Exhibit 10.2
FORM OF RELEASE AND INDEMNIFICATION 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.....................................................1
ARTICLE II
INDEMNIFICATION
Section 2.01. Indemnification by Blockbuster..................................4
Section 2.02. Indemnification by Viacom.......................................5
Section 2.03. Certain Tax Matters.............................................5
Section 2.04. Registration Indemnification....................................5
Section 2.05. Calculation of Indemnification Payments.........................7
Section 2.06. Indemnification Procedures......................................8
Section 2.07. Remedies Cumulative.............................................8
ARTICLE III
RELEASE
Section 3.01. General Release.................................................8
ARTICLE IV
MISCELLANEOUS
Section 4.01. Further Agreements..............................................9
Section 4.02. Amendments......................................................9
Section 4.03. Successors and Assignment.......................................9
Section 4.04. Consolidation, Merger and Sale of Assets........................9
Section 4.05. Severability...................................................10
Section 4.06. Entire Agreement...............................................10
Section 4.07. Notices........................................................10
Section 4.08. Governing Law..................................................11
Section 4.09. Counterparts...................................................12
RELEASE AND INDEMNIFICATION AGREEMENT
RELEASE AND INDEMNIFICATION 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, on September 29, 1994, Viacom acquired the businesses
and operations of Blockbuster Entertainment Corporation, a Delaware Corporation
("BEC") through a merger of BEC with and into Viacom (the "MERGER");
WHEREAS, since the Merger, Viacom has owned and operated the
acquired businesses and operations of BEC and other related businesses and
operations and has made significant improvements and contributions thereto and
has transferred certain of the assets, businesses and operations acquired in the
Merger and certain other related assets, businesses and operations to
Blockbuster and its Subsidiaries (collectively, the "ASSET TRANSFERS");
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, in consideration of the foregoing and as a condition to
the willingness of the parties to proceed with the initial public offering,
Blockbuster has agreed to release and indemnify Viacom, and Viacom has agreed to
release and indemnify Blockbuster, as more fully described below; and
NOW, THEREFORE, in consideration of the mutual covenants set
forth in this Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
"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.
"ASSET TRANSFERS" has the meaning ascribed thereto in the
Recitals.
"BEC" has the meaning ascribed thereto in the Recitals.
"BLOCKBUSTER" has the meaning ascribed thereto in the Preamble.
"BLOCKBUSTER BUSINESS" has the meaning ascribed thereto in
Section 2.01(a)(i).
"BLOCKBUSTER REGISTRATION STATEMENT" means any registration
statement (or any preliminary or final prospectus included therein), information
memorandum or other offering document relating to a primary offer and sale of
securities of Blockbuster prepared by Blockbuster or at its direction, in each
case including all exhibits thereto and as supplemented and amended from time to
time.
"BLOCKBUSTER SUBSIDIARY OBLIGORS" means, collectively, any direct
or indirect Subsidiary of Blockbuster that is or becomes an obligor on,
guarantees, or otherwise becomes directly or indirectly liable with respect to
any Senior Indebtedness of Blockbuster.
"INDEMNIFIED PARTY" means any Person who is entitled to received
payment or defense from an Indemnifying Party pursuant to this Agreement.
"INDEMNIFYING PARTY" means any party who is required to pay or
defend any other Person pursuant to this Agreement.
"IPO" means the initial public offering by Blockbuster of shares
of Blockbuster Class A Common Stock as contemplated by the IPO Registration
Statement.
"IPO AND SPLIT-OFF AGREEMENT" means Initial Public Offering and
Split-Off Agreement date as of the dated hereof among Viacom, Viacom
International Inc. and Blockbuster.
"IPO REGISTRATION STATEMENT" means the Registration Statement on
Form S-1, Registration No. 333-77899, of Blockbuster, including all exhibits
thereto and as supplemented and amended from time to time.
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"INTERCOMPANY AGREEMENTS" means this Agreement, the IPO and
Split-Off Agreement and the Transition Services Agreement, the Registration
Rights Agreement and the Tax Matters Agreement, each dated the date hereof by
and between the parties.
"LOSSES" has the meaning ascribed thereto in Section 2.01(a).
"MERGER" has the meaning ascribed thereto in the Recitals.
"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.
"REPRESENTATIVES" means directors, officers, employees, agents,
consultants, advisors, accountants, attorneys and representatives.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, together with the rules and regulations promulgated
thereunder.
"SENIOR INDEBTEDNESS" means, with respect to a Person, (i) all
senior indebtedness of such Person for borrowed money, (ii) all senior
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments and (iii) all senior indebtedness of others secured by a
lien on any property of such person.
"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 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.
"SPLIT-OFF REGISTRATION STATEMENT" means any registration
statement (or any preliminary or final prospectus included therein), information
memorandum or other offering document relating to the Split-Off, in each case
including all exhibits thereto and as supplemented and amended from time to
time.
"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 Viacom assuming
the Split-Off has occurred immediately prior to the determination as to whether
such Person was a Subsidiary of Viacom.
"TRANSFER COSTS" means any payments, costs or expenses paid to a
third party associated with the Asset Transfers.
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"VIACOM" has the meaning ascribed thereto in the Preamble.
"VIACOM BUSINESS" has the meaning ascribed thereto in Section
2.02.
"VIACOM GUARANTEES" means guarantees of Viacom and its
Subsidiaries with respect to obligations arising out of or relating to the
Blockbuster Business, including without limitation guarantees or other
obligations under leases or other agreements relating to video and music stores,
offices, warehouses and equipment.
ARTICLE II
INDEMNIFICATION
Section 2.01. INDEMNIFICATION BY BLOCKBUSTER. (a) Blockbuster and
any Blockbuster Subsidiary Obligor jointly and severally agree to indemnify and
hold harmless Viacom and its past, present or future Subsidiaries and Affiliates
and any of their past, present or future Representatives, heirs, executors and
any of their successors and assigns against any and all payments, losses,
liabilities, damages, claims, and expenses (including without limitation,
attorney's fees and expenses incurred in good faith) and costs whatsoever
("LOSSES"), as incurred, arising out of or relating to:
(i) all assets, businesses and operations conducted, operated,
managed or owned, in whole or in part, by (A) BEC or any Person that was
any at time a Subsidiary or Affiliate of BEC, (B) Viacom or any Person
that was any at time a Subsidiary or Affiliate of Viacom that were the
responsibility of the chief executive officer of the Blockbuster
Entertainment operating unit of Viacom, (C) Blockbuster or any Person
that was at any time a Subsidiary or Affiliate of Blockbuster, or (D)
any successor, assign or Representative of any of the foregoing at any
time, whether before, at or after the IPO (including without limitation
any assets, businesses or operations that were purchased, newly started,
discontinued or sold) or any transaction related thereto or causes of
action arising therefrom (collectively, the "BLOCKBUSTER BUSINESS"); and
(ii) the Transfer Costs;
PROVIDED that, in case of clause (i) above, assets, businesses and operations
referred to therein shall (A) include, without limitation, home video retailing
(whether videocassette, laserdisc, digital versatile disc, digital video express
or otherwise and whether rental or sale or in a physical store or over the
Internet), video game retailing (whether rental or sale), music retailing, the
operation of children and adult entertainment centers (but this indemnification
shall not apply to assets, businesses and operations conducted by Paramount
Parks) and the development, marketing, sale and management of franchises related
to the foregoing assets, businesses and operations and the Viacom Guarantees and
(B) exclude all assets, businesses and operations of Spelling Entertainment
Group Inc. and its Subsidiaries (including Republic Entertainment Inc. and
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WorldVision Inc.), Showtime Networks Inc.,Virgin Interactive Entertainment
Limited and Virgin Interactive Entertainment Inc.
(b) To the extent that a Subsidiary of Blockbuster becomes a
Blockbuster Subsidiary Obligor, Blockbuster shall cause such Subsidiary to
become a party to this Agreement through an amendment hereto pursuant to which
such Blockbuster Subsidiary Obligor will expressly assume all of the
obligations, and acquire all of the rights, of Blockbuster under this Agreement.
Such assumption of obligations and acquisition of rights shall in no way
discharge Blockbuster from any of its obligations hereunder or diminish any of
Blockbuster's rights hereunder, as the case may be. Such amendment shall be (i)
executed and delivered to Viacom (and shall become effective) simultaneously
with the execution and delivery by such Blockbuster Subsidiary Obligor (and the
effectiveness) of the documentation pursuant to which it became a Blockbuster
Subsidiary Obligor and (ii) contain provisions reasonably satisfactory to Viacom
to maximize the likelihood that such amendment would not be subject to attack
under applicable fraudulent conveyance or similar laws.
(c) The obligations of the parties under this Section 2.01 shall
be in addition to any liability which any party may have to the other party.
Section 2.02. INDEMNIFICATION BY VIACOM. (a) Viacom agrees to
indemnify and hold harmless Blockbuster and its past, present or future
Subsidiaries and Affiliates and any of their past, present or future
Representatives, heirs and any of their executors, successors and assigns
against any and all Losses, as incurred, arising out of or relating to all
assets, businesses and operations conducted, operated, managed or owned, in
whole or in part, by Viacom or any Person that was at any time a Subsidiary or
Affiliate of Viacom or any predecessor, successor, assign or Representative of
any of the foregoing at any time whether before, at or after the IPO (including,
without limitation, any assets, businesses or operations that were purchased,
newly started, discontinued or sold) or any transaction related thereto or
causes of action arising therefrom other than the Blockbuster Business and
Transfer Losses which Blockbuster and any Blockbuster Subsidiary Obligor agree
to indemnify Viacom pursuant to Section 1.01) (the "VIACOM BUSINESS")
(b) The obligations of the parties under this Section 2.02 shall
be in addition to any liability which any party may have to the other party.
Section 2.03. CERTAIN TAX MATTERS. Notwithstanding anything to
the contrary herein, the rights and obligations of the parties with respect to
indemnification for the tax matters that are the subject matter of the Tax
Matters Agreement dated as of the date hereof between the parties thereto shall
be governed solely by such agreement.
Section 2.04. REGISTRATION INDEMNIFICATION. (a) Blockbuster and
any Blockbuster Subsidiary Obligor jointly and severally agree to indemnify and
hold harmless Viacom and each Person, if any, who controls Viacom within the
meaning of the Securities Act
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and Affiliates and Representatives of each of the foregoing from and 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 (i) any Blockbuster Registration Statement filed at or prior to
the date of the Split-Off, including, without limitation, the IPO Registration
Statement and (ii) any Split-Off Registration Statement or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except that
Blockbuster and any Blockbuster Subsidiary Obligor shall not be liable in any
such case to the extent that any such Losses are arising out of or relating to
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to Viacom furnished to Blockbuster in writing by
Viacom expressly for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of Viacom and shall
survive the transfer of such securities. In the case of an offering with respect
to which Viacom has designated the lead or managing underwriters (or Viacom is
offering securities of Blockbuster 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
Viacom) to such Person asserting such Loss at or prior to the written
confirmation of the sale of the securities of Blockbuster as required by the
Securities Act and such untrue statement or omission had been corrected in such
final prospectus or offering memorandum.
(b) Viacom agrees to indemnify and hold harmless Blockbuster and
each Person, if any, who controls Blockbuster within the meaning of the
Securities Act and Affiliates and Representatives of each of the foregoing from
and 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, (i) any Blockbuster Registration Statement filed
at or prior to the date of the Split-Off, including, without limitation, the IPO
Registration Statement, (ii) and any Split-Off Registration Statement, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only with reference to Losses arising out of or relating to any untrue statement
or omission or alleged untrue statement or omission based on information
relating to Viacom furnished to Blockbuster in writing by Viacom expressly for
use therein. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of Blockbuster and shall survive the
transfer of such securities. In the case of an offering with respect to which
Blockbuster has designated the lead or managing underwriters (or Blockbuster is
offering securities of Blockbuster 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
Blockbuster) to such
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Person asserting such Loss at or prior to the written confirmation of the sale
of the securities of Blockbuster as required by the Securities Act and such
untrue statement or omission had been corrected in such final prospectus or
offering memorandum.
(c) If the indemnification provided for in this Section 2.04
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 Indemnified Party,
contribute to the amount paid or payable by such Indemnified Party as a result
of such Loss as between Blockbuster on the one hand and Viacom on the other, in
such proportion as is appropriate to reflect the relative fault of Blockbuster
and of Viacom in connection with such statements or omissions which resulted in
such Loss as well as any other relevant equitable considerations. The relative
fault of Blockbuster on the one hand and of Viacom 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 Viacom'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 (c)
shall be deemed to include, for purposes of this paragraph (c), any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Blockbuster and Viacom
agree that it would not be just and equitable if contribution pursuant to this
Section 2.04 were determined by PRO RATA allocation 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 2.04,
Viacom shall not be required to contribute any amount in excess of the amount by
which the total price at which the securities of Blockbuster were offered by
Viacom to the public exceeds the amount of any damages which Viacom has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any party who was not guilty of such
fraudulent misrepresentation.
(d) Indemnification and contribution similar to that specified in
the preceding paragraphs of this Section 2.04 (with appropriate modifications)
shall be given by Blockbuster and Viacom with respect to any required
registration or other qualification of securities under any state law or
regulation or governmental authority.
(e) The obligations of the parties under this Section 2.04 shall
be in addition to any liability which any party may otherwise have to the other
party.
Section 2.05. CALCULATION OF INDEMNIFICATION PAYMENTS. (a) The
amount which any Indemnifying Party is required to pay to any Indemnified Party
pursuant to this Agreement shall be reduced (including, but not limited to,
retroactively) by any recovery, judgment, settlement or other amounts actually
recovered, including insurance proceeds, by such
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Indemnified Party with respect to such Losses. If an Indemnified Party shall
have received payment with respect to Losses and shall subsequently actually
receive a recovery, judgment, settlement or other amount with respect to such
Losses, then such Indemnified Party shall promptly, but in no event later than
15 business days after such recovery, judgment, settlement or other amount
actually received, pay to such Indemnifying Party a sum equal to the lesser of
(i) the amount of such recovery, judgment, settlement or other amount actually
received or (ii) the amount of payments actually received previously in respect
of such Loss.
(b) All amounts which any Indemnifying Party is required to pay
to any Indemnified Party pursuant to this Agreement shall be calculated on an
after-tax basis, taking into account the net present value of any tax cost
and/or tax benefit to the Indemnified Party in connection with such
indemnification payment and the applicable Loss.
Section 2.06. INDEMNIFICATION PROCEDURES. 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.
Section 2.07. REMEDIES CUMULATIVE. The remedies provided in this
Agreement shall be cumulative and shall not preclude assertion by any
Indemnified Party of any other rights or the seeking of any and all other
remedies against any Indemnifying Party.
ARTICLE III
RELEASE
Section 3.01. GENERAL RELEASE. (a) Blockbuster for itself and on
behalf of its Subsidiaries hereby releases, remises and forever discharges each
of Viacom and its Subsidiaries or Affiliates and any of their Representatives
from any losses, obligation or responsibility for any and all past actions or
failures to take action, including any actions which may be deemed to have been
negligent or grossly negligent, relating to, resulting from or arising out of
the operation or conduct of any assets, businesses and operations managed or
operated by, or operationally related or ancillary to, directly or indirectly,
the Blockbuster Business and the Viacom Business, except for any Losses,
obligation or responsibility for any willful or intentional misconduct in the
operation or conduct of the Blockbuster Business or the Viacom Business prior to
the date hereof.
(b) Viacom for itself and on behalf of its Subsidiaries hereby
releases, remises and forever discharges each of Blockbuster and its
Subsidiaries or Affiliates and any of their Representatives from any losses,
obligation or responsibility for any and all past actions or failures to take
action, including any actions which may be deemed to have been negligent or
grossly negligent, relating or ancillary to, resulting from or arising out of
the operation or conduct of any assets, businesses and operations managed or
operated by, or operationally related to, directly or indirectly, the
Blockbuster Business and the Viacom Business, except for any Losses, obligation
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or responsibility for any willful or intentional misconduct in the operation or
conduct of the Blockbuster Business or the Viacom Business prior to the date
hereof.
(c) Nothing set forth in subsections (a) and (b) shall limit or
otherwise affect any party's rights or obligations pursuant to, or contemplated
by the Intercompany Agreements.
ARTICLE IV
MISCELLANEOUS
Section 4.01. FURTHER AGREEMENTS. (a) Blockbuster agrees, and
Blockbuster will cause its Subsidiaries, to do all things necessary to (i)
maintain and conduct its business and operations, in a commercially reasonable
manner, including without limitation (x) paying, on a timely basis, principal
and interest in respect to its debt and rent in respect to leases and (y)
complying with its obligations under any credit agreement, indenture, lease,
guarantee or other agreement or document, and (ii) minimize any obligation
Viacom or any of its Subsidiaries (other than Blockbuster and its Subsidiaries)
may have under any standby, letter of credit, guarantee or otherwise.
(b) Viacom agrees, and Viacom will cause its Subsidiaries, to do
all things necessary to (i) maintain and conduct its business and operations, in
a commercially reasonable manner, including without limitation (x) paying, on a
timely basis, principal and interest in respect to its debt and (y) complying
with its obligations under any credit agreement, indenture, lease, guarantee or
other agreement or document, and (ii) minimize any obligation Blockbuster or any
of its Subsidiaries may have under any standby, letter of credit, guarantee or
otherwise.
Section 4.02. 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 4.03. SUCCESSORS AND ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. Except as set forth in Section 4.04 hereof,
this Agreement may not be assigned by either party without the express written
consent of the other party (which consent shall not be unreasonably withheld).
Section 4.04. CONSOLIDATION, MERGER AND SALE OF ASSETS. Until
seven (7) years after the date hereof, in the event that Blockbuster
consolidates, merges, sells assets or engages in any other similar transaction
and Blockbuster is required, pursuant to an anti-consolidation, merger and/or
sale of assets covenant or other similar covenant contained in the then existing
credit agreement of Blockbuster, as it may be amended, restated, supplemented,
refinanced,
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extended or otherwise modified from time to time, to obtain the consent of the
banks who are parties thereto and, in obtaining such consent, such banks receive
a benefit, monetary or otherwise, Blockbuster shall give the same benefit(s)
PARI PASSU (if applicable) to Viacom; PROVIDED that if (x) there is no
anti-consolidation, merger and/or sale of assets covenant or other similar
covenant contained in such credit agreement at such time or (y) there is no such
credit agreement existing at such time, the anti-consolidation, merger and/or
sale of assets covenant or other similar covenant contained in the latest credit
agreement that contained such covenants will be incorporated by reference herein
and, if consent is required under such covenant, Blockbuster must obtain
Viacom's written consent prior to any consolidation, merger, sale of assets or
similar transaction; PROVIDED, HOWEVER, that this Section 2.05 does not apply if
the Split-Off (or other transaction whereby Blockbuster ceases to be a
Subsidiary of Viacom) has not been consummated.
Section 4.05. 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 4.06. ENTIRE AGREEMENT. Other then the other Intercompany
Agreements, 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 4.07. 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.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
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Phone Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
If to Blockbuster:
Blockbuster Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇, General Counsel
Phone Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Section 4.08. 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
court 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 court 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 4.07 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.
11
Section 4.09. 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.
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
VIACOM INC.
By:
-----------------------------
Name:
Title:
BLOCKBUSTER INC.
By:
-----------------------------
Name:
Title:
13
