Comcast. From the date of this Agreement through the Closing, except as required by applicable Law or any Governmental Authority, as otherwise expressly contemplated by the Transaction Agreements (including Section 6.05 and Section 6.14) and for matters identified in Section 6.01(b) of the Comcast Disclosure Letter, unless GE otherwise consents in writing in advance (which consent, except in the case of Section 6.01(b)(ii), shall not be unreasonably withheld, conditioned or delayed), Comcast will, and will cause the other Comcast Transferors and Contributed Comcast Subsidiaries to, (x) conduct the Contributed Comcast Businesses and operations thereof in the ordinary course of business consistent with past practice (including paying accounts payable and collecting accounts receivable in the ordinary course of business consistent with past practice), (y) use commercially reasonable efforts to preserve intact the business organizations of the Contributed Comcast Businesses, keep available the services of their executive officers and key Comcast Business Employees who are in good standing, maintain Comcast Owned Real Property and Comcast Leased Real Property in the ordinary course consistent with past practice, as appropriate in the reasonable good faith judgment of Comcast from time to time and preserve their current business relationships with the material customers, authors, producers, directors, actors, performers, announcers, suppliers, advertisers, distributors, business partners and others persons having business dealings with them and (z) with respect to the Contributed Comcast Businesses and Contributed Comcast Subsidiaries, not do any of the following: (i) except in the ordinary course of business consistent with past practice, grant, permit or create any Lien (other than a Permitted Lien) on any Comcast Assets (whether tangible or intangible) with a value individually in excess of $10 million or, in the aggregate, in excess of $25 million; (ii) (A) except for the Relevant Transactions, acquire (through Comcast or any of its Affiliates) by merger, consolidation, combination or amalgamation, or (B) acquire any equity interest in or assets of, any corporation, partnership, association or other business organization or division thereof, in each case, for consideration (including any Debt for borrowed money acquired or assumed in such transaction), in an amount greater than $100 million in any single transaction or $250 million in the aggregate (it being understood that each Relevant Transaction (other than the Relevant Transactions set forth on Section 6.22 of the Comcast Disclosure Letter) shall be applied toward such $250 million aggregate limitation); provided that such aggregate cap of $250 million shall not prohibit Comcast or any of its Subsidiaries’ ability to enter into any Library Underlying Agreement or to acquire any Library Literary Properties, in each case in the ordinary course of business and for consideration on a per transaction basis of $20 million or less (excluding participation and similar variable payments); (iii) except for Debt assumed or incurred in a transaction permitted pursuant to Section 6.01(b)(ii), create, incur, guarantee or assume any Debt, issue any debt securities or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances (in each case, other than (A) in the ordinary course of business in amounts and on terms consistent with past practice as permitted under the Contracts set forth on Section 6.01(b)(iii) of the Comcast Disclosure Letter, (B) pursuant to intercompany borrowing arrangements (x) that will be repaid in full and terminated at Closing or (y) solely between or among Contributed Comcast Subsidiaries and (C) guarantees of (1) leases entered into by Comcast or any direct or indirect wholly owned Subsidiary of Comcast with respect to the Comcast Leased Real Property or (2) other obligations not exceeding $15 million in the aggregate); (iv) issue or sell any additional shares of, or other equity interests in, any of the Comcast Transferors or Contributed Comcast Subsidiaries, or securities convertible into or exchangeable for such shares or equity interests (other than, in each case, the issuance or sale of shares of, or other equity interests in, one Contributed Comcast Subsidiary to another Contributed Comcast Subsidiary), or issue or grant any options, warrants, calls, subscription rights, profit participation rights (other than profit participation rights relating to television programs granted in the ordinary course of business consistent with past practice) or other rights of any kind, contingently or otherwise, to acquire such shares, other equity interests or securities, or any securities convertible into or exchangeable for such equity securities, or amend the terms of any such shares, equity interests or securities or options, warrants, calls, subscription rights or other rights outstanding, or effect any recapitalization, reclassification, stock split or like change in the capitalization of any Comcast Transferor or Contributed Comcast Subsidiary; (v) license, sell, transfer, lease, sublease, or otherwise dispose of any Comcast Assets, Comcast Owned Real Property, Comcast Owned Intellectual Property or Comcast Technology, other than (i) sales or licensing of products, programming or other goods and services in the ordinary course of business consistent with past practice (including pursuant to Exploitation Agreements) and (ii) any other such transaction for consideration individually in excess of $100 million or, in the aggregate, in excess of $250 million; (vi) [intentionally omitted] (vii) recognize any new union, works council or other similar employee representative, except as required by applicable Law; (viii) without the prior consent of GE (which consent shall not be unreasonably withheld), enter into any Collective Bargaining Agreement, or renew or enter into a mid-term modification (excluding resolutions of grievances relating to or interpretations of a Collective Bargaining Agreement) of any existing Collective Bargaining Agreement, in each case, that applies to at least 500 Comcast Transferred Employees; (ix) without prior consultation with GE (and, if applicable pursuant to Section 6.01(b)(viii), the prior consent of GE), enter into any Collective Bargaining Agreement, or renew or enter into a mid-term modification (excluding resolutions of grievances relating to or interpretations of a Collective Bargaining Agreement) of any existing Collective Bargaining Agreement, in each case, with the Screen Actors Guild; Directors Guild of America; Writers Guild of America; International Brotherhood of Teamsters; National Association of Broadcast Employees and Technicians-Communications Workers of America (NABET); International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada (IATSE); American Federation of Television and Radio Artists (AFTRA); Alliance of Canadian Cinema, Television and Radio Artists (ACTRA); or American Federation of Musicians and Actor’s Equity Association; (x) without prior consultation with GE, effectuate any “mass layoffs” within the meaning of the WARN Act; (xi) with respect to any Comcast Transferred Employee whose aggregate annual cash compensation exceeds $750,000, (A) enter into any Comcast Employee Agreement that has a term of more than three years (or materially amend any such Comcast Employee Agreement) or (B) extend the term of any Comcast Employee Agreement by more than three years (other than any extension that maintains the existing terms of such Comcast Employee Agreement; provided that any increase of annual salary to the extent permitted by Section 6.01(b)(xii) and any immaterial amendment of such terms, other than the term of such Comcast Employee Agreement, shall be deemed such a maintenance), in each case, other than Talent Contracts (with respect to which clause (xx) below shall govern); (xii) increase the annual salary of the president of the Comcast programming division or any of his direct reports by more than 15% in the aggregate, without the prior consent of GE (which consent shall not be unreasonably withheld), except as required by the terms of any existing agreement; (xiii) except in the ordinary course of business consistent with past practice, increase the cash bonus under any non-formula based bonus arrangement of the president of the Comcast programming division or any of his direct reports without the prior consent of GE (which consent shall not be unreasonably withheld); (xiv) other than as required by applicable Law or an existing agreement, without prior consultation with GE, adopt or amend any bonus plan or other variable compensation plan with a performance measurement period of greater than 12 months (excluding any period principally relating to an employee’s obligation to be employed on the payment date); (xv) other than as required by applicable Law or an existing agreement, without prior consultation with GE, adopt or amend any material Comcast Subsidiary Plan (other than a Multiemployer Plan) which is an employee pension or welfare benefit plan (as defined in ERISA) (including any similar plan for employees located primarily outside of the United States) which would materially increase the costs thereof, except (A) announced changes as of the date hereof, (B) in connection with or relating to the acquisition of a business or the commencement of business in a new town, city, state or similar location, or (C) the replacement of a similar plan; provided, however, that nothing in this Section 6.01(b)(xv) shall limit the ability of Comcast and its Affiliates to take actions, or to cause any of Comcast’s Subsidiaries to take actions, with respect to Comcast Parent Plans to the extent such actions relate generally to the employees of Comcast or any of its Affiliates that participate in such plans; (xvi) make any material change in any method of accounting or accounting policy used by the Contributed Comcast Businesses in the preparation of its financial statements, other than such changes as are required by U.S. GAAP or applicable Law or changes applying generally to Comcast and its consolidated Subsidiaries; (xvii) except for Taxes, which are governed exclusively by the Tax Matters Agreement, enter into any settlement or release with respect to any Action relating to the Contributed Comcast Businesses on terms reasonably expected to (x) result in a payment by the Comcast Transferors or Contributed Comcast Subsidiaries in excess of the greater of (A) $5 million and (B) the amount reserved on the Comcast Financial Statements with respect thereto or (y) impose ongoing limits on the conduct or operation of the Contributed Comcast Businesses; (xviii) forgive, cancel, compromise, waive, release, assign, sell, transfer or relinquish any Debts, rights, or receivables except for Debts, rights and receivables against Persons (other than Comcast or its Affiliates) in an aggregate amount not to exceed $15 million that are forgiven, cancelled, compromised, waived, released, assigned, sold, transferred or relinquished in the ordinary course of business consistent with past practice; (xix) (A) enter into any Related Party Comcast Contract, other than Related Party Comcast Contracts entered into in the ordinary course of business consistent with past practice, or renew any Related Party Comcast Contract, other than in the ordinary course consistent with past practice on terms substantially similar to those in effect immediately prior to such renewal or (B) amend, modify or terminate, or otherwise waive, release or assign any rights, claims or benefits of any Comcast Transferor or Contributed Comcast Subsidiary under, any Related Party Comcast Contract other than in the ordinary course of business consistent with past practice other than amendments and modifications to reflect changes to the terms thereof to the extent such changes are generally applicable to the businesses of Comcast and its Subsidiaries; (xx) enter into, modify, amend, renew or terminate any Designated Comcast Contract; (A) materially modify or amend, terminate (which shall not include expiration), enter into, renew or extend (other than pursuant to an existing extension option) the term of any lease listed on Section 5.17(a) of the Comcast Disclosure Letter or other leases or subleases or other Contracts with respect to real property, other than (x) leases or subleases with respect to real property in the ordinary course of business consistent with past practice for an aggregate rental payment over the term of such lease or sublease to be made on or after the Closing Date not to exceed $10 million and (y) Contracts with respect to the rental or lease of real property for the purpose of television production (or television programming for which production has not concluded), or (B) accept any payments under any Comcast Leased Real Property more than thirty days in advance or purchase or exercise any option for the purchase or lease of any real property other than in the ordinary course of business consistent with past practice; provided, however, that in the event that GE does not respond to Comcast’s written request for consent to any such item within ten (10) Business Days of receipt of such request, GE shall be deemed to have consented; (xxii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation or other reorganization; (xxiii) except in the ordinary course of business consistent with past practice and as commercially reasonable in the Comcast Transferors’ or Contributed Comcast Subsidiaries reasonable business judgment, fail to make all filings, pay all fees, and take all other similar actions necessary to obtain, maintain, perfect or renew any of the Comcast Owned Intellectual Property; (xxiv) amend any provision of their articles of incorporation or bylaws or other equivalent organizational documents or consent to or approve any amendment to any provision of the articles of incorporation or bylaws or other equivalent organizational documents of any Person that is not a Subsidiary of Comcast but in which (A) a Contributed Comcast Subsidiary holds an equity interest with a value in excess of $25 million or (B) a Comcast Transferor holds an equity interest with a value in excess of $25 million that constitutes a Contributed Comcast Asset; (A) enter into any Contract containing any provision to which the execution, delivery or performance of this Agreement or the other Transaction Agreements, or the consummation of the transactions contemplated hereby or thereby, would result in any Person having the right to receive any termination fee or liquidated damages or alter the terms of such Contract, or (B) knowingly take any action that would result in causing any Comcast Transferor or Contributed Comcast Subsidiary to fail to satisfy a standard (e.g., level of net worth) that if not satisfied would result in any Person party to such Contract having a termination or consent right under such Contract (which right such Person did not have prior to the taking of such action), or would change the basis on which any such Person is permitted to exercise a termination or consent right under such Contract, as a result of the execution, delivery or performance of this Agreement or the other Transaction Agreements or the consummation of the transactions contemplated hereby or thereby; or (xxvi) enter into any legally binding commitment with respect to any of the foregoing; provided, that in the event that NBCU fails to provide its consent to any action that could be considered a business opportunity within the scope of the Contributed Comcast Businesses for which Comcast has requested NBCU’s consent, NBCU hereby acknowledges and agrees that it may not seek to take advantage of, or participate in any manner in, such business opportunity. Nothing in Section 6.01(b)(v) or, to the extent not having an adverse effect on Newco or the Contributed Comcast Subsidiaries, Section 6.01(b)(xxii) shall be deemed to limit the transfer of Excluded Comcast Assets from the Comcast Transferors or Contributed Comcast Subsidi
Appears in 1 contract
Sources: Master Agreement (Comcast Corp)
Comcast. From the date of this Agreement through the Closing, except as required by applicable Law or any Governmental Authority, as otherwise expressly contemplated by the Transaction Agreements (including Section 6.05 and Section 6.14) and for matters identified in Section 6.01(b) of the Comcast Disclosure Letter, unless GE otherwise consents in writing in advance (which consent, except in the case of Section 6.01(b)(ii), shall not be unreasonably withheld, conditioned or delayed), Comcast will, and will cause the other Comcast Transferors and Contributed Comcast Subsidiaries to, (x) conduct the Contributed Comcast Businesses and operations thereof in the ordinary course of business consistent with past practice (including paying accounts payable and collecting accounts receivable in the ordinary course of business consistent with past practice), (y) use commercially reasonable efforts to preserve intact the business organizations of the Contributed Comcast Businesses, keep available the services of their executive officers and key Comcast Business Employees who are in good standing, maintain Comcast Owned Real Property and Comcast Leased Real Property in the ordinary course consistent with past practice, as appropriate in the reasonable good faith judgment of Comcast from time to time and preserve their current business relationships with the material customers, authors, producers, directors, actors, performers, announcers, suppliers, advertisers, distributors, business partners and others persons having business dealings with them and (z) with respect to the Contributed Comcast Businesses and Contributed Comcast Subsidiaries, not do any of the following:
(i) except in the ordinary course of business consistent with past practice, grant, permit or create any Lien (other than a Permitted Lien) on any Comcast Assets (whether tangible or intangible) with a value individually in excess of $10 million or, in the aggregate, in excess of $25 million;
(ii) (A) except for the Relevant Transactions, acquire (through Comcast or any of its Affiliates) by merger, consolidation, combination or amalgamation, or (B) acquire any equity interest in or assets of, any corporation, partnership, association or other business organization or division thereof, in each case, for consideration (including any Debt for borrowed money acquired or assumed in such transaction), in an amount greater than $100 million in any single transaction or $250 million in the aggregate (it being understood that each Relevant Transaction (other than the Relevant Transactions set forth on Section 6.22 of the Comcast Disclosure Letter) shall be applied toward such $250 million aggregate limitation); provided that such aggregate cap of $250 million shall not prohibit Comcast or any of its Subsidiaries’ ability to enter into any Library Underlying Agreement or to acquire any Library Literary Properties, in each case in the ordinary course of business and for consideration on a per transaction basis of $20 million or less (excluding participation and similar variable payments);
(iii) except for Debt assumed or incurred in a transaction permitted pursuant to Section 6.01(b)(ii), create, incur, guarantee or assume any Debt, issue any debt securities or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances (in each case, other than (A) in the ordinary course of business in amounts and on terms consistent with past practice as permitted under the Contracts set forth on Section 6.01(b)(iii) of the Comcast Disclosure Letter, (B) pursuant to intercompany borrowing arrangements (x) that will be repaid in full and terminated at Closing or (y) solely between or among Contributed Comcast Subsidiaries and (C) guarantees of (1) leases entered into by Comcast or any direct or indirect wholly owned Subsidiary of Comcast with respect to the Comcast Leased Real Property or (2) other obligations not exceeding $15 million in the aggregate);
(iv) issue or sell any additional shares of, or other equity interests in, any of the Comcast Transferors or Contributed Comcast Subsidiaries, or securities convertible into or exchangeable for such shares or equity interests (other than, in each case, the issuance or sale of shares of, or other equity interests in, one Contributed Comcast Subsidiary to another Contributed Comcast Subsidiary), or issue or grant any options, warrants, calls, subscription rights, profit participation rights (other than profit participation rights relating to television programs granted in the ordinary course of business consistent with past practice) or other rights of any kind, contingently or otherwise, to acquire such shares, other equity interests or securities, or any securities convertible into or exchangeable for such equity securities, or amend the terms of any such shares, equity interests or securities or options, warrants, calls, subscription rights or other rights outstanding, or effect any recapitalization, reclassification, stock split or like change in the capitalization of any Comcast Transferor or Contributed Comcast Subsidiary;
(v) license, sell, transfer, lease, sublease, or otherwise dispose of any Comcast Assets, Comcast Owned Real Property, Comcast Owned Intellectual Property or Comcast Technology, other than (i) sales or licensing of products, programming or other goods and services in the ordinary course of business consistent with past practice (including pursuant to Exploitation Agreements) and (ii) any other such transaction for consideration individually in excess of $100 million or, in the aggregate, in excess of $250 million;
(vi) [intentionally omitted]
(vii) recognize any new union, works council or other similar employee representative, except as required by applicable Law;; 80
(viii) without the prior consent of GE (which consent shall not be unreasonably withheld), enter into any Collective Bargaining Agreement, or renew or enter into a mid-term modification (excluding resolutions of grievances relating to or interpretations of a Collective Bargaining Agreement) of any existing Collective Bargaining Agreement, in each case, that applies to at least 500 Comcast Transferred Employees;
(ix) without prior consultation with GE (and, if applicable pursuant to Section 6.01(b)(viii), the prior consent of GE), enter into any Collective Bargaining Agreement, or renew or enter into a mid-term modification (excluding resolutions of grievances relating to or interpretations of a Collective Bargaining Agreement) of any existing Collective Bargaining Agreement, in each case, with the Screen Actors Guild; Directors Guild of America; Writers Guild of America; International Brotherhood of Teamsters; National Association of Broadcast Employees and Technicians-Communications Workers of America (NABET); International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada (IATSE); American Federation of Television and Radio Artists (AFTRA); Alliance of Canadian Cinema, Television and Radio Artists (ACTRA); or American Federation of Musicians and Actor’s Equity Association;
(x) without prior consultation with GE, effectuate any “mass layoffs” within the meaning of the WARN Act;
(xi) with respect to any Comcast Transferred Employee whose aggregate annual cash compensation exceeds $750,000, (A) enter into any Comcast Employee Agreement that has a term of more than three years (or materially amend any such Comcast Employee Agreement) or (B) extend the term of any Comcast Employee Agreement by more than three years (other than any extension that maintains the existing terms of such Comcast Employee Agreement; provided that any increase of annual salary to the extent permitted by Section 6.01(b)(xii) and any immaterial amendment of such terms, other than the term of such Comcast Employee Agreement, shall be deemed such a maintenance), in each case, other than Talent Contracts (with respect to which clause (xx) below shall govern);
(xii) increase the annual salary of the president of the Comcast programming division or any of his direct reports by more than 15% in the aggregate, without the prior consent of GE (which consent shall not be unreasonably withheld), except as required by the terms of any existing agreement;
(xiii) except in the ordinary course of business consistent with past practice, increase the cash bonus under any non-formula based bonus arrangement of the president of the Comcast programming division or any of his direct reports without the prior consent of GE (which consent shall not be unreasonably withheld);
(xiv) other than as required by applicable Law or an existing agreement, without prior consultation with GE, adopt or amend any bonus plan or other variable compensation plan with a performance measurement period of greater than 12 months (excluding any period principally relating to an employee’s obligation to be employed on the payment date);
(xv) other than as required by applicable Law or an existing agreement, without prior consultation with GE, adopt or amend any material Comcast Subsidiary Plan (other than a Multiemployer Plan) which is an employee pension or welfare benefit plan (as defined in ERISA) (including any similar plan for employees located primarily outside of the United States) which would materially increase the costs thereof, except (A) announced changes as of the date hereof, (B) in connection with or relating to the acquisition of a business or the commencement of business in a new town, city, state or similar location, or (C) the replacement of a similar plan; provided, however, that nothing in this Section 6.01(b)(xv) shall limit the ability of Comcast and its Affiliates to take actions, or to cause any of Comcast’s Subsidiaries to take actions, with respect to Comcast Parent Plans to the extent such actions relate generally to the employees of Comcast or any of its Affiliates that participate in such plans;
(xvi) make any material change in any method of accounting or accounting policy used by the Contributed Comcast Businesses in the preparation of its financial statements, other than such changes as are required by U.S. GAAP or applicable Law or changes applying generally to Comcast and its consolidated Subsidiaries;
(xvii) except for Taxes, which are governed exclusively by the Tax Matters Agreement, enter into any settlement or release with respect to any Action relating to the Contributed Comcast Businesses on terms reasonably expected to (x) result in a payment by the Comcast Transferors or Contributed Comcast Subsidiaries in excess of the greater of (A) $5 million and (B) the amount reserved on the Comcast Financial Statements with respect thereto or (y) impose ongoing limits on the conduct or operation of the Contributed Comcast Businesses;
(xviii) forgive, cancel, compromise, waive, release, assign, sell, transfer or relinquish any Debts, rights, or receivables except for Debts, rights and receivables against Persons (other than Comcast or its Affiliates) in an aggregate amount not to exceed $15 million that are forgiven, cancelled, compromised, waived, released, assigned, sold, transferred or relinquished in the ordinary course of business consistent with past practice;
(xix) (A) enter into any Related Party Comcast Contract, other than Related Party Comcast Contracts entered into in the ordinary course of business consistent with past practice, or renew any Related Party Comcast Contract, other than in the ordinary course consistent with past practice on terms substantially similar to those in effect immediately prior to such renewal or (B) amend, modify or terminate, or otherwise waive, release or assign any rights, claims or benefits of any Comcast Transferor or Contributed Comcast Subsidiary under, any Related Party Comcast Contract other than in the ordinary course of business consistent with past practice other than amendments and modifications to reflect changes to the terms thereof to the extent such changes are generally applicable to the businesses of Comcast and its Subsidiaries;
(xx) enter into, modify, amend, renew or terminate any Designated Comcast Contract;
(A) materially modify or amend, terminate (which shall not include expiration), enter into, renew or extend (other than pursuant to an existing extension option) the term of any lease listed on Section 5.17(a) of the Comcast Disclosure Letter or other leases or subleases or other Contracts with respect to real property, other than (x) leases or subleases with respect to real property in the ordinary course of business consistent with past practice for an aggregate rental payment over the term of such lease or sublease to be made on or after the Closing Date not to exceed $10 million and (y) Contracts with respect to the rental or lease of real property for the purpose of television production (or television programming for which production has not concluded), or (B) accept any payments under any Comcast Leased Real Property more than thirty days in advance or purchase or exercise any option for the purchase or lease of any real property other than in the ordinary course of business consistent with past practice; provided, however, that in the event that GE does not respond to Comcast’s written request for consent to any such item within ten (10) Business Days of receipt of such request, GE shall be deemed to have consented;
(xxii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation or other reorganization;
(xxiii) except in the ordinary course of business consistent with past practice and as commercially reasonable in the Comcast Transferors’ or Contributed Comcast Subsidiaries reasonable business judgment, fail to make all filings, pay all fees, and take all other similar actions necessary to obtain, maintain, perfect or renew any of the Comcast Owned Intellectual Property;
(xxiv) amend any provision of their articles of incorporation or bylaws or other equivalent organizational documents or consent to or approve any amendment to any provision of the articles of incorporation or bylaws or other equivalent organizational documents of any Person that is not a Subsidiary of Comcast but in which (A) a Contributed Comcast Subsidiary holds an equity interest with a value in excess of $25 million or (B) a Comcast Transferor holds an equity interest with a value in excess of $25 million that constitutes a Contributed Comcast Asset;
(A) enter into any Contract containing any provision to which the execution, delivery or performance of this Agreement or the other Transaction Agreements, or the consummation of the transactions contemplated hereby or thereby, would result in any Person having the right to receive any termination fee or liquidated damages or alter the terms of such Contract, or (B) knowingly take any action that would result in causing any Comcast Transferor or Contributed Comcast Subsidiary to fail to satisfy a standard (e.g., level of net worth) that if not satisfied would result in any Person party to such Contract having a termination or consent right under such Contract (which right such Person did not have prior to the taking of such action), or would change the basis on which any such Person is permitted to exercise a termination or consent right under such Contract, as a result of the execution, delivery or performance of this Agreement or the other Transaction Agreements or the consummation of the transactions contemplated hereby or thereby; or
(xxvi) enter into any legally binding commitment with respect to any of the foregoing; provided, that in the event that NBCU fails to provide its consent to any action that could be considered a business opportunity within the scope of the Contributed Comcast Businesses for which Comcast has requested NBCU’s consent, NBCU hereby acknowledges and agrees that it may not seek to take advantage of, or participate in any manner in, such business opportunity. Nothing in Section 6.01(b)(v) or, to the extent not having an adverse effect on Newco or the Contributed Comcast Subsidiaries, Section 6.01(b)(xxii) shall be deemed to limit the transfer of Excluded Comcast Assets from the Comcast Transferors or Contributed Comcast Subsidi
Appears in 1 contract
Sources: Master Agreement
Comcast. From the date of this Agreement through the Closing, except as required by applicable Law or any Governmental Authority, as otherwise expressly contemplated by the Transaction Agreements (including Section 6.05 and Section 6.14) and for matters identified in Section 6.01(b) of the Comcast Disclosure Letter, unless GE otherwise consents in writing in advance (which consent, except in the case of Section 6.01(b)(ii), shall not be unreasonably withheld, conditioned or delayed), Comcast will, and will cause the other Comcast Transferors and Contributed Comcast Subsidiaries to, (x) conduct the Contributed Comcast Businesses and operations thereof in the ordinary course of business consistent with past practice (including paying accounts payable and collecting accounts receivable in the ordinary course of business consistent with past practice), (y) use commercially reasonable efforts to preserve intact the business organizations of the Contributed Comcast Businesses, keep available the services of their executive officers and key Comcast Business Employees who are in good standing, maintain Comcast Owned Real Property and Comcast Leased Real Property in the ordinary course consistent with past practice, as appropriate in the reasonable good faith judgment of Comcast from time to time and preserve their current business relationships with the material customers, authors, producers, directors, actors, performers, announcers, suppliers, advertisers, distributors, business partners and others persons having business dealings with them and (z) with respect to the Contributed Comcast Businesses and Contributed Comcast Subsidiaries, not do any of the following:
(i) except in the ordinary course of business consistent with past practice, grant, permit or create any Lien (other than a Permitted Lien) on any Comcast Assets (whether tangible or intangible) with a value individually in excess of $10 million or, in the aggregate, in excess of $25 million;
(ii) (A) except for the Relevant Transactions, acquire (through Comcast or any of its Affiliates) by merger, consolidation, combination or amalgamation, or (B) acquire any equity interest in or assets of, any corporation, partnership, association or other business organization or division thereof, in each case, for consideration (including any Debt for borrowed money acquired or assumed in such transaction), in an amount greater than $100 million in any single transaction or $250 million in the aggregate (it being understood that each Relevant Transaction (other than the Relevant Transactions set forth on Section 6.22 of the Comcast Disclosure Letter) shall be applied toward such $250 million aggregate limitation); provided that such aggregate cap of $250 million shall not prohibit Comcast or any of its Subsidiaries’ ability to enter into any Library Underlying Agreement or to acquire any Library Literary Properties, in each case in the ordinary course of business and for consideration on a per transaction basis of $20 million or less (excluding participation and similar variable payments);
(iii) except for Debt assumed or incurred in a transaction permitted pursuant to Section 6.01(b)(ii), create, incur, guarantee or assume any Debt, issue any debt securities or assume, grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances (in each case, other than (A) in the ordinary course of business in amounts and on terms consistent with past practice as permitted under the Contracts set forth on Section 6.01(b)(iii) of the Comcast Disclosure Letter, (B) pursuant to intercompany borrowing arrangements (x) that will be repaid in full and terminated at Closing or (y) solely between or among Contributed Comcast Subsidiaries and (C) guarantees of (1) leases entered into by Comcast or any direct or indirect wholly owned Subsidiary of Comcast with respect to the Comcast Leased Real Property or (2) other obligations not exceeding $15 million in the aggregate);
(iv) issue or sell any additional shares of, or other equity interests in, any of the Comcast Transferors or Contributed Comcast Subsidiaries, or securities convertible into or exchangeable for such shares or equity interests (other than, in each case, the issuance or sale of shares of, or other equity interests in, one Contributed Comcast Subsidiary to another Contributed Comcast Subsidiary), or issue or grant any options, warrants, calls, subscription rights, profit participation rights (other than profit participation rights relating to television programs granted in the ordinary course of business consistent with past practice) or other rights of any kind, contingently or otherwise, to acquire such shares, other equity interests or securities, or any securities convertible into or exchangeable for such equity securities, or amend the terms of any such shares, equity interests or securities or options, warrants, calls, subscription rights or other rights outstanding, or effect any recapitalization, reclassification, stock split or like change in the capitalization of any Comcast Transferor or Contributed Comcast Subsidiary;
(v) license, sell, transfer, lease, sublease, or otherwise dispose of any Comcast Assets, Comcast Owned Real Property, Comcast Owned Intellectual Property or Comcast Technology, other than (i) sales or licensing of products, programming or other goods and services in the ordinary course of business consistent with past practice (including pursuant to Exploitation Agreements) and (ii) any other such transaction for consideration individually in excess of $100 million or, in the aggregate, in excess of $250 million;
(vi) [intentionally omitted]
(vii) recognize any new union, works council or other similar employee representative, except as required by applicable Law;
(viii) without the prior consent of GE (which consent shall not be unreasonably withheld), enter into any Collective Bargaining Agreement, or renew or enter into a mid-term modification (excluding resolutions of grievances relating to or interpretations of a Collective Bargaining Agreement) of any existing Collective Bargaining Agreement, in each case, that applies to at least 500 Comcast Transferred Employees;
(ix) without prior consultation with GE (and, if applicable pursuant to Section 6.01(b)(viii), the prior consent of GE), enter into any Collective Bargaining Agreement, or renew or enter into a mid-term modification (excluding resolutions of grievances relating to or interpretations of a Collective Bargaining Agreement) of any existing Collective Bargaining Agreement, in each case, with the Screen Actors Guild; Directors Guild of America; Writers Guild of America; International Brotherhood of Teamsters; National Association of Broadcast Employees and Technicians-Communications Workers of America (NABET); International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada (IATSE); American Federation of Television and Radio Artists (AFTRA); Alliance of Canadian Cinema, Television and Radio Artists (ACTRA); or American Federation of Musicians and Actor’s Equity Association;
(x) without prior consultation with GE, effectuate any “mass layoffs” within the meaning of the WARN Act;
(xi) with respect to any Comcast Transferred Employee whose aggregate annual cash compensation exceeds $750,000, (A) enter into any Comcast Employee Agreement that has a term of more than three years (or materially amend any such Comcast Employee Agreement) or (B) extend the term of any Comcast Employee Agreement by more than three years (other than any extension that maintains the existing terms of such Comcast Employee Agreement; provided that any increase of annual salary to the extent permitted by Section 6.01(b)(xii) and any immaterial amendment of such terms, other than the term of such Comcast Employee Agreement, shall be deemed such a maintenance), in each case, other than Talent Contracts (with respect to which clause (xx) below shall govern);
(xii) increase the annual salary of the president of the Comcast programming division or any of his direct reports by more than 15% in the aggregate, without the prior consent of GE (which consent shall not be unreasonably withheld), except as required by the terms of any existing agreement;
(xiii) except in the ordinary course of business consistent with past practice, increase the cash bonus under any non-formula based bonus arrangement of the president of the Comcast programming division or any of his direct reports without the prior consent of GE (which consent shall not be unreasonably withheld);
(xiv) other than as required by applicable Law or an existing agreement, without prior consultation with GE, adopt or amend any bonus plan or other variable compensation plan with a performance measurement period of greater than 12 months (excluding any period principally relating to an employee’s obligation to be employed on the payment date);
(xv) other than as required by applicable Law or an existing agreement, without prior consultation with GE, adopt or amend any material Comcast Subsidiary Plan (other than a Multiemployer Plan) which is an employee pension or welfare benefit plan (as defined in ERISA) (including any similar plan for employees located primarily outside of the United States) which would materially increase the costs thereof, except (A) announced changes as of the date hereof, (B) in connection with or relating to the acquisition of a business or the commencement of business in a new town, city, state or similar location, or (C) the replacement of a similar plan; provided, however, that nothing in this Section 6.01(b)(xv) shall limit the ability of Comcast and its Affiliates to take actions, or to cause any of Comcast’s Subsidiaries to take actions, with respect to Comcast Parent Plans to the extent such actions relate generally to the employees of Comcast or any of its Affiliates that participate in such plans;
(xvi) make any material change in any method of accounting or accounting policy used by the Contributed Comcast Businesses in the preparation of its financial statements, other than such changes as are required by U.S. GAAP or applicable Law or changes applying generally to Comcast and its consolidated Subsidiaries;
(xvii) except for Taxes, which are governed exclusively by the Tax Matters Agreement, enter into any settlement or release with respect to any Action relating to the Contributed Comcast Businesses on terms reasonably expected to (x) result in a payment by the Comcast Transferors or Contributed Comcast Subsidiaries in excess of the greater of (A) $5 million and (B) the amount reserved on the Comcast Financial Statements with respect thereto or (y) impose ongoing limits on the conduct or operation of the Contributed Comcast Businesses;
(xviii) forgive, cancel, compromise, waive, release, assign, sell, transfer or relinquish any Debts, rights, or receivables except for Debts, rights and receivables against Persons (other than Comcast or its Affiliates) in an aggregate amount not to exceed $15 million that are forgiven, cancelled, compromised, waived, released, assigned, sold, transferred or relinquished in the ordinary course of business consistent with past practice;
(xix) (A) enter into any Related Party Comcast Contract, other than Related Party Comcast Contracts entered into in the ordinary course of business consistent with past practice, or renew any Related Party Comcast Contract, other than in the ordinary course consistent with past practice on terms substantially similar to those in effect immediately prior to such renewal or (B) amend, modify or terminate, or otherwise waive, release or assign any rights, claims or benefits of any Comcast Transferor or Contributed Comcast Subsidiary under, any Related Party Comcast Contract other than in the ordinary course of business consistent with past practice other than amendments and modifications to reflect changes to the terms thereof to the extent such changes are generally applicable to the businesses of Comcast and its Subsidiaries;
(xx) enter into, modify, amend, renew or terminate any Designated Comcast Contract;
(A) materially modify or amend, terminate (which shall not include expiration), enter into, renew or extend (other than pursuant to an existing extension option) the term of any lease listed on Section 5.17(a) of the Comcast Disclosure Letter or other leases or subleases or other Contracts with respect to real property, other than (x) leases or subleases with respect to real property in the ordinary course of business consistent with past practice for an aggregate rental payment over the term of such lease or sublease to be made on or after the Closing Date not to exceed $10 million and (y) Contracts with respect to the rental or lease of real property for the purpose of television production (or television programming for which production has not concluded), or (B) accept any payments under any Comcast Leased Real Property more than thirty days in advance or purchase or exercise any option for the purchase or lease of any real property other than in the ordinary course of business consistent with past practice; provided, however, that in the event that GE does not respond to Comcast’s written request for consent to any such item within ten (10) Business Days of receipt of such request, GE shall be deemed to have consented;
(xxii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation or other reorganization;
(xxiii) except in the ordinary course of business consistent with past practice and as commercially reasonable in the Comcast Transferors’ or Contributed Comcast Subsidiaries reasonable business judgment, fail to make all filings, pay all fees, and take all other similar actions necessary to obtain, maintain, perfect or renew any of the Comcast Owned Intellectual Property;
(xxiv) amend any provision of their articles of incorporation or bylaws or other equivalent organizational documents or consent to or approve any amendment to any provision of the articles of incorporation or bylaws or other equivalent organizational documents of any Person that is not a Subsidiary of Comcast but in which (A) a Contributed Comcast Subsidiary holds an equity interest with a value in excess of $25 million or (B) a Comcast Transferor holds an equity interest with a value in excess of $25 million that constitutes a Contributed Comcast Asset;
(A) enter into any Contract containing any provision to which the execution, delivery or performance of this Agreement or the other Transaction Agreements, or the consummation of the transactions contemplated hereby or thereby, would result in any Person having the right to receive any termination fee or liquidated damages or alter the terms of such Contract, or (B) knowingly take any action that would result in causing any Comcast Transferor or Contributed Comcast Subsidiary to fail to satisfy a standard (e.g., level of net worth) that if not satisfied would result in any Person party to such Contract having a termination or consent right under such Contract (which right such Person did not have prior to the taking of such action), or would change the basis on which any such Person is permitted to exercise a termination or consent right under such Contract, as a result of the execution, delivery or performance of this Agreement or the other Transaction Agreements or the consummation of the transactions contemplated hereby or thereby; or
(xxvi) enter into any legally binding commitment with respect to any of the foregoing; provided, that in the event that NBCU fails to provide its consent to any action that could be considered a business opportunity within the scope of the Contributed Comcast Businesses for which Comcast has requested NBCU’s consent, NBCU hereby acknowledges and agrees that it may not seek to take advantage of, or participate in any manner in, such business opportunity. Nothing in Section 6.01(b)(v) or, to the extent not having an adverse effect on Newco or the Contributed Comcast Subsidiaries, Section 6.01(b)(xxii) shall be deemed to limit the transfer of Excluded Comcast Assets from the Comcast Transferors or Contributed Comcast SubsidiSubsidiaries
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