Closing Actions. Subject to the satisfaction or waiver of the conditions set forth in Article 7, at the Closing, the following transactions (the “Transactions”) shall be consummated in the order set forth below: (a) NBCUniversal may lend, and/or cause one or more of its Subsidiaries to lend, to Comcast and/or one or more Subsidiaries of Comcast designated by Comcast (each, a “Comcast Designee”) an aggregate amount not to exceed the amount of the consolidated cash and cash equivalents on hand of NBCUniversal and its Subsidiaries as of the Closing Date, less the NBCUniversal Redemption Price (as defined below), with such loan to be evidenced by an intercompany note in a form that is satisfactory to Comcast in its sole discretion. (b) (i) NBCUniversal and HoldCo shall enter into a redemption agreement in the form attached as Exhibit A-1 (the “NBCUniversal Common Unit Redemption Agreement”), pursuant to which NBCUniversal shall redeem all of HoldCo’s right, title and interest in and to 833.5991494 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate redemption price equal to $3,200,000,000 in cash (the “NBCUniversal Redemption Price”) and (ii) Comcast and/or one or more Comcast Designees and HoldCo shall enter into a purchase agreement in the form attached as Exhibit A-2 (the “NBCUniversal Common Unit Purchase Agreement”), pursuant to which Comcast and/or such Comcast Designee(s) shall purchase all of HoldCo’s right, title and interest in and to 1334.121014 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate purchase price equal to $4,821,391,076 in cash (the “NBCUniversal Purchase Price”). (c) (i) NBCUniversal shall deliver to HoldCo the NBCUniversal Redemption Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to NBCUniversal, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to NBCUniversal certificates representing 833.5991494 NBCUniversal Common Units duly endorsed in blank. (d) (i) Comcast shall deliver or cause to be delivered to HoldCo the NBCUniversal Purchase Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to Comcast and/or each applicable Comcast Designee certificates representing 1334.121014 NBCUniversal Common Units, in the aggregate, duly endorsed in blank. (e) GE, NBCH and HoldCo shall consummate the transactions contemplated by Section 9(b)(iv) of the Tax Matters Agreement pursuant to the Assignment and Assumption Agreement attached as Exhibit B (the “TMA Assignment and Assumption Agreement”). (f) HoldCo shall distribute as a dividend to NBCH (i) the rights and obligations transferred pursuant to the TMA Assignment and Assumption Agreement and (ii) an amount of cash equal to the NBCUniversal Redemption Price plus the NBCUniversal Purchase Price (the “HoldCo Distribution”). (g) HoldCo shall deliver to NBCH the cash portion of the HoldCo Distribution in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount). (h) The members of NBCUniversal shall enter into an amendment to the NBCUniversal LLC Agreement in the form attached as Exhibit C (the “NBCUniversal LLC Agreement Amendment”), pursuant to which 90% of the remaining NBCUniversal Common Units held by HoldCo (after giving effect to the transactions contemplated by the NBCUniversal Common Unit Redemption Agreement and the NBCUniversal Common Unit Purchase Agreement) shall be converted into preferred units in NBCUniversal (the “NBCUniversal Preferred Units”). The form attached as Exhibit C shall be revised prior to the Closing Date to include the terms of the Common Units and Preferred Units and the provisions relating thereto as they exist in the Second Amended and Restated NBCUniversal LLC Agreement (as defined below). (i) HoldCo, the Bank of New York Mellon, as the trustee, and certain guarantors shall enter into an indenture substantially in the form attached as Exhibit D (the “Indenture”). (j) HoldCo shall consummate the HoldCo Third Party Financing, and if applicable, the Excluded HoldCo Third Party Financing and/or the Additional HoldCo Third Party Financing. (k) HoldCo shall (i) execute and distribute as a dividend to NBCH unsecured notes in the forms attached as Exhibit E-1, Exhibit E-2, Exhibit E-3 and Exhibit E-4, in the principal amounts of $700,000,000, $700,000,000, $1,100,000,000 and $1,500,000,000, respectively, subject to reduction in accordance with Section 5.04(c) (collectively, the “HoldCo Notes”) and (ii) distribute to NBCH as a dividend an amount in cash equal to (A) $1,250,000,000 plus (B) the net proceeds of the Additional HoldCo Third Party Financing, if any; provided that the sum of (x) the aggregate principal amount of the HoldCo Notes (as reduced, if at all, pursuant to Section 5.04(c)) and (y) the total amount of cash distributed to NBCH as a dividend pursuant to the foregoing clause (ii) shall not exceed $5,250,000,000. (l) HoldCo shall deliver to NBCH the cash referred to in Section 1.01(k)(ii) in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount). (i) HoldCo shall (i) adopt and file with the Secretary of State of the State of Delaware a second amended and restated certificate of incorporation in the form attached as Exhibit F (the “HoldCo Charter”), (ii) adopt and file with the Secretary of State of the State of Delaware a certificate of designations in the form attached as Exhibit G (the “Certificate of Designations”), and (iii) adopt amended and restated bylaws in the form attached as Exhibit H. (n) HoldCo and NBCH shall enter into an Exchange Agreement in the form attached as Exhibit I (the “Exchange Agreement”) pursuant to which HoldCo shall issue 724,700 shares of preferred stock (the “HoldCo Preferred Shares”) and 789.9791 shares of common stock (the “HoldCo Common Shares”) to NBCH in exchange for all of the HoldCo Shares held by NBCH, free and clear of all Liens. (i) NBCH, in its capacity as owner of 100% of the HoldCo Preferred Shares, shall execute and deliver to HoldCo a written stockholder consent electing ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the initial Series A Preferred Director (as defined in the Certificate of Designations); and (ii) NBCH, in its capacity as owner of 100% of the HoldCo Common Shares, shall execute and deliver to HoldCo a written stockholder consent electing the initial Common Stock Directors (as defined in the HoldCo Charter). (p) Comcast and/or one or more Comcast Designees and NBCH shall enter into a purchase agreement in the form attached as Exhibit J (the “HoldCo Share Purchase Agreement”), pursuant to which Comcast and/or such Comcast Designee(s) shall purchase from NBCH 100% of NBCH’s HoldCo Common Shares, free and clear of all Liens, for a cash price equal to $2,725,908,924 (the “HoldCo Share Purchase Price”). The consummation of the transactions contemplated by the HoldCo Share Purchase Agreement is referred to herein as the “HoldCo Acquisition”. (q) (i) Comcast shall deliver or cause to be delivered to NBCH the HoldCo Share Purchase Price in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount) and (ii) HoldCo shall deliver to Comcast and/or each applicable Comcast Designee certificates representing the HoldCo Common Shares, duly endorsed in blank. (r) Comcast and/or the Comcast Designee(s) which purchased the HoldCo Common Shares pursuant to the HoldCo Share Purchase Agreement shall execute and deliver to HoldCo a written stockholder consent electing new Common Stock Directors (as defined in the HoldCo Charter). (s) Comcast and/or each applicable Comcast Designee, HoldCo and each other member of NBCUniversal shall enter into an amended and restated limited liability company agreement of NBCUniversal in the form attached as Exhibit K (the “Second Amended and Restated NBCUniversal LLC Agreement”). (t) Comcast and GE shall, and shall cause their respective Affiliates to, enter into Amendment No. 3 to the Tax Matters Agreement (the “TMA Amendment Agreement”) in the form attached as Exhibit L.
Appears in 1 contract
Sources: Transaction Agreement (Comcast Corp)
Closing Actions. Subject to the satisfaction or waiver of the conditions set forth in Article 7, at At the Closing, the following transactions (the “Transactions”) shall be consummated in the order set forth below:
(a) NBCUniversal may lendThe Purchaser shall:
(i) consummate the conversion of all issued and outstanding Class B Ordinary Shares held by the Purchaser Sponsor into Class A Ordinary Shares in accordance with the terms of the Purchaser Constitutional Documents; provided that the number of Class A Ordinary Shares to be issued in such conversion shall not exceed 7,500,000;
(ii) pay to the Sellers, and/or cause one or more by wire transfer of its Subsidiaries immediately available funds to lendthe account(s) specified in writing by the Sellers delivered to the Purchaser at least two (2) Business Days prior to the Closing, to Comcast and/or one or more Subsidiaries of Comcast designated by Comcast (each, a “Comcast Designee”) an aggregate amount not equal to exceed (A) the amount Base Cash Consideration, plus (B) the estimated Adjustment Amount set forth in the Estimated Adjustment Statement, if positive, or less (C) the absolute value of the consolidated cash estimated Adjustment Amount set forth in the Estimated Adjustment Statement, if negative;
(iii) (A) issue to the accounts designated in writing prior to Closing by the Sellers the Purchaser Ordinary Shares Consideration, free and cash equivalents clear of all Liens (except Liens consisting of any restrictions on hand transfer generally arising under the applicable securities Laws), and (B) make appropriate book entries by updating the register of NBCUniversal and its Subsidiaries as members of the Closing DatePurchaser (in the names designated by the Sellers in writing prior to Closing) evidencing the issuance to the Sellers of the Purchaser Ordinary Shares Consideration; provided, less however, in no instance shall the NBCUniversal Redemption Price Purchaser have any obligation to issue any of the Purchaser Ordinary Shares Consideration to or in the name of any Person not signatory hereto;
(as defined belowiv) deliver to the Sellers a counterpart to the Investors Agreement, duly executed by the Purchaser;
(v) deliver to the Sellers the certificate contemplated by Section 8.3(d);
(vi) deliver a certificate from an authorized officer of the Purchaser certifying that (i) the Purchaser has made all necessary arrangements with the Trustee to cause the Trustee to disburse all of the funds contained in the Trust Account available to the Purchaser for payment of the Aggregate Cash Obligations and (ii) there is no Action pending or threatened by any Person (not including the Sellers and their Affiliates) with respect to or against the Trust Account that would reasonably be expected to have a Purchaser Material Adverse Effect;
(vii) deliver to the Sellers a counterpart of the B▇▇▇ of Sale and Assignment, with such loan duly executed by the Purchaser; and
(viii) deliver to be evidenced the Sellers a counterpart of the Escrow Agreement, duly executed by an intercompany note in a form that is satisfactory to Comcast in its sole discretionthe Purchaser.
(b) The Sellers shall:
(i) NBCUniversal deliver, or cause to be delivered, to the Purchaser, to the extent that the Transferred Equity Interests are certificated, certificates evidencing such Transferred Equity Interests, duly endorsed in blank or accompanied by stock powers duly executed in blank and, in any case, other duly executed instruments of transfer as required to validly transfer title in and HoldCo shall enter into to all the Transferred Equity Interests in book-entry form free and clear of all Liens (other than any restrictions arising under the Transferred Entities’ Organizational Documents made available to the Purchaser or applicable securities Laws or Liens created by the Purchaser);
(ii) deliver to the Purchaser a redemption agreement copy of the shareholders resolutions approving the Purchaser as a shareholder of Merisant Luxembourg;
(iii) deliver to the Purchaser a copy of the notification letter sent by the Sellers to Merisant Luxembourg informing Merisant Luxembourg of the transfer of the Transferred Equity Interests from the Sellers to the Purchaser and requesting Merisant Luxembourg to record such transfer in the shareholders register of Merisant Luxembourg and to perform the necessary filing with the Luxembourg trade register, duly countersigned by Merisant Luxembourg for acknowledgment and acceptance;
(iv) deliver to the Purchaser a copy of the shareholders register of Merisant Luxembourg recording the transfer of the Transferred Equity Interests to the Purchaser with effect as at the Closing Date;
(v) deliver to the Purchaser the certificate contemplated by Section 8.2(c);
(vi) deliver to the Purchaser a duly executed certificate of non-foreign status from the Sellers stating that in each case it is a United States Person within the meaning of Section 7701(a)(30) of the Code, substantially in the form attached of the sample certification set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv)(B);
(vii) deliver to the Purchaser written resignations or evidence of removal (in each case, effective as Exhibit A-1 of the Closing) of each corporate director or officer of the Acquired Companies in his or her capacity as such, in each case, other than as the Purchaser shall have requested in writing at least five (5) Business Days before the “NBCUniversal Common Unit Redemption Closing Date;
(viii) deliver to the Purchaser a counterpart to each of the Investors Agreement”), pursuant duly executed by the Sellers;
(ix) deliver to which NBCUniversal shall redeem all the Purchaser a counterpart of HoldCothe B▇▇▇ of Sale and Assignment, duly executed by the Sellers;
(x) sell, convey, assign, transfer and deliver to the Purchaser the Transferred Assets and Liabilities and deliver any instruments of transfer necessary to evidence the transfer of Mafco Foreign Holdings’s right, title and interest in the Transferred Assets and to 833.5991494 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate redemption price equal to $3,200,000,000 in cash (the “NBCUniversal Redemption Price”) and (ii) Comcast and/or one or more Comcast Designees and HoldCo shall enter into a purchase agreement in the form attached as Exhibit A-2 (the “NBCUniversal Common Unit Purchase Agreement”)Liabilities, pursuant to which Comcast and/or such Comcast Designee(s) shall purchase all of HoldCo’s rightand in accordance with this Agreement duly executed by Mafco Foreign Holdings, title and interest in and to 1334.121014 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate purchase price equal to $4,821,391,076 in cash (the “NBCUniversal Purchase Price”).extent applicable;
(cxi) (i) NBCUniversal shall deliver to HoldCo the NBCUniversal Redemption Price in Purchaser a counterpart to the Escrow Agreement, duly executed by the Sellers;
(xii) copies of the payoff letters required by Section 5.20; and
(xiii) deliver to the Purchaser such additional certificates, resolutions, instruments, agreements and affidavits as may be reasonably requested by the Purchaser or necessary for the completion of the Debt Financing as evidence that as of immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to NBCUniversal, which notice shall be delivered not later than two Business Days prior to the Closing Date (Closing, the Sellers collectively own, directly or if not so designatedindirectly, then by certified or official bank check payable in immediately available funds to all of the order issued and outstanding equity interests of HoldCo in such amount) and (ii) HoldCo shall deliver to NBCUniversal certificates representing 833.5991494 NBCUniversal Common Units duly endorsed in blank.
(d) (i) Comcast shall deliver or cause to be delivered to HoldCo the NBCUniversal Purchase Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to Comcast and/or each applicable Comcast Designee certificates representing 1334.121014 NBCUniversal Common Units, in the aggregate, duly endorsed in blank.
(e) GE, NBCH and HoldCo shall consummate the transactions contemplated by Acquired Companies listed on Section 9(b)(iv2.4(b)(xiii) of the Tax Matters Agreement pursuant to the Assignment and Assumption Agreement attached as Exhibit B (the “TMA Assignment and Assumption Agreement”)Sellers Disclosure Schedule.
(f) HoldCo shall distribute as a dividend to NBCH (i) the rights and obligations transferred pursuant to the TMA Assignment and Assumption Agreement and (ii) an amount of cash equal to the NBCUniversal Redemption Price plus the NBCUniversal Purchase Price (the “HoldCo Distribution”).
(g) HoldCo shall deliver to NBCH the cash portion of the HoldCo Distribution in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(h) The members of NBCUniversal shall enter into an amendment to the NBCUniversal LLC Agreement in the form attached as Exhibit C (the “NBCUniversal LLC Agreement Amendment”), pursuant to which 90% of the remaining NBCUniversal Common Units held by HoldCo (after giving effect to the transactions contemplated by the NBCUniversal Common Unit Redemption Agreement and the NBCUniversal Common Unit Purchase Agreement) shall be converted into preferred units in NBCUniversal (the “NBCUniversal Preferred Units”). The form attached as Exhibit C shall be revised prior to the Closing Date to include the terms of the Common Units and Preferred Units and the provisions relating thereto as they exist in the Second Amended and Restated NBCUniversal LLC Agreement (as defined below).
(i) HoldCo, the Bank of New York Mellon, as the trustee, and certain guarantors shall enter into an indenture substantially in the form attached as Exhibit D (the “Indenture”).
(j) HoldCo shall consummate the HoldCo Third Party Financing, and if applicable, the Excluded HoldCo Third Party Financing and/or the Additional HoldCo Third Party Financing.
(k) HoldCo shall (i) execute and distribute as a dividend to NBCH unsecured notes in the forms attached as Exhibit E-1, Exhibit E-2, Exhibit E-3 and Exhibit E-4, in the principal amounts of $700,000,000, $700,000,000, $1,100,000,000 and $1,500,000,000, respectively, subject to reduction in accordance with Section 5.04(c) (collectively, the “HoldCo Notes”) and (ii) distribute to NBCH as a dividend an amount in cash equal to (A) $1,250,000,000 plus (B) the net proceeds of the Additional HoldCo Third Party Financing, if any; provided that the sum of (x) the aggregate principal amount of the HoldCo Notes (as reduced, if at all, pursuant to Section 5.04(c)) and (y) the total amount of cash distributed to NBCH as a dividend pursuant to the foregoing clause (ii) shall not exceed $5,250,000,000.
(l) HoldCo shall deliver to NBCH the cash referred to in Section 1.01(k)(ii) in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(i) HoldCo shall (i) adopt and file with the Secretary of State of the State of Delaware a second amended and restated certificate of incorporation in the form attached as Exhibit F (the “HoldCo Charter”), (ii) adopt and file with the Secretary of State of the State of Delaware a certificate of designations in the form attached as Exhibit G (the “Certificate of Designations”), and (iii) adopt amended and restated bylaws in the form attached as Exhibit H.
(n) HoldCo and NBCH shall enter into an Exchange Agreement in the form attached as Exhibit I (the “Exchange Agreement”) pursuant to which HoldCo shall issue 724,700 shares of preferred stock (the “HoldCo Preferred Shares”) and 789.9791 shares of common stock (the “HoldCo Common Shares”) to NBCH in exchange for all of the HoldCo Shares held by NBCH, free and clear of all Liens.
(i) NBCH, in its capacity as owner of 100% of the HoldCo Preferred Shares, shall execute and deliver to HoldCo a written stockholder consent electing ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the initial Series A Preferred Director (as defined in the Certificate of Designations); and (ii) NBCH, in its capacity as owner of 100% of the HoldCo Common Shares, shall execute and deliver to HoldCo a written stockholder consent electing the initial Common Stock Directors (as defined in the HoldCo Charter).
(p) Comcast and/or one or more Comcast Designees and NBCH shall enter into a purchase agreement in the form attached as Exhibit J (the “HoldCo Share Purchase Agreement”), pursuant to which Comcast and/or such Comcast Designee(s) shall purchase from NBCH 100% of NBCH’s HoldCo Common Shares, free and clear of all Liens, for a cash price equal to $2,725,908,924 (the “HoldCo Share Purchase Price”). The consummation of the transactions contemplated by the HoldCo Share Purchase Agreement is referred to herein as the “HoldCo Acquisition”.
(q) (i) Comcast shall deliver or cause to be delivered to NBCH the HoldCo Share Purchase Price in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount) and (ii) HoldCo shall deliver to Comcast and/or each applicable Comcast Designee certificates representing the HoldCo Common Shares, duly endorsed in blank.
(r) Comcast and/or the Comcast Designee(s) which purchased the HoldCo Common Shares pursuant to the HoldCo Share Purchase Agreement shall execute and deliver to HoldCo a written stockholder consent electing new Common Stock Directors (as defined in the HoldCo Charter).
(s) Comcast and/or each applicable Comcast Designee, HoldCo and each other member of NBCUniversal shall enter into an amended and restated limited liability company agreement of NBCUniversal in the form attached as Exhibit K (the “Second Amended and Restated NBCUniversal LLC Agreement”).
(t) Comcast and GE shall, and shall cause their respective Affiliates to, enter into Amendment No. 3 to the Tax Matters Agreement (the “TMA Amendment Agreement”) in the form attached as Exhibit L.
Appears in 1 contract
Sources: Purchase Agreement (Act II Global Acquisition Corp.)
Closing Actions. Subject At the Closing (to the satisfaction or waiver of extent not completed prior to the conditions set forth in Article 7, at the Closing, the following transactions (the “Transactions”) shall be consummated in the order set forth below:Closing Date):
(a) NBCUniversal may lendfirst, and/or (i) GE shall, and shall cause one the other NBCU Transferors to, transfer, directly or more indirectly, the Contributed NBCU Assets to NBCU, (ii) NBCU shall assume the Assumed NBCU Liabilities, (iii) GE shall, or shall cause a Subsidiary of its GE (other than a NBCU Entity) to, assume all Excluded NBCU Liabilities that are Liabilities of a NBCU Entity and (iv) NBCU shall pay to GE the fair value of the capital stock of the Subsidiary of GE identified on Section 2.08(d) of the NBCU Disclosure Letter (it being understood that all of such capital stock shall be included in the Contributed NBCU Assets);
(b) second, (i) Navy Holdco 1 shall, and GE shall cause Navy Holdco 1 to, contribute to Navy Holdco 2 all of the outstanding NBCU Shares, free and clear of all Liens and (ii) GE and NBCU shall, and shall cause their respective applicable Subsidiaries to lendto, to enter into the ISDA Novation Agreements, which shall be deemed effective at the effective time of this Section 2.08(b);
(c) third, (i) Comcast and/or one Navy Acquisition, LLC and Navy Holdco 2 shall, and Navy Holdco 2 shall cause the Newco Interest Holders to, enter into the Escrow Agreement, (ii) Comcast Navy Acquisition, LLC shall, or more Subsidiaries shall cause an Affiliate on behalf of Comcast designated by Navy Acquisition, LLC to, deposit funds in an amount equal to the Comcast/NBCU Purchase Price (calculated for this purpose based on the estimated amounts provided pursuant to Section 2.06(b)) into escrow pursuant to the terms of the Escrow Agreement, (iii) if Estimated Combined EBITDA is less than the Target Combined EBITDA, then Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to 3.5 times the lesser of (each, a “Comcast Designee”x) an aggregate amount not to exceed the amount of the consolidated cash and cash equivalents on hand shortfall, if such shortfall exists, of NBCUniversal and its Subsidiaries Estimated Comcast EBITDA as compared to Target Comcast EBITDA, or (y) the amount of the Closing Date, less shortfall of Estimated Combined EBITDA as compared to Target Combined EBITDA into escrow pursuant to the NBCUniversal Redemption Price terms of the Escrow Agreement (as defined belowany such amount to be deposited into escrow pursuant to this clause (iii), with such loan the “Shortfall Amount”) and (iv) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to be evidenced by an intercompany note in a form that is satisfactory the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, into escrow pursuant to Comcast in its sole discretion.the terms of the Escrow Agreement;
(bd) fourth, NBCU shall, and GE shall cause NBCU to, complete the NBCU Conversion in accordance with Section 2.07;
(ie) NBCUniversal and HoldCo fifth, NBCU shall enter into a redemption agreement distribute its interests in the form attached as Exhibit A-1 Holding Companies and New A&E to Navy Holdco 2;
(f) sixth, Navy Holdco 2 and the “NBCUniversal Common Unit Redemption Agreement”), pursuant Newco Interest Holders shall contribute the equity interests of NBCU and the New LLCs to which NBCUniversal shall redeem all of HoldCo’s right, title and interest in and to 833.5991494 NBCUniversal Common Units held by HoldCoNewco, free and clear of all Liens, in exchange for an aggregate redemption price equal Newco Membership Interests;
(g) seventh, Newco shall contribute the equity interests of the New LLCs to $3,200,000,000 NBCU;
(h) eighth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, deliver duly executed counterparts to the other Transaction Agreements referenced in cash Section 6.12;
(i) ninth, Comcast shall, and shall cause the “NBCUniversal Redemption Price”) and (ii) other Comcast and/or one Transferors to, contribute or more transfer, as applicable, the Contributed Comcast Designees and HoldCo Assets to Newco or, at the direction of Newco, NBCU and, in consideration therefor, Newco shall enter into a purchase agreement in the form attached as Exhibit A-2 (the “NBCUniversal Common Unit Purchase Agreement”)issue to Comcast Navy Contribution, pursuant to which Comcast and/or such Comcast Designee(s) shall purchase all of HoldCo’s right, title and interest in and to 1334.121014 NBCUniversal Common Units held by HoldCoLLC, free and clear of all Liens, for an aggregate purchase price equal Newco Membership Interests representing 25.75% of the outstanding Newco Membership Interests (determined after giving effect to $4,821,391,076 in cash (the “NBCUniversal Purchase Price”).
(csuch issuance) (i) NBCUniversal shall deliver to HoldCo the NBCUniversal Redemption Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCoand, by notice to NBCUniversal, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designatedextent Contributed Comcast Equity Interests are certificated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to NBCUniversal certificates representing 833.5991494 NBCUniversal Common Units duly endorsed in blank.
(d) (i) Comcast Navy Contribution, LLC shall deliver or cause to be delivered to HoldCo the NBCUniversal Purchase Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCoNewco or NBCU, by notice to Comcastas applicable, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in certificates evidencing such amount) and (ii) HoldCo shall deliver to Contributed Comcast and/or each applicable Comcast Designee certificates representing 1334.121014 NBCUniversal Common Units, in the aggregateEquity Interests, duly endorsed in blank.blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Contributed Comcast Equity Interests, and to the extent such Contributed Comcast Equity Interests are not certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco or NBCU, as applicable, other customary evidence of ownership; and Newco or NBCU, as applicable, shall assume the Assumed Comcast Liabilities and Comcast Navy Contribution, LLC shall, or shall cause a Subsidiary of Comcast (other than a Contributed Comcast Subsidiary), to assume all Excluded Comcast Liabilities that are Liabilities of a Contributed Comcast Subsidiary;
(ej) GEtenth, NBCH and HoldCo shall consummate the transactions contemplated by Section 9(b)(iv) of the Tax Matters Agreement pursuant to the Assignment and Assumption Agreement attached as Exhibit B (the “TMA Assignment and Assumption Agreement”).
(f) HoldCo shall distribute as a dividend to NBCH (i) the rights Newco Interest Holders shall, and obligations transferred pursuant to GE shall cause the TMA Assignment and Assumption Agreement and (ii) an amount of cash equal to the NBCUniversal Redemption Price plus the NBCUniversal Purchase Price (the “HoldCo Distribution”).
(g) HoldCo shall Newco Interest Holders to, deliver to NBCH the cash portion of the HoldCo Distribution in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCHComcast Navy Acquisition, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(h) The members of NBCUniversal shall enter into an amendment to the NBCUniversal LLC Agreement in the form attached as Exhibit C (the “NBCUniversal LLC Agreement Amendment”), pursuant to which 90% of the remaining NBCUniversal Common Units held by HoldCo (after giving effect to the transactions contemplated by the NBCUniversal Common Unit Redemption Agreement and the NBCUniversal Common Unit Purchase Agreement) shall be converted into preferred units in NBCUniversal (the “NBCUniversal Preferred Units”). The form attached as Exhibit C shall be revised prior to the Closing Date to include the terms of the Common Units and Preferred Units and the provisions relating thereto as they exist in the Second Amended and Restated NBCUniversal LLC Agreement (as defined below).
(i) HoldCo, the Bank of New York Mellon, as the trustee, and certain guarantors shall enter into an indenture substantially in the form attached as Exhibit D (the “Indenture”).
(j) HoldCo shall consummate the HoldCo Third Party Financing, and if applicable, the Excluded HoldCo Third Party Financing and/or the Additional HoldCo Third Party Financing.
(k) HoldCo shall (i) execute and distribute as a dividend to NBCH unsecured notes in the forms attached as Exhibit E-1, Exhibit E-2, Exhibit E-3 and Exhibit E-4, in the principal amounts of $700,000,000, $700,000,000, $1,100,000,000 and $1,500,000,000, respectively, subject to reduction in accordance with Section 5.04(c) (collectively, the “HoldCo Notes”) and (ii) distribute to NBCH as a dividend an amount in cash equal to (A) $1,250,000,000 plus (B) the net proceeds of the Additional HoldCo Third Party Financing, if any; provided that the sum of (x) the aggregate principal amount of the HoldCo Notes (as reduced, if at all, pursuant to Section 5.04(c)) and (y) the total amount of cash distributed to NBCH as a dividend pursuant to the foregoing clause (ii) shall not exceed $5,250,000,000.
(l) HoldCo shall deliver to NBCH the cash referred to in Section 1.01(k)(ii) in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(i) HoldCo shall (i) adopt and file with the Secretary of State of the State of Delaware a second amended and restated certificate of incorporation in the form attached as Exhibit F (the “HoldCo Charter”), (ii) adopt and file with the Secretary of State of the State of Delaware a certificate of designations in the form attached as Exhibit G (the “Certificate of Designations”), and (iii) adopt amended and restated bylaws in the form attached as Exhibit H.
(n) HoldCo and NBCH shall enter into an Exchange Agreement in the form attached as Exhibit I (the “Exchange Agreement”) pursuant to which HoldCo shall issue 724,700 shares of preferred stock (the “HoldCo Preferred Shares”) and 789.9791 shares of common stock (the “HoldCo Common Shares”) to NBCH in exchange for all of the HoldCo Shares held by NBCH, free and clear of all Liens.
(i) NBCH, in its capacity as owner of 100% of the HoldCo Preferred Shares, shall execute and deliver to HoldCo a written stockholder consent electing ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the initial Series A Preferred Director (as defined in the Certificate of Designations); and (ii) NBCH, in its capacity as owner of 100% of the HoldCo Common Shares, shall execute and deliver to HoldCo a written stockholder consent electing the initial Common Stock Directors (as defined in the HoldCo Charter).
(p) Comcast and/or one or more Comcast Designees and NBCH shall enter into a purchase agreement in the form attached as Exhibit J (the “HoldCo Share Purchase Agreement”), pursuant to which Comcast and/or such Comcast Designee(s) shall purchase from NBCH 100% of NBCH’s HoldCo Common SharesLLC, free and clear of all Liens, for a cash price equal to $2,725,908,924 (the “HoldCo Share Purchase Price”). The consummation all of the transactions contemplated Newco Membership Interests owned by the HoldCo Share Purchase Agreement is referred to herein as the “HoldCo Acquisition”.
(q) (i) Comcast shall deliver or cause to be delivered to NBCH the HoldCo Share Purchase Price in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount) Newco Interest Holders and (ii) HoldCo Navy Holdco 2 shall, and GE shall cause Navy Holdco 2 to, deliver to Comcast and/or each applicable Navy Acquisition, LLC, free and clear of all Liens, Newco Membership Interests which, when aggregated with the interests delivered pursuant to clause (i), will constitute 25.25% of the outstanding Newco Membership Interests, in consideration of the payment by Comcast Designee certificates representing Navy Acquisition, LLC of the HoldCo Common Shares, duly endorsed in blank.Comcast/NBCU Purchase Price;
(rk) eleventh, if Estimated Combined EBITDA is less than the Target Combined EBITDA then NBCU shall issue to Comcast and/or Navy Acquisition, LLC or such Affiliate of Comcast Navy Acquisition, LLC a note in the form of Exhibit F-2 with a principal amount equal to the Shortfall Amount (the “Comcast Designee(sNote”);
(l) which purchased twelfth, the HoldCo Common Shares Escrow Agent shall release from escrow into the accounts of Navy Holdco 2 and the Newco Interest Holders designated in the Escrow Agreement the Comcast/NBCU Purchase Price, the Shortfall Amount, if any, and the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, in each case, pursuant to the HoldCo Share Purchase Agreement shall execute and deliver to HoldCo a written stockholder consent electing new Common Stock Directors (as defined in terms of the HoldCo Charter).Escrow Agreement;
(sm) Comcast and/or each applicable Comcast Designeethirteenth, HoldCo and each other member of NBCUniversal shall enter into an amended and restated limited liability company agreement of NBCUniversal in the form attached as Exhibit K (the “Second Amended and Restated NBCUniversal LLC Agreement”).
(t) Comcast and GE parties hereto shall, and shall cause their respective Affiliates applicable Subsidiaries to, enter into Amendment No. 3 execute and deliver such deeds, bills of sale, endorsements, consents, assignments, assumptions and other good and sufficient documents or instruments as such parties and their respective counsel shall deem reasonably necessary in connection with the actions referred to in Sections 2.08(a) through (l); and
(n) finally, each NBCU Transferor and Comcast Transferor that will convey a “United States real property interest” (as defined under Section 897 of the Code) shall deliver to Newco a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the Tax Matters Agreement effect that the applicable transferor is not a “foreign person,” and each of Navy Holdco 2 and the Newco Interest Holders shall deliver to Comcast Navy Acquisition, LLC a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person.” Newco hereby directs Comcast and the other Comcast Transferors (including Comcast Navy Contribution, LLC) to transfer the “TMA Amendment Contributed Comcast Assets to NBCU on its behalf and NBCU to assume the Assumed Comcast Liabilities on its behalf, in each case, as described in Section 2.08(i) and subject to the terms and conditions of this Agreement”) in the form attached as Exhibit L..
Appears in 1 contract
Sources: Master Agreement (Comcast Corp)
Closing Actions. Subject to the satisfaction or waiver of the conditions set forth in Article 7, at At the Closing, the following transactions (the “Transactions”) shall be consummated in the order set forth below:
(a) NBCUniversal may lendfirst, and/or Navy Holdco 1 shall, and GE shall cause one or more of its Subsidiaries Navy Holdco 1 to, contribute to lend, to Comcast and/or one or more Subsidiaries of Comcast designated by Comcast (each, a “Comcast Designee”) an aggregate amount not to exceed the amount Navy Holdco 2 all of the consolidated cash outstanding NBCU Shares, free and cash equivalents on hand clear of NBCUniversal and its Subsidiaries as of the Closing Date, less the NBCUniversal Redemption Price (as defined below), with such loan to be evidenced by an intercompany note in a form that is satisfactory to Comcast in its sole discretion.all Liens;
(b) second, NBCU shall, and GE shall cause NBCU to, complete the NBCU Conversion in accordance with Section 2.07;
(ic) NBCUniversal third, Navy Holdco 2 shall, and HoldCo GE shall enter into cause Navy Holdco 2 to, contribute to Newco all of the outstanding NBCU Shares, free and clear of all Liens;
(d) fourth, GE shall, and shall cause the other NBCU Transferors to, transfer, directly or indirectly, the Contributed NBCU Assets to NBCU; NBCU shall assume the Assumed NBCU Liabilities and GE shall, or shall cause a redemption agreement Subsidiary of GE (other than a NBCU Entity) to, assume all Excluded NBCU Liabilities that are Liabilities of a NBCU Entity and NBCU shall pay to GE the fair value of the capital stock of the Subidiary of GE identified on Section 2.08(d) of the NBCU Disclosure Letter (it being understood that all of such capital stock shall be included in the form attached Contributed NBCU Assets);
(e) fifth, Comcast shall, and shall cause the other Comcast Transferors to, contribute or transfer, as Exhibit A-1 (applicable, the “NBCUniversal Common Unit Redemption Agreement”)Contributed Comcast Assets to Newco or, pursuant at the direction of Newco, NBCU and, in consideration therefor, Newco shall issue to which NBCUniversal shall redeem all of HoldCo’s right, title and interest in and to 833.5991494 NBCUniversal Common Units held by HoldCoComcast, free and clear of all Liens, for an aggregate redemption price equal Newco Membership Interests representing 25.75% of the outstanding Newco Membership Interests (determined after giving effect to $3,200,000,000 in cash (the “NBCUniversal Redemption Price”such issuance) and (ii) Comcast and/or one or more Comcast Designees and HoldCo shall enter into a purchase agreement in the form attached as Exhibit A-2 (the “NBCUniversal Common Unit Purchase Agreement”)and, pursuant to which Comcast and/or such Comcast Designee(s) shall purchase all of HoldCo’s right, title and interest in and to 1334.121014 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate purchase price equal to $4,821,391,076 in cash (the “NBCUniversal Purchase Price”).
(c) (i) NBCUniversal shall deliver to HoldCo the NBCUniversal Redemption Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to NBCUniversal, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designatedextent Contributed Comcast Equity Interests are certificated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to NBCUniversal certificates representing 833.5991494 NBCUniversal Common Units duly endorsed in blank.
(d) (i) Comcast shall deliver or cause to be delivered to HoldCo the NBCUniversal Purchase Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCoNewco or NBCU, by notice to Comcastas applicable, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in certificates evidencing such amount) and (ii) HoldCo shall deliver to Contributed Comcast and/or each applicable Comcast Designee certificates representing 1334.121014 NBCUniversal Common Units, in the aggregateEquity Interests, duly endorsed in blank.
(e) GE, NBCH blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and HoldCo shall consummate the transactions contemplated by Section 9(b)(iv) of the Tax Matters Agreement pursuant to the Assignment Contributed Comcast Equity Interests, and Assumption Agreement attached as Exhibit B (the “TMA Assignment and Assumption Agreement”).
(f) HoldCo shall distribute as a dividend to NBCH (i) the rights and obligations transferred pursuant to the TMA Assignment and Assumption Agreement and (ii) an amount of cash equal to the NBCUniversal Redemption Price plus the NBCUniversal Purchase Price (the “HoldCo Distribution”).
(g) HoldCo shall deliver to NBCH the cash portion of the HoldCo Distribution in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCHextent such Contributed Comcast Equity Interests are not certificated, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(h) The members of NBCUniversal shall enter into an amendment to the NBCUniversal LLC Agreement in the form attached as Exhibit C (the “NBCUniversal LLC Agreement Amendment”), pursuant to which 90% of the remaining NBCUniversal Common Units held by HoldCo (after giving effect to the transactions contemplated by the NBCUniversal Common Unit Redemption Agreement and the NBCUniversal Common Unit Purchase Agreement) shall be converted into preferred units in NBCUniversal (the “NBCUniversal Preferred Units”). The form attached as Exhibit C shall be revised prior to the Closing Date to include the terms of the Common Units and Preferred Units and the provisions relating thereto as they exist in the Second Amended and Restated NBCUniversal LLC Agreement (as defined below).
(i) HoldCo, the Bank of New York Mellon, as the trustee, and certain guarantors shall enter into an indenture substantially in the form attached as Exhibit D (the “Indenture”).
(j) HoldCo shall consummate the HoldCo Third Party Financing, and if applicable, the Excluded HoldCo Third Party Financing and/or the Additional HoldCo Third Party Financing.
(k) HoldCo shall (i) execute and distribute as a dividend to NBCH unsecured notes in the forms attached as Exhibit E-1, Exhibit E-2, Exhibit E-3 and Exhibit E-4, in the principal amounts of $700,000,000, $700,000,000, $1,100,000,000 and $1,500,000,000, respectively, subject to reduction in accordance with Section 5.04(c) (collectively, the “HoldCo Notes”) and (ii) distribute to NBCH as a dividend an amount in cash equal to (A) $1,250,000,000 plus (B) the net proceeds of the Additional HoldCo Third Party Financing, if any; provided that the sum of (x) the aggregate principal amount of the HoldCo Notes (as reduced, if at all, pursuant to Section 5.04(c)) and (y) the total amount of cash distributed to NBCH as a dividend pursuant to the foregoing clause (ii) shall not exceed $5,250,000,000.
(l) HoldCo shall deliver to NBCH the cash referred to in Section 1.01(k)(ii) in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(i) HoldCo shall (i) adopt and file with the Secretary of State of the State of Delaware a second amended and restated certificate of incorporation in the form attached as Exhibit F (the “HoldCo Charter”), (ii) adopt and file with the Secretary of State of the State of Delaware a certificate of designations in the form attached as Exhibit G (the “Certificate of Designations”), and (iii) adopt amended and restated bylaws in the form attached as Exhibit H.
(n) HoldCo and NBCH shall enter into an Exchange Agreement in the form attached as Exhibit I (the “Exchange Agreement”) pursuant to which HoldCo shall issue 724,700 shares of preferred stock (the “HoldCo Preferred Shares”) and 789.9791 shares of common stock (the “HoldCo Common Shares”) to NBCH in exchange for all of the HoldCo Shares held by NBCH, free and clear of all Liens.
(i) NBCH, in its capacity as owner of 100% of the HoldCo Preferred Shares, shall execute and deliver to HoldCo a written stockholder consent electing ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the initial Series A Preferred Director (as defined in the Certificate of Designations); and (ii) NBCH, in its capacity as owner of 100% of the HoldCo Common Shares, shall execute and deliver to HoldCo a written stockholder consent electing the initial Common Stock Directors (as defined in the HoldCo Charter).
(p) Comcast and/or one or more Comcast Designees and NBCH shall enter into a purchase agreement in the form attached as Exhibit J (the “HoldCo Share Purchase Agreement”), pursuant to which Comcast and/or such Comcast Designee(s) shall purchase from NBCH 100% of NBCH’s HoldCo Common Shares, free and clear of all Liens, for a cash price equal to $2,725,908,924 (the “HoldCo Share Purchase Price”). The consummation of the transactions contemplated by the HoldCo Share Purchase Agreement is referred to herein as the “HoldCo Acquisition”.
(q) (i) Comcast shall deliver or cause to be delivered to NBCH Newco or NBCU, as applicable, other customary evidence of ownership; and Newco or NBCU, as applicable, shall assume the HoldCo Share Assumed Comcast Liabilities and Comcast shall, or shall cause a Subsidiary of Comcast (other than a Contributed Comcast Subsidiary), to assume all Excluded Comcast Liabilities that are Liabilities of a Contributed Comcast Subsidiary;
(f) sixth, Navy Holdco 2 shall, and GE shall cause Navy Holdco 2 to, deliver to Comcast, free and clear of all Liens, 25.25% of the outstanding Newco Membership Interests in consideration of the payment by Comcast to NBCU of the Comcast/NBCU Purchase Price;
(g) seventh, (i) Comcast shall pay the Comcast/NBCU Purchase Price in immediately available funds (calculated for this purpose based on the estimated amounts provided pursuant to Section 2.06(b)) to Navy Holdco 2, by wire transfer to of immediately available funds, into an account designated by Navy Holdco 2, (ii) if Estimated Combined EBITDA is less than the Target Combined EBITDA, then (A) Comcast shall, or shall cause an Affiliate to, contribute to NBCU by wire transfer of NBCH immediately available funds, 3.5 times the lesser of (x) the amount of the shortfall, if such shortfall exists, of Estimated Comcast EBITDA as compared to Target Comcast EBITDA, or (y) the amount of the shortfall of Estimated Combined EBITDA as compared to Target Combined EBITDA and (B) NBCU shall issue to Comcast or such Affiliate of Comcast a note in the form of Exhibit F-2 with a bank in New York City designated by NBCH, by notice to Comcast, which notice shall be delivered not later than two Business Days prior principal amount equal to the Closing Date amount that Comcast contributes or causes to be contributed pursuant to clause (or if not so designated, then by certified or official bank check payable in immediately available funds to A) (the order of NBCH in such amount“Comcast Note”) and (iiiii) HoldCo Comcast shall, or shall cause an Affiliate to, contribute to NBCU by wire transfer of immediately available funds, the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any;
(h) eighth, Navy Holdco 2 shall deliver to Comcast and/or each applicable Comcast Designee certificates representing a receipt for the HoldCo Common Shares, duly endorsed in blank.Comcast/NBCU Purchase Price;
(ri) Comcast and/or ninth, the Comcast Designee(s) which purchased the HoldCo Common Shares pursuant to the HoldCo Share Purchase Agreement shall execute and deliver to HoldCo a written stockholder consent electing new Common Stock Directors (as defined in the HoldCo Charter).
(s) Comcast and/or each applicable Comcast Designee, HoldCo and each other member of NBCUniversal shall enter into an amended and restated limited liability company agreement of NBCUniversal in the form attached as Exhibit K (the “Second Amended and Restated NBCUniversal LLC Agreement”).
(t) Comcast and GE parties hereto shall, and shall cause their respective Affiliates applicable Subsidiaries to, enter into Amendment No. 3 deliver duly executed counterparts to the Tax Matters Agreement other Transaction Agreements referenced in Section 6.12;
(j) tenth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, execute and deliver such deeds, bills of sale, endorsements, consents, assignments, assumptions and other good and sufficient documents or instruments as such parties and their respective counsel shall deem reasonably necessary in connection with the actions referred to in Sections 2.08(a) through (i); and
(k) finally, each NBCU Transferor and Comcast Transferor that will convey a “TMA Amendment United States real property interest” (as defined under Section 897 of the Code) shall deliver to Newco a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person”. Newco hereby directs Comcast to transfer the Contributed Comcast Assets to NBCU on its behalf and NBCU to assume the Assumed Comcast Liabilities on its behalf, in each case, as described in Section 2.08(e) and subject to the terms and conditions of this Agreement”) in the form attached as Exhibit L..
Appears in 1 contract
Closing Actions. Subject to the satisfaction or waiver of the conditions set forth in Article 7, at the Closing, the following transactions (the “Transactions”) shall be consummated in the order set forth below:
(a) NBCUniversal may lend, and/or cause one or more of its Subsidiaries to lend, to Comcast and/or one or more Subsidiaries of Comcast designated by Comcast (each, a “Comcast Designee”) an aggregate amount not to exceed the amount of the consolidated cash and cash equivalents on hand of NBCUniversal and its Subsidiaries as of the Closing Date, less the NBCUniversal Redemption Price (as defined below), with such loan to be evidenced by an intercompany note in a form that is satisfactory to Comcast in its sole discretion.
(b) (i) NBCUniversal and HoldCo shall enter into a redemption agreement in the form attached as Exhibit A-1 (the “NBCUniversal Common Unit Redemption Agreement”), pursuant to which NBCUniversal shall redeem all of HoldCo’s right, title and interest in and to 833.5991494 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate redemption price equal to $3,200,000,000 in cash (the “NBCUniversal Redemption Price”) and (ii) Comcast and/or one or more Comcast Designees and HoldCo shall enter into a purchase agreement in the form attached as Exhibit A-2 (the “NBCUniversal Common Unit Purchase Agreement”), pursuant to which Comcast and/or such Comcast Designee(s) shall purchase all of HoldCo’s right, title and interest in and to 1334.121014 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate purchase price equal to $4,821,391,076 in cash (the “NBCUniversal Purchase Price”).
(c) (i) NBCUniversal shall deliver to HoldCo the NBCUniversal Redemption Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to NBCUniversal, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to NBCUniversal certificates representing 833.5991494 NBCUniversal Common Units duly endorsed in blank.
(d) (i) Comcast shall deliver or cause to be delivered to HoldCo the NBCUniversal Purchase Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to Comcast and/or each applicable Comcast Designee certificates representing 1334.121014 NBCUniversal Common Units, in the aggregate, duly endorsed in blank.
(e) GE, NBCH and HoldCo shall consummate the transactions contemplated by Section 9(b)(iv) of the Tax Matters Agreement pursuant to the Assignment and Assumption Agreement attached as Exhibit B (the “TMA Assignment and Assumption Agreement”).
(f) HoldCo shall distribute as a dividend to NBCH (i) the rights and obligations transferred pursuant to the TMA Assignment and Assumption Agreement and (ii) an amount of cash equal to the NBCUniversal Redemption Price plus the NBCUniversal Purchase Price (the “HoldCo Distribution”).
(g) HoldCo shall deliver to NBCH the cash portion of the HoldCo Distribution in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(h) The members of NBCUniversal shall enter into an amendment to the NBCUniversal LLC Agreement in the form attached as Exhibit C (the “NBCUniversal LLC Agreement Amendment”), pursuant to which 90% of the remaining NBCUniversal Common Units held by HoldCo (after giving effect to the transactions contemplated by the NBCUniversal Common Unit Redemption Agreement and the NBCUniversal Common Unit Purchase Agreement) shall be converted into preferred units in NBCUniversal (the “NBCUniversal Preferred Units”). The form attached as Exhibit C shall be revised prior to the Closing Date to include the terms of the Common Units and Preferred Units and the provisions relating thereto as they exist in the Second Amended and Restated NBCUniversal LLC Agreement (as defined below).
(i) HoldCo, the Bank of New York Mellon, as the trustee, and certain guarantors shall enter into an indenture substantially in the form attached as Exhibit D (the “Indenture”).
(j) HoldCo shall consummate the HoldCo Third Party Financing, and if applicable, the Excluded HoldCo Third Party Financing and/or the Additional HoldCo Third Party Financing.
(k) HoldCo shall (i) execute and distribute as a dividend to NBCH unsecured notes in the forms attached as Exhibit E-1, Exhibit E-2, Exhibit E-3 and Exhibit E-4, in the principal amounts of $700,000,000, $700,000,000, $1,100,000,000 and $1,500,000,000, respectively, subject to reduction in accordance with Section 5.04(c) (collectively, the “HoldCo Notes”) and (ii) distribute to NBCH as a dividend an amount in cash equal to (A) $1,250,000,000 plus (B) the net proceeds of the Additional HoldCo Third Party Financing, if any; provided that the sum of (x) the aggregate principal amount of the HoldCo Notes (as reduced, if at all, pursuant to Section 5.04(c)) and (y) the total amount of cash distributed to NBCH as a dividend pursuant to the foregoing clause (ii) shall not exceed $5,250,000,000.
(l) HoldCo shall deliver to NBCH the cash referred to in Section 1.01(k)(ii) in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(i) HoldCo shall (i) adopt and file with the Secretary of State of the State of Delaware a second amended and restated certificate of incorporation in the form attached as Exhibit F (the “HoldCo Charter”), (ii) adopt and file with the Secretary of State of the State of Delaware a certificate of designations in the form attached as Exhibit G (the “Certificate of Designations”), and (iii) adopt amended and restated bylaws in the form attached as Exhibit H.
(n) HoldCo and NBCH shall enter into an Exchange Agreement in the form attached as Exhibit I (the “Exchange Agreement”) pursuant to which HoldCo shall issue 724,700 shares of preferred stock (the “HoldCo Preferred Shares”) and 789.9791 shares of common stock (the “HoldCo Common Shares”) to NBCH in exchange for all of the HoldCo Shares held by NBCH, free and clear of all Liens.
(i) NBCH, in its capacity as owner of 100% of the HoldCo Preferred Shares, shall execute and deliver to HoldCo a written stockholder consent electing ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the initial Series A Preferred Director (as defined in the Certificate of Designations); and (ii) NBCH, in its capacity as owner of 100% of the HoldCo Common Shares, shall execute and deliver to HoldCo a written stockholder consent electing the initial Common Stock Directors (as defined in the HoldCo Charter).
(p) Comcast and/or one or more Comcast Designees and NBCH shall enter into a purchase agreement in the form attached as Exhibit J (the “HoldCo Share Purchase Agreement”), pursuant to which Comcast and/or such Comcast Designee(s) shall purchase from NBCH 100% of NBCH’s HoldCo Common Shares, free and clear of all Liens, for a cash price equal to $2,725,908,924 (the “HoldCo Share Purchase Price”). The consummation of the transactions contemplated by the HoldCo Share Purchase Agreement is referred to herein as the “HoldCo Acquisition”.
(q) (i) Comcast shall deliver or cause to be delivered to NBCH the HoldCo Share Purchase Price in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount) and (ii) HoldCo shall deliver to Comcast and/or each applicable Comcast Designee certificates representing the HoldCo Common Shares, duly endorsed in blank.
(r) Comcast and/or the Comcast Designee(s) which purchased the HoldCo Common Shares pursuant to the HoldCo Share Purchase Agreement shall execute and deliver to HoldCo a written stockholder consent electing new Common Stock Directors (as defined in the HoldCo Charter).
(s) Comcast and/or each applicable Comcast Designee, HoldCo and each other member of NBCUniversal shall enter into an amended and restated limited liability company agreement of NBCUniversal in the form attached as Exhibit K (the “Second Amended and Restated NBCUniversal LLC Agreement”).
(t) Comcast and GE shall, and shall cause their respective Affiliates to, enter into Amendment No. 3 to the Tax Matters Agreement (the “TMA Amendment Agreement”) in the form attached as Exhibit L.in
Appears in 1 contract