, AT THEIR THEN
FAIR MARKET VALUE, ON A PRO RATA BASIS, OWNED BY OR FOR THE ACCOUNT OF ALL “ALIENS” IN
ORDER TO REDUCE THE NUMBER OF SHARES AND/OR PERCENTAGE OF VOTING POWER HELD BY OR FOR THE
ACCOUNT OF “ALIENS” TO THE MAXIMUM NUMBER OR PERCENTAGE ALLOWED UNDER THE RESTATED ARTICLES
OF INCORPORATION, AS AMENDED, OR AS OTHERWISE REQUIRED BY APPLICABLE FEDERAL LAW. AS USED
HEREIN, “ALIENS” MEANS ALIENS AND THEIR REPRESENTATIVES, FOREIGN GOVERNMENTS AND THEIR
REPRESENTATIVES, AND



21









 







CORPORATIONS ORGANIZED UNDER THE LAW OF A FOREIGN COUNTRY, AND THEIR REPRESENTATIVES.
THE COMPANY WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT CHARGE, A FULL
STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF THE SHARES
OF EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED, SO FAR AS THEY HAVE BEEN DETERMINED, AND
THE AUTHORITY OF THE BOARD TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT
CLASSES OR SERIES.



          The first legend set forth above shall be removed if and when (i) the securities represented
by such certificate are disposed of pursuant to an effective registration statement under the
Securities Act or (ii) the Investor delivers to the Company an opinion of counsel reasonably
acceptable to the Company to the effect that such legends are no longer necessary.



          Section 4.03. Certain Permitted Transactions and Communications. Notwithstanding the
foregoing, this Agreement shall not prohibit (i) the acquisition or holding of securities or rights
in the ordinary course of business by any employee benefit plan whose trustees, investment managers
or similar advisors are not Affiliates of any Restricted Party, (ii) the consummation of any
transaction expressly provided for in the Exchange Agreement including the acquisition and/or
exercise of the Warrants or (iii) officers and employees of the Restricted Parties from
communicating with officers of the Company or its Affiliates on matters related to or governed by
the Distribution Agreement, the Trademark License Agreement or other operational matters, or the
Restricted Parties from communicating with the Board of Directors, the Chairman of the Board of
Directors, the Chief Executive Officer or the Chief Financial Officer of the Company, so long as
such communication is conveyed in confidence, does not require public disclosure by the Restricted
Parties or, in the reasonable belief (based on the advice of outside counsel) of the Restricted
Party making such communication, by the Company, and is not intended to (A) elicit, and, in the
reasonable belief (based on the advice of outside counsel) of the Restricted Party making such
communication, does not require the issuance of, a public response by the Company or (B) otherwise
circumvent the provisions of Section 4.01.



ARTICLE
V — [RESERVED]


ARTICLE VI  — MISCELLANEOUS


          Section 6.01. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given, if delivered personally, by telecopier or sent
by overnight courier as follows:


(a) If to the Investor, to:



GE Capital Equity Investments, Inc.




22








 




201 Merritt 7

1st Floor
Norwalk, CT 06851

Attention:     VVTV Account Manager

                       cc: General Counsel — Equity

Fax: (203) 229-5097


with a copy to (which shall not constitute notice):



Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, New York 10153

Attention: Alexander D. Lynch

Fax: (212) 310-8007



(b) If to NBC, to:



NBC Universal, Inc.

30 Rockefeller Plaza

New York, New York 10112

Attention: Chief Financial Officer

Fax: (212) 664-0427



with a copy to (which shall not constitute notice):



NBC Universal, Inc.

30 Rockefeller Plaza

New York, New York 10112

Attention: General Counsel

Fax: (212) 664-4733



(c) If to the Company, to:



ValueVision Media, Inc.

6740 Shady Oak Road

Eden Prairie, MN 55344-3433

Attention: General Counsel

Fax: (612) 947-0188



with a copy to (which shall not constitute notice):



Faegre & Benson LLP

2200 Wells Fargo Center

90 South 7th Street

Minneapolis, MN 55402

Attention: Peter J. Ekberg

Fax: (612) 766-1600



23








 







and



Latham & Watkins LLP

355 South Grand Avenue

Los Angeles, CA 90071

Attention: James P. Beaubien


Jason H. Silvera

Fax: (213) 891-8763



or to such other address or addresses as shall be designated in writing. All notices shall be
effective when received.




          Section 6.02. Entire Agreement; Amendment. This Agreement sets forth the entire
agreement between the parties hereto with respect to the transactions contemplated by this
Agreement. Any provision of this Agreement may be amended or modified in whole or in part at any
time by an agreement in writing between the parties hereto executed in the same manner as this
Agreement. No failure on the part of any party to exercise, and no delay in exercising, any right
shall operate as a waiver thereof nor shall any single or partial exercise by any party of any
right preclude any other or future exercise thereof or the exercise of any other right.



          Section 6.03. Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein, shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or any other such
instrument.



          Section 6.04. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all of which together
shall constitute one and the same document.



          Section 6.05. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall
be governed and construed in accordance with the laws of the State of New York applicable to
contracts executed and performed within such state, and each party hereby submits to the
jurisdiction of any state or U.S. federal court sitting within the County of New York, New York or
the County of Hennepin, Minnesota. The parties hereto waive all right to trial by jury in any
action, suit or proceeding brought to enforce or defend any rights or remedies under this
Agreement.



          Section 6.06. Successors and Assigns; Third Party Beneficiaries. Subject to applicable
law, (i) GE Capital Equity Investments may assign its rights under this Agreement in whole or in
part only to a Restricted Party, but no such assignment shall relieve GE Capital Equity Investments
of its obligations hereunder unless GE Capital Equity Investments’ obligations hereunder are
assumed by NBC and/or GE Capital in a written agreement reasonably acceptable to the Company
delivered to the Company (in which case GE Capital Equity Investments will be released from its
obligations hereunder



24









 







except for its obligations as a Restricted Party to comply with the terms hereof) and (ii) NBC
may assign its rights under this Agreement in whole or in part only to a Restricted Party, but no
such assignment shall relieve NBC of its obligations hereunder unless NBC’s obligations hereunder
are assumed by GE Capital in a written agreement reasonably acceptable to the Company delivered to
the Company (in which case NBC will be released from its obligations hereunder except for its
obligations as a Restricted Party to comply with the terms hereof). The Company may not assign any
of its rights or delegate any of its duties under this Agreement without the prior written consent
of the Investor. Any purported assignment in violation of this Section shall be void. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any Person other
than the Restricted Parties (who shall be third party beneficiaries of this Agreement entitled to
the benefit of, and to enforce, its terms) and the Company and their respective successors, any
legal or equitable right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Restricted Parties and the Company and their respective
successors, and for the benefit of no other Person. No purchaser of Series B Preferred Stock,
Warrants or Common Stock from a Restricted Party (other than another Restricted Party) shall be
deemed to be a successor or assignee by reason merely of such purchase.



          Section 6.07. Arbitration. Any controversy, dispute or claim arising out of, in
connection with or in relation to the interpretation, performance or breach of this Agreement,
shall be determined, at the request of any party, by arbitration in a city mutually agreeable to
the parties to such controversy, dispute or claim before and in accordance with the then-existing
Rules for Commercial Arbitration of the American Arbitration Association, and any judgment or award
rendered by the arbitrator will be final, binding and unappealable and judgment may be entered by
any state or Federal court having jurisdiction thereof. The pre-trial discovery procedures of the
Federal Rules of Civil Procedure shall apply to any arbitration under this Section 6.07. Any
controversy concerning whether a dispute is an arbitrable dispute or as to the interpretation or
enforceability of this Section 6.07 shall be determined by the arbitrator. The arbitrator shall be
a retired or former United States District Judge or other person acceptable to each of the parties,
provided such individual has substantial professional experience with regard to corporate or
partnership legal matters. The parties intend that this agreement to arbitrate be valid,
enforceable and irrevocable.



          Section 6.08. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement
in addition to any other remedy to which they are entitled at law or in equity.



          Section 6.09. Headings, Captions and Table of Contents. The section headings, captions
and table of contents contained in this Agreement are for reference purposes only, are not part of
this Agreement and shall not affect the meaning or interpretation of this Agreement.



25









 





          Section 6.10. Confidentiality. The provisions of Sections 1, 2 and 8 of the
confidentiality agreement dated June 24, 1998 between the Company and the Investor (the “Investor
Confidentiality Agreement”) shall continue and be in full force and effect and apply to each
Restricted Party as if it were the Investor until the later to occur of the termination of the
Distribution Agreement and termination of the Investor’s rights to designate at least two directors
for nomination to the Board of Directors pursuant to Section 2.01.



26









 





          IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto or by their
respective duly authorized representatives, all as of the date first above written.



	 	 	 	 	 
	 	VALUEVISION MEDIA, INC.

 	 
	 	By:  	/s/ Nathan E. Fagre
 	 
	 	 	Name:  	Nathan E. Fagre 	 
	 	 	Title:  	Senior Vice President, General Counsel 

and Secretary 	 
	 
	 	GE CAPITAL EQUITY INVESTMENTS, INC.

 	 
	 	By:  	/s/ Michael S. Fisher
 	 
	 	 	Name:  	Michael S. Fisher 	 
	 	 	Title:  	Sr. Managing Director 	 
	 
	 	NBC UNIVERSAL, INC.

 	 
	 	By:  	/s/ Salil Mehta
 	 
	 	 	Name:  	Salil Mehta 	 
	 	 	Title:  	President, Business Operations, 

Strategy & Development 	 
	 



[SIGNATURE PAGE TO THE AMENDED & RESTATED SHAREHOLDER AGREEMENT]


 








 








ANNEX A




NBC RESTRICTED PERSONS




CBS

Fox

Disney

Time Warner

Viacom