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

Filing 222

DECLARATION of William M. Hohengarten (Part Eleven) Ex. 299 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 300, # 2 Exhibit 301, # 3 Exhibit 302, # 4 Exhibit 303 - Part 1, # 5 Exhibit 303 - Part 2, # 6 Exhibit 303 - Part 3, # 7 Exhibit 303 - Part 4, # 8 Exhibit 303 - Part 5, # 9 Exhibit 304, # 10 Exhibit 305, # 11 Exhibit 306, # 12 Exhibit 307, # 13 Exhibit 308, # 14 Exhibit 309, # 15 Exhibit 310, # 16 Exhibit 311, # 17 Exhibit 312, # 18 Exhibit 313, # 19 Exhibit 314, # 20 Exhibit 315, # 21 Exhibit 316, # 22 Exhibit 317, # 23 Exhibit 318, # 24 Exhibit 319, # 25 Exhibit 320, # 26 Exhibit 321, # 27 Exhibit 322, # 28 Exhibit 323, # 29 Exhibit 324, # 30 Exhibit 325, # 31 Exhibit 326, # 32 Exhibit 327, # 33 Exhibit 328)(Kohlmann, Susan)

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From: Sent: To: Cc: Subject: on behalf of Rachel Claflin ", April 17, 2007 1 :56 PM Roelof Botha '; Jennifer Field " Attach: Zahavah Levine Fully Executed Amendment to Merger Fully Executed Amendment to Merger Agreement.pdf Good Afternoon, Attched is a PDF softcopy of the fully executed Amendment to Merger Agreement. Please contact me if you have any trouble with the attachment. Kind Regards, Rachel Rachel Clafln Legal Assistant YouTube, LLC 1000 Cherr Ave, Suite 2 San Bruno, CA 94066 EXHIBIT 1 r HIGHLY CONFIDENTIAL SC010022 AMNDMENT TO MERGER AGREEMENT AMENDMENT, dated as of April 12, 2007 (this "Amendment"), by and betwee among Google Inc., a Delaware corporation, Y ouTube, LLC, as successor by merger to Snowmass Holdings Inc., a Delawae corporation and to YouTube, Inc., a Delawae corporation, and each of the former stockholders of You Tube, Inc., listed on the signatue pages hereof. WITNESSETH: WHEREAS, the pares hereto have previously entered into an Agreement and Plan of October 9, 2006 (as amended and restated on November 3,2006 and as fuer amended from time to tie, the "Merger Agreement"), and capitalized terms used but not Merger, dated as of defied herein shall have the meang set fort in the Merger Agreement; and WHEREAS, the pares hereto now mutually desire to amend the Merger Agreement to correct a mutual mistake resulting from a scrivener's eror, as fuher set fort herein. NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contaned, and intendig to be legally bound hereby, the paries hereto hereby agree as follows: 1. Section 9.6(b) of the Merger Agrment is hereby amended as of October 9,2006 to up to five percent (5%) of correct a scrivener's error by deleting the words '~ecovery of number of the total Escrow Shares initially deposited in the Escrow Account pursuat to Arcle 2" in the' Escrow Shares frm the last proviso thereof and replacing them with the words "recovery of Escrow Account with a value (valued at the Parent Closing Price) of up to five percent (5%) of the Aggregate Share Consideration issuable in the Merger". 2. All references in the Merger Agreement to "Company Closing Price" shall be deemed to be references to "Parent Closing Price". 3. Except as specifically provided for in this Amendment, the terms of the Merger the paries hereto Agreement shall be unodified and shall remain in ful force and effect. 4. This Amendment shall be binding upon and shall inure to the benefit of and their respective successors and permtted assign, except that neither this Amendment nor any rights or obligations hereunder shall be assigned or delegated by any pary hereto except in connection with an assignment of the Merger Agreement in accordance with the terms thereof. 5. No amendment, modification, replacement, termination or cancellation of any provision of ths Amendment will be valid, uness the same will be in writing and signed by the pares hereto. All notices and other communcations provided for herein shal be dated and in writing pursuat to the terms of Section 10.4 of the Merger Agreement. 6. This Amendment may be executed in two or more counterparts, each of which will be deemed an onginal but all of which together will constitute one and the same instruent. Ths Amendment shall be effective upon execution by each of the pares hereto. Ths Amendment shall be govered by and constred in accordance with the laws of the State of Delaware. 09881l.970l.02S42.PalaAto.21 !ZSL3.\ HIGHLY CONFIDENTIAL SC010023 2 IN WITNESS WHEREOF, the pares hereto have duly Amendment as of executed and delivered ths the day and year first above wrtten. BY:_~ Name: David C. Druond Offcer YOUTUBE, LLC (as succor by merer to SNOWMASS HOLDINGS INC. and YOUTUBE, INC.) Title: Senor Vice Preident, Corporate GOOGLEINC. Development and Chief Legal By. IT tlPi Name: Kent Waler Title: President (Signatu Page to Amendment to Merger Agrement) HIGHLY CONFIDENTIAL SC010024 3 sre~ dated 9/27/06 Trustee STOCKHOLDER PARTIS: Steve Chen 2006 Grantor Retaied Anuity Trut slJIteien4 .~-:~ Brent Hurley Trustee Zaavah Levine The Chad Hurley Irrevocable Children's Trut created UTA date March 2, 2006 / 2a~~ (Signatue Page to Amendment to Merger Agreement) 098888.9701-tZS42-PaloAllo.2112SI3.1 HIGHLY CONFIDENTIAL SC010025 4 SEQUOIA CAPITAL XI SEQUOIA TECHNOLOGY PARTNRS XI SEQUOIA CAPITAL XI PRlCIP ALS FU By: SC XI Management, LLC A Delaware Linúted Liability Company General Parner of Bach By: Name: Títle: Aris Technology Parners, L.P. Artis Technology 2X, L.P. Aris Tecliology Qualified Parers, L.P, Ars Technology Qualified 2X, L.P. Ars Microcap Fund, L.P. B. .._Title: CI" . Teclmology Parers Ltd. Ars Technology 2X Ltd. By: Ars Capital Management, L.P. :lame: '\lfI (\ Il;JlI Investment Adviser and Art -In-Fact for Each (Signature Page to Amendm t to Merger Agrement) Oil8~8'9101~i.4i.PaIoAito.21 i:i 13.1 HIGHLY CONFIDENTIAL SC010026 4 SEQUOIA CAPlT AL XI SEQUOIA TECHNOLOGY PARTNERS XI SEQUOIA CAPITAL XI PRINCIPALS FUND By: SC XI Management, LLC A Delaware Límited Líabílty Company General partn2U ~it~:S: ~. i.ÒnE_ T e mQrCl"C1\ nCj RuMd A/tis Technology Partners. L.P. Aris Technology 2X, L.P. Artis Technology Qualified Partners, L.P. Aris Technology Qualified 2X, L.P. Artis Microcap Fund, L.P. By: Artis Capital Management, L.P. General Partner for Each Fund By: Name: Title: Artis Microcap Master Fund, L.P. By: Artis Microcap GP, LLC General Partner By: Name: Title: Artis Technology Partners Ltd. Artis Technology 2X Ltd. By: Artis Capital Management, L.P. Investment Adviser and Attorney-In-Fact for Each Fund By: Name: Title: (Signature Page to Amendment to Merger Agreement) M88S8.9?O I.02S42.I'~il\llò.211;; 1;\ i HIGHLY CONFIDENTIAL SC010027 5 By: ~ Name: . Title: (2~. WS INESTMT COMPAN, LLC (Signatu Page to Amendment to Merger Agreeent) 0088-91Oi -0542oPaloA12i 12513.1 HIGHLY CONFIDENTIAL SC010028

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