EXHIBIT 10.4
Execution Copy
AMENDMENT NO. 1 TO THE STOCKHOLDERS' AGREEMENT
THIS AMENDMENT NO. 1 TO THE STOCKHOLDERS' AGREEMENT (this "First
Amendment"), entered into on November 7, 2002, is by and among The News
Corporation Limited, a South Australia, Australia corporation ("News Corp."),
Xxxxx X. Xxxx ("Xxxx") and Gemstar-TV Guide International, Inc., a Delaware
corporation (the "Corporation"). The parties listed above, excluding the
Corporation, will be referred to herein as the "Stockholders." Capitalized terms
not otherwise defined herein will have the meanings ascribed to them in the
Stockholders' Agreement, dated as of October 4, 1999, among the Stockholders,
Liberty Media Corporation, a Delaware corporation ("Liberty") and the
Corporation (as the same has been amended, restated, supplemented or otherwise
modified from time to time prior to the date hereof, the "Stockholders'
Agreement").
RECITALS
A. The Stockholders, Liberty and the Corporation previously entered
into the Stockholders' Agreement.
B. In connection with Liberty's transfer of its ownership in certain
shares of Common Stock to News Corp., on May 2, 2001, Liberty and News Corp.
entered into a Letter Agreement regarding the Stockholders' Agreement.
C. The remaining Stockholders and the Corporation desire by this
instrument to amend the Stockholders' Agreement in the manner set forth herein.
Therefore, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, the parties agree to
amend the Stockholders' Agreement as follows:
SECTION 1. AMENDMENTS TO STOCKHOLDERS' AGREEMENT
1.1. The following definition in Section 1.1 of the Stockholders'
Agreement is amended and restated in its entirety to read as follows:
"Specified Period: except as used in Section 3.1 of the
Stockholder's Agreement, the period beginning
at the Effective Time and ending on the first
to occur of (i) September 30, 2005 and (ii)
such date as the Employment Agreement, dated
as of _____, 2002 (the "Employment
Agreement"), between the Corporation and Xxxx
is terminated for any reason; as used in
Section 3.1 of the Stockholders' Agreement
the term "Specified Period" shall mean the
period beginning at the Effective Time and
ending on the first to occur of (i) the fifth
anniversary of the Effective Time and (ii)
such date as Xxxx ceases to be Chief
Executive Officer of the
Corporation other than as a result of termination of
such employment by the Corporation "Without Cause"
(as such term is defined in the Xxxx Employment
Agreement)."
1.2. The following definitions in the Stockholders' Agreement, and any
and all references thereto are hereby deleted: (i) "Cause"; (ii) "Closing
Price"; (iii) "GS Director"; (iv) "GS Independent Directors"; (v) "Immediate
Family"; (vi) "Independent Director"; (vii) "Minimum Ownership Condition";
(viii) "Permitted Pledge"; (ix) "Permitted Transfer"; (x) "Trading Day"; (xi)
"TVG Director"; and (xii) "TVG Independent Directors."
1.3. Section 1.3 of the Stockholders' Agreement is deleted in its
entirety and replaced with "[Intentionally Omitted]."
1.4. Section 2.1 of the Stockholders' Agreement is amended and restated
in its entirety to read as follows:
"2.1. Composition. (a) During the Specified Period, Xxxx will be
entitled to designate himself as a director to the Corporation's
Board (in such capacity, Xxxx is referred to as an "HY Designee").
Until the later of July 12, 2005 or the expiration of the Specified
Period, the News Stockholder will be entitled to designate one
director (the "News Designee"). During the Specified Period, Xxxx
will have the right to re-nominate the HY Designee for election at
the expiration of his term. Xxxx will not have the right to
designate a successor to any such HY Designee, whether to fill a
vacancy during the term of such directorship (including as a result
of the death, resignation or removal of any such director) or as a
replacement nominee at the expiration of the term of such
directorship.
(b) During the Specified Period, each Stockholder agrees to vote
and to cause its Controlled Related Parties to vote all shares of
Common Stock beneficially owned by it or him for the election to
the Board of the Persons designated to be directors in accordance
with this Agreement. The Stockholders agree to use their best
efforts to cause the respective HY Designee and News Designee to
vote in favor of the nomination by the Board for election by
stockholders or, if applicable, for the appointment by the Board,
of the Persons designated to be directors in accordance with this
Agreement.
(c) In the event that shares of Common Stock are Transferred by
the Liberty Group to the News Group or by the News Group to the
Liberty Group, then the right to designate, remove or replace the
Liberty Designees (as such term was defined in Section 2.1(a) of
the Stockholders' Agreement) and the News Designee as contemplated
by this Agreement shall be allocated between the Liberty
Stockholder and the News Stockholder as they may agree (thereby
increasing or decreasing the number of Liberty Designees and
correspondingly increasing or decreasing the number of News
Designee, accordingly). Subject to receiving
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notice thereof, all other parties to this Agreement shall fully
support such allocation, whether by the voting of shares or
otherwise."
1.5. All references in the Stockholders' Agreement to the capitalized
terms "HY Designees" and "News Designees" are hereby deleted and the capitalized
terms "HY Designee" and "News Designee," respectively, are hereby substituted
therefor.
1.6. Section 2.3 of the Stockholders' Agreement is amended and restated
in its entirety to read as follows:
"2.3. Vacancies. If the HY Designee ceases to be a director for any
reason, whether as a result of death, disability, retirement,
resignation, removal or otherwise, Xxxx will have no right to
designate another individual to fill such vacancy and to serve as a
director of the Corporation."
1.7. Section 2.4 of the Stockholders' Agreement is amended and restated
in its entirety to read as follows:
"2.4 Board of Directors and Stockholder Vote. During the Specified
Period, each Stockholder agrees to vote and to cause its Controlled
Related Parties to vote all shares of Common Stock beneficially
owned by it or him, and to use his or its best efforts to cause the
respective HY Designee and News Designee to vote against any
proposal to remove any director designated pursuant to this
Agreement prior to the expiration of his or her term except for
cause or pursuant to Section 2.2."
1.8. Section 2.5 of the Stockholders' Agreement is amended and restated
in its entirety to read as follows:
"2.5. Non-executive Chairman of the Board. During the Specified
Period each Stockholder agrees to and to cause its Controlled
Related Parties to, and to use his or its best efforts to cause the
HY Designee and the News Designee to vote in favor of Xxxx'x
election as the non-executive Chairman of the Board and vote
against his removal from such position."
1.9. Section 2.7 of the Stockholders' Agreement is amended and restated
in its entirety to read as follows:
"2.7. Termination of Voting Obligations. The obligations of the
parties pursuant to this Section 2 will terminate upon the first to
occur of (i) the expiration of the Specified Period or (ii) such
date as Xxxx ceases to be an employee of the Corporation, for any
reason."
1.10. Section 3.2 of the Stockholders' Agreement is deleted in its
entirety and replaced with "[Intentionally Omitted]."
1.11. Section 4 of the Stockholders' Agreement is amended and restated in
its entirety to read as follows:
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"SECTION 4. CERTAIN CONSENTS. Notwithstanding anything to the
contrary contained herein, in the event that the Corporation and
News Corp. agree to modify Section 3, Section 5 or Section 8 of the
Stockholders' Agreement (other than in a manner that would increase
Xxxx'x obligations thereunder), Xxxx'x consent shall not be
required."
1.12. Section 6 of the Stockholders' Agreement is amended and restated in
its entirety to read as follows:
"SECTION 6. LEGEND. Each certificate evidencing any of the shares
of Common Stock beneficially owned by a News Stockholder shall bear
a legend substantially as follows:
"The shares represented by this certificate are subject to the
terms and conditions of a certain Stockholders' Agreement,
effective as of July 12, 2000, as such may be amended from
time to time, a copy of the Stockholders' Agreement and any
amendments thereto will be furnished by the Corporation to the
holder of this certificate upon request and without charge."
Upon surrender to the Corporation of certificates evidencing shares
of Common Stock transferred in compliance with this Agreement,
other than to a Stockholder or another Person who or that in
accordance with the terms of this Agreement shall be bound by this
Agreement in whole or in part, the Corporation shall reissue such
certificates to the owner thereof without such legend. Upon
termination of this Agreement and surrender to the Corporation of
certificates evidencing shares of Common Stock, the Corporation
shall reissue such certificates to the owner thereof without such
legend."
1.13. Section 8 of the Stockholders' Agreement is amended by adding the
following language at the end of the paragraph:
"Notwithstanding the foregoing or anything to the contrary
contained in this Agreement, News Corp. hereby covenants and agrees
with and for the sole benefit of the Corporation that this Section
8 shall remain in full force and effect until July 12, 2005,
regardless of whether any News Designee continues to serve on the
Board."
1.14. Section 9.6 of the Stockholders' Agreement is amended and restated
in its entirety to read as follows:
"9.6. Notices. All notices and other communications hereunder shall
be in writing and shall be delivered personally, telecopied (if
receipt of which is confirmed by the person to whom sent), sent by
a nationally recognized overnight delivery service or mailed by
registered or certified mail (if return receipt is requested) to
the parties at the following addresses (or at such other address
for a party as shall be specified by like notice) (notice shall be
deemed given upon
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receipt, if delivered personally, by overnight delivery service or
by telecopy, or on the third business day following mailing, if
mailed):
(a) If to News Corp., to it at:
c/o News America Incorporated
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Senior Executive Vice President
and Group General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(b) if to Xxxx, to him at:
000 Xxxxx Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Loss
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(c) if to the Corporation, to it at
000 Xxxxx Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
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Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SECTION 2. REPRESENTATIONS AND WARRANTIES
Each of the parties to this First Amendment hereby represents and warrants
to each other party to this First Amendment as follows:
2.1. If such party is not a natural person, such party is duly
incorporated or organized and validly existing under the laws of its
jurisdiction of incorporation or organization and is duly authorized to do
business and is in good standing under the laws of its jurisdiction of
incorporation or organization. If such party is a natural person, such party has
the capacity to enter into this First Amendment.
2.2. Such party has full legal right, power and authority to execute and
deliver this First Amendment and to carry out the transactions contemplated
hereby. If such party is not a natural person, all corporate and other actions
required to be taken by such party to authorize the execution, delivery and
performance of this First Amendment and all transactions contemplated hereby
have been duly and properly taken. No other approval on the part of such party
or any of its shareholders, as the case may be, is necessary to authorize the
execution, delivery and performance of this First Amendment and all transactions
contemplated hereby.
2.3. This First Amendment has been duly executed and delivered by such
party and constitutes the legal, valid and binding obligation of such party,
enforceable against it in accordance with its respective terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other applicable laws affecting creditor's rights
generally.
2.4. The execution and delivery by such party of this First Amendment
does not, and the performance by it of its respective obligations under this
First Amendment will not, result in a violation of, or result in the breach of
any provision of, or conflict with, or result in the creation of any Lien upon
any of its assets pursuant to, or cause any acceleration, default or similar
adverse effect under any material agreements to which such party is a party; nor
will such execution, delivery and performance by such party require any
Governmental Approval or third party approval, except for those which have been
obtained.
SECTION 3. REAFFIRMATION
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The Stockholders and the Corporation hereby expressly reaffirm and assume
all of their respective rights and obligations as set forth in the Stockholders'
Agreement, as amended by this First Amendment, and the Stockholders and the
Corporation agree to be bound by and comply fully with all of the terms,
conditions, provisions, agreements, representations and warranties contained in
the Stockholders' Agreement, in so far as such rights and obligations may be
modified or amended by this First Amendment, as though such Stockholders'
Agreement, as amended by this First Amendment were being re-executed on the date
hereof.
SECTION 4. MISCELLANEOUS
4.1. This First Amendment will be governed by the laws of the State of
Delaware applied to contracts made and wholly performed in such State, without
regard to principles governing conflicts of law which would apply the laws of a
jurisdiction other than the State of Delaware. Any action to enforce any
provision of this First Amendment may be brought only in a court in the State of
Delaware or in the United States District Court in the District of Delaware.
Each party agrees to submit to the general jurisdiction of such courts and to
accept service of process at its address for notices pursuant to this First
Amendment in any such action or proceeding brought in any such court and hereby
waives any claim that such action or proceeding brought in any such court has
been brought in an inconvenient forum.
4.2. This First Amendment may be executed in any number of counterparts.
4.3. On or after the date first written above, each reference in the
Stockholders' Agreement to this "Agreement," "hereof" or words of like import,
and all references in any other agreements to the Stockholders' Agreement, will,
unless the context otherwise requires, be deemed to refer to the Stockholders'
Agreement as amended hereby.
4.4. This First Amendment is binding upon, and inures to the benefit of,
the Stockholders and the Corporation, their successors and permitted assigns.
[Remainder of page left intentionally blank]
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[Signature Page to Amendment No. 1 to the Stockholders' Agreement]
IN WITNESS WHEREOF, the undersigned have executed this First
Amendment as of the date first written above.
THE NEWS CORPORATION LIMITED
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Director
GEMSTAR-TV GUIDE INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxx
-------------------------
Xxxx Xxxxx
Co-President
/s/ Xxxxx X. Xxxx
----------------------------
XXXXX X. XXXX
