Exhibit 99.1
EXECUTION COPY
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STOCKHOLDERS AGREEMENT
NATIONAL BROADCASTING COMPANY, INC.
Dated May 11, 2004
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Table of Contents
Page
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Article I DEFINITIONS...........................................................................................1
1.1 Certain Definitions...................................................................................1
1.2 Capitalized Terms.....................................................................................6
1.3 Other Definitions.....................................................................................6
Article II Company STOCK.........................................................................................7
2.1 Restrictions on Transfer of Company Stock.............................................................7
2.2 Certain Acknowledgments; Stock Certificate Legend.....................................................7
Article III GOVERNANCE OF THE COMPANY.............................................................................8
3.1 Veto Rights of the Vivendi Representative.............................................................8
3.2 Election of Directors and Operation of the Board.....................................................10
3.3 Preparation for an IPO...............................................................................14
Article IV COVENANTS OF THE COMPANY AND THE STOCKHOLDERS........................................................14
4.1 Financial Statements.................................................................................14
4.2 Right to Information with Respect to the Company; Reporting by Vivendi...............................16
4.3 Confidentiality......................................................................................16
4.4 Standstill...........................................................................................17
4.5 Certain Transactions Affecting NBC Telemundo, Inc....................................................18
4.6 Corporate Opportunity; Contractual Relationships.....................................................20
4.7 Subscription for Equity Interests....................................................................21
4.8 Strategic Committee..................................................................................22
Article V REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS...................................................22
5.1 Ownership of Company Stock...........................................................................22
5.2 Organization, Power and Authority, Binding Agreement.................................................22
5.3 No Conflicts.........................................................................................23
Article VI MISCELLANEOUS........................................................................................23
6.1 Notices..............................................................................................23
6.2 Vivendi Representative...............................................................................25
6.3 Joint and Several Obligations........................................................................25
6.4 Subsequent Parties...................................................................................26
6.5 Entire Agreement; No Inconsistent Agreement..........................................................26
6.6 No Third-Party Beneficiaries.........................................................................26
6.7 Severability.........................................................................................26
6.8 Termination..........................................................................................26
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6.9 Governing Law........................................................................................27
6.10 Jurisdiction; Waiver of Jury Trial...................................................................27
6.11 Mediation............................................................................................28
6.12 Assignment...........................................................................................28
6.13 Amendments; Waivers..................................................................................28
6.14 Headings.............................................................................................29
6.15 Counterparts.........................................................................................29
6.16 Remedies.............................................................................................29
6.17 Interpretation.......................................................................................29
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STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of May 11, 2004 (this "Agreement"),
by and among General Electric Company, a New York corporation ("GE"), National
Broadcasting Company Holding, Inc., a Delaware corporation and a wholly-owned
Subsidiary of GE ("Parent"), National Broadcasting Company, Inc., a Delaware
corporation and a wholly-owned Subsidiary of Parent (including its successors,
the "Company"), Vivendi Universal, S.A., a societe anonyme organized under the
Laws of France ("Vivendi"), and Universal Studios Holding III Corp., a Delaware
corporation and a Subsidiary of Vivendi ("Holding" and, together with Parent and
any Person who is added to this Agreement pursuant to Section 2.1 or, prior to
an IPO, Section 6.4, the "Stockholders").
WHEREAS, the parties to this Agreement have entered into that certain
Business Combination Agreement, dated as of October 8, 2003, providing, among
other things, for the combination of the respective businesses of the Company,
Universal Studios, Inc., a Delaware corporation and a Subsidiary of Holding,
Universal Pictures International Holdings B.V., a company organized under the
Laws of the Netherlands and a Subsidiary of Vivendi, and Universal Pictures
International Holdings 2 B.V., a company organized under the Laws of the
Netherlands and a Subsidiary of Vivendi (as the same may hereafter be amended,
modified, supplemented or restated from time to time, the "Business Combination
Agreement");
WHEREAS, immediately following the consummation of the transactions
contemplated by the Business Combination Agreement, Parent shall own shares of
Class A common stock of the Company, par value $.01 per share (the "Class A
Common Stock"), representing 80% of the issued and outstanding capital stock of
the Company and Holding shall own shares of Class B common stock of the Company,
par value $.01 per share (the "Class B Common Stock"), representing 20% of the
issued and outstanding capital stock of the Company; and
WHEREAS, the consummation of the transactions contemplated by the
Business Combination Agreement is conditioned upon the execution and delivery of
this Agreement by the parties hereto.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
parties hereby agree, severally and not jointly, as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Aggregate Foreign Ownership Percentage" means the greater of (i) the
percentage of issued and outstanding shares of capital stock of the Company held
by Aliens, as calculated pursuant to the policies of the Federal Communications
Commission under Section 310(b) of the Communications Act of 1934, as amended;
or (ii) the percentage of voting power represented by the issued and outstanding
voting securities of the Company that is held or voted by Aliens, as calculated
pursuant to the policies of the Federal Communications Commission under Section
310(b) of the Communications Act of 1934, as amended.
"Alien" means (i) a Person who is not a citizen of the United States;
(ii) any entity organized under the laws of a government other than the
government of the United States or any state, territory or possession of the
United States; (iii) a government other than the government of the United States
or of any state, territory or possession of the United States; and (iv) a
representative of any of the foregoing.
"Beneficially Own" or "Beneficial Ownership" shall have the meaning
set forth in Rule 13d-3 of the rules and regulations promulgated under the
Exchange Act.
"Board" means the board of directors of the Company.
"Bylaws" means the Company's bylaws, as hereafter from time to time
amended in accordance with the terms hereof and thereof and pursuant to
applicable Law.
"Canal + Group" means Canal +, S.A., a societe anonyme organized
under the Laws of France, and its Subsidiaries.
"Certificate of Incorporation" means the Company's certificate of
incorporation, as hereafter from time to time amended in accordance with the
terms hereof and thereof and pursuant to applicable Law.
"Change of Control" means, with respect to a given Person, any of the
following: (i) a merger, share exchange, consolidation or other business
combination or transaction to which such Person is a party if the stockholders
of such Person immediately prior to the effective date of such merger,
consolidation or other business combination or transaction, as a result of such
transaction, have Beneficial Ownership of voting securities of such Person or
successor thereto representing less than 50% of the total voting power
represented by the outstanding voting securities of such Person, (ii) a sale
(including any transfer or exchange) of all or substantially all of the assets
of such Person or (iii) with respect to the Company, the acquisition by any
Person (other than a Permitted Transferee of the transferor) of more than 50% of
the total voting power represented by the outstanding shares of Company Stock
(or, with respect to any Person other than the Company, represented by the
outstanding capital stock of such Person).
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
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"Company Stock" means, collectively, the Class A Common Stock, the
Class B Common Stock and any other securities of the Company or any other Person
issued with respect to such Class A Common Stock and/or Class B Common Stock by
way of a conversion, exchange, replacement, stock dividend or stock split or
other distribution or in connection with a combination of shares, conversion,
exchange, replacement, recapitalization, merger, consolidation or other
reorganization or otherwise.
"Demerger" means the separation from Vivendi of Vivendi's
entertainment business or assets (in whole or in part), but including in such
separated business or assets the music and games divisions and the business or
assets of the Canal + Group, by share dividend, spin-off, split-off or similar
transaction.
"Demerger Entity" means any successor entity resulting from a
Demerger that Beneficially Owns all of the shares of Company Stock held by the
Vivendi Group prior to the Demerger; provided that immediately following such
Demerger (a) the shares of Company Stock Beneficially Owned by such Demerger
Entity and its Subsidiaries do not have a value (based upon the enterprise value
of the Company at such time) that is equal to or in excess of 66-2/3% of the
value of the Demerger Entity (based upon the enterprise value of the Demerger
Entity at such time) and (b) no single stockholder (other than any member or
members of the Vivendi Group), together with its Affiliates, shall Beneficially
Own 29.9% or more of the aggregate issued and outstanding voting stock of such
Demerger Entity.
"Equity Derivatives Transaction" means any transaction (including any
transaction commonly known as a derivatives transaction on equity securities or
equity instruments) entered into or to be entered into by Vivendi or a member of
the Vivendi Group, the payments under which are based upon the change in value
of the shares of Company Stock or the deliveries under which are the shares of
Company Stock, including, (i) any securities lending transaction, short sale,
equity swap, equity swaption, put option, call option, cap transaction, floor
transaction, collar transaction, forward transaction, repurchase transaction,
reverse repurchase transaction, buy/sell-back transaction or other sale
transaction, including by means of the issuance, purchase or sale of any
security or any transaction similar (or with an intended economic result
similar) to the foregoing or any combination of any of the foregoing or (ii) any
transaction pursuant to which Vivendi or a member of the Vivendi Group agrees to
make or receive payments in whole or in part based upon or with reference to
payments made to or received by holders of shares of Company Stock or that are
based upon the change in value of such shares with any Person that is not an
Affiliate of Vivendi or such member of the Vivendi Group, including transactions
that include the granting of a security interest in such shares or any other
collateral in favor of any such Person to secure such transaction or debt
incurred in connection therewith.
"Excluded Securities" means (a) any options or other forms of equity
participation rights issued to employees, consultants, officers or directors of
the Company pursuant to any stock option plan, stock purchase plan, stock bonus
arrangement or sales representative agreement approved by the Board provided
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that such options and equity participation rights shall not be exercisable prior
to the consummation of an IPO or (b) any securities issued pro rata to all
holders of the Company Stock in connection with any dividend or similar event.
"Fair Market Value" means, as of any date of determination, with
respect to a share of Company Stock, the fair market value of such stock
(expressed on a per-share basis) as of such date, based on the good faith
determination of the Board in consultation with a nationally recognized
investment bank as to the value of the Company as a going concern, taken as a
whole, without discount for minority interest, restrictions on transfer or
voting rights or other discounts that would be applicable if less than all of
the equity is sold in a single transaction.
"Financing Arrangement" means, with respect to any Stockholder, any
pledge of, grant of security interest in, hypothecation, Lien or other
encumbrance on shares of Company Stock, in each case, to the extent granted in
favor of financial lenders to secure the obligations of such Stockholder in
respect of borrowed money.
"GE Group" means, as of any given time of determination, GE and all
of the Subsidiaries of GE that hold Company Stock.
"GE Note" means the Promissory Note, dated as of May 7, 2004, issued
by GE to NTI with an aggregate principal amount of $330,625,000 and bearing an
interest rate of 6.12% per annum, payable quarterly in arrears, and shall
include all substitute notes issued pursuant to the terms of the GE Note.
"IPO" means an initial public offering of Company Stock pursuant to
an effective registration statement under the Securities Act (whether involving
an issuance of Company Stock and/or a resale of shares of Company Stock by a
stockholder of the Company), it being agreed that such initial public offering
may be in the form of a spin-off or share dividend of Company Stock to the
public stockholders of GE, whether or not such spin-off or share dividend
involves the filing of a registration statement.
"Liquidity Rights Agreement" means that certain Liquidity Rights
Agreement of even date herewith, by and among the parties thereto, as such
agreement may hereafter be amended, modified, supplemented or restated from time
to time.
"NTI Charter" means the Amended and Restated Certificate of
Incorporation of NTI, as the same exists as of the date hereof.
"Permitted Transferee" means, with respect to any Stockholder, (a)
prior to the closing of an IPO, (i) in the case of the members of the GE Group,
any member of the GE Group, (ii) in the case of the members of the Vivendi
Group, any member of the Vivendi Group and (iii) in the case of any other
Stockholder, any Affiliate of such other Stockholder, provided that in the case
of a member of the Vivendi Group, any such transferee must be a direct or
indirect wholly-owned Subsidiary of Vivendi (it being agreed that certain such
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entities may be up to 15% owned by MHI Investment Corporation, a Matsushita
Electric Co. Ltd. Subsidiary, or by any other Subsidiary of Matushita Electric
Co. Ltd.) or, following a Transfer in favor of a Demerger Entity, be a direct or
indirect wholly-owned Subsidiary of such Demerger Entity (it being agreed that
certain such entities may be up to 15% owned by MHI Investment Corporation, a
Matsushita Electric Co. Ltd. Subsidiary or by any other Subsidiary of Matushita
Electric Co. Ltd.) and (b) from and after the closing of an IPO only, (i) any
Person who is a Permitted Transferee under clause (a) and (ii) any other Person
that such Stockholder has a reasonable basis to believe, after reasonable
inquiry, would Beneficially Own shares representing less than 3% of the
outstanding shares of Company Stock immediately after the completion of such
proposed Transfer; it being understood and agreed that the limitation on
Transfer shall apply to any transferee of a Share Block Agent.
"Share Block Agent" means any placement agent, broker/dealer,
underwriter, bank or other similar Person who has been retained to sell shares
of Company Stock on behalf of a Stockholder.
"Share Block Transfer" means the transfer by a Stockholder of all or
a portion of its shares of Company Stock to a Share Block Agent.
"Significant Acquisition" means any acquisition by the Company of a
Person or assets, in each case, in which the gross asset value of such Person or
assets exceeds 10% of the fair market value of the Company's gross asset value
at such time.
"Significant Disposition" means any disposition by the Company of a
Person or assets, in each case, in which the gross asset value of such Person or
assets exceeds 20% of the fair market value of the Company's gross asset value
at such time.
"Substitute Security" means any shares of Subsidiary Preferred Stock
issued by any direct or indirect Subsidiary of GE (other than the Company or any
of its Subsidiaries) in connection with the assignment or transfer by NTI to
such Subsidiary of the GE Note or Replacement Security in accordance with
Section 4.5(c)(iii) or any Replacement Security.
"Transfer" means any transfer, sale, assignment, option, bequest,
gift, spin-off, split-off, distribution, pledge, hypothecation or other
disposal, encumbrance or other cessation of legal or Beneficially Owned
interest, whether direct or indirect (including by way of a sale of an interest
in any Stockholder), whether in whole or in part by operation of law or
otherwise, including, except as provided below, any Share Block Transfer or
Equity Derivatives Transaction; provided, however, that none of (a) a Financing
Arrangement, (b) the exercise and consummation of (i) any Special Demand Right
(as defined in the Liquidity Rights Agreement), (ii) any of Parent's purchase
rights (including the Parent Call Right (as defined in the Liquidity Rights
Agreement)) and (iii) any Sell Right (as defined in the Liquidity Rights
Agreement) or (c) following the consummation of an IPO only, a Share Block
Transfer or an Equity Derivatives Transaction shall constitute a "Transfer" for
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purposes of this Agreement and no such arrangement, transfer or transaction in
this proviso shall be subject to any of the transfer restrictions contained in
this Agreement (including Section 2.1).
"Vivendi Change of Control" means, (a) a Change of Control of Vivendi
or any Demerger Entity, replacing the reference to 50% in the defined term
"Change of Control" with a reference to 30%, (b) any loss by Vivendi or any
Demerger Entity of Beneficial Ownership of shares of Company Stock in favor of a
lender (or an assignee) under any Financing Arrangement, (c) any date following
which all of the shares of Company Stock Beneficially Owned by the members of
the Vivendi Group have an aggregate value (based upon the enterprise value of
the Company at such time) equal to or in excess of 66-2/3% of the enterprise
value of Vivendi (or if shares of Company Stock are Beneficially Owned by a
Demerger Entity, the Demerger Entity).
"Vivendi Group" means, as of any given time of determination, Vivendi
and all Subsidiaries of Vivendi that hold Company Stock or, in the event of a
Transfer to a Demerger Entity, such Demerger Entity and the Subsidiaries thereof
that hold Company Stock.
"Vivendi Representative" means Vivendi or a designee of Vivendi
reasonably acceptable to the Company.
1.2 Capitalized Terms. Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them in the
Business Combination Agreement.
1.3 Other Definitions. The following capitalized terms are defined in
the following sections of this Agreement:
Term Section
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Agreement Preamble
Business Combination Agreement First Recital
Class A Common Stock Second Recital
Class B Common Stock Second Recital
Company Preamble
Confidential Information 4.3
Corporate Opportunity 4.6(a)
CPR 6.11
DGCL 3.2(a)
Dispute Notice 6.11
Disputes 6.11
GE Preamble
GE Transaction 3.1(a)(iii)
HoldCo 4.5(a)
Holding Preamble
NTI 4.5(a)
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Term Section
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Parent Preamble
Preferred Stock 4.5(a)
Reconciliation Information 4.1(a)
Replacement Security 4.5(b)
Representatives 4.3
Stockholder Group Member 4.6(a)
Stockholders Preamble
Strategic Committee 4.8
Subsidiary Preferred Stock 4.5(c)
Vivendi Preamble
ARTICLE II
COMPANY STOCK
2.1 Restrictions on Transfer of Company Stock. Subject to Section
6.8, no Stockholder may Transfer any shares of Company Stock except to a
Permitted Transferee, provided, however, that in connection with any Transfer to
a Permitted Transferee prior to the consummation of an IPO (a) such Stockholder
must give the Company written notice prior to the time of such Transfer stating
the name and address of the Permitted Transferee and identifying the Company
Stock with respect to which the rights under this Agreement are to be
transferred, (b) such Permitted Transferee must agree in writing to be bound as
a Stockholder by the provisions of this Agreement insofar as it pertains to the
holding, owning and disposition of Company Stock, and (c) prior to any such
Permitted Transferee ceasing to be a Permitted Transferee (due to change in
ownership or otherwise), such Permitted Transferee shall be obligated to
transfer such shares of Company Stock back to the original Stockholder from whom
such Permitted Transferee acquired its shares of Company Stock (or, if control
of such original Stockholder has changed since the date of such original
transfer, to the Person who controlled such original Stockholder as of the date
of such original transfer). For the avoidance of doubt, (x) any Transfer to any
Person who is not a Permitted Transferee shall be void ab initio and shall have
no force or effect and (y) the Transfer restrictions set forth in this Section
2.1 shall expire pursuant to Section 6.8 as to all Stockholders other than
members of the Vivendi Group from and after the closing of an IPO.
2.2 Certain Acknowledgments; Stock Certificate Legend. In addition to
the restrictions set forth in Section 2.1, each Stockholder acknowledges that
the Company Stock issued prior to an IPO is issued pursuant to an exemption from
registration under the Securities Act and applicable state securities law and
agrees not to sell or otherwise dispose of its shares of Company Stock in any
transaction which would be in violation of the Securities Act, applicable state
securities law or this Agreement. Each Stockholder acknowledges that the
following legend shall appear on the certificates for the Company Stock
reflecting the foregoing restriction:
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(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR ANY OTHER SECURITIES
LAWS. SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED, OR OTHERWISE ASSIGNED, EXCEPT (I) PURSUANT TO A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS
EFFECTIVE UNDER ALL APPLICABLE SECURITIES OR "BLUE SKY" LAWS, OR (II)
UPON THE FURNISHING TO THE ISSUER BY THE HOLDER OF THIS CERTIFICATE
OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER THAT
SUCH TRANSACTION IS NOT REQUIRED TO BE REGISTERED OR IS EXEMPT FROM
REGISTRATION UNDER APPLICABLE SECURITIES OR "BLUE SKY" LAWS."
(b) "THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND OTHER CONDITIONS, AS
SPECIFIED IN THE STOCKHOLDERS AGREEMENT OF THE ISSUER, DATED AS OF
MAY 11, 2004, COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE ISSUER
AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES
UPON WRITTEN REQUEST."
Upon registration of any shares of Company Stock pursuant to the
Liquidity Rights Agreement, the Company shall remove from each certificate
evidencing such shares of Company Stock part (a) of the legend set forth above.
Subject to the provisions of Section 2.1, the Company shall, at the request of
any Stockholder, remove from each certificate evidencing Company Stock part (a)
of the legend set forth above if, in the opinion of counsel reasonably
acceptable to the Company, the Company Stock evidenced thereby may be publicly
sold without registration under the Securities Act.
ARTICLE III
GOVERNANCE OF THE COMPANY
3.1 Veto Rights of the Vivendi Representative.
(a) 10% Rights. Subject to Section 6.8, so long as the shares of
Company Stock collectively Beneficially Owned by the members of the Vivendi
Group constitute at least 10% of the total voting power represented by the
outstanding shares of Company Stock (for this purpose, prior to an IPO, without
giving effect to any issuance of Company Stock after the date hereof), the
Vivendi Group shall have the right to veto any of the following transactions,
and the Company shall not engage in any of the following transactions without
the prior written consent of the Vivendi Representative:
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(i) any sale, merger or consolidation of the Company only
to the extent such transaction would result in a Change of Control of
the Company;
(ii) any issuance by the Company of equity securities
(other than Excluded Securities) or securities convertible into
equity securities (other than Excluded Securities) at less than Fair
Market Value;
(iii) any transaction that is between the Company or any
of its controlled Affiliates, on the one hand, and GE or any
controlled Affiliate of GE (other than the Company and its controlled
Affiliates), on the other hand, that involves payments or the
incurrence of obligations by the Company in any calendar year in
excess of $1,000,000 (a "GE Transaction") other than any GE
Transaction pursuant to the terms of the Business Combination
Agreement, any Ancillary Agreement or any other agreement expressly
contemplated by any such agreement or entered into in connection with
the execution of the Business Combination Agreement or the Closing,
but in each case, such proposed GE Transaction shall not be subject
to the approval of the Vivendi Representative (A) to the extent such
proposed transaction, in the reasonable determination of the Board,
contains terms that are as favorable to the Company and its
Subsidiaries as would be obtained at arms length, it being agreed,
without limiting the types of transactions that shall be considered
arms length, that if a transaction involves charges to the Company
and its Subsidiaries that are substantially in the same categories of
items (as such categories may reasonably evolve over time) and
determined based upon substantially the same allocation methodology
or costing rules, as applicable, agreed upon by GE and Vivendi prior
to the Closing as contemplated by Section 7.23 of the Business
Combination Agreement, then such transaction shall be deemed to be at
arms length (it being understood and agreed that on an annual basis,
(i) GE will provide Vivendi with reasonable detail regarding such
charges and the allocation methodology and costing rules relating
thereto and (ii) GE will inform Vivendi in writing if it becomes
aware of any deviation from such methodology or rules in connection
with such charges) or (B) if such proposed GE Transaction is
otherwise agreed to in writing by Vivendi and GE prior to or after
the Closing; or
(iv) any dissolution, liquidation or winding up of the
Company or any assignment to creditors or commencement of a voluntary
proceeding seeking bankruptcy, reorganization or other similar relief
or the taking of any action similar to any of the foregoing, but
excluding any such dissolution, liquidation or winding up that occurs
in connection with a transaction described in clause (i) above that
does not result in a Change of Control.
(b) 5% Rights. Subject to Section 6.8, for so long as the shares of
Company Stock collectively Beneficially Owned by members of the Vivendi Group
constitute at least 5% of the total voting power represented by the outstanding
shares of Company Stock (for this purpose, prior to an IPO, without giving
effect to any issuance of Company Stock after the date hereof), the Company
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shall not engage in any of the actions referred to in Section 3.1(a)(iii) or
(iv).
3.2 Election of Directors and Operation of the Board.
(a) Election of Directors. Each Stockholder shall vote all of its
Company Stock and any other voting securities of the Company over which such
Stockholder has voting control and shall take all other necessary or desirable
actions within its control (including attendance at meetings in person or by
proxy for purposes of obtaining a quorum and execution of written consents in
lieu of meetings), and the Company shall take all necessary or desirable actions
within its control (including calling special board and stockholder meetings),
such that, subject to the third sentence of this Section 3.2(a), prior to the
consummation of an IPO, the Certificate of Incorporation will contain cumulative
voting provisions for the election of directors to the Board and the number of
directors on the Board shall be fifteen (15), it being acknowledged that the
application of cumulative voting results in a Stockholder holding 18.82% of the
votes having the effective power to elect three (3) out of fifteen (15)
directors. So long as the Certificate of Incorporation contains such cumulative
voting provisions, in the event that a director is removed for cause pursuant to
Section 141(k) of the General Corporation Law of the State of Delaware (the
"DGCL") or for any other reason ceases to serve as a member of the Board during
his or her term of office, the Stockholders shall take all necessary or
desirable actions (including attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings) to immediately re-elect the entire Board. Upon the cumulative voting
provisions set forth in Section 1 of Article Eighth of the Certificate of
Incorporation ceasing to apply, each member of the GE Group and the Vivendi
Group agrees to vote all of its shares of Company Stock and take all other
necessary or desirable actions within its control including attendance at
meetings in person or by proxy for purposes of obtaining a quorum, execution of
written consents in lieu of meetings and approval of amendments and/or
restatements of the Certificate of Incorporation or Bylaws, and the Company
shall take all necessary and desirable actions within its control, such that:
(i) so long as the Vivendi Group collectively Beneficially
Owns shares representing at least 20% of the total voting power
represented by the outstanding shares of Company Stock, such
Stockholders shall vote their shares of Company Stock in favor of
three directors designated by the Vivendi Representative such that
such three designees shall be elected to the Board;
(ii) so long as the Vivendi Group collectively
Beneficially Owns shares representing at least 10%, but less than
20%, of the total voting power represented by the outstanding shares
of Company Stock, such Stockholders shall vote their shares of
Company Stock in favor of two directors designated by the Vivendi
Representative such that such two designees shall be elected to the
Board;
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(iii) so long as the Vivendi Group collectively
Beneficially Owns shares representing at least 5%, but less than 10%,
of the total voting power represented by the outstanding shares of
Company Stock, such Stockholders shall vote their shares of Company
Stock in favor of one director designated by the Vivendi
Representative such that such designee shall be elected to the Board;
and;
(iv) with regard to the remaining number of directors,
such Stockholders shall vote their shares of Company Stock in favor
of designees of GE such that such remaining directors shall be
elected to the Board (it being understood that the size of the Board
may be modified from time to time by Parent, subject to the Vivendi
Group's designation right under clauses (i) and (ii) above);
(v) the removal from the Board, without cause, of any
director designated pursuant hereto may only be upon the written
request of the party or parties entitled to designate such director;
provided that any such designee, for cause shown by Parent or the
Vivendi Representative, shall be removed from the Board, in which
case the designating party or parties shall have the right to
identify a replacement designee;
(vi) in the event that any director designated pursuant
hereto for any reason ceases to serve as a member of the Board during
his or her term of office, the resulting vacancy on the Board may be
filled only by the party or parties entitled to designate such
departing director; and
(vii) notwithstanding anything in this Section 3.2(a) to
the contrary, GE shall have the right to designate at least 80% of
the Board (and of all committees thereof with decision-making
authority) as long as members of the GE Group collectively
Beneficially Own (as they do as of the Closing) such number of shares
as carry at least 80% of the total voting power of the stockholders
of the Company.
(b) If (i) at any time the number of members of the Board which the
Vivendi Representative or GE are entitled to designate pursuant to Section
3.2(a) hereof changes as a result of a decrease in the number of shares of
Company Stock Beneficially Owned by members of the Vivendi Group or by GE, as
the case may be, or (ii) any incumbent director dies, becomes unable to serve on
the Board, or retires, resigns or is removed from the Board, each of the parties
hereto agrees to vote their Company Stock and to take all necessary corporate
and other action within its control, including altering the size of the Board,
to ensure that as soon as reasonably practical (and, if necessary to give effect
to this Section 3.2(b), prior to the next regularly scheduled meeting date of
the Stockholders) the number of members of the Board which the Vivendi
Representative or GE have designated at all times corresponds to Section 3.2(a).
Such corporate and other action may include, without limitation, either the
removal of one or more incumbent directors or the election of one or more
additional directors (subject in each case to Section 3.2(a) and applicable
11
requirements of the Certificate of Incorporation and the Bylaws pertaining to
the number of members of the Board).
(c) Operation of the Board and the Board Committees. So long as the
shares of Company Stock collectively Beneficially Owned by the members of the
Vivendi Group constitute at least 5% of the total voting power represented by
the outstanding shares of Company Stock (for this purpose, prior to an IPO, or
until such earlier time as is specified below, without giving effect to any
issuance of Company Stock after the date hereof), each Stockholder agrees to the
following covenants regarding the operation and responsibility of the Board and
certain committees thereof and at all times prior to the IPO and after the IPO,
to the maximum extent possible under applicable federal securities law and stock
exchange rules, each Stockholder shall vote all of its shares of Company Stock
and take all other necessary or desirable actions within such Stockholder's
control including attendance at meetings in person or by proxy for purposes of
obtaining a quorum, execution of written consents in lieu of meetings and
approval of amendments and/or restatements of the Certificate of Incorporation
or Bylaws, and the Company shall take all necessary and desirable actions within
its control, such that:
(i) the Board shall meet at least four times per year and
each of the Board's audit, human resources and strategy and finance
committees shall meet at least once per calendar quarter; provided
that the first Board meeting shall occur within 45 days of the date
hereof;
(ii) subject to Section 3.2(d), one director designated by
the Vivendi Representative shall serve on each of the Board's audit,
human resources, strategy and finance and any other committees that
the Board deems advisable to designate from among its members, it
being understood and agreed that the number of members of each such
committee will be adjusted from to time to time so that the
percentage of each such committee designated by the Vivendi
Representative as of a given time is equal to the percentage of the
entire Board designated by the Vivendi Representative at such time,
such representation not to exceed 20% of either such committee;
(iii) so long as the members of the Vivendi Group have a
right to elect at least three directors to the Board, a quorum for
meetings of the Board shall require the participation of one of the
directors designated by Vivendi unless any such director fails to
participate by telephone, video-conferencing or in person after
having received 48 hours advance written notice of a meeting; and
(iv) each of the following shall be subject to the
approval of the Board and shall be reviewed by a committee of the
Board, as specified below:
(A) the Company's strategic plan and annual budget
shall be reviewed, and the implementation and
progress of such plan and budget shall be
monitored, by the strategy and finance
committee;
12
(B) any Significant Acquisition or Significant
Disposition shall be reviewed by the strategy
and finance committee; provided that, so long
as the members of the Vivendi Group have a
right to elect at least three directors to the
Board, Vivendi shall have the right to
designate an executive of Vivendi to
participate in the negotiations in respect of
any such Significant Acquisition or Significant
Disposition;
(C) the results of operations for each fiscal
quarter and the accounting policy of the
Company during each such period shall be
reviewed following the completion of each such
fiscal quarter by the audit committee; and
(D) the annual compensation package (including
performance objectives and payouts) for each of
the top five executive officers of the Company
shall be reviewed by the human resources
committee.
(d) Vivendi Designees. Vivendi shall have the right to designate to
the Board (and each applicable committee) any senior officer of Vivendi or a
significant Subsidiary of Vivendi that is a member of the Vivendi Group. If the
Vivendi Group votes in favor of or designates as a director to the Board (or any
committee thereto) a Person who is not as of such time a senior officer of
Vivendi or a significant Subsidiary of Vivendi, GE shall have the right, in its
sole discretion, to require the Vivendi Representative to replace such Person
with a senior officer of Vivendi or a significant Subsidiary of Vivendi.
(e) Telephonic Board Meetings; Notice. The parties hereto shall take
or cause to be taken all necessary actions within their control, including
causing the Bylaws to make due provision, to allow any member of the Board to
telephonically attend any meeting of the Board. Upon the members of the Vivendi
Group ceasing to have the effective power to elect at least three directors to
the Board, for so long as the members of the Vivendi Group collectively
Beneficially Own shares representing at least 5% of the total voting power
represented by the outstanding shares of Company Stock, the Company will give
each director written notice of each regularly scheduled or special meeting of
its Board, which notice, to the extent reasonably practicable, shall be given,
in the case of any meeting to be held in person, at least 72 hours in advance of
such meeting; it being understood and agreed that any such notice requirement
may be waived in accordance with the applicable provisions of the Bylaws.
(f) No Conflict with Agreement. The Stockholders shall vote their
shares of Company Stock and take all other actions necessary to ensure that the
organizational documents of the Company and any future amendments thereto, do
not, at any time, conflict with the provisions of this Agreement (except to the
extent required by applicable law).
13
(g) Amendments to Certificate of Incorporation. Subject to Section
3.3., the Stockholders agree not to amend, modify or supplement any provision of
the Certificate of Incorporation in a manner that would adversely affect the
members of the Vivendi Group.
3.3 Preparation for an IPO. Notwithstanding anything in this
Agreement to the contrary, in connection with and subject to the closing of an
IPO, the Stockholders and their respective Permitted Transferees shall, vote
their shares of Company Stock and take all actions necessary or desirable
(including attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions within its control
(including calling special board and stockholder meetings), to amend the
Certificate of Incorporation and the Bylaws to include (i) customary
anti-takeover protections, (ii) provisions preserving the rights of Parent as
the controlling stockholder of the Company and (iii) to remove the provision
permitting cumulative voting from the Certificate of Incorporation. In each
case, such provisions will be developed by GE and the managing underwriters, in
consultation with the Vivendi Representative, taking into account
then-prevailing corporate governance practices for U.S. public media companies
and in public offerings involving controlling stockholders and preserving the
right of the Vivendi Group to have Board representation if their aggregate
ownership of shares represents in excess of the percentages of total voting
power of the outstanding shares of Company Stock specified in this Article III,
it being agreed that such provisions must be reasonably acceptable to GE in
light of GE's corporate governance standards at such time.
ARTICLE IV
COVENANTS OF THE COMPANY AND THE STOCKHOLDERS
4.1 Financial Statements. Subject to Section 6.8, as long as the
members of the Vivendi Group collectively Beneficially Own shares representing
5% or more of the total voting power represented by the outstanding shares of
Company Stock (for this purpose, prior to an IPO, without giving effect to any
issuance of Company Stock after the date hereof), the Company shall furnish the
Vivendi Representative with copies of the following financial statements and
other information:
(a) as soon as available after the end of each quarterly accounting
period in each fiscal year of the Company and in any event no later than 30 days
after the end of such quarterly accounting period, copies of the unaudited
consolidated balance sheets of the Company as of the end of such quarterly
accounting period, and of the related consolidated statements of income and
retained earnings and cash flows for such accounting period and for the portion
of the fiscal year then ended, all in reasonable detail, together, for so long
as the Vivendi Group continues to use equity accounting to reflect its
investment in the Company, with such relevant information and assistance
reasonably requested by the Vivendi Representative that will enable members of
the Vivendi Group to reconcile such financial statements to French generally
14
accepted accounting principles and/or International Accounting Standards, as
applicable, and to comply with the requirements of Rule 3-09 and Rule 4-08 of
Regulation S-X under the Securities Act and any other requirements of the
Exchange Act as applicable (collectively, the "Reconciliation Information");
(b) as soon as available after the end of each fiscal year of the
Company beginning in 2004 and in any event no later than 60 days after the end
of such fiscal year, copies of the audited consolidated balance sheets of the
Company as of the end of such fiscal year, and of the related audited
consolidated statements of income and retained earnings and cash flows for such
fiscal year, all in reasonable detail, and, in the case of such audited
consolidated statements, accompanied by a report thereon of a nationally
recognized firm of independent certified public accountants selected by the
Company, together, for so long as the Vivendi Group continues to use equity
accounting to reflect its investment in the Company, with the Reconciliation
Information; and
(c) for so long as the Vivendi Group continues to use equity
accounting to reflect its investment in the Company, the Company will provide
access to its financial information to enable Vivendi to determine the
allocation of Vivendi's investment in the Company under equity accounting and to
monitor such allocation on an on-going basis;
provided that, prior to March 31, 2005 and upon written notice to Vivendi, the
above deadlines for the delivery of documents may be reasonably extended by the
Company if its accounting system and processes make these deadlines
impracticable. With respect to the financial statements and the Reconciliation
Information described in paragraphs (a) and (b) above, for so long as Vivendi
Group continues to use equity accounting to reflect its investment in the
Company, (x) the Vivendi Group and, as prescribed by French generally accepted
auditing standards, the Vivendi Group's independent auditors shall have full
access in a timely manner to the Company's auditors and appropriate management
personnel to discuss the Company's financial statements and the Reconciliation
Information for such financial statements (it being understood that the Vivendi
Group and, as prescribed by French generally accepted auditing standards, the
Vivendi Group's independent auditors shall have access to such auditors work
papers upon execution of such customary access letter as such independent
auditors may request), provided that Vivendi and its Representatives will use
reasonable efforts to minimize any disruption to the business arising from such
requests, including by coordinating the flow of information through specific
points of contact designated by the Company in writing and devoting appropriate
resources of Vivendi to participate in this process and (y) the Company shall
use reasonable best efforts to cause its independent auditors to consent to the
Vivendi Group's inclusion to the financial statements referred to in Section
4.1(b) to be included in the Vivendi Group's filings with the Commission. For
the avoidance of doubt, neither the Company nor its Representatives will perform
any reconciliation to French generally accepted accounting principles and/or
International Accounting Standards.
15
4.2 Right to Information with Respect to the Company; Reporting by
Vivendi.
(a) Subject to Section 6.8, as long as the members of the Vivendi
Group collectively Beneficially Own shares representing 5% or more of the total
voting power represented by the outstanding shares of Company Stock (for this
purpose, prior to an IPO, without giving effect to any issuance of Company Stock
after the date hereof), the Vivendi Representative (and, as prescribed by French
generally accepted auditing standards, the Vivendi Group's independent auditors)
shall have the right, at the Vivendi Representative's sole expense, to inspect
the existing books and records of the Company during the regular business hours
of the Company; provided that the Company shall not be required to cooperate
with any inspection requests of the Vivendi Representative that would unduly
interfere with the operations of the Company.
(b) Vivendi agrees to provide the Company with any final
reconciliation of the Company's financial statements to French generally
accepted accounting principles or International Accounting Standards, as
applicable, prior to any public disclosure of financial statements containing or
reflecting such information.
4.3 Confidentiality. All materials and information obtained by any
member of the Vivendi Group (which term, for purposes of this Section 4.3, shall
include the Vivendi Representative and each such member's or the Vivendi
Representative's Representatives (as defined below)) pursuant to the rights
granted under this Agreement, together with all other confidential or
proprietary information of the Company (such materials and information
collectively, the "Confidential Information"), shall be kept confidential and
shall not be disclosed to any third party except (a) information which is
obtained by any member of the Vivendi Group from a third party who is not known
by such member to be prohibited from disclosing the information to such member
by a contractual, legal or fiduciary obligation to the Company, (b) information
which is or becomes publicly available (other than as a result of disclosure by
any member of the Vivendi Group in violation of this section); (c) information
which is independently developed, discovered or arrived at by any member of the
Vivendi Group without use of Confidential Information, (d) to such recipient's
equity holders, directors, officers, trustees, partners, employees, agents,
accountants, representatives and professional consultants ("Representatives") on
a need to know basis, (e) to any Person to which such recipient offers to sell
or transfer any shares of Company Stock, provided that the prospective
transferee shall agree to be bound by a confidentiality agreement for the
benefit of the Company containing provisions substantially similar to the
provisions of this Section 4.3, (f) in any report, statement, testimony or other
submission to any Governmental Authority having or claiming to have jurisdiction
over such recipient (including information reasonably required to be included in
Vivendi's financials statements, earnings release or Tax filings) or any
information required to be disclosed to any Governmental Authority or arbitrator
in connection with any claim against GE or the Company or their respective
Affiliates, (g) in order to comply with any law, rule, regulation, or order
applicable to such recipient, or in response to any summons, subpoena or other
legal process or formal or informal investigative demand issued to such
16
recipient in the course of any litigation, investigation or administrative
proceeding or (h) to Vivendi's financial lenders, in connection with any
Financing Arrangement or Equity Derivatives Transaction; provided that such
lenders execute a non-disclosure agreement with the Company restricting such
lenders from the disclosure of any Confidential Information in the same manner
as is set forth in this Section 4.3. In the event that any party hereto or any
of its Representatives becomes legally compelled by deposition, interrogatory,
request for documents, subpoena, civil investigative demand or similar judicial
or administrative process to disclose any Confidential Information, the
disclosing party shall provide the Company with prompt prior written notice of
such requirement and shall cooperate with the Company, at the Company's expense,
to obtain a protective order or similar remedy to cause such Confidential
Information not to be disclosed, including interposing all available objections
thereto, such as objections based on settlement privilege. In the event that
such protective order or other similar remedy is not obtained, the disclosing
party shall furnish only that portion of such Confidential Information that has
been legally compelled to be furnished.
4.4 Standstill. As long as the Vivendi Group Beneficially Owns shares
representing 5% or more of the total voting power represented by the outstanding
Company Stock, Vivendi agrees that, without GE's prior written consent, it will
not, and it will cause each other member of the Vivendi Group not to take any of
the following actions (it being understood that such limitations shall not be
deemed to limit the actions of any member of the Board):
(a) acquire, announce an intention to acquire, offer or propose to
acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,
record or beneficial ownership of any Company Stock (which for purposes of this
Section 4.4 will include any securities referred to in clause (a), but will
exclude securities issued to any member of the Vivendi Group under clause (b),
of the definition of Excluded Securities), or direct or indirect rights to
options to acquire (through purchase, exchange, conversion or otherwise) any
Company Stock, in each case, other than as part of any Equity Derivatives
Transaction with respect to shares of Company Stock Beneficially Owned by a
member of the Vivendi Group;
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined in Rule 14a-1 under the
Exchange Act) to vote any Company Stock (other than Company Stock held by any
member of the Vivendi Group), seek to advise, encourage or influence any person
or entity (other than any member of the Vivendi Group) with respect to the
voting of any Company Stock, initiate or propose any shareholder proposal or
induce or attempt to induce any other person to initiate any shareholder
proposal;
(c) make any statement or proposal, whether written or oral, to the
Board or any director, officer or agent of the Company, or make any public
announcement or proposal whatsoever with respect to a merger or other business
combination, sale or transfer of assets, recapitalization, dividend, share
repurchase, liquidation or other extraordinary corporate transaction with the
17
Company or any other transaction which could result in a Change of Control of
the Company, or solicit or encourage any other person to make any such statement
or proposal;
(d) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) (other than the Vivendi Group
or any other group created as a result of this Agreement) with respect to any
securities of the Company;
(e) deposit any Company Stock into a voting trust or subject any
Company Stock to any arrangement or agreement with respect to the voting of any
Company Stock other than this Agreement and the Liquidity Rights Agreement;
(f) make a public request to the Company or to any member of the GE
Group (or their directors, officers, shareholders, employees or agents) to amend
or waive any provisions of this Agreement, the Certificate of Incorporation or
Bylaws, including any public request to permit the Company or any member of the
GE Group or any other person to take any action in respect of the matters
referred to in this Section 4.4;
(g) take any action which might require the Company or any member of
the GE Group to make a public announcement regarding the possibility of any
transaction referred to in paragraph (c) above or similar transaction or,
advise, assist or encourage any other persons in connection with the foregoing;
or
(h) disclose any intention, plan or arrangement inconsistent with the
foregoing.
4.5 Certain Transactions Affecting NBC Telemundo, Inc.
(a) As soon as reasonably practicable upon the Aggregate Foreign
Ownership Percentage of the Company ceasing to represent 21% or more of the
issued and outstanding capital stock of the Company, GE will cause NBC
Telemundo, Inc. ("NTI") to (i) redeem all of the issued and outstanding shares
of the preferred stock of NTI (the "Preferred Stock") issued to NBC Telemundo
Holding Co. ("HoldCo"), or (ii) cause the Company or any wholly-owned Subsidiary
of the Company to acquire the Preferred Stock such that, following such
transaction, all of the issued and outstanding shares of capital stock of NTI
are held, directly or indirectly, by the Company; provided that, notwithstanding
the foregoing, GE shall not be required to cause NTI, the Company or any of its
Subsidiaries to take any action that would violate federal law, including, but
not limited to, the Communications Act of 1934, as amended, or relevant FCC
policies. Notwithstanding anything to the contrary contained in this Agreement,
GE shall cause NTI to transfer the GE Note and any other Substitute Security
held by NTI to HoldCo (or its successor in interest) in full payment of the
redemption price or purchase price payable in connection with a redemption or
acquisition described in clauses (i) and (ii) of this Section 4.5(a), and no
further amounts shall be payable by NTI to HoldCo in connection with such
redemption or acquisition of the Preferred Stock.
18
(b) If the GE Note or any Substitute Security is repaid at any time
during which at least one share of the Preferred Stock issued to HoldCo remains
outstanding, GE shall cause NTI to purchase, and GE shall issue and sell, or
cause one or more of GE's Subsidiaries (other than the Company or any of its
Subsidiaries) to issue and sell, to NTI a replacement note or preferred stock
(each, a "Replacement Security") having the same aggregate principal amount and
original issue price, as applicable, and other terms (including, without
limitation, interest, dividend and payment terms) as the GE Note or such other
Substitute Security repaid. The purchase price payable by NTI for the purchase
of any Replacement Security pursuant to this Section 4.5(b) shall not exceed the
amount received by NTI on account of the principal amount or original issue
price, as applicable, of the GE Note or any Substitute Security being replaced
by such Replacement Security pursuant to this Section 4.5(b). To the extent that
any Replacement Security is issued by an entity other than GE, GE shall
guarantee to NTI in writing the timely payment of all amounts payable by the
issuer of such Replacement Security under such Replacement Security, by
executing and delivering to NTI a guarantee letter in the form attached hereto
as Exhibit A.
(c) GE shall not, and shall cause NTI not to, assign or transfer all
or any portion of the GE Note or any Substitute Security to any Person;
provided, however, that (i) GE shall be entitled to assign its obligations under
the GE Note to any direct or indirect Subsidiary of GE (other than the Company,
NTI or any of their Subsidiaries), provided, that any such assignment shall be
made in compliance with Paragraph 5 of the GE Note, (ii) NTI may assign or
transfer to any of its direct or indirect wholly-owned Subsidiaries all or any
portion of the GE Note or any Substitute Security and any such Subsidiary may
further assign or transfer the GE Note or any Substitute Security to NTI or any
other direct or indirect wholly-owned Subsidiary of NTI and (iii) NTI may assign
or transfer to any direct or indirect Subsidiary of GE (other than the Company
or any of its Subsidiaries) all or any portion of the GE Note or any Replacement
Security in exchange for shares of preferred stock ("Subsidiary Preferred
Stock") issued by such Subsidiary to NTI; provided that such preferred stock,
together with the remaining principal amount original issue price, as
applicable, of the GE Note and all Substitute Securities, shall together have an
aggregate original issue price and principal amount, as applicable, equal to
$330,625,000 and shall have cumulative dividend rates and shall accrue interest,
as applicable, at a rate equal to at least 6.72% per annum, payable quarterly in
arrears, and a redemption date and other terms (including, without limitation,
preference (if applicable), dividend or interest (as applicable), and payment
terms) that are similar to the GE Note or such Replacement Security. In the
event of any assignment or transfer by NTI of the GE Note or Replacement
Security to any direct or indirect Subsidiary of GE (other than NBC or any of
its Subsidiaries) in exchange for Subsidiary Preferred Stock pursuant to clause
(iii) of the immediately preceding sentence, GE shall guarantee in writing to
NTI the timely payment of all amounts payable by such Subsidiary pursuant to the
terms of such Subsidiary Preferred Stock, by executing and delivering to NTI a
guarantee letter in the form attached hereto as Exhibit B.
19
(d) GE shall cause NTI to have issued and outstanding, as of the
Closing, 55.6 shares of Preferred Stock, all of which shall be held by HoldCo,
and 200 shares of Common Stock, all of which shall be held by the Company. After
the date hereof, GE shall (i) cause NTI or any of NTI's Subsidiaries not to
issue any additional shares of capital stock to any Person, other than to the
Company or any entity that is and will at all times remain a direct or indirect
wholly-owned Subsidiary of the Company for so long as it holds such shares and
(ii) cause all outstanding shares of common stock of NTI to be held, at all
times, by either the Company or a direct or indirect wholly-owned Subsidiary of
the Company.
(e) Notwithstanding anything to the contrary contained in this
Agreement, GE shall not amend the terms and provisions of (i) the NTI Charter in
a manner which would have the effect of amending the terms or provisions
relating to the capital stock of NTI, (ii) the GE Note or (iii) any Substitute
Security, in each case, without the prior written consent of Vivendi.
Notwithstanding the immediately preceding sentence, upon the Aggregate Foreign
Ownership Percentage of the Company ceasing to represent 21% or more of the
issued and outstanding capital stock of the Company, GE may take such actions as
are necessary to cause the terms and provisions of the GE Note or any Substitute
Security, if applicable, to be amended so that it may be transferred to HoldCo
pursuant to Section 4.5(a).
4.6 Corporate Opportunity; Contractual Relationships.
(a) Except as otherwise provided in the second sentence of this
Section 4.6(a), (i) no Stockholder and no officer, director, agent, stockholder,
member, manager, partner or Affiliate of any Stockholder (any of the foregoing,
a "Stockholder Group Member") shall have any duty to communicate or present an
investment or business opportunity or prospective economic advantage to the
Company or any of its Subsidiaries in which the Company or one of its
Subsidiaries may, but for the provisions of this Section 4.6(a), have an
interest or expectancy ("Corporate Opportunity"), and (ii) no Stockholder nor
any Stockholder Group Member (even if also an officer or director of the
Company) will be deemed to have breached any fiduciary or other duty or
obligation to the Company by reason of the fact that any such Person pursues or
acquires a Corporate Opportunity for itself or its Affiliates or directs, sells,
assigns or transfers such Corporate Opportunity to another Person or does not
communicate information regarding such Corporate Opportunity to the Company. The
Company, on behalf of itself and its Subsidiaries, renounces any interest in a
Corporate Opportunity and any expectancy that a Corporate Opportunity will be
offered to the Company; provided that the Company does not renounce any interest
or expectancy it may have in any Corporate Opportunity that is offered to an
officer of the Company whether or not such individual is also a director or
officer of a Stockholder, if such opportunity is expressly offered to such
Person in his or her capacity as an officer of the Company and the Stockholders
recognize that the Company reserves such rights.
(b) Each Stockholder and the Company acknowledge that each
Stockholder and each Stockholder Group Member shall have no duty to refrain
from: (i) engaging or investing in, independently or with others (excluding the
20
Company or any of its Subsidiaries), any business activity of any type or
description, including those that might be the same as or similar to the
business of the Company or any of its Subsidiaries, (ii) doing business with any
client or customer of the Company or any of its Subsidiaries or (iii) employing
or otherwise engaging any officer or employee of the Company, and no Stockholder
or Stockholder Group Member (even if an officer or director of the Company)
shall be liable to the Company or any of the other Stockholders for breach of
any fiduciary duty by reason of any such activities of such Person or of such
Person's participation therein.
(c) Without limiting the obligations under clause (iii) of Section
3.1(a), no contract, agreement, arrangement or transaction between the Company
or one of its Subsidiaries, on the one hand, and a Stockholder or a Stockholder
Group Member, on the other hand, shall be void or voidable solely for the reason
that a Stockholder or a Stockholder Group Member are parties thereto, or solely
because any Stockholder Group Member is present at or participates in any
meeting of the Board or a committee thereof in connection with the authorization
of such contract, agreement, arrangement or transaction, or solely because his
or their votes are counted for such purpose, and, if such transaction is deemed
to be at arms length, the Stockholders and the Stockholder Group Member (even if
an officer or director of the Company) (i) shall have fully satisfied and
fulfilled all fiduciary and other duties to the Company and the Stockholders
with respect thereto, (ii) shall not be liable to the Company or the
Stockholders for any breach of fiduciary duty by reason of the entering into,
performance or consummation of any such contract, agreement, arrangement or
transaction, (iii) shall be deemed to have acted in good faith and in a manner
it reasonably believed to be in and not opposed to the best interests of the
Company and the Stockholders and (iv) shall be deemed not to have breached its
or their duties of loyalty to the Company and the Stockholders and not to have
received an improper personal benefit therefrom.
(d) Without limiting any contractual remedies that may otherwise be
available to the parties to this Agreement, any contract or business relation
which does not comply with the procedure set forth in Section 3.1(a)(iii) shall
not by reason thereof be deemed void or voidable or result in any breach of any
fiduciary duty or duty of loyalty or failure to act in good faith or in the best
interests of the Company or derivation of any improper personal economic gain,
but shall instead be governed by the provisions of the DGCL and other applicable
law.
4.7 Subscription for Equity Interests. Subject to Section 6.8, prior
to the consummation of an IPO, for so long as the shares of Company Stock
collectively held by the members of the Vivendi Group constitute at least 10% of
the total voting power represented by the outstanding shares of Company Stock,
GE shall obtain the prior written consent of the Vivendi Representative prior to
purchasing or permitting any of GE's Affiliates to purchase from the Company any
newly issued equity interests of the Company, or any newly issued securities
convertible into equity securities of the Company; provided that (a) this
Section 4.7 shall not prohibit any purchase of such equity interests to the
extent the Company uses the proceeds to fund a repurchase of shares of Company
21
Stock from the members of the Vivendi Group pursuant to the Liquidity Rights
Agreement and (b) this Section 4.7 shall terminate and have no further effect as
of the first date when the members of the Vivendi Group are no longer eligible
to elect at least three directors to the Board (of which event the Vivendi
Representative will promptly notify GE).
4.8 Strategic Committee. Subject to Section 6.8, as long as the
members of the Vivendi Group collectively Beneficially Own shares of Company
Stock representing 5% or more of the total voting power represented by the
outstanding shares of Company Stock, GE and Vivendi shall establish a committee
(the "Strategic Committee"), which shall consist of the chief executive officer
of GE and a nominee designated from time to time by GE and the chief executive
officer of Vivendi and a nominee designated from time to time by Vivendi. The
Strategic Committee shall meet at least once per calendar quarter and shall be
responsible for evaluating, developing and recommending to the Company strategic
objectives, business plans and growth opportunities, and for promoting and
monitoring the Commercial Arrangements with members of the Vivendi Group
contemplated by the Business Combination Agreement. The Strategic Committee
shall also discuss any proposed Demerger of Vivendi. The Strategic Committee
shall have no decision-making authority with respect to the Company and its
controlled Affiliates or with respect to the Demerger of Vivendi. There shall be
no chairman of the Strategic Committee.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder who is not a party to the Business Combination
Agreement hereby, severally, and not jointly, represents and warrants to the
Company with respect to itself and its ownership of its Company Stock as
follows:
5.1 Ownership of Company Stock. Such Stockholder or its wholly owned
direct or indirect subsidiary owns of record and beneficially all of the shares
of Company Stock set forth under its signature on the signature pages hereto and
has good and marketable title to such Company Stock, free and clear of any Liens
or preemptive rights. Except as otherwise provided in this Agreement or the
Liquidity Rights Agreement, such Stockholder or its wholly owned direct or
indirect subsidiary has sole voting power, without restrictions, with respect to
all of such shares of Company Stock.
5.2 Organization, Power and Authority, Binding Agreement. Such
Stockholder is a corporation, partnership, trust or limited liability company,
duly formed, legally existing and in good standing under the Laws of its
jurisdiction of incorporation or formation and has all requisite corporate or
limited liability company, partnership or trust power and authority to enter
into this Agreement. This Agreement has been duly and validly authorized by all
necessary corporate, limited liability company, partnership, trust or similar
22
action and has been, or at Closing will be, as applicable, duly executed and
delivered by such Stockholder and this Agreement (assuming due execution and
delivery by the other parties hereto) constitutes the valid and binding
obligations of such Stockholder, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
Laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
5.3 No Conflicts.
(a) The execution and delivery of this Agreement by such Stockholder
does not, and the consummation by such Stockholder of the transactions
contemplated by this Agreement shall not, (i) conflict with, or result in any
violation or breach of, any provision of the charter, by-laws or other
organizational document of such Stockholder, (ii) conflict with, or result in
any violation or breach of, or constitute (with or without notice or lapse of
time, or both) a default (or give rise to a right of termination, cancellation
or acceleration of any obligation) under, require a consent or waiver under,
constitute a change in control under, or result in the imposition of any Lien on
such Stockholder's shares of Company Stock under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or instrument to which such Stockholder is a party or by which it or
any of its properties or assets may be bound, or (iii) conflict with or violate
any permit, concession, franchise, license, judgment, injunction, order, decree,
statute, Law, ordinance, rule or regulation applicable to such Stockholder or
any of its properties or assets, except in the case of clauses (ii) and (iii) of
this Section 5.3(a) for any such conflicts, violations, breaches, defaults,
terminations, cancellations, accelerations or Liens as would not have a material
adverse effect on the ability of the Stockholders, or any of them, to consummate
the transactions contemplated by this Agreement.
(b) Other than as set forth in the Business Combination Agreement, no
consent, approval, license, permit, order or authorization of, or registration,
declaration, notice or filing with, any Governmental Authority is required by or
with respect to such Stockholder in connection with the execution and delivery
of this Agreement by such Stockholder.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, permissions, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) five (5) Business Days following sending by registered or
certified mail, postage prepaid, (b) when sent, if sent electronically or by
facsimile, during the normal business hours on any Business Day of the
recipient, or one Business Day after the date sent, if sent electronically or by
facsimile, after the normal business hours of the recipient, provided that the
23
electronic message is promptly confirmed by facsimile confirmation thereof and
the sending party receives written confirmation that the facsimile has been
successfully transmitted in its entirety to the intended recipient, (c) when
delivered, if delivered personally to the intended recipient and (d) one (1)
Business Day following sending by overnight delivery via a national courier
service (two (2) Business Days following sending by overnight international
delivery via international courier service), in each case, addressed to a party
at the following address for such party:
(a) if to the Company, to:
National Broadcasting Company, Inc.
ββ βββββββββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: Executive Vice President and
General Counsel
Fax: (βββ) βββ-ββββ
with copies (which shall not constitute notice
to the Company) to:
GE and its counsel at the addresses
specified below
(b) if to Parent or GE, to:
General Electric Company
ββββ ββββββ ββββββββ
βββββββββ, βββββββββββ βββββ
Attention: Senior Counsel for Transactions
Fax: (βββ) βββ-ββββ
with a copy (which shall not constitute notice
to GE) to:
Debevoise & ββββββββ
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: βββββββ β. βββββ, Esq.
Fax: (βββ) βββ-ββββ
(c) if to a member of the Vivendi Group or the
Vivendi Representative, to:
Vivendi Universal, S.A.
ββ, ββββββ ββ βββββββββ
βββββ βββββ cedet OB
France
Attention: General Counsel
Fax: (+33)(β) ββββ-ββββ
24
and
Vivendi Universal, S.A.
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: General Counsel
Fax: (βββ) βββ-ββββ
with a copy (which shall not constitute notice
to the Vivendi Group or the Vivendi
Representative) to:
Weil, Gotshal & ββββββ LLP
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: βββββ ββββββ, Esq.
Fax: (βββ) βββ-ββββ; and
(d) if to any other Stockholder, to it at the
address and facsimile number set forth in the
Company's share register or such other address
and facsimile number as such Stockholder may
designate to the Company in writing from time
to time.
Any party to this Agreement may change the address or addresses to
which notices and other communications hereunder are to be delivered by giving
the other parties to this Agreement notice in the manner herein set forth.
6.2 Vivendi Representative. The members of the Vivendi Group
acknowledge that the Company, Parent and GE desire that such Persons communicate
their decisions regarding the exercise of their rights under this Agreement
through a single representative and that the Company, Parent and GE have the
right to deal exclusively with this representative. For this reason, each member
of the Vivendi Group hereby irrevocably constitutes and appoints Vivendi and its
designees as the Vivendi Representative and as its true and lawful
attorney-in-fact, coupled with an interest, to take any action, and to give and
receive any notices, requests or other communications, required to be taken,
given or received pursuant to this Agreement by any such member of the Vivendi
Group, and, therefore, neither the Company nor any member of the GE Group shall
be obligated to deal or communicate with any member of the Vivendi Group in
connection with the subject matter of this Agreement.
6.3 Joint and Several Obligations. Each of GE and Vivendi agrees that
it shall be jointly and severally liable to the Company and the other
Stockholders for the acts (including any failure to act) and the obligations
under this Agreement of each Person that is a member of the GE Group and the
Vivendi Group, respectively, at any time from and after the date hereof
(including any Person that becomes a successor to such Stockholder by operation
of Law).
25
6.4 Subsequent Parties. Each Person who after the date of this
Agreement, but prior to the closing of an IPO, acquires Company Stock shall, as
a condition precedent to the acquisition of such Company Stock, (a) become a
party to this Agreement by completing and executing a signature page hereto
(including the address of such party), (b) execute all such other agreements or
documents as may reasonably be requested by the Company, and (c) deliver such
signature page and, if applicable, other agreements and documents to the Company
at its address specified in Section 6.1. Such Person shall, upon its
satisfaction of such conditions and acquisition of Company Stock, be a
Stockholder for all purposes of this Agreement.
6.5 Entire Agreement; No Inconsistent Agreement.
(a) This Agreement (and, to the extent referenced herein, the
Business Combination Agreement, any Ancillary Agreement or any other agreement
expressly contemplated by any such agreement or entered into in connection with
the execution of the Business Combination Agreement or the Closing) constitutes
the entire agreement among the parties hereto and supersedes any prior
understandings, agreements or representations by or among the parties hereto, or
any of them, written or oral, with respect to the subject matter hereof.
(b) The Company will not hereafter enter into any agreement with
respect to its securities which would materially and adversely affect the rights
expressly granted to the Stockholders in this Agreement.
6.6 No Third-Party Beneficiaries. This Agreement is not intended and
shall not be deemed to confer any rights or remedies upon any Person other than
the parties hereto and their respective successors and permitted assigns or to
otherwise create any third-party beneficiary hereto.
6.7 Severability. If one or more provisions of this Agreement are
held to be unenforceable to any extent under applicable Law, such provision
shall be interpreted as if it were written so as to be enforceable to the
maximum extent permitted by Law so as to effectuate the parties' intent to the
maximum extent, and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its terms
to the maximum extent permitted by Law.
6.8 Termination. Certain rights and obligations under the following
provisions of this Agreement shall terminate as follows:
(a) the Transfer restrictions set forth in Section 2.1 will expire
(i) in the case of a member of the Vivendi Group or any of their Permitted
Transferees, as of the date following the closing of an IPO on which the members
of the Vivendi Group no longer collectively Beneficially Own shares representing
at least 5% of the total voting power represented by the outstanding Company
Stock and (ii) in the case of any other Stockholder (including any member of the
GE Group), as of the closing of an IPO;
26
(b) the consent rights of the Vivendi Representative in Section
3.1(a) shall terminate upon the earliest to occur of (i) an IPO, (ii) a Vivendi
Change of Control or (iii) the date on which the Vivendi Group falls below the
ownership threshold set forth in Section 3.1(a);
(c) the consent rights of the Vivendi Representative in Section
3.1(b) shall terminate upon the earliest to occur of (i) an IPO, (ii) a Vivendi
Change of Control or (iii) the date on which the Vivendi Group falls below the
ownership threshold set forth in Section 3.1(b);
(d) the Board designation rights of Vivendi in Section 3.2(a) shall
terminate upon a Vivendi Change of Control;
(e) the information rights of the Vivendi Representative in Sections
4.1 and 4.2 shall terminate upon the earlier of a Vivendi Change of Control or
the date on which the Vivendi Group falls below the ownership threshold set
forth in such sections; and
(f) the rights of the Vivendi Group under Sections 4.7 and 4.8 shall
terminate on the earliest to occur of (i) a Vivendi Change of Control, (ii) an
IPO and (iii) such date as the Vivendi Group falls below the ownership
thresholds set forth in such sections (if applicable);
provided that (i) a Vivendi Change of Control shall not be deemed to have
occurred if GE agrees to waive such termination event, such waiver not to be
unreasonably withheld or delayed, and (ii) no such termination shall relieve any
party of liability for any breach of any such provision prior to such
termination.
6.9 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the Laws of the State of New York applicable to
agreements to be performed entirely within such state, including all matters of
construction, validity and performance, without regard to the conflict of Law
principles of such state to the extent that they would apply the Law of a
different jurisdiction.
6.10 Jurisdiction; Waiver of Jury Trial.
(a) Each party to this Agreement hereby irrevocably agrees that any
legal action, suit or proceeding arising out of or relating to this Agreement
shall be brought in the United States District Court for the Southern District
of New York, unless federal jurisdiction does not exist, in which case any such
action, suit or proceeding shall be brought in the Delaware Chancery Court or,
if such court lacks jurisdiction, the Supreme Court of the State of New York,
New York County. Each party hereto agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding any claim that it
is not subject personally to the jurisdiction of any such court, that the
action, suit or proceeding is brought in an inconvenient forum, that the venue
of the action, suit or proceeding is improper or that this Agreement, or the
subject matter hereof may not be enforced in or by any such court. Each party
hereto further and irrevocably submits to the jurisdiction of any such court in
any action, suit or proceeding.
27
(b) Each party to this Agreement hereby irrevocably and
unconditionally waives, to the fullest extent permitted by applicable Law, any
right that such party may have to a trial by jury of any claim or cause of
action directly or indirectly based upon or arising out of this Agreement, or
any of the transactions contemplated herein.
6.11 Mediation. Prior to commencing legal action with respect to any
disagreement, dispute, controversy or claim arising out of or relating to this
Agreement or the interpretation hereof, or any arrangements relating hereto or
contemplated herein or the breach, termination or invalidity hereof
(collectively, "Disputes"), a party will notify the other party in writing of
any such Dispute (a "Dispute Notice"). Following receipt of a Dispute Notice by
a party, the parties shall jointly appoint a mediator and shall attempt in good
faith to resolve any Dispute promptly by confidential mediation pursuant to the
then current mediation procedures of the CPR Institute for Dispute Resolution
(the "CPR"). If the parties cannot agree upon a mediator within five (5) days of
receipt of the Dispute Notice by a party, the parties will ask the CPR to
appoint a mediator promptly. If the Dispute is not resolved for any reason
within thirty (30) days of the Dispute Notice (unless the period of time is
extended by the parties in writing), either party may commence legal action in
accordance with the other provisions hereof. Nothing contained in this Section
6.11 shall preclude a party from seeking injunctive relief if the prerequisites
to obtaining injunctive relief, including irreparable harm, are otherwise
satisfied.
6.12 Assignment. Neither this Agreement nor any right or obligation
arising under this Agreement may be assigned by any party without the prior
written consent of the other parties, other than to a Permitted Transferee of
the assignor. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns,
and no other Person shall have any right, benefit or obligation under this
Agreement.
6.13 Amendments; Waivers. This Agreement may be amended, modified or
supplemented by the Company with the written consent of (a) GE, (b) Vivendi, but
only for so long as the shares of Company Stock collectively Beneficially Owned
by members of the Vivendi Group constitute at least 5% of the total voting power
represented by the outstanding shares of Company Stock (for this purpose, prior
to an IPO, without giving effect to any issuance of Company Stock after the date
hereof), and (c) to the extent (and only to the extent) any particular holders
of Company Stock including the members of Vivendi Group would be uniquely and
adversely affected by such amendment, modification or supplement, by such holder
or a majority (by number of shares) of any other holders of Company Stock whose
interests as a group would be adversely affected by such amendment, modification
or supplement. Notwithstanding the foregoing, Sections 2.1, 2.2 and 4.3 shall
not be amended, modified or supplemented by the Company in a manner adverse to
Vivendi without the prior written consent of Vivendi. No failure or delay by any
party in exercising any right, power or privilege under this Agreement shall
operate as a waiver of such right, power or privilege nor shall any single or
partial exercise of any right, power or privilege preclude any other or further
exercise of such right, power or privilege or the exercise of any other right,
power or privilege. Except as otherwise provided in this Agreement, the rights
28
and remedies provided under this Agreement shall be cumulative and not exclusive
of any rights or remedies provided by Law.
6.14 Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
6.15 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall be deemed to be one and the same document. Each of the parties
hereto (a) has agreed to permit the use, from time to time, of faxed or
otherwise electronically transmitted signatures in order to expedite the
consummation of the transactions contemplated hereby, (b) intends to be bound by
its respective faxed or otherwise electronically transmitted signature, (c) is
aware that the other parties hereto will rely on the faxed or otherwise
electronically transmitted signature, and (d) acknowledges such reliance and
waives any defenses to the enforcement of the documents effecting the
transaction contemplated by this Agreement based on the fact that a signature
was sent by fax or otherwise electronically transmitted.
6.16 Remedies. Each party, in addition to being entitled to exercise
all rights granted by Law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Each party agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate. In any action or proceeding brought to enforce any provision
of this Agreement or where any provision of this Agreement is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
6.17 Interpretation. When a reference is made in this Agreement to an
Article or a Section, such reference shall be to an Article of or a Section of
this Agreement unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation". The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein. The definitions contained in
this Agreement are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and neuter genders of
such term. Reference to a Person are also to its permitted successors and
assigns.
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ ββββ ββββββββ
------------------------------------------
Name: ββββ ββββββββ
Title: Chief Financial Officer, Treasurer,
Executive Vice President
GENERAL ELECTRIC COMPANY
By: /s/ ββββββ β. ββββββ
------------------------------------------
Name: ββββββ β. ββββββ
Title: Vice Chairman
NATIONAL BROADCASTING COMPANY HOLDING, INC.
By: /s/ ββββ ββββββββ
------------------------------------------
Name: ββββ ββββββββ
Title: Vice President, Treasurer
800 shares of Class A Common Stock
VIVENDI UNIVERSAL, S.A.
By: /s/ ββββββ ββ ββββ
------------------------------------------
Name: ββββββ ββ ββββ
Title: Senior Executive Vice President
30
UNIVERSAL STUDIOS HOLDING III CORP.
By: /s/ ββββββ β. ββββββββ III
------------------------------------------
Name: ββββββ β. ββββββββ III
Title: President
200 shares of Class B Common Stock
31
EXHIBIT A
General Electric Company
ββββ ββββββ ββββββββ, ββ
βββββββββ, ββ βββββ
____ __, 2___
NBC Telemundo, Inc.
ββ βββββββββββ βββββ
βββ ββββ, ββ βββββ
Attn: President
Ladies and Gentlemen:
Reference is made to the Stockholders Agreement, dated as of May 11,
2004 (the "Stockholders Agreement"), by and among General Electric Company, a
New York corporation ("GE"), National Broadcasting Company Holding, Inc., a
Delaware corporation and a wholly-owned Subsidiary of GE ("NBCH"), National
Broadcasting Company, Inc., a Delaware corporation and a wholly-owned Subsidiary
of NBCH (including its successors, the "Company"), Vivendi Universal, S.A., a
societe anonyme organized under the Laws of France, and Universal Studios
Holding III Corp., a Delaware corporation and a Subsidiary of Vivendi ("Holding"
and, together with NBCH and any Person who is added to the Stockholders
Agreement pursuant to Section 2.1 or, prior to an IPO, Section 6.4 of the
Stockholders Agreement, the "Stockholders"). Capitalized terms used herein
without definition shall have the respective meanings set forth in the
Stockholders Agreement.
Pursuant to Section 4.5(b) of the Stockholders Agreement, GE hereby
guarantees the payment in full to NTI of all amounts due or payable under
[Replacement Security], issued by [name of issuing GE Subsidiary] (the
"Subsidiary Issuer"), dated [_______] (herein, the "Security") (including,
without limitation, all dividends accrued under the Security but which have not
been declared as dividends by the Board of Directors of the Subsidiary Issuer or
if declared, have not been paid to NTI). GE's obligation under this guarantee
may be fulfilled by GE causing HoldCo to make a capital contribution to NTI of
all amounts due to NTI under this guarantee.
Please evidence your agreement with the foregoing by
executing a copy of this letter agreement and returning it to us.
Very truly yours,
GENERAL ELECTRIC COMPANY
By:
-----------------------------------------
Name:
Title:
Acknowledged and agreed to
as of the date first written above:
NBC TELEMUNDO, INC.
By:
-------------------------------------
Name:
Title:
EXHIBIT B
General Electric Company
ββββ ββββββ ββββββββ, ββ
βββββββββ, ββ βββββ
____ __, 2___
NBC Telemundo, Inc.
ββ βββββββββββ βββββ
βββ ββββ, ββ βββββ
Attn: President
Ladies and Gentlemen:
Reference is made to the Stockholders Agreement, dated as of May 11,
2004 (the "Stockholders Agreement"), by and among General Electric Company, a
New York corporation ("GE"), National Broadcasting Company Holding, Inc., a
Delaware corporation and a wholly-owned Subsidiary of GE ("NBCH"), National
Broadcasting Company, Inc., a Delaware corporation and a wholly-owned Subsidiary
of NBCH (including its successors, the "Company"), Vivendi Universal, S.A., a
societe anonyme organized under the Laws of France, and Universal Studios
Holding III Corp., a Delaware corporation and a Subsidiary of Vivendi ("Holding"
and, together with NBCH and any Person who is added to the Stockholders
Agreement pursuant to Section 2.1 or, prior to an IPO, Section 6.4 of the
Stockholders Agreement, the "Stockholders"). Capitalized terms used herein
without definition shall have the respective meanings set forth in the
Stockholders Agreement.
Pursuant to Section 4.5(c) of the Stockholders Agreement, GE hereby
guarantees the payment in full to NTI of all amounts due or payable under the
[Subsidiary Preferred Stock], issued by [name of issuing GE Subsidiary] (the
"Subsidiary Issuer") on ____ __, ____ (including, without limitation, all
dividends accrued under such Subsidiary Preferred Stock but which have not been
declared as dividends by the Board of Directors of the Subsidiary Issuer or if
declared, have not been paid to NTI). GE's obligation under this guarantee may
be fulfilled by GE causing HoldCo to make a capital contribution to NTI of all
amounts due to NTI under this guarantee.
Please evidence your agreement with the foregoing by
executing a copy of this letter agreement and returning it to us.
Very truly yours,
GENERAL ELECTRIC COMPANY
By:
---------------------------------------
Name:
Title:
Acknowledged and agreed to
as of the date first written above:
NBC TELEMUNDO, INC.
By:
--------------------------------------
Name:
Title: