Viacom International, Inc. et al v. Youtube, Inc. et al

Filing 219

DECLARATION of William M. Hohengarten (Part Nine) Ex. 287 - Part 3 in Support re: 176 MOTION for Partial Summary Judgment /Viacom's Notice of Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense.. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 287 - Part 4, # 2 Exhibit 287 - Part 5, # 3 Exhibit 287 - Part 6, # 4 Exhibit 287 - Part 8, # 5 Exhibit 287 - Part 8, # 6 Exhibit 288, # 7 Exhibit 289, # 8 Exhibit 290, # 9 Exhibit 291, # 10 Exhibit 292, # 11 Exhibit 293, # 12 Exhibit 294, # 13 Exhibit 295, # 14 Exhibit 296, # 15 Exhibit 297, # 16 Exhibit 298)(Kohlmann, Susan)

From: Sent:
To:
Cc:

Fenton, Frederic D -:[e-mail]).

Sunday, October 8, 2006 9:58 PM

Scarorou Chris

Kirsten -:[e-mail]?; [e-mail]

Subject: Attach:

RE: Engagement Lettr

Document.pdf

Chrs,
Attched pleae find an executed copy of the engagement letter. Please email or fax a copy countersigned by Credit Suisse to my attention at
your convenience.
you could also please send me a draf of the fairness opinion for our review once it has been prepared, that would be greatly appreciated. If

Regards, Ric
--Orginal Message----

From: Scarborough Chris (mailto:

To: David Drummond_); Fenton, Frederic D; Hinman,
Willam
Cc: Boutros, George; Dunca, Storm Subject: Engagement Letter
David,
At George's reqest, attched please find the engagement letter which we

Sent: Sunday, Octber~

believe reflects the final busine~eement. You ca fax an executed version back to me at__ Please do not hesitate to
cal me, Storm or George with any questions, and we apprecate the
opportnity to work with you and the rest of

the "Green" team on this

very important trsaction.

Best regards,

Chrs

Chrs Scarborough

Mergers & Acquisitions
Credt Suisse

650 Californa Street San Fracisco, CA 94108
Tel:

:IY\C&i %S_
EXHIBIT NO'i:
A. IGNACIO IlOWAAO CS ,RPR

Î' l(p .

HIGHLY CONFIDENTIAL

CSSU 002845

Fax:

** PLEASE NOTE MY EM . ll~ ..: ..:iˇ GEDTO

Please access the attched hyperlink for an importt electonic
communications disclaimer:

htt://ww.credit-suisse.com/egal/en/disclaimer_emailjb.html

HIGHLY CONFIDENTIAL

CSSU 002846

Octobe 6, 206

Goolelnc.
1600 Amphiteatre Parkay Mountain View, CA 943
Attention:
David:

David Drummond
Senior Vice Prident, Corporate Development

Der

This confirms our ageement that Google Inc. (the "Company" or "you") has engag Credit
Suisse Securites (USA) LLC ("Credit Suisse", "we" or .usj to underake an analysis and render
an opinion (th .Opinion") to the Board of Direcors of the Company as to th fairss, frm a

financial point of view, of the considertin to be paid by the Company in the propoed
Transactn (as defined below). You agree and acknowledg that th nature and scope of our
analysis as well as the form and substance of our Opinion shall be such as we deem appropate.

If requeted by you, our Opinion shall be delivere in wrng.
You have informed us tht th Company is considerng a prposed trnsactn (the
"Transction.) providing for the merger of YouTube, Inc. (the "Target",wih a subsidiary of th

Company pursuant to whic th Targt will bee a wholly owned subsidiary of th Company.

Secion 1. Compeon: Expense.
As copensation for our serce herender, the Company agree to pay Credit Suisse a fee of
$2,500,000, payable upon the rendering of our Opinion (regrdless of th conclusion reache

therein).
In addition to the compensation payable pursuant to this Seon 1, th Company agee, upon request, to reimburse Credit Suiss promptly for reasonable expnse incurred by Creit Suise,
including the fees and expnses of it legl counsel, reultng frm or ariing out of this

engagement or the peormanc thereof or any other adisory assignments underken by Credit
Suisse afr th date heeof at the Company's request All fee and expense payable undr this

agreement are payable in U.S. dolrs in immediately available funds. All fees, expenses and

/

other payments under this agreement shall be paid wihou gMng effect to any wiholding or
deduction of any ta or simUar governmental assessment.

Secion 2. Informatin.
Except as required by law or reglaton, no advi or Opinion rendered by Credit Suisse, whether

fonal or infrmal, may be disclose, in whole or In part or summarid, excerpted from or othere referred to wiout our prr wren cosent. In additon, neiter Credit Suis nor the
ter of this enggeent may be otherw refered to wiut Credit Suisse's poor wrtten

expiration or terminaon of this agreement or Credit Suisse's engagement hereunder. Notwthtanding anything to th contrry containe in this agement, th Company (and ea emplyee,
reprentatie or othe agent of the Company) may dislose to any an all perss, without

const The obligtins of th Company pursuant to this paraph shall survive any

limittion of any kind, the ta treatment and ta stcture of any trnsction contemplated by this
agreement and all materals of any kind (including opinions or other ta analyes) that are provided to the Company relating to such ta trtment and strre.

In conecon wi Credit Suise's engagment, th Company wil furnish, or cause to be
furnished to, Credit Suisse all infomation conceing the Company and, to th extent available to

the Company, Tar tht Credit Suise reaably deems necear or appropriate and will
provi Crit Suise with acc to offic, directors, employees, accntants, counsel and

HIGHLY CONFIDENTIAL

cSSU 002847

other represntaties (collecely, the "Represntaties") of the Company and, as prctble,
the Target. In performin our sei hereunde, Creit Suise shall be entiled to rel wiout

investition upon all available inforation, including informatin supplie to us by or on behalf of
th Company, th Target or their respecte Representaes and shall not be responsible for the

accuracy or completeness of, or have any obligtion to veri, the same or conduct any appraisal of assets or liabilites. Except as required by law or regulation or judicial procs, all non-public

Inforation concerning the Company or the Targt provided to Credit Suisse will be held
cofidentially and Credit Suisse shaH not disclse such informatin to any third part (othr than

legal counsel) without the Company's Wntten coent.
Seio 3. Public Announcments.

Credit SUisse may. at its option and expnse and after announceent by the Company of a

Transation, plac announcements and advertsements or otherwse publicie the Traaction
and Credit Suisse's role in It (which may include th reproducton of the Company's logo and a hyperink to the Company's website on Credit Suisse's Internet Website); provided, however, that

the Company consents pror to each use of such publicit; provided, furter, that the Company
herby consents to Credit Suisse's use of it customary tombstone announcement in pitch

books.
Setion 4. Indemnity.

As Creit Suisse will be acting on behalf of the Company in connetion wi this engagement, the

Company and Credit Suis agree to the indemnit provisions and othr matters set forth in Annex A which is incrprated by reference into this agreement and is an integral part hereof. The obligations of th Company pursuant to Annex A shal survive any expiration or termination
of this agreement or Credit Suisse's engagement hereunder.
Secton 5. Termination.

Credit Suise's engement hereunder may be terminated at any time by eithe Credit Suisse or the Company upon ten days' prior written notice theref to the other part provid, however,
that no teination of Credit Suiss's engagement hereunder shall affect the Company's
obligations to pay the fee and expenses payable or incurred hereunder prior to the terination of

Credit Suisse's engagement.
Secton 6. Acknowledgements.
Credit Suis is a full service secriti firm engaged in securites trading and brokerae actvities

8$ well as providing investment banking and other financial se. In the ordina corse of

busines, Credt Suise and it afliates may acquire. hold or sel, for thir own accnts and the acunt of customers, equit, debt and other securites and financial instrments (including bank

loans and oter obligatons) of the Company, Tart and any other company that may be
Involved in the trnsns and other matter contemplate by this agreement, as well as provide

investment baking and other financial service to such copanies, In additon, Credit Suise
and it afliates and cein of their repetive employee, including members of the team
perfing this engagement, as well as cein priate equit funds assocated or affiated Wih

Credit SUisse In which thy may have financial interests, may from time-rotime acquire, hold or make direc or indirec investments, in or otherwse finan a wide varety of companies. including

views may difr frm those of Credit Suisse's investmnt banking divion.

the Target, other potental purchasers and thir respectie affliate. Credit Suis has adopted policies and procures designed to preserve the independenc of it resrch analys whose

Secon 7. Misllaneous.

HIGHLY CONFIDENTIAL

CSSU 002848

The Company acknowledges and agree tht Credit Suisse has ben retained solely to render the Opinion wih respect to the Transaction and that no fiduciary or agency relationship between the Company and Credit Suisse ha been crted in respect of this agreement or Credit Suiss's engagement hereunde, regardles of whether Credit Suisse has advised or is advising the Company on other matters. In connecon with this engagement, Credit Suisse is acng as an

independent contractor, wi obligations owing solely to the Company and not in any other
capa. Except as contemplate by Annex A, this agreement is not intendd to confer rights upo any persons not a par hereto (incuding seuri holders, employee or creditor of the Company).

The Copany acnowledg and agree that Credit Suis and its affliates may be engaged in a
broad range of transactins involvng interests that difer from those of the Company and that

Credit SUis has no obligation to disclose such inteests and trnSáctions to the Company. The
Company waives, to the fullest extent permited by law, any claims it may have based on any

acal or potential coflicts of interest that may arise or result from Credit Suisse's engagement

by the Company hereunder or any claims it may have against Credit Suisse for breah of fiduciry duty or alleed breach of fiduciary dut and agrees tht Credit Suisse shall have no liabilit (wheth direc or indirect) to the Company In respet of such a fiduciry dut claim or to
any per assertng a fiduciar dut claim on behalf of or In right of the Company, including the

Company's stockholder, employee or creditors.

The Company understands that Credt Suise is not undertking to provide any legl, accunting

or ta adv in connecon wi this agreement. Credit Suisse shall not be responible for the
underlyng busine decision of th Company to effec a Transacton or for the advice or seivice provied by any of the Company's othr advisors or contrctors. The Company shall be soely
responsible for the comercial assumptions on which th Opinion or any valuaton advice
provied by Creit Suisse is based. This agreement shall be binding upon an inure to the benefit of the Company, Credit Suisse and their respee succsor. if any term. provision,

covenant or restrcton herein (including Annex A) is held by a court of copetent jurisdiction to
be invalid, void or unenforceble or aginst public policy. the remainder of th terms, proviions and restrctons cotained heein shall remain In full force and efect and shall in no way be modifed or invalidated.
Section 8. Govering law; Juridicion: Waiver of JUry TriaL.

All aspe of the relationship created by this agreent or the engagement hereunder and any othr agreements relating to th engagement hereunder shall be govern by and costed in accrdance wih th law of the State of New York, applicable to contcts made and to be
performed therein and, in connecton therewit, the pares hereto consent to th exclusive
jurisdictin of th Supreme Court of the State of New York or th United States Distri Court for the Souther Distrct of New York, in eah case siting in New York County and agrees to venue

in such courts. Notwhstanding the foregoing, solely for purpes of enorcng the Company's
obligations under Annex A the Copany cosents to personal jurisdic, serve and venue in

any court procding in Which any claim relating to or ariing out of this agreent or the
engagemen heeunder is brought by or against any Indemnifed Person. CREDIT SUISSE AND

THE COMPAN EACH HEREBY AGREES TO WAIV ANY RIGHT TO TRL BY JURY WITH
RESPECT TO AN CLAM, COUNTER CLAIM OR ACTION ARSING OUT OF OR RELATING TO THIS AGREEMENT OR THE ENGAGEMENT HEREUNDER.

HIGHLY CONFIDENTIAL

cSSU 002849

We are delighted to acpt this engagement and loo forwrd to working wi you on this

asignment Pleae confirm that the foreoing is in accdance wi your understanding by
signing and returning to us the encloed duplicate of this letter.

Very trly yours,

CREDIT SUISSE SECURITIES (USA) LLC

By:

Name:

Tite: '

Accpted and agre to as

of th date first Wrn above:

:~
Name:

TItle: .' .

HIGHLY CONFIDENTIAL

CSSU 002850

ANNEXA

In furter consíderation of the agreement contained in our engagement letter (the
"engagement", Google Inc. (th "CompanY1 agrees to Indemnif and hold harmless Crdit

Suisse Securites (USA) LLC ("Credit suisse"), its afiates, the respctve members, directors,
offces, paers, agents and employees of Credit Suiss and its afliates, and any person

confrDlng Credit Suiss or any of its affliates (collectely "Indemnifed persons") from and

against, and th Company agrees that no Indemnif Peron shall have any liabilit to the
Copany or its OWO, parents, affiates, secunt holders or crit fo any loses, claims,
damages or liabilis (including actons or procdings in respect threof) (colectely, "Loss")

(A) related to or arising ou of (IJ the Company's actons or failures to act (including statements or

omissions made or inormatin provided by th Company or its agents) or (ii) actons or failures to

act by an Indemnifie Pers wit th Companys express consent or in reasnable reliance on the Company's actons or faHures to act or (B) othlWse related to or arising out of the
engagement, Credit Suiss's perfance thereof or any other seNices Credit Suiss is asked to

provie to th Company (in each case, including related activis prior to the date hereof), except
that this clause (B) shall not appy to any Losss to th extent that they are finally determined by
a cort of competent jurisictn to have resultd primar frm th bad fait or gross negligence

of such Indemnifed Person. If such indemnifcatin is for any reaso not available or insufcient
to hold an Indemnifed Person harmless. th Company agrees to contibute to the Losss

involved in such propoon as Is appropriate to reflect the relative benefi received by the

engagement or if such aloctin is determined by a court of competent jurisdictin to be

Company, on the one hand, and by Credit Suisse, on the othr hand, wit respect to the

unavaHable, in such proporton as is appropriate to reflect other equitble considerations such as

the relatie fault of the Company on the one hand and of Credit Suisse on the other hand; provided, however, that, to the extent permited by applicble law, th Indemnifed Perons shall not b& resposible for expnses and Loses which in the aggregate are in excess of th amount

of all fees acually recived by Credit Suisse from the Company in connecton with th
engagement. Relative benefis to the Company, on the one hand. and Crdit Suisse, on the other hand, wi respect to the engagement shall be deemed to be In the same proportn as lI the total value paid or propose to be paid or received or propoed to be received by the
Company and it secunt hoders, as th case may be, pursuant to the trnsacton(s), whether or not consummated, contemplate by th engagement, bears to (ii) all fees actaffy received by

Credit Suiss in connection wi the engagement. Witout limitng the generalit of the foregoing, in no event shall any Indemnifed Person have any liabilit to th Company or any of Its affliates

or stockhders fo any consequentil, special, exemplar or punitve damaes arising out of the
engagement or their perfnce theof. The Company will not permit any settement or

compromise to include, or consent to th entr of any judgment that includes, a statement as to, or an admission of, fault, culpabilit or a faHure to act by or on behalf of an Indemnifed Person,
witut such Indemnifed Person's prior writen consent. No Indemnifed Person seeking

indemnifcation, reimbursement or contributon under this agreement wil, witout th Company's
prr wrn consent. sett, compromise consent to the entr of any judgment in or otherwse

seek to terminate any ac6o, claim, suit investiation or proceding referrd to herein. If any

Indemnifd Persn becomes involved in any capacit in any action, claim, suit. investigatin or or threatened, brought by or against any person, including stockholders of the Company, in connection wi or as a result of the engagement or any matter refered to in the engagement the Company also agrees to reimburse such Indemnifed Persons for their reasonable expnses (including witout Rmitation reasonable legal fees and other costs and expenss incurred in connecti wih investigating, preparng for and responding to third par
proceding, actual

subpnas or enfrcin the engagement) 8S such expnss are incurred. Prmptl after recipt
by an Indemnifed Perso of service of any complaint or the commencement of any action or
procedin wit respet to which indemnifcatin is bein sought hereunder, such Indemnifd

Peron wHI ooti the Company in wrItng of such complaint or of th commencement of such
actin or proceding, but failure to so notrf the Company will relieve the Company from the

obligation to indemnif such Indemnifed Person onl if and only to the extnt that such failure

results in the forfiture by the Copany of substantial rigts and defenses that actally and

HIGHLY CONFIDENTIAL

CSSU 002851

matenally prejudice the Company- and wi71 not in any event relieve th Company frm any other obligatin or liabilit that the Company may have to any Indemnifed Persn othrwse than in accance wi the provisions hereof. If th Copany so elects following its acknwledgment of

its obligation to inemnif th IndemnrfJe Person or is requested by such Indemnif Person,
the Company wil assme th defense of such acton or proeding, including the employment of
counsel rčasonab/y satisfc;or to such Indemnifed Person and the payment of th fees an

disbursements of such counsel. In the event, however, such Indemnifed Perso reasonably
deterines in its jUdgment tht having common counsel would present such counsel with a

confict of interest or if the defendant in or targets of any such acton or proceding include both
an Indemnifd Person and the Copany and such Indemnifed Pers reasonably concludes

that there may be legal defenses available to it or other Indemnifed Persns that are diferent from or in additon to thos available to the Company, or if th Company fails to assume th
defense of the acn or prceeding or to employ counsel reasonably satisfac;or to such

Indemnifed Person in a timely manner, then such Indemnif Person may employ separate counsel to represent or defend it in any such actn or procding and the Company will pay th
reasonable and customar fees and disbrsment ňf such counsel; provied, however tht th

Copany wiD not be required to pay th fees and disbursements of more than one separate
consel (in additon to local consel) fo such Indemnifed Persons in any jurisdictn in any single
acton or proceding. In any

actn or prceedin the defense of whih the Company assumes,

the Indemnifed Person will have the riht to pacipate in such litatin and to retain its own

counsel at such Indemnrfred Pen's own expense. The Company will not, witho Credit
Suis's pror written consent. sette, compromise, consent to the entr of any judgment in or

otherse seek to terminate any acton, claim, suit, investiti or proceeding in respct of which
indemniftion may be sought hereunder (whether or not any Indemnifed Persn is a part
thereto) unless such setUement compromise, consent or terminatin includes a releas of each

Indemnifed Person from any liabilits arising out of such acton, claim, suit investigatin or procding. The Companys obligations pursant to this Annex A shall inure to the benefi of any
succssors, asns, heir and persnal representatis of each Indemnifed Person and are in

addition to any rights that each Indemnifd Person may have at common law or otherwise. Pror
to entering into any agreement or arangement with respec; to, or effecting, any transactn that is
reasoably likely to impaU' the Company's abilit to meat its currnt and potential fure

obligations pursuant to this Annex A, the Company will noti Credit Suisse in wrng thereof and, if reuested by Credit Suisse, shall arrnge alteratie means of providing fo the obligation of the Company set fort herein upon terms and conditns reasonably safactory to Credit Suisse.

HIGHLY CONFIDENTIAL

CSSU 002852