EXHIBIT 2.4
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of August 28, 2000 (this "Amendment"), to the Asset
Purchase Agreement (the "Original Agreement") between Viacom Inc. ("Seller")
and Comcast Corporation ("Purchaser") dated as of June 30, 2000, as amended by
Amendment Xx. 0 ("Xxxxxxxxx Xx. 0") dated as of July 28, 2000 between Seller
and Purchaser.
WITNESSETH:
WHEREAS, Seller and Purchaser have agreed that the Original Agreement, as
amended by Amendment No. 1 (as so amended, the "Agreement"), be amended in the
manner provided for in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have
the meanings given them in the Agreement. References in the Agreement to the
"Agreement" or "this Agreement" and other similar references shall be deemed
to refer to the Agreement and this Amendment.
2. Amendment of Section 1.01. Section 1.01 of the Agreement is amended by:
(a) deleting the definition of "Closing Working Capital" and inserting
the following definitions in its place:
"Closing HTS Working Capital" means HTS Working Capital as of the
close of business on the day immediately proceeding the Closing Date,
as reflected on the Final HTS WC Statement.
"Closing MSC Working Capital" means MSC Working Capital as of the
close of business on the day immediately preceding the Closing Date, as
reflected on the Final MSC WC Statement.";
(b) inserting the following definition immediately after the definition
of "HTS":
"HTS Acquired Assets" means the assets, properties and rights
described in clause (a) of the definition of "Acquired Assets" in
Section 1.01.";
(c) inserting the following definition immediately after the definition
of "HTS Services Agreement":
"HTS Working Capital" means, as of any date of determination, (a) the
sum of 65.702% of the following of HTS to the extent owned by HTS at
the Closing: (i) Cash, (ii) accounts receivable, and (iii) prepaid
sports rights and other current assets (not including deferred income
taxes) minus (b) the sum of 65.702% of the following of HTS: (i)
accounts payable, (ii) accrued expenses and (iii) all other current
liabilities except the current portion of both long term debt and
capital lease obligations, in each case as of such date, calculated in
accordance with GAAP; provided that (w) in no event shall any
determination of HTS Working Capital reflect liabilities (1) that are
obligations of Purchaser pursuant to this Agreement (other than
liabilities of HTS) or (2) that arise from actions taken by Purchaser
after the Closing, (x) HTS Working Capital shall include prepaid sports
rights and other current assets only to the extent HTS would reasonably
expect to realize the benefits thereof within one year of the date of
determination, (y) HTS Working Capital will not include Insurance
Proceeds that are related to long term assets of the HTS Business and
(z) HTS Working Capital shall be adjusted to account for any payments
or repayments occurring under Section 5.10 on the Closing Date.";
(d) inserting the following definition immediately after the definition
of "MSC Business":
"MSC Working Capital" means, as of any date of determination, (a) the
sum of the following of the MSC Business to the extent included in the
Acquired Assets: (i) Cash, (ii) accounts receivable and (iii) prepaid
sports rights and other current assets (not including deferred income
taxes) minus (b) the sum of the following of the MSC Business to the
extent included in the Assumed Liabilities: (i) accounts payable, (ii)
accrued expenses, and (iii) all other current liabilities except the
current portion of both long term debt and capital lease obligations,
in each case as of such date, calculated in accordance with GAAP;
provided that (w) in no event shall any determination of MSC Working
Capital reflect liabilities (1) that are obligations of Purchaser
pursuant to this Agreement (other than Assumed Liabilities) or (2) that
arise from actions taken by Purchaser after the Closing, (x) MSC
Working Capital shall include prepaid sports rights and other current
assets only to the extent Purchaser would reasonably expect to realize
the benefits thereof within one year of the date of determination, (y)
MSC Working Capital will not include Insurance Proceeds that are
related to long term assets of the Business and (z) MSC Working Capital
shall be adjusted to account for any payments or repayments occurring
under Section 5.10 on the Closing Date.";
(e) deleting the definition of "Target Working Capital"; and
(f) deleting the definition of "Working Capital."
3. Amendment of Section 1.02. Section 1.02 of the Agreement is amended as
follows:
The following terms are hereby added to Section 1.02:
Term Section
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Amendment No. 1 Preamble
Amendment Preamble
ARC Purchase Agreement 7.03
Estimated Closing HTS Working Capital 2.08B(a)
Estimated Closing MSC Working Capital 2.08C(a)
Final MSC Working Capital Statement 2.08C(a)
Final HTS Working Capital Statement 2.08B(a)
HTS Partnership Interest Representations 9.02(d)
HTS Accounting Firm 2.08B(a)
HTS Notice of Disagreement 2.08B(a)
Initial MSC Working Capital Statement 2.08C(a)
Initial HTS Working Capital Statement 2.08B(a)
MSC Notice of Disagreement 2.08C(a)
MSC Accounting Firm 2.08C(a)
MSC Purchase Price 2.07(a)
MSC Consideration 2.10(a)
Section 3.07(b) Representations 9.02(d)
Submitted MSC Notice of Disagreement 2.08C(a)
Submitted HTS Working Capital Statement 2.08B(a)
Submitted MSC Working Capital Statement 2.08C(a)
Submitted HTS Notice of Disagreement 2.08B(a)
The following terms are hereby deleted from Section 1.02:
Consideration
Estimated Closing Working Capital
Final Working Capital Statement
Initial Working Capital Statement
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Notice of Disagreement
Submitted Notice of Disagreement
Submitted Working Capital Statement
4. Amendment of Section 2.06. Clause (a) of Section 2.06 of the Agreement is
deleted in its entirety and replaced with the following:
"(a) (i) payment of an amount equal to the excess, if any, of $9,966,889
over the Estimated Closing HTS Working Capital, by wire transfer in
immediately available funds to an account designated by Purchaser in a
written notice to Seller, (ii) payment of an amount equal to the excess, if
any, of $6,689,210 over the Estimated Closing MSC Working Capital, by wire
transfer in immediately available funds to an account designated by
Purchaser in a written notice to Seller and (iii) a receipt for payment by
Purchaser of any amounts payable under Section 2.07(a);"
5. Amendment of Section 2.07. Clause (a) of Section 2.07 of the Agreement is
deleted in its entirety and replaced with the following:
"(a) (i) payment of $18,000,000 (the "MSC Purchase Price"), by wire
transfer in immediately available funds to Seller's Account, (ii) payment
of an amount equal to the excess, if any, of the Estimated Closing HTS
Working Capital over $9,966,889, by wire transfer in immediately available
funds to Seller's Account, (iii) payment of an amount equal to the excess,
if any, of the Estimated Closing MSC Working Capital over $6,689,210, by
wire transfer in immediately available funds to Seller's Account, and (iv)
a receipt for payment by Seller of any amounts payable under Section
2.06(a);"
6. Amendment of Section 2.08. Section 2.08 of the Agreement is deleted in
its entirety and replaced with the following:
"Section 2.08A. Purchase Consideration. The purchase consideration for
(i) the HTS Acquired Assets consists of the execution and delivery of the
Distribution Agreement by Purchaser, the execution and delivery of the
Shared Services Agreement (to the extent it relates to the HTS Business) by
Purchaser and any amounts payable under clause (a)(ii) of Section 2.07 and
(ii) the MSC Assets consists of the MSC Purchase Price, any amounts payable
under clause (a)(iii) of Section 2.07, the execution and delivery of the
Lease by Purchaser and the execution and delivery of the Shared Services
Agreement (to the extent it relates to the MSC Business) by Purchaser.
Section 2.08B. HTS Working Capital Adjustment. (a) No less than two
Business Days prior to the Closing Date, Seller shall deliver a notice to
Purchaser which sets forth Seller's good faith estimate of HTS Working
Capital as of the close of business on the day immediately preceding the
Closing Date (the "Estimated Closing HTS Working Capital"). Such notice
shall be accompanied by appropriate information supporting the Estimated
Closing HTS Working Capital. Within 60 days after the Closing Date,
Purchaser shall prepare and deliver to Seller a statement setting forth HTS
Working Capital as of the close of business on the day immediately
preceding the Closing Date (the "Initial HTS WC Statement"). During the 30
days immediately following Seller's receipt of the Initial HTS WC
Statement, Seller will be permitted to review Purchaser's and its auditors'
working papers, if any, relating to the Initial HTS WC Statement, all of
Purchaser's books and records with respect thereto and such other books and
records of Purchaser as Seller may reasonably request in connection with
such review and shall be provided with reasonable access to individuals
involved in preparing or reviewing the Initial HTS WC Statement. The
Initial HTS WC Statement shall become final and binding upon the parties
(and shall thereupon become the Final HTS WC Statement) on the 31st day
following receipt thereof by Seller, unless Seller shall provide a written
notice (the "HTS Notice of Disagreement") of its disagreement with the
Initial HTS WC Statement to Purchaser prior to such date. Any HTS Notice of
Disagreement shall specify in reasonable detail the nature of any
disagreement so asserted. If a timely HTS Notice of Disagreement is
received by Purchaser, then the Initial HTS WC Statement (as revised in
accordance with clause (x) or (y) below) shall become final and binding
upon the parties, and shall thereupon become the "Final HTS WC Statement",
on the earlier of (x) the date on which the parties hereto resolve in
writing any differences they have with
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respect to any matter specified in the HTS Notice of Disagreement, and
agree upon a Final HTS WC Statement, or (y) the date on which an Accounting
Firm (the "HTS Accounting Firm"), which may be a firm other than the MSC
Accounting Firm, finally resolves in writing any matters with respect to
the Initial HTS WC Statement that are properly in dispute by providing each
of the parties hereto with a Final HTS WC Statement. During the 30 days
immediately following the delivery of an HTS Notice of Disagreement, Seller
and Purchaser shall seek in good faith to resolve in writing (and thereby
agree on a Final HTS WC Statement) any differences which they may have with
respect to any matter specified in the HTS Notice of Disagreement. During
such period, Purchaser shall have access to the working papers of Seller
and its auditors, if any, prepared in connection with Seller's preparation
of the HTS Notice of Disagreement and Purchaser shall be provided with
reasonable access to individuals involved in preparing or reviewing the HTS
Notice of Disagreement. At the end of such 30-day period, Seller and
Purchaser shall submit to the HTS Accounting Firm for review and resolution
any and all matters which remain in dispute and which were properly
included in the HTS Notice of Disagreement (the Initial HTS WC Statement,
as it may be modified by Purchaser prior to submission to the HTS
Accounting Firm, being the "Submitted HTS WC Statement", and the HTS Notice
of Disagreement, as it may be modified by Seller prior to submission to the
HTS Accounting Firm, being the "Submitted HTS Notice of Disagreement"),
and, within 30 days of its receipt of the Submitted HTS WC Statement and
the Submitted HTS Notice of Disagreement, the HTS Accounting Firm shall
make a final determination, binding on the parties hereto, of HTS Working
Capital as of the close of business on the day immediately preceding the
Closing Date. The HTS Accounting Firm's determination as to any given
matter in dispute shall be within the range for such matter set forth in
the Submitted HTS WC Statement, on the one hand, and the Submitted HTS
Notice of Disagreement, on the other hand. Purchaser and Seller shall share
equally the cost of the HTS Accounting Firm's review and determination.
(b) (i) If Closing HTS Working Capital exceeds Estimated Closing HTS
Working Capital, then Purchaser shall pay to Seller an amount equal to such
excess or (ii) if Estimated Closing HTS Working Capital exceeds Closing HTS
Working Capital, then Seller shall pay to Purchaser an amount equal to such
excess, in either case within three Business Days after the Final HTS WC
Statement becomes final and binding on the parties hereto, together with
interest thereon from the Closing Date to the date of payment at the rate
of interest publicly announced by Citibank, N.A. in New York, New York from
time to time as its base rate. If Closing HTS Working Capital is equal to
Estimated Closing HTS Working Capital, then neither Purchaser nor Seller
shall owe any amount to the other party pursuant to this Section 2.08B.
(c) Purchaser agrees that following the Closing through the date that
payment, if any, is made pursuant to Section 2.08B(b), it will not take any
actions with respect to any accounting books, records, policy or procedure
on which the Initial HTS WC Statement is to be based that would make it
impossible or impracticable to calculate HTS Working Capital in the manner
and utilizing the methods required hereby.
Section 2.08C. MSC Working Capital Adjustment. (a) No less than two
Business Days prior to the Closing Date, Seller shall deliver a notice to
Purchaser which sets forth Seller's good faith estimate of MSC Working
Capital as of the close of business on the day immediately preceding the
Closing Date (the "Estimated Closing MSC Working Capital"). Such notice
shall be accompanied by appropriate information supporting the Estimated
Closing MSC Working Capital. Within 60 days after the Closing Date,
Purchaser shall prepare and deliver to Seller a statement setting forth MSC
Working Capital as of the close of business on the day immediately
preceding the Closing Date (the "Initial MSC WC Statement"). During the 30
days immediately following Seller's receipt of the Initial MSC WC
Statement, Seller will be permitted to review Purchaser's and its auditors'
working papers, if any, relating to the Initial MSC WC Statement, all of
Purchaser's books and records with respect thereto and such other books and
records of Purchaser as Seller may reasonably request in connection with
such review and shall be provided with reasonable access to individuals
involved in preparing or reviewing the Initial MSC WC Statement. The
Initial MSC WC Statement shall become final and binding upon the parties
(and shall thereupon become the Final MSC WC Statement) on the 31st day
following receipt thereof by Seller, unless Seller shall provide a written
notice (the "MSC Notice of Disagreement") of its disagreement with the
Initial MSC
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WC Statement to Purchaser prior to such date. Any MSC Notice of
Disagreement shall specify in reasonable detail the nature of any
disagreement so asserted. If a timely MSC Notice of Disagreement is
received by Purchaser, then the Initial MSC WC Statement (as revised in
accordance with clause (x) or (y) below) shall become final and binding
upon the parties, and shall thereupon become the "Final MSC WC Statement",
on the earlier of (x) the date on which the parties hereto resolve in
writing any differences they have with respect to any matter specified in
the MSC Notice of Disagreement, and agree upon a Final MSC WC Statement, or
(y) the date on which an Accounting Firm (the "MSC Accounting Firm"), which
may be a firm other than the HTS Accounting Firm, finally resolves in
writing any matters with respect to the Initial MSC WC Statement that are
properly in dispute by providing each of the parties hereto with a Final
MSC WC Statement. During the 30 days immediately following the delivery of
an MSC Notice of Disagreement, Seller and Purchaser shall seek in good
faith to resolve in writing (and thereby agree on a Final MSC WC Statement)
any differences which they may have with respect to any matter specified in
the MSC Notice of Disagreement. During such period, Purchaser shall have
access to the working papers of Seller and its auditors, if any, prepared
in connection with Seller's preparation of the MSC Notice of Disagreement
and Purchaser shall be provided with reasonable access to individuals
involved in preparing or reviewing the MSC Notice of Disagreement. At the
end of such 30-day period, Seller and Purchaser shall submit to the MSC
Accounting Firm for review and resolution any and all matters which remain
in dispute and which were properly included in the MSC Notice of
Disagreement (the Initial MSC WC Statement, as it may be modified by
Purchaser prior to submission to the MSC Accounting Firm, being the
"Submitted MSC WC Statement", and the MSC Notice of Disagreement, as it may
be modified by Seller prior to submission to the MSC Accounting Firm, being
the "Submitted MSC Notice of Disagreement"), and, within 30 days of its
receipt of the Submitted MSC WC Statement and the Submitted MSC Notice of
Disagreement, the MSC Accounting Firm shall make a final determination,
binding on the parties hereto, of MSC Working Capital as of the close of
business on the day immediately preceding the Closing Date. The MSC
Accounting Firm's determination as to any given matter in dispute shall be
within the range for such matter set forth in the Submitted MSC WC
Statement, on the one hand, and the Submitted MSC Notice of Disagreement,
on the other hand. Purchaser and Seller shall share equally the cost of the
MSC Accounting Firm's review and determination.
(b) (i) If Closing MSC Working Capital exceeds Estimated Closing MSC
Working Capital, then Purchaser shall pay to Seller an amount equal to such
excess or (ii) if Estimated Closing MSC Working Capital exceeds Closing MSC
Working Capital, then Seller shall pay to Purchaser an amount equal to such
excess, in either case within three Business Days after the Final MSC WC
Statement becomes final and binding on the parties hereto, together with
interest thereon from the Closing Date to the date of payment at the rate
of interest publicly announced by Citibank, N.A. in New York, New York from
time to time as its base rate. If Closing MSC Working Capital is equal to
Estimated Closing MSC Working Capital, then neither Purchaser nor Seller
shall owe any amount to the other party pursuant to this Section 2.08C.
(c) Purchaser agrees that following the Closing through the date that
payment, if any, is made pursuant to Section 2.08C(b), it will not take any
actions with respect to any accounting books, records, policy or procedure
on which the Initial MSC WC Statement is to be based that would make it
impossible or impracticable to calculate MSC Working Capital in the manner
and utilizing the methods required hereby."
7. Amendment of Section 2.10. Section 2.10 of the Agreement is deleted in
its entirety and replaced with the following:
"Section 2.10. Allocation of Consideration. (a) Seller and Purchaser
shall endeavor to agree after the Closing Date on an allocation of the
consideration received by Seller in respect of the MSC Assets under Section
1001(b) of the Code (the "MSC Consideration") among the MSC Assets in the
manner required by Section 1060 of the Code and the Treasury regulations
thereunder (the "Allocation"). Seller and Purchaser agree to file all Tax
Returns and related forms (including without limitation Form 8594) in
accordance with the Allocation and shall not make any inconsistent written
statement or take any inconsistent position on any Tax Return, in any
refund claim, or during the course of any Internal Revenue Service or other
Tax audit. Each party shall deliver to the other party a copy of its Form
8594 relating to
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this transaction not later than 30 days prior to the filing of their
respective Forms 8594 and shall notify the other party if it receives
notice that the Internal Revenue Service proposes any adjustment to the
Allocation. Notwithstanding the foregoing provisions of this Section 2.10,
if Seller and Purchaser are unable to agree on an allocation of the MSC
Consideration within 30 days following the Closing Date, each shall be
permitted to allocate the MSC Consideration among the MSC Assets, and to
take any related actions and positions, as it deems appropriate.
(b) If the parties agree on an allocation of the MSC Consideration and if
an adjustment is made pursuant to Section 2.08C with respect to the MSC
Assets, the Allocation shall be adjusted in accordance with Section 1060 of
the Code and as mutually agreed by Purchaser and Seller. Purchaser and
Seller agree to file any additional information return required to be filed
pursuant to Section 1060 of the Code and to treat the Allocation as
adjusted in the manner described in Section 2.10(a)."
8. Amendment of Section 2.12. Section 2.12 of the Agreement is deleted in
its entirety and replaced with the following:
Section 2.12. Value of Distribution Agreement. The parties will, between
the date hereof and Closing, agree in good faith on the value of the Shared
Services Agreement (to the extent it relates to the HTS Business) and the
Distribution Agreement, provided that such value shall in no event be less
than $132,000,000 or more than $142,000,000.
9. Amendment of Section 3.21. Section 3.21 of the Agreement is deleted in
its entirety and replaced with the following:
"Section 3.21. Receivables. All accounts, notes receivable and other
receivables included in the Closing HTS Working Capital or the Closing MSC
Working Capital will have arisen in the ordinary course of business."
10. Addition of Section 7.03. The following Section 7.03 is hereby added to
the Agreement:
"Section 7.03. Tag Conditions. If the closing of the transactions
contemplated by the Purchase Agreement dated as of August 28, 2000 (the
"ARC Purchase Agreement") among Purchaser, ARC and Fox Entertainment Group,
Inc. does not occur, the parties agree that the conditions set forth in
Section 7.01(f) and 7.02(g) will not be considered to have been satisfied
solely as a result of the execution and delivery of the ARC Purchase
Agreement and the other agreements entered into in connection therewith.
11. Amendment of Section 9.02. Section 9.02 of the Agreement is amended by
inserting the following new clause immediately after clause (c):
"(d) If the closing of the transactions under the ARC Purchase Agreement
occurs, then with respect to Losses resulting from or in connection with
the inaccuracy as of the date of this Agreement or the Closing Date of any
representations and warranties made by Seller in or pursuant to this
Agreement or in any instrument or certificate delivered by Seller at the
Closing in accordance with this Agreement, to the extent such
representations and warranties relate to HTS (including the HTS Business,
the HTS Assets, the Liabilities of HTS, the HTS Partnership Agreement and
the HTS Business Employees, but not including the HTS Partnership Interest
(to the extent such representations and warranties relate to the HTS
Partnership Interest, the "HTS Partnership Interest Representations")) but
not including the representations and warranties made by Seller in Section
3.07(b) (to the extent relating to the representations and warranties in
Section 3.07(b), the "Section 3.07(b) Representations"), Viacom's
indemnification obligation under Section 9.02(a)(i) shall not be in respect
of 100% of such Losses but shall instead be in respect of 65.702% of such
Losses. For the avoidance of doubt, notwithstanding that the closing of the
transactions under the ARC Purchase Agreement occurs, Viacom's
indemnification obligation under Section 9.02(a)(i) with respect to Losses
resulting from or in connection with the HTS Partnership Interest
Representations and the Section 3.07(b) Representations shall continue to
be in respect of 100% of such Losses."
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12. Amendment of Exhibit. Exhibit C to the Agreement is deleted in its
entirety and replaced by Exhibit C to this Amendment.
13. Representations and Warranties of the Seller. Seller hereby represents
and warrants to Purchaser that the execution, delivery and performance by
Seller of this Amendment and the consummation by Seller of the transactions
contemplated hereby are within Seller's corporate powers, and have been duly
authorized by all requisite corporate action. This Amendment constitutes a
valid and binding agreement of Seller.
14. Representations and Warranties of Purchaser. Purchaser hereby represents
and warrants to Seller that the execution, delivery and performance by
Purchaser of this Amendment and the consummation by Purchaser of the
transactions contemplated hereby are within Purchaser's corporate powers and
have been duly authorized by all requisite corporate action. This Amendment
constitutes a valid and binding agreement of Purchaser.
15. Miscellaneous.
(a) This Amendment is limited to the matters expressly set forth herein.
Except as expressly amended, modified and supplemented hereby, the
provisions of the Agreement are and shall remain in full force and effect.
(b) This Amendment shall be construed in accordance with and governed by
the law of the State of New York.
(c) This Amendment may be signed in counterparts, each of which shall be
an original, but all of which together constitute one and the same
agreement. This Amendment shall become effective when each party hereto
shall have received counterparts hereof signed by all of the other parties
hereto.
(d) Purchaser acknowledges and agrees that the existence of the lawsuit
docketed in the Court of Chancery of the State of Delaware in and for New
Castle County as Civil Action No. 18164-NC will not constitute a breach of
the representations and warranties set forth in Section 3.09 of the
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their duly authorized officers as of the day and year first above
written.
VIACOM INC.
/s/ Xxxxxxx Xxxxxxxx
By: _________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
COMCAST CORPORATION
/s/ Xxx Xxxxx
By: _________________________________
Name: Xxx Xxxxx
Title: Vice President,
Programming and Investment
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