STOCK PURCHASE AGREEMENT between GENERAL ELECTRIC COMPANY and VIVENDI S. A. Dated as of December 3, 2009
Exhibit
10(t)
between
GENERAL
ELECTRIC COMPANY
and
VIVENDI
S. A.
Dated
as of December 3, 2009
Table of
Contents
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Page
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ARTICLE
I
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DEFINITIONS
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Section
1.1
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Certain
Terms
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2
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Section
1.2
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Construction
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10
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ARTICLE
II
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SALE
AND PURCHASE OF SHARES
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Section
2.1
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Sale
and Purchase of Shares
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12
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Section
2.2
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First
Sale Closing.
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12
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Section
2.3
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Transaction
Closing.
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14
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Section
2.4
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Payments.
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14
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ARTICLE
III
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REPRESENTATIONS
AND WARRANTIES OF SELLER
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Section
3.1
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Status
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17
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Section
3.2
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Authority;
etc
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17
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Section
3.3
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Governmental
Authorization; Non-Contravention
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17
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Section
3.4
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Title
to Shares
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18
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Section
3.5
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No
Judgments, Litigation
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18
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Section
3.6
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Finders’
Fees
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18
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ARTICLE
IV
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REPRESENTATIONS
AND WARRANTIES OF BUYER
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Section
4.1
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Status
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19
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Section
4.2
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Authority;
etc
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19
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Section
4.3
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Governmental
Authorization; Non-Contravention
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19
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Section
4.4
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No
Judgments, Litigation
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19
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Section
4.5
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Finders’
Fees
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20
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ARTICLE
V
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CERTAIN
COVENANTS
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Section
5.1
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Crimson
Transactions.
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20
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Section
5.2
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Restrictions
on Transfer
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21
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Section
5.3
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Other
Transactions
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21
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Section
5.4
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Liquidity
Right.
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22
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Section
5.5
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Reasonable
Best Efforts.
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23
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Section
5.6
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Notice
of Certain Events
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24
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Section
5.7
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Resignations
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24
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i
Table of
Contents
(continued)
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Page
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Section
5.8
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Public
Announcements
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24
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Section
5.9
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Mutual
Release
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24
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Section
5.10
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Provision
of Determination of Available Cash From Operations
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25
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Section
5.11
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Further
Assurances
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25
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ARTICLE
VI
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CONDITIONS
PRECEDENT
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Section
6.1
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Conditions
to the Obligations of the Parties
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25
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Section
6.2
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Conditions
to Obligations of Buyer
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25
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Section
6.3
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Conditions
to Obligations of Seller
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26
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Section
6.4
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Additional
Conditions to Obligations of the Parties
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26
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ARTICLE
VII
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TERMINATION
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Section
7.1
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Termination
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27
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Section
7.2
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Effect
of Termination
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28
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Section
7.3
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Effectiveness
of Consents; Disputes
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28
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ARTICLE
VIII
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INDEMNIFICATION
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Section
8.1
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Survival
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29
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Section
8.2
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Indemnification
by Seller
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29
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Section
8.3
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Indemnification
by Buyer
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29
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Section
8.4
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Certain
Limitations.
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30
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Section
8.5
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Third
Party Claim Procedures
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30
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ARTICLE
IX
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MISCELLANEOUS
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Section
9.1
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Notices
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31
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Section
9.2
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Amendment;
Waivers, etc
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34
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Section
9.3
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Expenses
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34
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Section
9.4
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Governing
Law, etc.
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34
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Section
9.5
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Successors
and Assigns
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37
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Section
9.6
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Entire
Agreement
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37
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Section
9.7
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Severability
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37
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Section
9.8
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Counterparts;
Effectiveness; Third Party Beneficiaries
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37
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Section
9.9
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Specific
Performance
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38
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ii
This
STOCK PURCHASE AGREEMENT, dated as of December 3, 2009 (this “Agreement”), is by
and between General Electric Company, a New York corporation (“Buyer”), and Vivendi
S. A., a société
anonyme organized under the Laws
of France (“Seller”).
WHEREAS,
Seller owns 200 shares of Class A common stock, par value $0.01 per share, of
NBC Universal, Inc., a Delaware corporation (the “Company”) (such
shares, the “Shares”);
WHEREAS,
Seller, Buyer and certain other parties named therein are parties to (i) the Amended
and Restated Liquidity Rights Agreement, dated as of December 14, 2006, as
amended (as amended, the “Liquidity Rights
Agreement”), and (ii) the Stockholders
Agreement, dated as of May 11, 2004, as amended (as amended, the “Stockholders
Agreement”);
WHEREAS,
concurrently with the execution and delivery of this Agreement, Buyer, the
Company and Comcast Corporation, a Pennsylvania corporation (“Crimson”), are
entering into a Master Agreement, dated the date hereof (such agreement, as it
may hereinafter be amended, supplemented, waived or otherwise modified by the
parties thereto from time to time, the “Master Agreement”,
and together with all documents executed and delivered or to be executed and
delivered in connection with the Master Agreement, the “Crimson Transaction
Documents”), pursuant to which, among other things, the Company shall, on
the terms set forth in the Crimson Transaction Documents, contribute its
business to a newly formed entity in which Crimson will acquire a controlling
equity interest (the transaction contemplated by the Crimson Transaction
Documents, as they may be amended, the “Crimson
Transactions”); and
WHEREAS,
Seller wishes to sell the Shares to Buyer, and Buyer wishes to purchase the
Shares from Seller, at either one or two closings as described herein, on the
terms and conditions described in this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which the
parties acknowledge, the parties hereby agree as follows:
1
ARTICLE
I
DEFINITIONS
DEFINITIONS
Section
1.1 Certain
Terms. The following terms have the respective meanings given
to them below:
“Action” has the
meaning set forth in Section 9.4(b)(i).
“Affiliate” means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by, or under common control with such Person.
“Agreement” has the
meaning set forth in the Preamble.
“Aggregate Contingent First
Sale Purchase Price” has the meaning set forth in Section
2.4(c).
“Available Cash from
Operations” has the meaning set forth in Section 2.4(a).
“Base Transaction Purchase
Price” has the meaning set forth in Section 2.4(c).
“Business Day” means
any day that is not a Saturday, a Sunday or other day on which commercial banks
are required or authorized by Law to be closed in New York City, New
York.
“Buyer” has the
meaning set forth in the Preamble.
“Buyer Indemnitees”
has the meaning set forth in Section 8.2.
“Closing” means, as
the context requires, either the First Sale Closing or the Transaction
Closing.
“Closing Date” means,
as the context requires, either the First Sale Closing Date or the Transaction
Closing Date.
2
“Company” has the
meaning set forth in the recitals.
“contract” means any
oral or written agreement, contract, commitment, instrument, undertaking or
arrangement.
“Crimson” has the
meaning set forth in the recitals.
“Crimson Transactions”
has the meaning set forth in the recitals.
“Crimson Transaction
Documents” has the meaning set forth in the recitals.
“Cumulative Target
Amount” has the meaning set forth in Section 2.4(a).
“Current Transaction
Payment” has the meaning set forth in Section 2.4(a).
“Excess Dividend
Amount” has the meaning set forth in Section 2.4(d).
“fiscal quarter” means
a fiscal quarter of the Company.
“First Sale” has the
meaning set forth in Section 2.1.
“First Sale Closing”
has the meaning set forth in Section 2.2(a).
“First Sale Closing
Date” has the meaning set forth in Section 2.2(a).
“First Sale Shares”
means 76.628352490 Shares.
“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any entity, authority or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, any court, tribunal or arbitrator, and any self-regulatory
organization.
“Indemnified Party”
has the meaning set forth in Section 8.5.
3
“Indemnifying Party”
has the meaning set forth in Section 8.5.
“Law” means any
federal, state, local, municipal or foreign statute, law, ordinance, regulation,
rule, code, order, principle of common law, injunction, decree, arbitration
award, or judgment enacted, promulgated, issued, enforced or entered by any
Governmental Authority, or other requirement or rule of law.
“Lien” means, with
respect to any property or asset, any mortgage, lien, pledge, charge, security
interest, lease, encumbrance, purchase price or other adverse claim of any kind
in respect of such property or asset.
“Liquidity Rights
Agreement” has the meaning set forth in the recitals.
“Litigation” means any
action, cause of action, claim, cease and desist letter, demand, suit,
arbitration proceeding, citation, summons, subpoena or investigation of any
nature, civil, criminal, regulatory or otherwise, in law or in
equity.
“Losses” means any
damage, loss, liability or expense (including reasonable expenses of
investigation, enforcement and collection and reasonable attorneys’ and
accountants’ fees and expenses in connection with any Litigation), whether or
not involving a third party claim.
“Master Agreement” has
the meaning set forth in the recitals.
“Mutual Release” has
the meaning set forth in Section 5.9.
“Organizational
Documents” means the articles of incorporation, certificate of
incorporation, charter, bylaws, articles of formation, certificate of formation,
regulations, operating agreement, certificate of limited partnership,
partnership agreement, and all other similar documents, instruments or
certificates executed, adopted, or filed in connection with the creation,
formation, or organization of a Person, including any amendments
thereto.
“Person” means an
individual, corporation, partnership, limited liability company, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
4
“Post-Termination
Registration Notice” has the meaning set forth in Section
5.4(b).
“Prime Rate” has the
meaning set forth in Section 2.4(c).
“Pro Rata Portion” has
the meaning set forth in Section 2.4(a).
“Seller” has the
meaning set forth in the Preamble.
“Seller Indemnitees”
has the meaning set forth in Section 8.3.
“Shares” has the
meaning set forth in the recitals.
“Stockholders
Agreement” has the meaning set forth in the recitals.
“Subsidiary” means,
with respect to any Person, any entity of which securities or other ownership
interests (i)
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions or (ii) representing at
least 50% of such securities or ownership interests are at the time directly or
indirectly owned by such Person.
“Taxes” means all
taxes of any kind, including all federal, state, provincial, territorial,
municipal, local or foreign income, profits, franchise, gross receipts,
environmental (including taxes under Section 59A of the Internal Revenue Code of
1986, as amended), customs, duties, net worth, sales, use, goods and services,
withholding, value added, ad valorem, employment, social security, disability,
occupation, pension, real property, personal property (tangible and intangible),
stamp, transfer, conveyance, severance, production, excise and other taxes,
withholdings, duties, levies, imposts and other similar charges and assessments
(including any and all fines, penalties and additions attributable to or
otherwise imposed on or with respect to any such taxes, charges, fees, levies or
other assessments, and interest thereon) imposed by or on behalf of any taxing
authority, whether disputed or not.
“Third Party Claim”
has the meaning set forth in Section 8.5.
“Transaction Closing”
has the meaning set forth in Section 2.3(a).
5
“Transaction Closing
Date” has the meaning set forth in Section 2.3(a).
“Transaction Sale” has
the meaning set forth in Section 2.1.
“Transaction Shares”
means (i) if
the First Sale Closing occurs, the Shares other than the First Sale Shares and,
(ii) if the
First Sale Closing does not occur, the Shares.
“Turnover Payment Trigger
Date” has the meaning set forth in Section 2.4(d).
Section
1.2 Construction. The
words “hereof”, “herein” and “hereunder” and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The words “party” or “parties” shall
refer to parties to this Agreement. References to “transactions
contemplated hereby” shall refer to the transactions contemplated by this
Agreement and, unless expressly stated otherwise, shall not refer to the
transactions contemplated by the Crimson Transaction Documents. The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof. References to
Articles, Sections and Schedules are to Articles, Sections and Schedules of this
Agreement unless otherwise specified. All Schedules annexed hereto or
referred to herein are hereby incorporated in and made a part of this Agreement
as if set forth in full herein. Any capitalized term used in any
Schedule but not otherwise defined therein shall have the meaning given to such
term in this Agreement. Any singular term in this Agreement shall be
deemed to include the plural, and any plural term the
singular. Whenever the words “include”, “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words
“without limitation,” whether or not they are in fact following by those words
or words of like import. “Writing”, “written” and comparable terms
refer to printing, typing and other means of reproducing words (including
electronic media) in a visible form. References to any agreement or
contract are to that agreement or contract as amended, modified or supplemented
from time to time in accordance with the terms hereof and
thereof. References to any Person include the successors and
permitted assigns of that Person. References from or through any date
mean, unless otherwise specified, from and including or through and including,
respectively. Any reference to “days” means calendar days unless
Business Days are expressly specified. If any action under this
Agreement is required to be done or taken on a day that is not a Business Day,
then such action shall be required to be done or taken not on such day but on
the first succeeding Business Day thereafter, provided that such delay to the
next Business Day shall not give rise to any payment rights or obligations that
would not otherwise have applied if the specified action could have been taken
on the day on which action was to have been taken. If any action
under this Agreement is contemplated to be taken on an anniversary date but the
reference date is a month end for
6
which
there is no corresponding date in what would otherwise be the anniversary month,
such anniversary date shall be deemed to be the first date of the next month.
References to obligations to use “reasonable best efforts” shall not be
interpreted to require any party to incur out of pocket costs (other than costs
arising from the involvement of legal counsel and other advisors).
ARTICLE
II
SALE AND PURCHASE OF SHARES
SALE AND PURCHASE OF SHARES
Section
2.1 Sale and Purchase of
Shares. Subject to the terms and conditions hereof, (i) if the
Crimson Transactions have not been consummated by September 26, 2010, on
such date, at the First Sale Closing, Seller shall sell the First Sale Shares to
Buyer, and Buyer shall purchase the First Sale Shares from Seller (such purchase
and sale, the “First
Sale”) for cash in an aggregate amount as specified in Section 2.4(b)
(plus, if the Transaction Closing occurs, on the Transaction Closing Date, the
Aggregate Contingent First Sale Purchase Price) and (ii) at the
Transaction Closing, Seller shall sell the Transaction Shares to Buyer, and
Buyer shall purchase the Transaction Shares from Seller (such purchase and sale,
the “Transaction
Sale”) for cash in an aggregate amount as specified in Section
2.4(c).
Section
2.2 First Sale
Closing.
(a) The
closing of the First Sale (the “First Sale Closing”)
shall take place at the offices of Weil, Gotshal & Xxxxxx, LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 at 10:00 a.m. on September 26, 2010 (the
“First Sale Closing
Date”), subject to satisfaction or waiver on such date of all conditions
to the First Sale Closing set forth in Sections 6.1 through 6.3 hereof, and
provided that (i) if the Transaction
Closing occurs on or prior to the First Sale Closing Date, the First Sale shall
not occur and (ii) if the conditions
to Buyer’s obligations to consummate the First Sale Closing set forth in
Sections 6.1 and 6.2 hereof are not satisfied or waived on or prior to the First
Sale Closing Date, the First Sale shall not occur.
(b) At
the First Sale Closing, (i) Seller shall
deliver to Buyer, free and clear of any Liens, the First Sale Shares and one or
more certificates representing all of the First Sale Shares, duly endorsed in
blank or accompanied by stock powers or other instruments of transfer duly
executed in blank, and bearing or accompanied by all requisite stock transfer
stamps, and (ii) Buyer shall pay
to Seller the amount referred to in Section 2.4(b) in accordance with such
Section.
7
Section
2.3 Transaction
Closing.
(a) The
closing of the Transaction Sale (the “Transaction Closing”)
shall take place at the offices of Weil, Gotshal & Xxxxxx, LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 at 10:00 a.m. on the date (the “Transaction Closing
Date”) on the first Business Day on which the conditions to the
Transaction Closing set forth in Article VI are satisfied or
waived.
(b) At
the Transaction Closing, (i) Seller shall
deliver to Buyer, free and clear of any Liens, the Shares and one or more
certificates representing all of the Shares (in each case other than any Shares
previously purchased at a First Sale Closing), duly endorsed in blank or
accompanied by stock powers or other instruments of transfer duly executed in
blank, and bearing or accompanied by all requisite stock transfer stamps, and
(ii) Buyer
shall pay to Seller the amounts referred to in Section 2.4(c) in accordance with
such Section.
Section
2.4 Payments.
(a) Transaction
Payments. No later than the 35th day after the last day of
each of the final fiscal quarter in 2009 and each fiscal quarter thereafter
ending prior to or on the earlier of (x) the Transaction
Closing Date and (y) the later of
September 26, 2010 and the date on which the Master Agreement is terminated,
Buyer shall pay to Seller, by wire transfer of immediately available funds to an
account designated by Seller at least two Business Days prior to such payment
date, an amount equal to the aggregate Current Transaction Payment, if any, in
respect of the preceding fiscal quarter. For purposes of this Section
and all other provisions of this Agreement:
“Current Transaction
Payment” means, as of the last day of any fiscal quarter (or, with
respect to the fiscal quarter, if any, in which the Transaction Closing occurs,
as of the Transaction Closing Date), an amount with respect to each Share held
by Seller as of the applicable date equal to the excess, if any, of (i) one two-hundredth
of the greater of (x) the Cumulative
Target Amount as of such date and (y) 20 percent of
Available Cash from Operations for the period from September 28, 2009 through
such date over (ii) the cumulative
amount of dividends paid and other Current Transaction Payments made with
respect to such Share from and after the date hereof and prior to the date
payment of the Current Transaction Payment is to be made. For the
avoidance of doubt, for purposes of calculating the Current Transaction Payment
for the fiscal quarter ending
8
September
26, 2010, the Shares held by the Seller shall be those Shares held by the Seller
prior to giving effect to the First Sale.
“Cumulative Target
Amount” means, as of the last day of any fiscal quarter, the cumulative
target amount set forth on Schedule 1.1 for such
fiscal quarter; and, with respect only to the Transaction Closing Date, the sum
of (i) the Pro Rata Portion of the quarterly target amount set forth on
Schedule 1.1 for the fiscal quarter during which Transaction Closing occurs plus
(ii) the cumulative target amount set forth on Schedule 1.1 for the fiscal
quarter ended immediately preceding the fiscal quarter in which the Transaction
Closing occurs.
“Pro Rata Portion”
means on the Transaction Closing Date, with respect to a quarterly target
amount, the product of such quarterly amount and a fraction, the numerator of
which is the total number of days that have elapsed within such fiscal quarter
prior to and including such date and the denominator of which is the total
number of days in such fiscal quarter.
“Available Cash From
Operations” means, with respect to any period, cash generated from
operations of the Company during such period and available for payment of
dividends, determined in a manner consistent with past practice after due
consideration for all future cash needs of the Company, but excluding all costs
and cash needs incurred or arising pursuant to the Crimson Transaction
Documents.
(b) First Closing
Payment. At the First Sale Closing, Buyer shall pay to Seller
$2 billion by wire transfer of immediately available funds to an account
designated by Seller at least two Business Days prior to such
date. Ten days following the First Sale Closing, Buyer shall deliver
to Seller a certificate of Buyer’s Chief Financial Officer or one of his or her
direct reports certifying to the amount of Available Cash From Operations as of
the First Sale Closing Date.
(c) Transaction Closing
Payment. At the Transaction Closing, Buyer shall pay to
Seller, by wire transfer of immediately available funds to any account
designated by Seller at least two Business Days prior to such date, an amount
equal to the Base Transaction Purchase Price plus an amount equal to Buyer’s
estimate, based on reasonably available information at such time, of the Current
Transaction Payment for the Transaction Closing Date plus, if the First Sale
Closing has occurred prior to the Transaction Closing, the Aggregate Contingent
First Sale Purchase Price. At such time as the final post-closing
purchase price adjustments have been made to amounts payable
9
at
the closing under the Crimson Transaction Documents, Buyer shall deliver to
Seller a certificate of Buyer’s Chief Financial Officer or one of his or her
direct reports certifying to the amount of Available Cash from Operations as of
the Transaction Closing Date, and Buyer shall pay to Seller, or Seller shall pay
to Buyer, as the case may be, the amount by which the actual Current Transaction
Payment for the Transaction Closing Date exceeds or is less than the estimate of
such amount utilized at the Transaction Closing, in either case together with
interest thereon accruing from the Transaction Closing Date to the date of
payment at the Prime Rate. The payment obligations under this Section
2.4(c) will apply in lieu of any obligation to pay the Current Transaction
Payment for the fiscal quarter during which the Transaction Closing
occurs. For purposes of this Section and all other provisions of this
Agreement:
“Base Transaction Purchase
Price” means an amount equal to the product of (i) $29,000,000 and
(ii) the number
of Transaction Shares.
“Prime Rate” means the
rate of interest per annum equal to the rate of interest published from time to
time by the Wall Street Journal as the prime rate at the large U.S. money center
banks.
“Aggregate Contingent First
Sale Purchase Price” means $222,222,222.
(d) Turnover
Payment. In the event that the Transaction Closing does not
occur, following the later of (x) the termination of this Agreement and (y) the
36th day following the First Sale Closing (the later of (x) or (y), the “Turnover Payment Trigger
Date”), the Seller shall pay to Buyer, as hereinafter set forth, an
amount (the "Turnover Amount") equal to the lesser of (i) the aggregate
Transaction Payments made with respect to any Share held by Seller or any of its
Affiliates as of such date and (ii) the sum of (A) such Share’s allocable share
of the amount of Available Cash from Operations for the period from September
28, 2009 through the fiscal quarter ending on or prior to the Turnover Payment
Trigger Date that was not distributed prior to such date and (B) the Excess
Dividend Amount with respect to such Share. Seller shall be obligated
to pay the Turnover Amount solely out of dividends received by Seller following
the Turnover Payment Trigger Date and shall make payments in respect of such
obligation until the Turnover Amount shall have been paid in full, with each
such payment being made within two Business Days following the payment of any
dividend to Seller or any of its Affiliates on any Share.
“Excess Dividend
Amount” means with respect to any Share, the excess (if any) of (i) the
sum of the dividends paid on such Share during the period from
10
September
28, 2009 through the Turnover Payment Trigger Date and the aggregate Current
Transaction Payments paid on such Share over (ii) the greater of (A) the
cumulative target amount through the fiscal quarter ending on or prior to the
Turnover Payment Trigger Date divided by 200 and (B) the Available Cash from
Operations from September 28, 2009 through the fiscal quarter ending on or prior
to the Turnover Payment Trigger Date divided by 1000.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
hereby represents and warrants to Buyer, as of the date hereof and as of the
applicable Closing Date, as follows:
Section
3.1 Status. Seller
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, except for any failure to be in good standing
that would not reasonably be expected to hinder or delay the consummation of the
First Sale or the Transaction Sale.
Section
3.2 Authority;
etc. Seller has full power and authority to execute, deliver
and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement have been duly and validly authorized
and approved by all necessary action of Seller and no additional authorization
or consent is required under its Organizational Documents in connection with the
execution, delivery and performance by it of this Agreement. This
Agreement is a legal, valid and binding obligation of Seller, enforceable
against it in accordance with its terms, except to the extent enforcement may be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar Laws of general applicability affecting
the rights of creditors and general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in
equity).
Section
3.3 Governmental Authorization;
Non-Contravention. The execution, delivery and performance of
this Agreement by Seller and the consummation by it of the transactions
contemplated by this Agreement to which Seller is a party will not (i) conflict
with, or constitute a material default under, or result in a material breach of,
or result in the termination, cancellation, modification or acceleration
(whether after the filing of notice or the lapse of time or both) of any
material right or obligation of Seller under any material contract or other
instrument to which Seller is a party, (ii) require the
consent, authorization, approval or waiver of, or any registrations or filings
with or notices to, any Person, (iii) violate any
provision of Seller’s Organizational Documents or
11
(iv) violate or
result in a breach of, or constitute a default under, any Law or order to which
Seller is subject, except, in the case of clauses (i) and (ii), as would not
reasonably be expected to impair or delay the ability of the Seller to
consummate the transactions contemplated by, or perform its obligations under,
this Agreement.
Section
3.4 Title to
Shares. Seller owns the Shares (except, as of the Transaction
Closing Date, for any Shares purchased at the First Sale Closing), beneficially
and of record, free and clear of any Lien (other than those Liens arising under
the terms of the Stockholders Agreement, which shall be terminated at the
Transaction Closing). Upon delivery of and payment for the Shares at
the Closing, Buyer will acquire good and valid title to all of the Shares
(except, as of the Transaction Closing Date, for any Shares purchased at the
First Sale Closing), free and clear of any Lien (other than those set forth in
the Stockholders Agreement, which shall be terminated at the Transaction
Closing). The Shares constitute all equity interests in the Company
owned or held by Seller or any of its Affiliates.
Section
3.5 No Judgments,
Litigation. There is no outstanding judgment, order, writ,
injunction, decree or award of any Governmental Authority, or any civil,
criminal or administrative action, claim, litigation, arbitration,
investigation, hearing or other proceeding of or before any Governmental
Authority or arbitrator pending or, to the knowledge of Seller, threatened,
against either Seller or any of its Affiliates which questions the validity of
any of the transactions contemplated hereby or any action taken or to be taken
pursuant to this Agreement or in which it is sought to restrain or prohibit any
such transactions or to obtain damages or other relief in connection with this
Agreement except in each case, as would not, individually or the aggregate,
reasonably be expected to impair or delay the ability of the Seller to
consummate the transactions contemplated by, or perform its obligations under,
this Agreement.
Section
3.6 Finders’
Fees. Except for Barclays Capital, whose fees and expenses
will be paid by Seller, there is no investment banker, broker, finder or other
intermediary retained by or authorized to act on behalf of Seller or any of its
Affiliates who might be entitled to any fee or commission from Buyer or any of
its Affiliates upon consummation of the transactions contemplated hereby,
provided that the pendency of a claim for fees and commissions that would not
reasonably be expected to hinder or delay the consummation of the First Sale or
the Transaction Sale shall not constitute a material breach of this
representation and warranty solely for purposes of Section 6.2(a).
12
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
hereby represents and warrants to Seller, as of the date hereof and as of the
applicable Closing Date, as follows:
Section
4.1 Status. Buyer
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, except for any failure to be in good standing
that would not reasonably be expected to hinder or delay the consummation of the
First Sale or the Transaction Sale.
Section
4.2 Authority;
etc. Buyer has full power and authority to execute, deliver
and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement have been duly and validly authorized
and approved by all necessary action of Buyer and no additional authorization or
consent is required under the Organizational Documents of Buyer in connection
with the execution, delivery and performance by them of this
Agreement. This Agreement is a legal, valid and binding obligation of
Buyer, enforceable against it in accordance with its terms, except to the extent
enforcement may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar Laws of general applicability
affecting the rights of creditors and general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law or in
equity).
Section
4.3 Governmental Authorization;
Non-Contravention. The execution, delivery and performance of
this Agreement by Buyer and the consummation by Buyer of the transactions
contemplated by this Agreement will not (i) conflict
with, or constitute a material default under, or result in a material breach of,
or result in the termination, cancellation, modification or acceleration
(whether after the filing of notice or the lapse of time or both) of any
material right or obligation of Buyer under any material contract or other
instrument to which Buyer is a party, (ii) require the
consent, authorization, approval or waiver of, or any registrations or filings
with or notices to, any Person, (iii) violate any
provision of the Organizational Documents of Buyer or (iv) violate or
result in a breach of, or constitute a default under, any Law or order to Buyer
is subject, except, in the case of clauses (i) and (ii), as would not reasonably
be expected to impair or delay the ability of the Buyer to consummate the
transactions contemplated by, or perform its obligations under, this
Agreement.
Section
4.4 No Judgments,
Litigation. There is no outstanding judgment, order, writ,
injunction, decree or award of any Governmental Authority, or any civil,
criminal or
13
administrative
action, claim, litigation, arbitration, investigation, hearing or other
proceeding of or before any Governmental Authority or arbitrator pending or, to
the knowledge of Buyer or the Company, threatened, against either Buyer or the
Company or any of their Affiliates which questions the validity of the
transactions contemplated hereby or any action taken or to be taken pursuant to
this Agreement or in which it is sought to restrain or prohibit such
transactions or to obtain damages or other relief in connection with this
Agreement except in each case, as would not, individually or the aggregate,
reasonably be expected to impair or delay the ability of the Buyer to consummate
the transactions contemplated by, or perform its obligations under, this
Agreement.
Section
4.5 Finders’
Fees. There is no investment banker, broker, finder or other
intermediary retained by or authorized to act on behalf of Buyer or any of its
Affiliates who might be entitled to any fee or commission from Buyer or any of
its Affiliates as a result of consummation of the transactions contemplated
hereby.
ARTICLE
V
CERTAIN
COVENANTS
Section
5.1 Crimson
Transactions.
(a) Seller
on behalf of itself and its Affiliates hereby (i) irrevocably
(subject only to Section 7.2 and Section 7.3) waives and releases any right of
veto, objection or consent it may have under contract or arising under Law
arising from or relating to the Crimson Transactions, (ii) agrees to vote
the Shares and take all actions and furnish all consents and approvals necessary
or desirable (including attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings) to obtain any required corporate approvals or to assist in the
consummation of all transactions contemplated by the Crimson Transaction
Documents, including, but not limited to, any financing transaction contemplated
by the Crimson Transaction Documents or any transaction referred to in Section
5.3, provided that Seller shall not be required to take any action that would be
materially adverse to Seller and its Affiliates and (iii) agrees to
cooperate with requests to take any other actions reasonably necessary to
facilitate the closing of the First Closing and the Transaction Closing, provided that
(x) Seller and its Affiliates shall not be required to become a party to
any agreement or to otherwise incur or assume any liability in respect of the
Crimson Transactions or arising under or related to a Crimson Transaction
Document or any transaction referred to in Section 5.3 and (y) the
foregoing waiver and release shall not (A) be effective with respect to any
14
amendments
to the Crimson Transaction Documents after the date hereof to the extent such
amendments constitute or require actions to occur prior to the Transaction
Closing which would both (I) be subject to
rights of Seller and its Affiliates under Section 3.1(a)(ii) or Section
3.1(a)(iii) of the Stockholders Agreement and (II) be
materially adverse to Seller and its Affiliates or (B) in the event the Crimson
Transaction is terminated, be deemed to constitute a waiver of any objection
asserted by Seller or its Affiliates under the Stockholders Agreement or Law
regarding any matter that did not arise from the Crimson
Transaction.
(b) Subject
to clause (y) in the foregoing Section 5.1(a), Seller shall not exercise or
permit to be exercised by any of its Affiliates any right of veto, objection or
consent set forth in the Stockholders Agreement in any manner that could delay,
retard or frustrate the consummation of the Crimson Transactions.
(c) Without
limiting any rights Seller may have pursuant to the Stockholders Agreement to
information or access, Buyer shall provide Seller with updates from time to time
regarding the status of the Crimson Transactions (including prompt notice of the
execution of any amendment, supplement, waiver or other modification of the
Master Agreement, and, if requested by Seller, copies thereof) and progress
towards the satisfaction of closing conditions under the Crimson Transaction
Documents, provided that all such information shall be treated by Seller as
“Confidential Information” as defined in and in accordance with Section 4.3 of
the Stockholders Agreement.
(d) In
the event the Master Agreement is terminated and Buyer or any of its Affiliates
(other than the Company or one of its Subsidiaries) collects cash proceeds as a
result of damage claims asserted against Crimson or any of its Affiliates in
respect of any breach of the Crimson Transaction Documents, Buyer shall remit to
Seller promptly following Buyer’s or its Affiliates’ receipt thereof, 12.34
percent of the net amount of such damage claim proceeds.
Section
5.2 Restrictions on
Transfer. Notwithstanding any rights granted under the
Stockholders Agreement, Seller hereby agrees it shall not Transfer any of the
Shares to a Permitted Transferee (as defined in the Stockholders Agreement)
prior to the earlier of any Transaction Closing or the termination of this
Agreement.
Section
5.3 Other
Transactions. The waiver and release of any and all rights of
veto, objection or consent that Violet and its Affiliates have granted with
respect to the
15
Crimson
Transactions pursuant to Section 5.1 are hereby also granted irrevocably
(subject only to Sections 7.2 and 7.3), mutatis mutandis, with effect
from and after September 26, 2010 (subject only to Sections 7.2 and 7.3), with
respect to any other transaction that would otherwise be subject to Section
3.1(a)(i) of the Stockholders Agreement except in the case of any transaction (a
“Subject
Transaction”) which, in the reasonable opinion of two Nationally
Recognized Investment Banks (as defined in the Liquidity Rights Agreement)
selected by the Vivendi Group, would make the consummation of an underwritten
public offering (as referred to and described in the Liquidity Rights Agreement)
of the Company (during the pendency of and immediately following the Subject
Transaction) unable to be achieved except at a valuation that would be
substantially below the valuation that could be achieved in such an underwritten
public offering of the Company immediately prior to the entry into the Subject
Transaction (it being understood and agreed that the Crimson Transaction would
enable an underwritten public offering of the Company to be achieved at a
valuation that is not substantially below the valuation of the Company
immediately prior to the entry into the Master Agreement), provided that the
foregoing exception shall not apply (and such waiver and release shall be
applicable) to (A) any transaction substantially similar to the Crimson
Transactions (including with Time Warner, News Corporation or Crimson), or (B)
any sale, merger or consolidation of the Company following which the Vivendi
group holds solely cash and marketable securities (or securities that would be
marketable upon exercise of registration rights available within 180 days
following consummation of such transaction) and in which Vivendi receives the
same consideration for its equity (measured on a per share basis) as does
Parent).
Section
5.4 Liquidity
Right.
(a) Seller,
on behalf of itself and its Affiliates, hereby irrevocably waives any right to
deliver any notice or to exercise any rights that may arise under Section 2.1 of
the Liquidity Rights Agreement between the date hereof and the expiration of the
period, if any, during which a Post-Termination Registration Notice, if any, may
be delivered pursuant to Section 5.4(b).
(b) In
the event the Crimson Transaction Documents are terminated, then, during the 15
day period following the later of (i) the date of such
termination and (ii) January 1,
2011, Seller shall have the right to deliver a “Special Registration Notice” as
defined in and in accordance with the Liquidity Rights Agreement (other than the
requirement that such notice be provided between November 15 and December 10 of
a calendar year). Any such notice delivered pursuant to the
immediately preceding sentence is referred to herein as a “Post-Termination
Registration Notice” and shall be treated as any other Special
Registration Notice that may be submitted pursuant to the Liquidity Rights
16
Agreement
except as provided herein. The terms of the Liquidity Rights
Agreement shall apply mutatis
mutandis to the Post-Termination Registration Notice, provided that
(i) the process
for determining “Fully Distributed Public Market Value” under Section 5.1 of the
Liquidity Rights Agreement, including the engagement of Appraisers (as defined
in the Liquidity Rights Agreement) shall commence immediately upon receipt of a
Post-Termination Registration Notice, (ii) the proviso
to Section 5.1(d) of the Liquidity Rights Agreement regarding the timing of the
delivery of appraisals shall not apply and (iii) the
registration milestones set forth in clauses (i) and (ii) of Section 2.1(b)
of the Liquidity Rights Agreement shall not apply and clause (iv) shall be
deemed modified to require consummation of the requested offering no later than
the five month anniversary of delivery of the Post-Termination Registration
Notice rather than September 30 of a Registration Year (as defined in the
Liquidity Rights Agreement) (subject, for the avoidance of doubt, to the same
qualifications on such timing obligation as would apply under the Liquidity
Rights Agreement in the case of a registration required to be consummated by
September 30); provided that, (x) such period shall be extended (but not for
more than 45 days) if reasonably necessary to comply with financial statement
requirements of the Securities & Exchange Commission and (y) in the event
that the period for consummation of the requested offering would end (A) in the
last week in August or the week in which the holiday known as “Labor Day”
occurs, such period shall be extended to the end of the week after the week in
which Labor Day occurs or (B) between December 15 through January 7, such period
shall be extended to the end of the second full week in such
January. Except as provided in this Section 5.4, the Liquidity Rights
Agreement remains in full force and effect in accordance with its terms as of
the date hereof.
(c) Buyer shall cause
the Company to comply with any obligations under the LRA incident to the
rights granted to Seller under this Section 5.4.
Section
5.5 Reasonable Best
Efforts.
(a) Each
party shall use its reasonable best efforts to take or cause to be taken all
actions, and to do or cause to be done all things that are necessary, proper or
advisable in order for such party to fulfill and perform its respective
obligations in respect of this Agreement, to cause the conditions to its
respective obligations set forth in Article VI to be fulfilled and otherwise to
consummate and make effective the transactions contemplated hereby.
17
(b) Each
party shall, as promptly as practicable, (i) make, or cause to
be made, all filings and submissions required under any Law applicable to such
party or any of its Affiliates, and give such reasonable undertakings as may be
required in connection therewith and (ii) use reasonable
best efforts to obtain, or cause to be obtained, all consents, authorizations
and approvals from all Governmental Authorities necessary to be obtained by such
party or any of its Affiliates, in each case in connection with this Agreement
or the consummation of the transactions contemplated hereby.
Section
5.6 Notice of Certain
Events. From and after the date hereof until the Closing Date,
each party shall promptly notify the other party of the occurrence of any breach
by such party of any representation, warranty, covenant or agreement contained
in this Agreement that is reasonably likely to make the satisfaction of the
closing conditions set forth in Article VI impossible or unlikely.
Section
5.7 Resignations. At
the Transaction Closing, Seller shall deliver to the Company the resignations of
any director of the Company or any of its Subsidiaries who has been designated
by Seller or any of its Affiliates to serve on any such board.
Section
5.8 Public
Announcements. None of the parties hereto (nor any of their
respective Affiliates) shall issue any other press release or make any other
public announcement with respect to the terms of this Agreement or the First
Sale or the Transaction Sale without the prior agreement of the other party,
except (i) for
any press release or other public announcement that contains no additional
information regarding the transactions contemplated hereby beyond the
information contained in the press release being issued on the day hereof that
has been agreed to in advance by Buyer and Seller and (ii) as may be
required by Law or by any listing agreement with a national securities
exchange.
Section
5.9 Mutual
Release. Seller, on the one hand, and Buyer and the Company
(which Buyer shall cause to execute such release), on the other hand, shall, on
behalf of itself and its Affiliates, execute and deliver at the Transaction
Closing a release in the form attached as Exhibit A (the “Mutual
Release”). Any agreements in effect between or among Buyer
and/or the Company or any of their respective Subsidiaries, on one hand, and
Seller and/or any of its Subsidiaries, on the other hand, that are not listed on
the Schedule to the Mutual Release shall remain in full force and effect
notwithstanding the Transaction Closing in accordance with their
terms.
18
Section
5.10 Provision of Determination
of Available Cash From Operations. For each fiscal quarter for
which a Current Transaction Payment is payable, Buyer shall deliver to Seller
(a) a calculation furnished by the Chief Financial Officer of Buyer or one of
his or her direct reports of the determination of Available Cash from Operations
for such fiscal quarter and a reconciliation, if applicable to available cash as
determined in accordance with the May 11, 2004 non-binding letter of
intention from Buyer to Seller and (b) such available documentation as Seller
may reasonably request from time to time related to the such calculation and
reconciliation.
Section
5.11 Further
Assurances. Following the First Sale Closing and the
Transaction Closing, as applicable, Seller shall, and shall cause its Affiliates
and representatives to, execute and deliver such additional instruments,
documents, conveyances or assurances and take such other actions as shall be
necessary, or otherwise reasonably be requested by Buyer to confirm and assure
the rights and obligations provided for in this Agreement and render effective
the consummation of the transaction contemplated hereby, or otherwise to carry
out the intent and purposes of this Agreement.
ARTICLE
VI
CONDITIONS
PRECEDENT
Section
6.1 Conditions to the
Obligations of the Parties. The obligations of the parties to
consummate the First Sale Closing or the Transaction Closing, as applicable,
shall be subject to the fulfillment of the following condition as of the
applicable Closing Date: consummation of the transactions contemplated to occur
at such Closing shall not have been restrained, enjoined by any court having
jurisdiction or otherwise prohibited or made illegal by any applicable
Law.
Section
6.2 Conditions to Obligations of
Buyer. The obligations of Buyer to consummate the First Sale
Closing or the Transaction Closing, as applicable, shall be subject to the
fulfillment at or prior to such Closing of the following additional
conditions:
(a) Representations and
Warranties. The representations and warranties of Seller
contained in this Agreement and in any certificate or other writing delivered
pursuant hereto, other than the representations and warranties contained in
Section 3.4, shall be true and correct in all material respects, and the
representations and warranties contained in Section 3.4 shall be true and
correct in all respects, at and as of the date hereof and at and as of the
applicable Closing
19
Date
with the same effect as though made at and as of the applicable Closing
Date.
(b) Performance of
Covenants. Seller shall have in all material respects duly
performed and complied with all agreements, covenants and conditions required by
this Agreement to be performed or complied with by it at or prior to such
Closing.
(c) Officer’s
Certificate. Seller shall have delivered to Buyer a
certificate, dated the Closing Date and signed by a duly authorized officer to
the effect set forth in Sections 6.2(a) and (b).
Section
6.3 Conditions to Obligations of
Seller. The obligation of Seller to consummate the First Sale
Closing or the Transaction Closing, as applicable, shall be subject to the
fulfillment at or prior to such Closing of the following additional
conditions:
(a) Representations and
Warranties. The representations and warranties of Buyer
contained in this Agreement and in any certificate or other writing delivered
pursuant hereto shall be true and correct in all material respects at and as of
the date hereof and at and as of the applicable Closing Date with the same
effect as though made at and as of the applicable Closing Date.
(b) Performance of
Covenants. Buyer shall have in all material respects duly
performed and complied with all agreements, covenants and conditions required by
this Agreement to be performed or complied with by it at or prior to such
Closing.
(c) Officer’s
Certificate. Buyer shall have delivered to Seller a
certificate, dated the Closing Date and signed by a duly authorized officer to
the effect set forth in Sections 6.3(a) and (b).
Section
6.4 Additional Conditions to
Obligations of the Parties. The obligation of the parties to
consummate the Transaction Closing shall be subject to the fulfillment at or
prior to the Transaction Closing of the following additional
conditions:
20
(a) Crimson
Transactions. Buyer shall have provided to Seller a
certificate stating that the closing conditions set forth in the Crimson
Transaction Documents shall have been satisfied (or waived by the party having
the right to waive such condition).
(b) Mutual
Release. As a condition to the obligations of Seller, Buyer
shall have executed and delivered to Seller the Mutual Release, dated and
effective as of the Transaction Closing Date. Similarly, as a
condition to the obligations of Buyer, Seller shall have executed and delivered
to Buyer the Mutual Release, dated and effective as of the Transaction Closing
Date.
ARTICLE
VII
TERMINATION
TERMINATION
Section
7.1 Termination. Subject
to Section 7.2 and Section 7.3, this Agreement may be terminated at any time
prior to the Closing:
(a) by
the written agreement of Buyer and Seller;
(b) by
either Buyer or Seller by notice to the other party, if:
(i) the
Transaction Closing shall not have been consummated prior to any termination of
the Crimson Transaction Documents or
(ii) (A) there shall
be any Law that makes consummation of the Closing illegal or otherwise
prohibited or (B) any judgment,
injunction, order or decree of any Governmental Authority having competent
jurisdiction enjoining any party from consummating the Closing is entered and
such judgment, injunction, order or decree shall have become final and
nonappealable;
(c) by
Buyer by notice to Seller, if a breach of any representation or warranty or
failure to perform any covenant or agreement on the part of Seller set forth in
this Agreement shall have occurred that would cause a condition to Buyer’s
obligations under Article VI not to be satisfied, and such breach is incapable
of being cured within 30 days of notice of such breach, provided that Buyer
shall not have the right to terminate this Agreement pursuant to this
21
Section 7.1(c)
if Buyer is then in material breach or violation of its representations,
warranties or covenants contained in this Agreement; or
(d) by
Seller by notice to Buyer, if a breach of any representation or warranty or
failure to perform any covenant or agreement on the part of Buyer set forth in
this Agreement shall have occurred that would cause a condition to Seller’s
obligations under Article VI not to be satisfied, and such breach is incapable
of being cured within 30 days of notice of such breach or, in the case of any
breach of a payment obligation in Section 2.4(a) that is not cured within 15
days (provided that cure requires payment of interest is paid on the delayed
payment at the Prime Rate plus 5% during the period of delay), provided that Seller
shall not have the right to terminate this Agreement pursuant to this
Section 7.1(d) if Seller is then in material breach or violation of its
representations, warranties or covenants contained in this
Agreement.
(e) For
the avoidance of doubt, during the pendency of any dispute as to whether either
party is in material breach of its obligations hereunder, any termination right
asserted under Sections 7.1(c) and 7.1(d) shall not be effective unless and
until a final determination regarding such dispute or a mutual agreement to
resolve such dispute, and following resolution, the party determined or agreed
to be in breach shall have the opportunity to promptly cure following any such
determination.
Section
7.2 Effect of
Termination. If this Agreement is terminated pursuant to
Section 7.1, this Agreement shall cease to be of any effect without liability of
any party (or any of its directors, officers, employees, stockholders,
Affiliates or agents representatives or advisors) to the other party hereto;
provided that
(i) in the
event this Agreement is terminated prior to the First Sale other than by Buyer
under Section 7.1(c), the rights and obligations of the parties hereunder with
respect to the consummation of the First Sale shall nevertheless remain in
effect subject to the terms and conditions hereof, (ii) the provisions of
this Section 7.2 and Sections 1.1, 1.2, 2.4, 5.1(a), 5.1(b), 5.3, 5.4, 5.6, 7.1,
the applicable indemnification provisions of Article VIII (to the extent that a
First Sale has occurred) and Article IX, shall survive any termination hereof
pursuant to Section 7.1, provided that survival of Sections 5.1(a) and 5.3 shall
not apply following any termination for material breach by Buyer and (iii) no such
termination shall relieve either party of liability for a breach of this
Agreement.
Section
7.3 Effectiveness of Consents;
Disputes. The agreements of Seller in Sections 5.1(a) and
Section 5.3 shall not be effective during the pendency of a dispute as provided
in this Section 7.3. In the event of a dispute as to whether a party
has the right
22
to
terminate this Agreement for breach under Section 7.1 or a dispute as to the
satisfaction of closing conditions, then notwithstanding anything to the
contrary, the effectiveness of the agreements of Seller contained in Sections
5.1(a) and 5.3 shall not be in force pending resolution of
dispute. If it is finally determined that Buyer was in breach, such
agreements shall continue to have no effect unless and until Buyer promptly
cures such breach, provided that in the case of a failure to have consummated a
First Sale or a Transaction Sale, such cure shall include the applicable
payments under Article II plus the payment of simple interest at the Prime Rate
in respect of the period in which the applicable Closing was not
consummated. If it is finally determined that Buyer was not in
breach, such suspension shall immediately be lifted and such agreements shall
again be in full force and effect, it being understood, for the avoidance of
doubt, that during the pendency of any such dispute, Buyer shall be free without
claim by Seller to proceed with pre-closing activities relating to the Crimson
Transactions, but not to consummate such Crimson Transactions.
ARTICLE
VIII
INDEMNIFICATION
INDEMNIFICATION
Section
8.1 Survival. The
representations, warranties, covenants and agreements of the parties contained
in this Agreement or in any certificate or other writing delivered pursuant
hereto or in connection herewith shall survive the First Sale Closing and/or the
Transaction Closing, as applicable, indefinitely.
Section
8.2 Indemnification by
Seller. From and after the applicable Closing, Seller shall
defend, indemnify and hold harmless Buyer, its Affiliates (which for this
purpose shall include the Company and its Subsidiaries), and their respective
officers, directors, employees, agents, successors and assigns (collectively,
the “Buyer
Indemnitees”) from and against, and pay or reimburse the Buyer
Indemnitees for, any and all Losses resulting from (a) any inaccuracy in
or breach of any representation or warranty when made or deemed made by Seller
in this Agreement or (b) any breach or
default in performance by Seller of any covenant or agreement under this
Agreement, it being understood, for the avoidance of doubt, that the case of the
First Sale Closing, the foregoing indemnity shall only apply to those
representations, warranties, covenants or agreements made, performed or to be
performed by their terms, prior to the First Sale Closing.
Section
8.3 Indemnification by
Buyer. From and after the applicable Closing, Buyer shall
defend, indemnify and hold harmless Seller and its officers, directors,
employees, agents, successors and assigns (collectively, the “Seller Indemnitees”)
from and against, and pay or reimburse the Seller Indemnitees for, any and all
Losses resulting
23
from
(a) any
inaccuracy in or breach of any representation or warranty made or deemed made by
Buyer in this Agreement, (b) any breach or
default in performance by Buyer of any covenant or agreement under this
Agreement or (c) any Third
Party Claim asserted by Crimson (or a third party purporting to act on behalf of
Crimson) against a Seller Indemnitee arising from the Crimson Transactions, it
being understood, for the avoidance of doubt, that the case of the First Sale
Closing, the foregoing indemnity in clauses (a) and (b) shall only apply to
those representations, warranties, covenants or agreements made, performed or to
be performed by their terms, prior to the First Sale Closing.
Section
8.4 Certain
Limitations.
(a) Except
as provided in Section 9.9, the indemnity provided for in this Article VIII
shall be the sole and exclusive remedy of Buyer Indemnitees or Seller
Indemnitees, as the case may be, after the Closing for any inaccuracy of any
representation or warranty of, or breach of this Agreement by, Seller, on the
one hand, or Buyer or the Company, on the other hand; provided that nothing
herein shall limit in any way any such party’s remedies in respect of fraud,
intentional misrepresentation or omission or intentional misconduct by the other
party constituting or resulting in any breach of this Agreement.
(b) No
party to this Agreement (or any of its Affiliates) shall, in any event, be
liable or otherwise responsible to any other party (or any of its Affiliates)
for any punitive damages of such other party (or any of its Affiliates) arising
out of or relating to this Agreement or the performance or breach hereof, except
to the extent such amounts are payable to a third party in respect of a Third
Party Claim.
Section
8.5 Third Party Claim
Procedures. In the case of any Litigation asserted by a third
party (a “Third Party
Claim”) against a party entitled to indemnification under this Agreement
(an “Indemnified
Party”), notice shall be given by the Indemnified Party to the party
required to provide indemnification (the “Indemnifying Party”)
promptly after such Indemnified Party has actual knowledge of such Third Party
Claim, and the Indemnified Party shall permit the Indemnifying Party (at the
expense of such Indemnifying Party and so long as the Indemnifying Party
acknowledges in writing its obligation to indemnify the Indemnified Party for
Losses related to such Third Party Claim) to assume the defense of such Third
Party Claim, provided that (a) counsel for
the Indemnifying Party who shall conduct the defense of such Third Party Claim
shall be reasonably satisfactory to the Indemnified Party, and the Indemnified
Party may participate in such defense at such Indemnified Party’s expense, and
(b) the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying
24
Party
of its indemnification obligation under this Agreement except to the extent that
such failure results in a lack of actual notice to the Indemnifying Party and
such Indemnifying Party is materially prejudiced as a result of such failure to
give notice. If the Indemnifying Party does not promptly assume the
defense of such Third Party Claim following notice thereof, the Indemnified
Party shall be entitled to assume and control such defense and to settle or
agree to pay in full such Third Party Claim without the consent of the
Indemnifying Party without prejudice to the ability of the Indemnified Party to
enforce its claim for indemnification against the Indemnifying Party
hereunder. Except with the prior written consent of the Indemnified
Party, no Indemnifying Party, in the defense of any such Third Party Claim,
shall consent to entry of any judgment or enter into any settlement that
provides for injunctive or other nonmonetary relief affecting the Indemnified
Party or that does not include as an unconditional term thereof the giving by
each claimant or plaintiff to such Indemnified Party of an irrevocable release
from all liability with respect to such Third Party Claim. If the
Indemnified Party in good faith determines that the conduct of the defense or
any proposed settlement of any Third Party Claim would reasonably be expected to
affect adversely the Indemnified Party’s Tax liability or the ability of the
Company or any of its Subsidiaries to conduct its business, or that the
Indemnified Party may have available to it one or more defenses or counterclaims
that are inconsistent with one or more of those that may be available to the
Indemnifying Party in respect of such Third Party Claim, the Indemnified Party
shall have the right at all times to take over and control the defense,
settlement, negotiation or Litigation relating to any such Third Party Claim at
the sole cost of the Indemnifying Party; provided that if the
Indemnified Party does so take over and control, the Indemnified Party shall not
settle such Third Party Claim without the written consent of the Indemnifying
Party, such consent not to be unreasonably withheld or delayed. In
any event, Seller and Buyer shall cooperate in the defense of any Third Party
Claim subject to this Article VIII and the records of each shall be reasonably
available to the other with respect to such defense.
ARTICLE
IX
MISCELLANEOUS
MISCELLANEOUS
Section
9.1 Notices. All
notices, requests, permissions, waivers and other communications hereunder shall
be in writing and shall be deemed to have been duly given (a) five Business
Days following sending by registered or certified mail, postage prepaid, (b) when sent, if
sent electronically or by facsimile, during the normal business hours on any
Business Day of the recipient, or one Business Day after the date sent, if sent
electronically or by facsimile, after the normal business hours of the
recipient, (c) when
delivered, if delivered personally to the intended recipient and (d) one Business
Day following sending by overnight delivery via a national courier service (two
Business Days following sending by overnight international delivery via
international courier service), in each case, addressed to a party at the
following address for such party:
25
if
to Buyer, to:
General
Electric Company
0000
Xxxxxx Xxxxxxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Senior Counsel for Transactions
Fax:
(000) 000-0000
with
a copy (which shall not constitute notice) to:
Debevoise
& Xxxxxxxx LLP
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx
X. Xxxxx
Xxxxx X.
Xxxxxxx
Fax: (000)
000-0000
if
to Seller, to:
Vivendi
S.A.
000
Xxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxx III, Senior Vice
President and
Deputy General Counsel
Facsimile: (000)
000-0000
with
a copy to:
Vivendi
S.A.
000
Xxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Trace Xxxxxx, Senior Vice President
Facsimile: (000)
000-0000
and
with a copy (which shall not constitute notice) to:
Xxxxxx,
Xxxx & Xxxxxxxx LLP
0000
Xxxxxxx Xxxx X.
Xxx
Xxxxxxx XX 00000
Attention:
Xxxx Xxxxxx
Facsimile:
(000) 000-0000
26
Any
party to this Agreement may change the address or addresses to which notices and
other communications hereunder are to be delivered by giving the other parties
to this Agreement notice in the manner herein set forth.
Section
9.2 Amendment; Waivers,
etc. No amendment, modification or discharge of this
Agreement, and no waiver hereunder, shall be valid or binding unless set forth
in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought. Any such
waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other
time. Neither the waiver by any of the parties hereto of a breach of
or a default under any of the provisions of this Agreement, nor the failure by
any of the parties, on one or more occasions, to enforce any of the provisions
of this Agreement or to exercise any right or privilege hereunder, shall be
construed as a waiver of any other breach or default of a similar nature, or as
a waiver of any of such provisions, rights or privileges
hereunder. The rights and remedies herein provided are cumulative and
none is exclusive of any other, or of any rights or remedies that any party may
otherwise have at law or in equity.
Section
9.3 Expenses. Except
as otherwise provided herein, all costs, fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby,
including, whether or not consummated, shall be paid by the party incurring such
cost or expense. Notwithstanding the foregoing, all sales, use, real
property, transfer, stamp, registration, documentary, recording or similar Taxes
incurred in connection in connection with the sale and purchase of Shares under
this Agreement shall be paid by Seller and Buyer, with each of Seller and Buyer
bearing half of the aggregate of such costs and expenses.
Section
9.4 Governing Law,
etc.
(a) This
Agreement (and any claims, causes of action or disputes that may be based upon,
arise out of or relate hereto, to the transactions contemplated hereby, to the
negotiation, execution or performance hereof, or to the inducement of any party
to enter herein, whether for breach of contract, tortious conduct or otherwise
and whether predicated on common law, statute or otherwise) shall in all
respects be governed by, and construed in accordance with, the Laws of the State
of Delaware, including all matters of construction, validity and performance, in
each case without reference to any conflict of Law rules that might lead to the
application of the Laws of any other jurisdiction.
27
(b) Each
of the parties hereto by this Agreement irrevocably and
unconditionally:
(i) submits
for itself and its property in any claim, action, suit, arbitration, or any
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby (each, an “Action”), or for
recognition and enforcement of any judgment in respect thereof, to the exclusive
jurisdiction of the Chancery Court of the State of Delaware (or if unavailable,
any federal court sitting in the State of Delaware or, if unavailable, the
Delaware Superior Court), and appellate courts having jurisdiction of appeals
from any of the foregoing, and agrees that all claims in respect of any such
Action shall be heard and determined in such Delaware court or, to the extent
permitted by Law, in such federal court;
(ii) consents
that any such Action may and shall be brought in such courts and waives any
objection that it may now or hereafter have to the venue or jurisdiction of any
such Action in any such court or that such Action was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees
that service of process in any such Action may be effected by mailing a copy of
such process by registered or certified mail (or any substantially similar form
of mail), postage prepaid, to such party at its address as provided in Section
9.1; and
(iv) agrees
that nothing in this Agreement shall affect the right to effect service of
process in any other manner permitted by the Laws of the State of
Delaware.
(c) EACH
PARTY HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
28
ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.4(C).
Section
9.5 Successors and
Assigns. The rights and obligations under this Agreement are
personal and shall not be assignable or otherwise transferable by either party
hereto. Notwithstanding the foregoing or anything in this Agreement
to the contrary, Buyer shall have the right to designate National Broadcasting
Company Holding, Inc. as the purchaser of the First Sale Shares and/or the
Transaction Shares, provided that in such
event Buyer shall remain liable for the timely performance of such purchase
obligation by National Broadcasting Company Holding, Inc.
Section
9.6 Entire
Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter
hereof. Without limiting the foregoing, except as specified herein
the Stockholders Agreement and the Registration Rights Agreement remain in full
force and effect in accordance with their terms.
Section
9.7 Severability. If
any provision, including any phrase, sentence, clause, section or
subsection, of this Agreement is determined by a court of competent jurisdiction
to be invalid, inoperative or unenforceable for any reason, such circumstances
shall not have the effect of rendering such provision in question invalid,
inoperative or unenforceable in any other case or circumstance, or of rendering
any other provision herein contained invalid, inoperative, or unenforceable to
any extent whatsoever. Upon any such determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
29
Section
9.9 Specific
Performance. The parties agree that irreparable damage would
occur if any provision of this Agreement were 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 or to enforce specifically the
performance of the terms and provisions hereof in any court specified in Section
9.4, in addition to any other remedy to which they are entitled at law or in
equity.
[Signature
Page Follows]
30
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
|
GENERAL
ELECTRIC COMPANY
|
|
|
By
|
/s/ Xxxxxxx X. Xxxxxx |
|
Name:
Xxxxxxx X. Xxxxxx
|
|
|
Title:
Chairman and CEO
|
|
|
VIVENDI
S. A.
|
|
|
By
|
/s/ Xxxx-Xxxxxxx Xxxx |
|
Name:
Xxxx Xxxxxxx Xxxx
|
|
|
Title:
Chairman of the Management Board and
CEO
|
|
31
Exhibit
A
Mutual
Release
In
consideration of the promises herein and for other good and valuable
consideration, the receipt of which is hereby acknowledged, Buyer and the
Company, on behalf of themselves and each of their respective, successors,
assigns, parents, subsidiaries and all other entities directly or indirectly
controlling, controlled by, or under common control with any of them (together,
the “Buyer Releasors”), hereby fully and generally acquit, release and discharge
Seller (and each of its respective, successors, assigns, parents, subsidiaries
and all other entities directly or indirectly controlling, controlled by, or
under common control with it) from any and all obligations, claims,
counterclaims, cross claims, demands, actions, causes of actions, duties, and
liabilities, in law or equity, of any nature whatsoever, known or unknown, that
the Buyer Releasors ever had, now have or hereafter can, shall or may have, from
the beginning of the world until the date hereof, which concern, relates to or
arises solely under or out of (x) the non-contractual relationship of the
parties solely in their capacity as stockholders of the Company or (y) one or
more of the agreements listed on the Schedule attached hereto, provided that the
foregoing release shall not release, apply to, or limit any rights or
obligations of the parties concerning, relating to or arising under or out of
any other matter, or any agreement that is not listed on such Schedule
including, without limitation, the Business Combination Agreement dated as of
October 8, 2003, as amended.
In
consideration of the promises herein and for other good and valuable
consideration, the receipt of which is hereby acknowledged, Seller, on behalf of
itself and each of its respective, successors, assigns, parents, subsidiaries
and all other entities directly or indirectly controlling, controlled by, or
under common control with it (together, the “Seller Releasors”), hereby fully
and generally acquit, release and discharge Buyer and the Company (and each of
their respective, successors, assigns, parents, subsidiaries, and all other
entities directly or indirectly controlling, controlled by, or under common
control with any of them) from any and all obligations, claims, counterclaims,
cross claims, demands, actions, causes of actions, duties, and liabilities, in
law or equity, of any nature whatsoever, known or unknown, that the Seller
Releasors ever had, now have or hereafter can, shall or may have, from the
beginning of the world until the date hereof, which concern, relates to or
arises solely under or out of (x) the non-contractual relationship of the
parties solely in their capacity as stockholders of the Company or (y) one or
more of the agreements listed on the Schedule attached hereto, provided that the
foregoing release shall not release, apply to or limit any rights or obligations
of the parties concerning, relating to or arising under or out of any other
matter, or any agreement that is not listed on such Schedule including, without
limitation, the Business Combination Agreement dated as of October 8, 2003, as
amended.
SCHEDULE TO
RELEASE
Stockholders
Agreement, dated as of May 11, 2004, as amended
Amended
and Restated Liquidity Rights Agreement, dated as of December 14, 2006, as
amended.
Schedule
1.1
Target
Amounts
|
Fiscal Quarter
End
|
Quarterly Target
Amount
|
Cumulative Target
Amount
|
|
Dec.
31, 2009
|
$102
million
|
$102
million
|
|
March
28, 2010
|
$20
million
|
$122
million
|
|
June
27, 2010
|
$82
million
|
$204
million
|
|
September
26, 2010
|
$64
million
|
$268
million
|
|
December
31, 2010
|
$132
million
|
$400
million
|
|
March
28, 2011
|
$50
million
|
$450
million
|
|
June
27, 2011
|
$85
million
|
$535
million
|
