Exhibit 10.4
FORM OF REGISTRATION RIGHTS AGREEMENT
DATED AS OF , 1999
BY AND BETWEEN
VIACOM INC.
AND
BLOCKBUSTER INC.
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.....................................................2
Section 1.02. Internal References.............................................5
ARTICLE II
REGISTRATION RIGHTS
Section 2.01. Demand Registration - Registrable Securities....................5
Section 2.02. Piggyback Registration..........................................7
Section 2.03. Expenses.......................................................10
Section 2.04. Registration and Qualification.................................10
Section 2.05. Conversion of Other Securities, Etc............................12
Section 2.06. Underwriting; Due Diligence....................................12
Section 2.07. Indemnification and Contribution...............................13
Section 2.08. Rule 144 and Form S-3..........................................16
Section 2.09. Transfer of Registration Rights................................16
Section 2.10. Holdback Agreement.............................................17
ARTICLE III
MISCELLANEOUS
Section 3.01. Limitation of Liability........................................17
Section 3.02. Subsidiaries...................................................17
Section 3.03. Term...........................................................17
Section 3.04. Further Assurances.............................................17
Section 3.05. Specific Performance...........................................17
Section 3.06. Amendments.....................................................18
Section 3.07. Successors and Assigns.........................................18
Section 3.08. Severability...................................................18
Section 3.09. Entire Agreement...............................................18
Section 3.10. Notices........................................................18
Section 3.11. Governing Law..................................................19
Section 3.12. Counterparts...................................................20
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as of ,
1999 by and between VIACOM INC., a Delaware corporation ("VIACOM"), and
BLOCKBUSTER INC., a Delaware corporation and an indirect, wholly owned
subsidiary of Viacom ("BLOCKBUSTER").
RECITALS
WHEREAS, since September 29, 1994, Viacom has owned and operated
the businesses and operations related to Blockbuster;
WHEREAS, Viacom presently intends to split-off Blockbuster in a
tax-free transaction;
WHEREAS, prior to such split-off, Blockbuster proposes to issue
shares of its common stock in an initial public offering registered under the
Securities Act of 1933, as amended;
WHEREAS, Viacom beneficially owns all of the issued and
outstanding class B common stock, par value $0.10 per share, of Blockbuster (the
"BLOCKBUSTER CLASS B COMMON STOCK"); and
WHEREAS, the parties desire to enter into this Agreement to set
forth their agreement regarding certain registration rights with respect to
Blockbuster Class B Common Stock (and any other securities issued in respect
thereof or in exchange therefor).
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Viacom and Blockbuster, for
themselves, their successors, and assigns, hereby agree as follows:
Capitalized terms not otherwise defined herein have the meaning
given to them in the IPO and Split-Off Agreement dated , 1999 among Viacom,
Viacom International and Blockbuster.
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. As used in this Agreement, the
following terms will have the following meanings, applicable both to the
singular and the plural forms of the terms described:
"AFFILIATES" means, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under
common control with such specified Person; PROVIDED, HOWEVER, that prior to the
Split-Off, Affiliates of Blockbuster or Viacom shall only include Persons who
would be affiliates of Blockbuster or Viacom, respectively, assuming that the
Split-Off had occurred immediately prior to the determination as to whether such
Person was an affiliate of Blockbuster or Viacom, respectively.
"AGREEMENT" has the meaning ascribed thereto in the Preamble.
"APPLICABLE STOCK" means at any time the (i) shares of
Blockbuster Common Stock owned by Viacom and its Affiliates that were owned on
the date hereof, PLUS (ii) shares of Blockbuster Class B Common Stock purchased
by Viacom and its Affiliates pursuant to Article VII of the Initial Public
Offering and Split-Off Agreement, PLUS (iii) shares of Blockbuster Common Stock
that were issued to Viacom and its Affiliates in respect of shares described in
either clause (i) or clause (ii) in any reclassification, share combination,
share subdivision, share dividend, share exchange, merger, consolidation or
similar transaction or event.
"BLOCKBUSTER" has the meaning ascribed thereto in the Preamble.
"BLOCKBUSTER CLASS A COMMON STOCK" means the class A common
stock, par value $.01 per share of Blockbuster.
"BLOCKBUSTER CLASS B COMMON STOCK" has the meaning ascribed
thereto in the Recitals.
"BLOCKBUSTER COMMON STOCK" means the Blockbuster Class B Common
Stock, the Blockbuster Class A Common Stock, any other class of Blockbuster's
capital stock representing the right to vote generally for the election of
directors and, for so long as Blockbuster continues to be a subsidiary
corporation includable in a consolidated federal income tax return of the Viacom
Group, any other security of Blockbuster treated as stock for purposes of
Section 1504 of the Internal Revenue Code of 1986, as amended.
"COMPANY SECURITIES" has the meaning ascribed thereto in Section
2.02(b).
"DISADVANTAGEOUS CONDITION" has the meaning ascribed thereto in
Section 2.01(a).
"HOLDER" means Viacom, its Affiliates and any Transferee.
"HOLDER SECURITIES" has the meaning ascribed thereto in Section
2.02(b).
"IPO" means the initial public offering by Blockbuster of shares
of Blockbuster Class A Common Stock as contemplated by the IPO Registration
Statement.
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"IPO AND SPLIT-OFF AGREEMENT" means the Initial Public Offering
and Split-Off Agreement dated as of the dated hereof among Viacom, Viacom
International and Blockbuster.
"IPO DATE" means the date of completion of the initial sale of
Blockbuster Class A Common Stock in the IPO.
"LOSSES" has the meaning ascribed thereto in Section 2.01(a) of
the Release and Indemnification Agreement.
"OTHER HOLDERS" has the meaning ascribed thereto in Section
2.02(c).
"OTHER SECURITIES" has the meaning ascribed thereto in Section
2.02.
"OWNERSHIP PERCENTAGE" means, at any time, the fraction,
expressed as a percentage and rounded to the next highest thousandth of a
percent, whose numerator is the aggregate Value of the Applicable Stock and
whose denominator is the sum of the aggregate Value of the outstanding shares of
Blockbuster Common Stock; PROVIDED, HOWEVER, that any shares of Blockbuster
Common Stock issued by Blockbuster in violation of its obligations under Article
VII of the IPO and Split-Off Agreement shall not be deemed outstanding for the
purpose of determining the Ownership Percentage. For purposes of this
definition, "VALUE" means, with respect to any share of stock, the value of such
share determined by Viacom under principles applicable for purposes of Section
1504 of the Internal Revenue Code of 1986, as amended.
"PERSON" means any individual, corporation, limited or general
partnership, limited liability company, joint venture association, joint stock
company, trust unincorporated organization or government or any agency or
political subdivision thereof.
"REGISTRABLE SECURITIES" means shares of Blockbuster Common Stock
and any stock or other securities into which or for which such Blockbuster
Common Stock may hereafter be changed, converted or exchanged and any other
shares or securities issued to Holders of such Blockbuster Common Stock (or such
shares or other securities into which or for which such shares are so changed,
converted or exchanged) upon any reclassification, share combination, share
subdivision, share dividend, share exchange, merger, consolidation or similar
transaction or event or pursuant to the Nonvoting Stock Option. As to any
particular Registrable Securities, such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale by the Holder thereof shall have been declared effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public in accordance with Rule 144, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by Blockbuster and subsequent disposition of
them shall not require registration or qualification of them under the
Securities Act or any state securities or blue sky law then in effect or (iv)
they shall have ceased to be outstanding.
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"REGISTRATION EXPENSES" means any and all reasonable expenses
incident to performance of or compliance with any registration of securities
pursuant to Article II, including, without limitation, (i) all expenses,
including filing fees, in connection with the preparation, printing and filing
of the registration statement, any preliminary prospectus or final prospectus,
any other offering document and amendments and supplements thereto and the
mailing and delivering of copies thereof to any underwriters and dealers; (ii)
the cost of printing or producing any agreements among underwriters,
underwriting agreements, and blue sky or legal investment memoranda, any selling
agreements and any other documents in connection with the offering, sale or
delivery of the securities to be disposed of; (iii) all expenses in connection
with the qualification of the securities to be disposed of for offering and sale
under state securities laws, including the fees and disbursements of counsel for
the underwriters of securities in connection with such qualification and in
connection with any blue sky and legal investment surveys; (iv) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the securities to be
disposed of; (v) transfer agents' and registrars' fees and expenses and the fees
and expenses of any other agent or trustee appointed in connection with such
offering; (vi) all security engraving and security printing expenses; (vii) all
fees and expenses payable in connection with the listing of the securities on
any securities exchange or automated interdealer quotation system or the rating
of such securities and (ix) any other fees and disbursements of underwriters
customarily paid by issuers of securities.
"RULE 144" means Rule 144 (or any successor rule to similar
effect) promulgated under the Securities Act.
"RULE 415 OFFERING" means an offering on a delayed or continuous
basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated
under the Securities Act.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, together with the rules and regulations promulgated
thereunder.
"SELLING HOLDER" has the meaning ascribed thereto in Section
2.04(e).
"SPLIT-OFF" means the distribution of Blockbuster Common Stock by
Viacom in one or more transactions occurring after the IPO that collectively
have the effect that all or a substantial part of the shares of Blockbuster
Common Stock held by Viacom are distributed to all or some of the stockholders
of Viacom, whenever such transaction(s) shall occur.
"SUBSIDIARY" means with respect to any Person, any other Person a
majority of the equity ownership or voting stock of which is at the time owned,
directly or indirectly, by such Person and/or one or more other Subsidiaries of
such Person; PROVIDED, HOWEVER, that prior to the Split-Off, a Subsidiary of
Viacom shall only include Persons who would be a Subsidiary of
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Viacom assuming the Split-Off has occurred immediately prior to the
determination as to whether such Person were a Subsidiary of Viacom.
"TRANSFEREE" has the meaning ascribed thereto in Section 2.09.
"VIACOM" has the meaning ascribed thereto in the Preamble.
"VIACOM GROUP" means Viacom and its Affiliates and Blockbuster
and its Affiliates.
"VIACOM INTERNATIONAL" is Viacom International Inc., a Delaware
corporation and a wholly owned subsidiary of Viacom.
"VIACOM OWNERSHIP REDUCTION" means any decrease at any time in
the Ownership Percentage to less than 45%.
"VIACOM TRANSFEREE" has the meaning ascribed thereto in Section
2.09(a).
Section 1.02. INTERNAL REFERENCES. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement and references
to the parties shall mean the parties to this Agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.01. DEMAND REGISTRATION - REGISTRABLE SECURITIES. (a)
Upon written notice provided at any time after the IPO Date from any Holder of
Registrable Securities requesting that Blockbuster effect the registration under
the Securities Act of any or all of the Registrable Securities held by such
Holder, which notice shall specify the intended method or methods of disposition
of such Registrable Securities, Blockbuster shall use its reasonable best
efforts to effect the registration under the Securities Act and applicable state
securities laws of such Registrable Securities for disposition in accordance
with the intended method or methods of disposition stated in such request
(including in a Rule 415 Offering, if Blockbuster is then eligible to register
such Registrable Securities on Form S-3 (or a successor form) for such
offering); provided that:
(i) with respect to any registration statement filed, or to be
filed, pursuant to this Section 2.01, if Blockbuster shall furnish to
the Holders of Registrable Securities that have made such request a
certified resolution of the Board of Directors of Blockbuster (adopted
by the affirmative vote of a majority of the directors not designated by
Viacom or its Affiliates) stating that in the Board of Directors' good
faith judgment it would (because of the existence of, or in anticipation
of, any acquisition or financing activity, or
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the unavailability for reasons beyond Blockbuster' reasonable control of
any required financial statements, or any other event or condition of
similar significance to Blockbuster) be significantly disadvantageous (a
"DISADVANTAGEOUS CONDITION") to Blockbuster for such a registration
statement to be maintained effective, or to be filed and become
effective, and setting forth the general reasons for such judgment,
Blockbuster shall be entitled to cause such registration statement to be
withdrawn and the effectiveness of such registration statement
terminated, or, in the event no registration statement has yet been
filed, shall be entitled not to file any such registration statement,
until such Disadvantageous Condition no longer exists (notice of which
Blockbuster shall promptly deliver to such Holders). Upon receipt of any
such notice of a Disadvantageous Condition, such Holders shall forthwith
discontinue use of the prospectus contained in such registration
statement and, if so directed by Blockbuster, each such Holder will
deliver to Blockbuster all copies, other than permanent file copies then
in such Holder's possession, of the prospectus then covering such
Registrable Securities current at the time of receipt of such notice;
PROVIDED that the filing of any such registration statement may not be
delayed for a period in excess of 90 days due to the occurrence of any
particular Disadvantageous Condition;
(ii) after any Viacom Ownership Reduction, the Holders of
Registrable Securities may collectively exercise their rights under this
Section 2.01 on not more than three occasions (it being acknowledged
that prior to any Viacom Ownership Reduction, there shall be no limit to
the number of occasions on which such Holders (other than any Viacom
Transferees and their Affiliates (other than Viacom or its Affiliates))
may exercise such rights); and
(iii) The Holders of Registrable Securities shall not have the
right to exercise registration rights pursuant to this Section 2.01
within the 180-day period following the registration and sale of
Registrable Securities effected pursuant to a prior exercise of the
registration rights provided in this Section 2.01.
(b) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested by a Holder of Registrable Securities
pursuant to this Section 2.01 shall not be deemed to have been effected (and,
therefore, not requested for purposes of paragraph (a) above), (i) unless it has
become effective, (ii) if after it has become effective such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result thereof, the
Registrable Securities requested to be registered cannot be completely
distributed in accordance with the plan of distribution set forth in the related
registration statement or (iii) if the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied or waived other than by reason of some act
or omission by such Holder of Registrable Securities.
(c) In the event that any registration pursuant to this Section
2.01 shall involve, in whole or in part, an underwritten offering, the Holders
of a majority of the Registrable
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Securities to be registered shall have the right to designate an underwriter or
underwriters as the lead or managing underwriters of such underwritten offering
reasonably acceptable to Blockbuster and, in connection with each registration
pursuant to this Section 2.01, such Holders may select one counsel to represent
all such Holders.
(d) Blockbuster shall have the right to cause the registration of
additional equity securities for sale for the account of any Person (including,
without limitation, Blockbuster, and any existing or former directors, officers
or employees of Blockbuster and its Affiliates) in any registration of
Registrable Securities requested by the Holders pursuant to paragraph (a) above;
PROVIDED, HOWEVER, that if such Holders are advised in writing (with a copy to
Blockbuster) by a nationally recognized investment banking firm selected by such
Holders reasonably acceptable to Blockbuster (which shall be the lead
underwriter or a managing underwriter in the case of an underwritten offering)
that, in such firm's good faith view, all or a part of such additional equity
securities cannot be sold and the inclusion of such additional equity securities
in such registration would be likely to have an adverse effect on the price,
timing or distribution of the offering and sale of the Registrable Securities
then contemplated by any Holder, the registration of such additional equity
securities or part thereof shall not be permitted. The Holders of the
Registrable Securities to be offered may require that any such additional equity
securities be included in the offering proposed by such Holders on the same
conditions as the Registrable Securities that are included therein. In the event
that the number of Registrable Securities requested to be included in a
registration statement by the Holders thereof exceeds the number which, in the
good faith view of such investment banking firm, can be sold without adversely
affecting the price, timing, distribution or sale of securities in the offering,
the number shall be allocated pro rata among the requesting Holders on the basis
of the relative number of Registrable Securities then held by each such Holder
(provided that any number in excess of a Holder's request may be reallocated
among the remaining requesting Holders in a like manner).
Section 2.02. PIGGYBACK REGISTRATION. In the event that
Blockbuster at any time after the IPO Date proposes to register any of its
Blockbuster Common Stock, any other of its equity securities or securities
convertible into or exchangeable for its equity securities (collectively,
including Blockbuster Common Stock, "OTHER SECURITIES") under the Securities
Act, whether or not for sale for its own account, in a manner that would permit
registration of Registrable Securities for sale for cash to the public under the
Securities Act, it shall at each such time give prompt written notice to each
Holder of Registrable Securities of its intention to do so and of the rights of
such Holder under this Section 2.02. Subject to the terms and conditions hereof,
such notice shall offer each such Holder the opportunity to include in such
registration statement such number of Registrable Securities as such Holder may
request. Upon the written request of any such Holder made within 15 days after
the receipt of Blockbuster' notice (which request shall specify the number of
Registrable Securities intended to be disposed of and the intended method of
disposition thereof), Blockbuster shall use its reasonable best efforts to
effect, in connection with the registration of the Other Securities, the
registration under the Securities Act of all Registrable Securities which
Blockbuster has been so requested to register, to the extent
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required to permit the disposition (in accordance with such intended method of
disposition thereof) of the Registrable Securities so requested to be
registered; PROVIDED that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective date of
the registration statement filed in connection with such registration,
Blockbuster shall determine for any reason not to register the Other Securities,
Blockbuster may, at its election, give written notice of such determination to
such Holders and thereupon Blockbuster shall be relieved of its obligation to
register such Registrable Securities in connection with the registration of such
Other Securities, without prejudice, however, to the rights of the Holders of
Registrable Securities immediately to request that such registration be effected
as a registration under Section 2.01 to the extent permitted thereunder;
(b) if the registration referred to in the first sentence of this
Section 2.02 is to be an underwritten registration on behalf of Blockbuster, and
a nationally recognized investment banking firm selected by Blockbuster advises
Blockbuster in writing that, in such firm's good faith view, the inclusion of
all or a part of such Registrable Securities in such registration would be
likely to have an adverse effect upon the price, timing or distribution of the
offering and sale of the Other Securities then contemplated, Blockbuster shall
include in such registration: (i) first, all Other Securities Blockbuster
proposes to sell for its own account ("COMPANY SECURITIES"); (ii) second, up to
the full number of Registrable Securities held by Holders constituting Viacom
and its Affiliates that are requested to be included in such registration
(Registrable Securities that are so held being sometimes referred to herein as
"HOLDER SECURITIES") in excess of the number of Company Securities to be sold in
such offering which, in the good faith view of such investment banking firm, can
be sold without adversely affecting such offering and the sale of the Other
Securities then contemplated (and (x) if such number is less than the full
number of such Holder Securities, such number shall be allocated by Viacom among
Viacom and its Affiliates and (y) in the event that such investment banking firm
advises that less than all of such Holder Securities may be included in such
offering, Viacom and its Affiliates may withdraw their request for registration
of their Registrable Securities under this Section 2.02 and 90 days subsequent
to the effective date of the registration statement for the registration of such
Other Securities request that such registration be effected as a registration
under Section 2.01 to the extent permitted thereunder); (iii) third, up to the
full number of Registrable Securities held by Holders (other than Viacom and its
Affiliates) of Registrable Securities that are requested to be included in such
registration in excess of the number of Company Securities and Holder Securities
to be sold in such offering which, in the good faith view of such investment
banking firm, can be so sold without so adversely affecting such offering (and
(x) if such number is less than the full number of such Registrable Securities,
such number shall be allocated pro rata among such Holders on the basis of the
number of Registrable Securities requested to be included therein by each such
Holder and (y) in the event that such investment banking firm advises that less
than all of such Registrable Securities may be included in such offering, such
Holders may withdraw their request for registration of their Registrable
Securities under this Section 2.02 and 90 days subsequent to the effective date
of the registration statement for the registration of such Other Securities
request that such registration be effected as a registration under Section 2.01
to the extent permitted
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thereunder); and (iv) fourth, up to the full number of the Other Securities
(other than Company Securities), if any, in excess of the number of Company
Securities and Registrable Securities to be sold in such offering which, in the
good faith view of such investment banking firm, can be so sold without so
adversely affecting such offering (and, if such number is less than the full
number of such Other Securities, such number shall be allocated pro rata among
the holders of such Other Securities (other than Company Securities) on the
basis of the number of securities requested to be included therein by each such
holder);
(c) if the registration referred to in the first sentence of this
Section 2.02 is to be an underwritten secondary registration on behalf of
holders of Other Securities (the "OTHER HOLDERS"), and the lead underwriter or
managing underwriter advises Blockbuster in writing that in their good faith
view, all or a part of such additional securities cannot be sold and the
inclusion of such additional securities in such registration would be likely to
have an adverse effect on the price, timing or distribution of the offering and
sale of the Other Securities then contemplated, Blockbuster shall include in
such registration the number of securities (including Registrable Securities)
that such underwriters advise can be so sold without adversely affecting such
offering, allocated pro rata among the Other Holders and the Holders of
Registrable Securities on the basis of the number of securities (including
Registrable Securities) requested to be included therein by each Other Holder
and each Holder of Registrable Securities; PROVIDED that if such registration
statement is to be filed at any time after a Viacom Ownership Reduction, if any,
and if such Other Holders have requested that such registration statement be
filed pursuant to demand registration rights granted to them by Blockbuster,
Blockbuster shall include in such registration: (i) Other Securities sought to
be included therein by the Other Holders pursuant to the exercise of such demand
registration rights; (ii) the number of Holder Securities sought to be included
in such registration in excess of the number of Other Securities sought to be
included in such registration by the Other Holders which in the good faith view
of such investment banking firm, can be so sold without so adversely affecting
such offering (and (x) if such number is less than the full number of such
Holder Securities, such number shall be allocated by Viacom among Viacom and its
Affiliates and (y) in the event that such investment banking firm advises that
less than all of such Holder Securities may be included in such offering, Viacom
and its Affiliates may withdraw their request for registration of their
Registrable Securities under this Section 2.02 and 90 days subsequent to the
effective date of the registration statement for the registration of such Other
Securities request that such registration be effected as a registration under
Section 2.01 to the extent permitted thereunder); and (iii) the number of
Registrable Securities sought to be included in such registration by Holders
(other than Viacom and its Affiliates) of Registrable Securities in excess of
the number of Other Securities and the number of Holder Securities sought to be
included in such registration which, in the good faith view of such investment
banking firm, can be so sold without so adversely affecting such offering (and
(x) if such number is less than the full number of such Registrable Securities,
such number shall be allocated pro rata among such Holders on the basis of the
number of Registrable Securities requested to be included therein by each such
Holder and (y) in the event that such investment banking firm advises that less
than all of such Registrable Securities may be included in such offering, such
Holders may withdraw their request for registration of their Registrable
Securities under this Section 2.02 and 90 days
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subsequent to the effective date of the registration statement for the
registration of such Other Securities request that such registration be effected
as a registration under Section 2.01 to the extent permitted thereunder);
(d) Blockbuster shall not be required to effect any registration
of Registrable Securities under this Section 2.02 incidental to the registration
of any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock option or
other executive or employee benefit or compensation plans; and
(e) no registration of Registrable Securities effected under this
Section 2.02 shall relieve Blockbuster of its obligation to effect a
registration of Registrable Securities pursuant to Section 2.01.
Section 2.03. EXPENSES. Except as provided herein, Viacom shall
pay all or its pro rata share of Registration Expenses with respect to a
particular offering (or proposed offering), as the case may be, except for fees,
disbursements and expenses related to Blockbuster's counsel, accountants and
other advisors. Notwithstanding the foregoing, each Holder and Blockbuster shall
be responsible for its own internal administrative and similar costs, which
shall not constitute Registration Expenses.
Section 2.04. REGISTRATION AND QUALIFICATION. If and whenever
Blockbuster is required to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2.01 or 2.02, Blockbuster shall
as promptly as practicable:
(a) prepare, file and use its reasonable best efforts to cause to
become effective a registration statement under the Securities Act relating to
the Registrable Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities until the earlier of (A) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement and (B) the
expiration of (i) six months after such registration statement becomes effective
or (ii) twenty four months after a registration statement filed in a Rule 415
Offering becomes effective; PROVIDED, that such respective periods shall be
extended for such number of days that equals the number of days elapsing from
(x) the date the written notice contemplated by paragraph (f) below is given by
Blockbuster to (y) the date on which Blockbuster delivers to the Holders of
Registrable Securities the supplement or amendment contemplated by paragraph (f)
below;
(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies of
such registration statement and
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of each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus, and such
other documents, as the Holders of Registrable Securities or such underwriter
may reasonably request, and a copy of any and all transmittal letters or other
correspondence to or received from, the SEC or any other governmental agency or
self-regulatory body or other body having jurisdiction (including any domestic
or foreign securities exchange) relating to such offering;
(d) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the Holders of such
Registrable Securities or any underwriter to such Registrable Securities shall
request, and use its reasonable best efforts to obtain all appropriate
registrations, permits and consents in connection therewith, and do any and all
other acts and things which may be necessary or advisable to enable the Holders
of Registrable Securities or any such underwriter to consummate the disposition
in such jurisdictions of its Registrable Securities covered by such registration
statement; PROVIDED, that Blockbuster shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any such
jurisdiction wherein it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) (i) use its reasonable best efforts to furnish to each Holder
of Registrable Securities included in such registration (each, a "SELLING
HOLDER") and to any underwriter of such Registrable Securities an opinion of
counsel for Blockbuster addressed to each Selling Holder and dated the date of
the closing under the underwriting agreement (if any) (or if such offering is
not underwritten, dated the effective date of the registration statement) and
(ii) use its reasonable best efforts to furnish to each Selling Holder a "COLD
COMFORT" letter addressed to each Selling Holder and signed by the independent
public accountants who have audited the financial statements of Blockbuster
included in such registration statement, in each such case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of securities and such other matters as the
Selling Holders may reasonably request and, in the case of such accountants'
letter, with respect to events subsequent to the date of such financial
statements;
(f) as promptly as practicable, notify the Selling Holders in
writing (i) at any time when a prospectus relating to a registration pursuant to
Sections 2.01 or 2.02 is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and (ii) of any request by the SEC or any
other regulatory body or other body having jurisdiction for any amendment of or
supplement to any registration statement or other document
11
relating to such offering, and in either such case, at the request of the
Selling Holders prepare and furnish to the Selling Holders a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading;
(g) if reasonably requested by the lead or managing underwriters,
use its reasonable best efforts to list all such Registrable Securities covered
by such registration on each securities exchange and automated inter-dealer
quotation system on which a class of common equity securities of Blockbuster is
then listed;
(h) to the extent reasonably requested by the lead or managing
underwriters, send appropriate officers of Blockbuster to attend any "ROAD
SHOWS" scheduled in connection with any such registration, with all
out-of-pocket costs and expense incurred by Blockbuster or such officers in
connection with such attendance to be paid by Blockbuster; and
(i) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected pursuant
to Sections 2.01 or 2.02 unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be requested by
the Selling Holders or the underwriters.
Section 2.05. CONVERSION OF OTHER SECURITIES, ETC. In the event
that any Holder offers any options, rights, warrants or other securities issued
by it or any other Person that are offered with, convertible into or exercisable
or exchangeable for any Registrable Securities, the Registrable Securities
underlying such options, rights, warrants or other securities shall continue to
be eligible for registration pursuant to Sections 2.01 and 2.02.
Section 2.06. UNDERWRITING; DUE DILIGENCE. (a) If requested by
the underwriters for any underwritten offering of Registrable Securities
pursuant to a registration requested under this Article II, Blockbuster shall
enter into an underwriting agreement with such underwriters for such offering,
which agreement will contain such representations and warranties by Blockbuster
and such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially to the
effect and to the extent provided in Section 2.07, and agreements as to the
provision of opinions of counsel and accountants' letters to the effect and to
the extent provided in Section 2.04(e). The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, Blockbuster to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by such Selling Holders and such other terms and
provisions as are customarily contained in underwriting
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agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially to the
effect and to the extent provided in Section 2.07.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Article II, Blockbuster shall give the Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants, such reasonable and customary access to its books and
records and such opportunities to discuss the business of Blockbuster with its
officers and the independent public accountants who have certified the financial
statements of Blockbuster as shall be necessary, in the opinion of such Holders
and such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
Section 2.07. INDEMNIFICATION AND CONTRIBUTION. (a) In the case
of each offering of Registrable Securities made pursuant to this Article II,
Blockbuster agrees to indemnify and hold harmless, to the extent permitted by
law, each Selling Holder, each underwriter of Registrable Securities so offered
and each Person, if any, who controls any of the foregoing Persons within the
meaning of the Securities Act and the officers, directors, Affiliates, employees
and agents of each of the foregoing, against any and all Losses (including,
without limitation, any legal or other expenses incurred in connection with
defending or investigating any such action or claim), as incurred, arising out
of or relating to any untrue statement or alleged untrue statement of a material
fact contained in, or incorporated by reference into, in the registration
statement (or in any preliminary or final prospectus included therein) or in any
offering memorandum or other offering document relating to the offering and sale
of such Registrable Securities prepared by Blockbuster or at its direction, or
any amendment thereof or supplement thereto, or any omission by Blockbuster or
alleged omission by Blockbuster to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
except that Blockbuster shall not be liable to any Person in any such case to
the extent that any such Loss arising out of or relating to any untrue statement
or alleged untrue statement, or any omission or alleged omission, if such
statement or omission shall have been made in reliance upon and in conformity
with information relating to a Selling Holder, another holder of securities
included in such registration statement or underwriter furnished in writing to
Blockbuster by or on behalf of such Selling Holder, other holder or underwriter,
as the case may be, specifically for use in the registration statement (or in
any preliminary or final prospectus included therein), offering memorandum or
other offering document, or any amendment thereof or supplement thereto. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Selling Holder, any other holder or any underwriter
and shall survive the transfer of such securities. In the case of an offering
with respect to which a Selling Holder has designated the lead or managing
underwriters (or a Selling Holder is offering Registrable Securities directly,
without an underwriter), this indemnity does not apply to any Loss arising out
of or relating to any untrue statement or alleged untrue statement or omission
or alleged omission in any preliminary prospectus or offering memorandum if a
copy of a final prospectus or offering memorandum was not sent or given by or on
behalf of any underwriter (or such Selling Holder or other holder, as the case
may be) to such Person asserting such Loss at or prior to the written
confirmation of the
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sale of the Registrable Securities as required by the Securities Act and such
untrue statement or omission had been corrected in such final prospectus or
offering memorandum.
(b) In the case of each offering made pursuant to this Agreement,
each Selling Holder, by exercising its registration rights hereunder, agrees to
indemnify and hold harmless, and to cause each underwriter of Registrable
Securities included in such offering (in the same manner and to the same extent
as set forth in Section 2.07(a)) to agree to indemnify and hold harmless,
Blockbuster, each other underwriter who participates in such offering, each
other Selling Holder or other holder with securities included in such offering
and in the case of an underwriter, such Selling Holder or other holder, and each
Person, if any, who controls any of the foregoing within the meaning of the
Securities Act and the Affiliates and Representatives of each of the foregoing,
against any and all Losses (including, without limitation, any legal or other
expenses incurred in connection with defending or investigating any such action
or claim), as incurred, arising out of or relating to any untrue statement or
alleged untrue statement of a material fact contained in, or incorporated by
reference into, the registration statement (or in any preliminary or final
prospectus included therein) or in any offering memorandum or other offering
document relating to the offering and sale of such Registrable Securities
prepared by Blockbuster or at its direction, or any amendment thereof or
supplement thereto, or any omission by such Selling Holder or underwriter, as
the case may be, or alleged omission by such Selling Holder or underwriter, as
the case may be, of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that such untrue statement of a material fact is contained in, or such
material fact is omitted from information relating to such Selling Holder or
underwriter, as the case may be, furnished in writing to Blockbuster by or on
behalf of such Selling Holder or underwriter, as the case may be, specifically
for use in such registration statement (or in any preliminary or final
prospectus included therein), offering memorandum or other offering document, or
any amendment thereof or supplement thereto. In the case of an offering made
pursuant to this Agreement with respect to which Blockbuster has designated the
lead or managing underwriters (or Blockbuster is offering securities directly,
without an underwriter), this indemnity does not apply to any Loss arising out
of or related to any untrue statement or alleged untrue statement or omission or
alleged omission in any preliminary prospectus or offering memorandum if a copy
of a final prospectus or offering memorandum was not sent or given by or on
behalf of any underwriter (or Blockbuster, as the case may be) to such Person
asserting such loss, liability, cost, claim or damage at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected in such
final prospectus or offering memorandum.
(c) The indemnification procedures set forth in Section 8.01(b)
of the IPO and Split-Off Agreement are incorporated herein and made a part
hereof for all purposes as if fully set forth herein and shall govern the
parties' rights and obligations with respect thereto.
(d) If the indemnification provided for in this Section 2.07
shall for any reason be unavailable (other than in accordance with its terms) to
an Indemnified Party in respect of any Loss referred to therein, then each
Indemnifying Party shall, in lieu of indemnifying such
14
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such Loss (i) as between Blockbuster and the Selling
Holders on the one hand and the underwriters on the other, in such proportion as
shall be appropriate to reflect the relative benefits received by Blockbuster
and the Selling Holders on the one hand and the underwriters on the other hand
or, if such allocation is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits but also the relative
fault of Blockbuster and the Selling Holders on the one hand and the
underwriters on the other with respect to the statements or omissions which
resulted in such Loss as well as any other relevant equitable considerations and
(ii) as between Blockbuster on the one hand and each Selling Holder on the
other, in such proportion as is appropriate to reflect the relative fault of
Blockbuster and of each Selling Holder in connection with such statements or
omissions as well as any other relevant equitable considerations. The relative
benefits received by Blockbuster and the Selling Holders on the one hand and the
underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by Blockbuster and the Selling Holders
bear to the total underwriting discounts and commissions received by the
underwriters, in each case as set forth in the table on the cover page of this
prospectus. The relative fault of Blockbuster and the Selling Holders on the one
hand and of the underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
Blockbuster and the Selling Holders or by the underwriters. The relative fault
of Blockbuster on the one hand and of each Selling Holder on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, but not by reference to any Indemnified
Party's stock ownership in Blockbuster. The amount paid or payable by an
Indemnified Party as a result of the Loss in respect thereof, referred to above
in this paragraph (d) shall be deemed to include, for purposes of this paragraph
(d), any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Blockbuster and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.07 were determined by PRO
RATA allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this paragraph. Notwithstanding any
other provisions of this Section 2.07, no Selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Selling Holder were offered to the public
exceeds the amount of any damages which such Selling Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. Each Selling Holder's obligations to contribute pursuant to
this Section 2.07 are several in proportion to the proceeds of the offering
received by such Selling Holder bears to the total proceeds of the offering
received by all the Selling Holders and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall
15
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Indemnification and contribution similar to that specified in
the preceding paragraphs of this Section 2.07 (with appropriate modifications)
shall be given by Blockbuster, the Selling Holders and underwriters with respect
to any required registration or other qualification of securities under any
state law or regulation or governmental authority.
(f) The obligations of the parties under this Section 2.07 shall
be in addition to any liability which any party may otherwise have to any other
party.
Section 2.08. RULE 144 AND FORM S-3. Commencing 90 days after the
IPO Date, Blockbuster shall use its reasonable best efforts to ensure that the
conditions to the availability of Rule 144 set forth in paragraph (c) thereof
shall be satisfied. Upon the request of any Holder of Registrable Securities,
Blockbuster will deliver to such Holder a written statement as to whether it has
complied with such requirements. Blockbuster further agrees to use its
reasonable efforts to cause all conditions to the availability of Form S-3 (or
any successor form) under the Securities Act of the filing of registration
statements under this Agreement to be met as soon as practicable after the IPO
Date. Notwithstanding anything contained in this Section 2.08, Blockbuster may
deregister under Section 12 of the Securities Exchange Act of 1934, as amended,
if it then is permitted to do so pursuant to said Act and the rules and
regulations thereunder.
Section 2.09. TRANSFER OF REGISTRATION RIGHTS. (a) Any Holder
may transfer all or any portion of its rights under Article II to (i) any
other transferee in respect of a number of Registrable Securities owned by
such Holder equal to or exceeding 3% of the outstanding Blockbuster Common
Stock at the time of the transfer (each transferee that receives such minimum
number of Registrable Securities shall be referred to herein as a
"TRANSFEREE"). Any transfer of registration rights pursuant to this Section
2.09(a) shall be effective upon receipt by Blockbuster of (i) written notice
from such Holder stating the name and address of any Transferee and
identifying the number of Registrable Securities with respect to which the
rights under this Agreement are being transferred and the nature of the
rights so transferred and (ii) a written agreement from such Transferee to be
bound by the terms of this Article II and Sections 3.03, 3.06, 3.07, 3.09,
and 3.11 of this Agreement. The Holders may exercise their rights hereunder
in such priority as they shall agree upon among themselves.
(b) Notwithstanding the foregoing, in the event that any
stockholder of Viacom receives restricted Registrable Securities in the
Split-Off and as a result of the Split-Off,
16
such stockholder is "affiliated" with Blockbuster for purposes of the Securities
Act, such stockholder shall be entitled to the rights hereunder; provided,
however, that it shall only be entitled to request registration of Registrable
Securities pursuant to Section 2.01 only twice and such stockholder signs a
written agreement to be bound by the terms of this Agreement. Any such
stockholder for purposes of this Agreement shall be considered a "Holder."
Section 2.10. HOLDBACK AGREEMENT. If any registration pursuant to
this Article II shall be in connection with an underwritten public offering of
Registrable Securities, each Selling Holder agrees not to effect any public sale
or distribution, including any sale under Rule 144, of any equity security of
Blockbuster (otherwise than through the registered public offering then being
made), within 7 days prior to or 90 days (or such lesser period as the lead or
managing underwriters may permit) after the effective date of the registration
statement (or the commencement of the offering to the public of such Registrable
Securities in the case of Rule 415 offerings). Upon the reasonable request of
the underwriters, Blockbuster hereby also so agrees and agrees to use its
reasonable best efforts to cause each other holder of equity securities or
securities convertible into or exchangeable or exercisable for such securities
(other than in the case of equity securities, under dividend reinvestment plans
or employee stock plans) purchased from Blockbuster otherwise than in a public
offering to so agree.
ARTICLE III
MISCELLANEOUS
Section 3.01. LIMITATION OF LIABILITY. Neither Viacom nor
Blockbuster shall be liable to the other for any special, indirect, incidental
or consequential damages of the other arising in connection with this Agreement.
Section 3.02. SUBSIDIARIES. Viacom agrees and acknowledges that
Viacom shall be responsible for the performance by each of its Affiliates of the
obligations hereunder applicable to such Affiliate.
Section 3.03. TERM. This Agreement shall remain in effect until
all Registrable Securities held by Holders have been transferred by them to
Persons other than Transferees; PROVIDED that the provisions of Section 2.07
shall survive any such expiration.
Section 3.04. FURTHER ASSURANCES. Viacom and Blockbuster shall
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such instruments and take such other action as may be necessary or
advisable to carry out their obligations under this Agreement and under any
exhibit, document or other instrument delivered pursuant hereto.
Section 3.05. SPECIFIC PERFORMANCE. The parties hereto
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent
17
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction in the United
States or any state thereof, in addition to any other remedy to which they may
be entitled at law or equity.
Section 3.06. AMENDMENTS. This Agreement shall not be
supplemented, amended or modified in any manner whatsoever (including without
limitation by course of dealing or of performance or usage of trade) except in
writing signed by the parties.
Section 3.07. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns. Nothing contained in this Agreement, express
or implied, is intended to confer upon any other person or entity any benefits,
rights or remedies.
Section 3.08. SEVERABILITY. Wherever possible, each provision of
this Agreement shall be interpreted in such a manner as to be effective and
valid under applicable law. If any portion of this Agreement is declared invalid
for any reason in any jurisdiction, such declaration shall have no effect upon
the remaining portions of this Agreement, which shall continue in full force and
effect as if this Agreement had been executed with the invalid portions thereof
deleted; PROVIDED, that the entirety of this Agreement shall continue in full
force and effect in all other jurisdictions.
Section 3.09. ENTIRE AGREEMENT. Other than the IPO and Split-Off
Agreement, the Release and Indemnification Agreement, the Transition Services
Agreement and the Tax Matters Agreement, this Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
thereof and supersede all prior agreements and undertakings, both written and
oral, between the parties with respect to the subject matter hereof and thereof.
Section 3.10. NOTICES. All notices, consents, requests,
approvals, and other communications provided for or required herein, and all
legal process in regard thereto, must be in writing and shall be deemed validly
given, made or served, (a) when delivered personally or sent by telecopy to the
facsimile number indicated below with a required confirmation copy sent in
accordance with subsection (c) below; or (b) on the next business day after
delivery to a nationally-recognized express delivery service with instructions
and payment for overnight delivery; or (c) on the fifth (5th) day after
deposited in any depository regularly maintained by the United States postal
service, postage prepaid, certified or registered mail, return receipt
requested, addressed to the following addresses or to such other address as the
party to be notified shall have specified to the other party in accordance with
this section:
If to Viacom:
Viacom Inc.
0000 Xxxxxxxx
Xxx Xxxx Xxx Xxxx 00000
18
Attention: Xxxxxxx X. Xxxxxxxx, General Counsel
Phone Number: 000-000-0000
Fax Number: 000-000-0000
If to Blockbuster:
Blockbuster Inc.
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xx Xxxxx, General Counsel
Phone Number: 000-000-0000
Fax Number: 000-000-0000
Section 3.11. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. Each of the
parties hereto agrees that any dispute relating to or arising from this
Agreement or the transactions contemplated hereby shall be resolved only in the
court of the State of New York sitting in the County of New York or the United
States District Court for the Southern District of New York and the appellate
courts having jurisdiction of appeals in such courts. In that context, and
without limiting the generality of the foregoing, each of the parties hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal suit, action
or proceeding relating to this Agreement or any transaction contemplated hereby,
or for recognition and enforcement of any judgment in respect thereof, to the
exclusive jurisdiction of the courts of the State of New York sitting in the
County of New York or the United States District Court for the Southern District
of New York and appellate courts having jurisdiction of appeals in such courts,
and each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such suit, action, or proceeding shall be heard and
determined in such New York State court or, to the extent permitted by law, in
such federal court;
(b) consents that any such suit, action or proceeding may and
shall be brought in such courts and waives any objection that it may now or
hereafter have to the venue or jurisdiction or any such action or proceeding in
such court or that such action or proceeding was brought in an inconvenient
forum and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such party
in its address as provided in Section 3.06 hereof;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by New York law; and
(e) agrees that this Agreement has been entered into in the State
of New York and performed in part in the State of New York.
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Section 3.12. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same instrument.
20
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
VIACOM INC.
By:
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Name:
Title:
BLOCKBUSTER INC.
By:
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Name:
Title:
