The Football Association Premier League Limited et al v. Youtube, Inc. et al

Filing 166

DECLARATION of Elizabeth Anne Figueira in supoport of Class Plaintiffs' Statement of Uncontroverted Material Facts in support of Their Motion For Partial Summary Judgment in Support re: 158 MOTION for Partial Summary Judgment dismissing with prejudice Defendants' First Defense asserted in Defendants' Answer to the Second Amended Class Action Complaint... Document filed by The Music Force LLC, Cal IV Entertainment, LLC, Cherry Lane Music Publishing Company, Inc., The Football Association Premier League Limited, Robert Tur, National Music Publishers' Association, The Rodgers & Hammerstein Organization, Edward B. Marks Music Company, Freddy Bienstock Music Company, Alley Music Corporation, X-Ray Dog Music, Inc., Federation Francaise De Tennis, The Scottish Premier League Limited, The Music Force Media Group LLC, Sin-Drome Records, Ltd., Murbo Music Publishing, Inc., Bourne Co.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15, # 16 Exhibit Exhibit 16, # 17 Exhibit Exhibit 17, # 18 Exhibit Exhibit 18, # 19 Exhibit Exhibit 19, # 20 Exhibit Exhibit 20, # 21 Exhibit Exhibit 21, # 22 Exhibit Exhibit 22, # 23 Exhibit Exhibit 23, # 24 Exhibit Exhibit 24, # 25 Exhibit Exhibit 25, # 26 Exhibit Exhibit 26, # 27 Exhibit Exhibit 27, # 28 Exhibit Exhibit 28, # 29 Exhibit Exhibit 29, # 30 Exhibit Exhibit 30, # 31 Exhibit Exhibit 31, # 32 Exhibit Exhibit 32, # 33 Exhibit Exhibit 33, # 34 Exhibit Exhibit 34, # 35 Exhibit Exhibit 35, # 36 Exhibit Exhibit 36, # 37 Exhibit Exhibit 37, # 38 Exhibit Exhibit 38, # 39 Exhibit Exhibit 39, # 40 Exhibit Exhibit 40, # 41 Exhibit Exhibit 41, # 42 Exhibit Exhibit 42, # 43 Exhibit Exhibit 43, # 44 Exhibit Exhibit 44, # 45 Exhibit Exhibit 45, # 46 Exhibit Exhibit 46, # 47 Exhibit Exhibit 47, # 48 Exhibit Exhibit 48, # 49 Exhibit Exhibit 49, # 50 Exhibit Exhibit 50, # 51 Exhibit Exhibit 51, # 52 Exhibit Exhibit 52, # 53 Exhibit Exhibit 53, # 54 Exhibit Exhibit 54, # 55 Exhibit Exhibit 55, # 56 Exhibit Exhibit 56, # 57 Exhibit Exhibit 57, # 58 Exhibit Exhibit 58, # 59 Exhibit Exhibit 59, # 60 Exhibit Exhibit 60, # 61 Exhibit Exhibit 61, # 62 Exhibit Exhibit 62, # 63 Exhibit Exhibit 63, # 64 Exhibit Exhibit 64, # 65 Exhibit Exhibit 65, # 66 Exhibit Exhibit 66, # 67 Exhibit Exhibit 67, # 68 Exhibit Exhibit 68, # 69 Exhibit Exhibit 69, # 70 Exhibit Exhibit 70, # 71 Exhibit Exhibit 71, # 72 Exhibit Exhibit 72, # 73 Exhibit Exhibit 73, # 74 Exhibit Exhibit 74, # 75 Exhibit Exhibit 75, # 76 Exhibit Exhibit 76, # 77 Exhibit Exhibit 77, # 78 Exhibit Exhibit 78, # 79 Exhibit Exhibit 79, # 80 Exhibit Exhibit 80, # 81 Exhibit Exhibit 81, # 82 Exhibit Exhibit 82, # 83 Exhibit Exhibit 83, # 84 Exhibit Exhibit 84, # 85 Exhibit Exhibit 85, # 86 Exhibit Exhibit 86, # 87 Exhibit Exhibit 87, # 88 Exhibit Exhibit 88, # 89 Exhibit Exhibit 89, # 90 Exhibit Exhibit 90, # 91 Exhibit Exhibit 91, # 92 Exhibit Exhibit 92, # 93 Exhibit Exhibit 93, # 94 Exhibit Exhibit 94, # 95 Exhibit Exhibit 95, # 96 Exhibit Exhibit 96, # 97 Exhibit Exhibit 97, # 98 Exhibit Exhibit 97 part 2, # 99 Exhibit Exhibit 98, # 100 Exhibit Exhibit 99, # 101 Exhibit Exhibit 100, # 102 Exhibit Exhibit 101, # 103 Exhibit Exhibit 102, # 104 Exhibit Exhibit 103, # 105 Exhibit Exhibit 104, # 106 Exhibit Exhibit 105, # 107 Exhibit Exhibit 106, # 108 Exhibit Exhibit 107, # 109 Exhibit Exhibit 108, # 110 Exhibit Exhibit 109, # 111 Exhibit Exhibit 110, # 112 Exhibit Exhibit 111, # 113 Exhibit Exhibit 112, # 114 Exhibit Exhibit 113, # 115 Exhibit Exhibit 114, # 116 Exhibit Exhibit 115, # 117 Exhibit Exhibit 116, # 118 Exhibit Exhibit 117, # 119 Exhibit Exhibit 118, # 120 Exhibit Exhibit 119, # 121 Exhibit Exhibit 120, # 122 Exhibit Exhibit 121, # 123 Exhibit Exhibit 122, # 124 Exhibit Exhibit 123, # 125 Exhibit Exhibit 124, # 126 Exhibit Exhibit 125, # 127 Exhibit Exhibit 126, # 128 Exhibit Exhibit 127, # 129 Exhibit Exhibit 128, # 130 Exhibit Exhibit 129, # 131 Exhibit Exhibit 130, # 132 Exhibit Exhibit 131, # 133 Exhibit Exhibit 132, # 134 Exhibit Exhibit 133, # 135 Exhibit Exhibit 134, # 136 Exhibit Exhibit 135, # 137 Exhibit Exhibit 136, # 138 Exhibit Exhibit 137, # 139 Exhibit Exhibit 138, # 140 Exhibit Exhibit 139, # 141 Exhibit Exhibit 140, # 142 Exhibit Exhibit 141, # 143 Exhibit Exhibit 142, # 144 Exhibit Exhibit 143, # 145 Exhibit Exhibit 144, # 146 Exhibit Exhibit 145, # 147 Exhibit Exhibit 146, # 148 Exhibit Exhibit 147, # 149 Exhibit Exhibit 148, # 150 Exhibit Exhibit 149, # 151 Exhibit Exhibit 150, # 152 Exhibit Exhibit 151, # 153 Exhibit Exhibit 152, # 154 Exhibit Exhibit 153, # 155 Exhibit Exhibit 154, # 156 Exhibit Exhibit 154 Part 2, # 157 Exhibit Exhibit 154 Part 3, # 158 Exhibit Exhibit 154 Part 4, # 159 Exhibit Exhibit 155, # 160 Exhibit Exhibit156, # 161 Exhibit Exhibit 157, # 162 Exhibit Exhibit 158, # 163 Exhibit Exhibit 159, # 164 Exhibit Exhibit 160, # 165 Exhibit Exhibit 161, # 166 Exhibit Exhibit 162, # 167 Exhibit Exhibit 163, # 168 Exhibit Exhibit 164, # 169 Exhibit Exhibit 165, # 170 Exhibit Exhibit 166, # 171 Exhibit Exhibit 167, # 172 Exhibit Exhibit 168, # 173 Exhibit Exhibit 169, # 174 Exhibit Exhibit 170, # 175 Exhibit Exhibit 171, # 176 Exhibit Exhibit 172, # 177 Exhibit Exhibit 173, # 178 Exhibit Exhibit 174, # 179 Exhibit Exhibit 175, # 180 Exhibit Exhibit 176, # 181 Exhibit Exhibit 177, # 182 Exhibit Exhibit 178, # 183 Exhibit Exhibit 179, # 184 Exhibit Exhibit 180, # 185 Exhibit Exhibit 181, # 186 Exhibit Exhibit 182, # 187 Exhibit Exhibits 183 - 187, # 188 Exhibit Exhibit 188)(Figueira, Elizabeth)

Figueira

Den. Tab 125

From
Sent

Chad Hurley Tuesday

chadhyoutube.com 26
2006

September

225

PM
125

To

RoelofBotha
Pierre

bothasequoiacap.eom Tony Bates tbates [e-mail] Lamond 1amondsequoiaeap.com Gideon Yu gyuyoutube.com
Confidential

Subject

Fwd

YouTube

Attach

Documentpdf

Os

initial

offer

is

attached.

We

can

discuss

this

at

our 5pm meeting.

-Chad

Begin

forwarded

message

HIGHLY

CONFIDENTIAL

SC009721

Google 1600

nc.

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Parkway

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t%r

Main
Fax

650 650

253.0000 2530001

Amphitheatre

%st %.-

Mountain

View

CA 94043

l25-0002www.gaoglecom

September26

2006

YonTube
71

Inc.

Tbird Avenue

2nd

Floor

CA 94401 SanMateo Attw Chad Hurley and Steven
Dear

Own

Chad and Steven

We

are

pleased

to

present

yvu

with the
Inc.

attached

Term

Sheet

setting

forth
Enc.

the or

basic of

terms
its

and

conditions

of the

proposed

acquisition

of YouTube

the

Company
Sheet
is

by Google

one

subsidiai

Google.
due
is

The and and

acquisition to the

contemplated
execution or

in this

Tenn

subject

to

Googles

legal financial

and

business

diligence

prep antion not constitute

and delivery

of definitive
binding

purchase commitment

document nor does

This Term
it

Sheet

non-binding
to enter into

does

give rise to any legally
except for the

constitute

an offer

legally

binding commitment Governing
set foith the

provisions

regarding

Public

Disclosure

Company

No Shop
that the

Termination
intended to

Law

and Expenses of the

and Fees. proposed

Google

and the Company
but that the

understand

Term

Sheet
revised

is

thndamentals
presented

acquisition

foregoing

intentions

may be

and new

issues

may be

upon

Lbxther

investigation

and due diligence

by Google

or the

Company.

Please the

sign

in the

spaces

provided
will prepare

below

to

acknowledge agreements

your agreement
anti

to

the to

tenns

set forth

in the

Term

Sheet as

basis

on which

we

definitive

your agreement

be bound

by the Public
in the

Disclosure

Company

No Shop

Termination

Governing

Law

and Expenses

and Fees provisions

contained

Term

Sheet.

Regards

GOO

BIN

Name
Title

David

Dnnnmond
Pzesident Corporate Development

Senior Vice

Acknowledged
the date
first

and
written

agreed

as

of

above

YOUTUBF

INC.

By ________________________ Name
Title

Confidential

Page

lotS

Letter

of

Intent

HIGHLY

CONFIDENTIAL

SC009722

CoNFmErtnAl
Term
Par the Acquisition Sheet of

125-0003

YnuTube
Inc.

Inc.

By Google

September

262006

This term sheet

flerm Sheef
of YouTube

sets

forth

the

principal

tents and conditions
Inc. or

of the proposed
its

acquisition

Acquisition
Structure

Inc.

the

Company
will acquire

by Google

one of

subsidiaries

Goegle.
forth

Google
to legal type

the

Company

for the

consideration

set

below

pursuant

definitive

agreement
conditions

containing

representations

warranties
for will transaction

coveiants of
this

opinions the

and

indemnities the

customary
transaction

Agreement.

The form of

be

merger.

The
the

representations principal

regarding

the

Company

will

be

made by

the

Company

and

stockholders

of the

Company.

Google
within the

and
the

the

Company

intend

that

the

transaction

wifl

be

reorganization
tax counsel

meaning

of Section

of

368a

of the tax
effect.

code

and that

of

Company

will render

an opinion to that

Acquisition

Consideration

Subject
this

to

Googles
Sheet
in

additional consideration options

due

diligence for
all

and
the

to

the

tents and
in

and

conditions

of

Term

of
or

issued

outstanding

shares with
closing the

options

including

any

assumed
equity

substituted

connection
at the

Atquisitioxt the Acquisition

warrants

and

other

interests will issue equal

of Company number
to

of

Closing Common Stock Shares based on the avenge $1000000000 daily
the Google
Class thirty

of shares
Billion

of Qoogle
Dollars the

One

closing closing

price

of the
the

Shares

30

days

immediately

preceding

the

of

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the

ConsideratIon.
will

Private

Placemenq
Rights

The

Shares

be

issued

to

the

Company
of

stockholders

pursuant

to

the the

Registration

exemption
Securities stockholders

provided Act
with

by

Rule
as

506

Regulation Google
rights to
file

promulgated
shall

under

of

1933

amended.

provide

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customary covenant 30

registration

for

transaction resale

of this nature
statement

which

will include

by Google days of the

registration

on Penn

8-3 within

business

Closing.

Employee Equity

Subject capital

to

Googles

due

diligence

review
prior

all to

options the

to

purchase both

Company
vested and
into

stock

outstanding

immediately
will

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unvested
equivalent ratio vesting

each
rights

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to to

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acquire the

be

assumed of
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by Google
based

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converted
total to

number

on

exchange
to

applicable

Acquisition Following

with such

rights

continuing

be subject

on

current

terms.

Googles

review
the

of the

Companys
will

option the

plan documentation
possibility

including

vesting

schedules

parties

discuss

of partial acceleration

of options

for certain

Company
to holders the to the

employees.

For the avoidance Options
paid to will the

of doubt
considered

the

amounts of the

paid or issued
Consideration

of Company
Consideration

be

part

issuances

will be reduced stockholders Company made in respect of the Company Options.

extent

of

Share

Unless

otherwise

agreed by the parties

prior

to the

execution

of the Agreement

Confidential

Page

of

Tern

Sheet

HIGHLY

CONFIDENTIAL

SC009723

the

Company

will

amend

in to

accordance any

with

applicable that

law
would

flęcable
result in the the

Company
acceleration

doownentaticin

eliminate

provision or take

of

vesting

of

unvested and

options will

Company
such
other

shares action

upon
as shall

consummation
required shares. to In

of the
the to

Acquisition
partial the or

be
or

avoid addition

complete
not to already include

acceleration

of

unvested
relevant

options

extent seek

provided
suitable

in the

Company
with

documentation
respect to the

Google

may

retention

provisions

key employees.

Employment

Arrangements

It

shall

be

condition

to

Googles
to

obligation

to

close

the shall

Acquisition

that
at-

certain will

Company

employees with

be and

identified shall

by Google
entered

have

accepted

employment

Google
Letter

have

into

Googles
and

standard Inventions

Emploment
Assignment

Offer Agreement

and

Ptnprietary

Information

Non-Competition

It

shall

also

be

condition

to shall

the

Closing that certain
entered into

Company
flvm

stockholders

to

Agreements

be

identified will

by Google
pruhibb
business

have

non-competition competing

agreement with
the

which

such
for

Company
period

stockholder years

Companys
Closing Date

of two

from the Closing daft.

Signing

Date

The soon

parties as

objective

is

to

execute

the

Agreement
the

and
this

close

the

Acquisition

as

reasonably

practicable

following

cMe of

Term

Sheet.

Public Disclosure

Neither other

party than
if

shall to
its

issue legal

any and
its

statement accounting

or communication advisors and
the ogle regarding

to

any
the

third

party

Acquisition without statement
in light the

including consent of

applicable other to the rules

termination except
it

reasons

therelbr issue

the

party
extent

that

Go
it

may

nay

or of

conmiunication
applicable

determines

necessary

or appropriate

laws

and regulations.

Company No Shop

Until

the

earlier

of

sixty

60

days from the by
all

date

of

this

Term

Sheet
or

the the

execution
date

and delivery which Goegle with

of the
advises

Agreement
the

of the
in

parties that

thereto

on
to

Company
in respect

writing

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does

not

wish

proceed by

discussions this

of

the

proposed Conip any

Acquisition

including

terminating shall

Term
will

Sheet

neither as

nor any
or

any of

of

Companys
officers

affiliates

nor

they permit agents

applicable

their

directors

members
take

stockholders

representatives actions with

affiliates

to
than

directly

or indirectly and
its

any of the following
solicit
initiate1 to

any party
in

other

Google

desigres
discussions

participate

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to acquire

any negotiations any
portion

or

with respect
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to

any offer
properties

or proposal or

of

the stock

Companys

and

any

shares

of

Company
stock
rights

capital

or any rights purchase
offer

acquire

any shares purchase
or

of Company
issuance

capital

whether
to acquire

by merger shares

of assets
or

of shares
transaction

or

tender

otherwise

or effect
to

any such

ii

disclose

any information
business

not customarily
properties

disclosed
to

any person
or entity

concerning
access to to

Companys
its

and

or afford

any person

properties proposal

books
to

or records iii assist or cooperate any
shares capital

with any person
capital stock of the

make
to

any

purchase

of

Company
or

or rights

acquire assets

any or

shares

of Company
into

stock

any portion any person

Companys
for the

iv
of
or

enter

any

agreement

with

providing of

acquisition

Company
of

whether
shares or

by

way
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of

merger

purchase
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assets or

purchase otherwise. any oflbr iii
or

issuance

rights

acquire

shares
affiliates

offer

In the

event

Company

or

any of Companys

shall to

receive

or proposal

directly

or indirectly for

of the type rekrred or access
pursuant

in clause to clause as to

i.

iv

above

or or

any request such
affiliate

disclosure

ii
the

above

Company

shall

immediately

infonu

Google

Confidential

Page

of

Term

Sh.et

HIGHLY

CONFIDENTIAL

SC009724

existence furnishing

of any

such

offer
it

or

proposal

and

will

cooperate

9le
all

by

any infbrmation

may reasonably
making
offer or that

request
offer

including or

but not limited
written principal

to

the

name

of

the

party to

such

proposal

documentation

relating offer

such

propol
is

and
in

swnmary of
writing

the

terms of any such

or proposal

not

made

Termination

This

Term

Sheet

shall party

terminate hereto to

upon
the other

the

written

notification

of
that

such
the

termination provisions

by any
regarding

parties

hereto

provided

Public

Disclosure and Fees

Company
shall survive

No

Shop

Termination
termination in

Governing accordance

Law

and

Expenses
terms thereof

any such

with the

Due

Diligence

As soon
full

as

practicable

after

the

date

hereof of
the

loogie

shall

be permitted business
hi

to

make

and

complete

investigation financial the

Companys
atirs.

intellectual piiorto

property
signing access

technology
the

employee

and legal
shall

addition with

Agreement

Company

provide

Google

reasonable into

to

all

membas
shall

of Companys
to

management
satisfactory

The

entering in

of the
sole

Agreement
discretion

be

subject

the

completion

Google

of Googles

due diligence

on Company-

Expenses

and Fees

All

fees

and

expenses
All fees

of Juogle and

in

connection of
the

with the

Acquisition

will the

be paid

by

Google.

expenses

Company
including

mid

Company
fees

stockholders will

in connection

with the Acquisition
stockholders.

broker or finder

be paid by the Company

Indemnification

of Google

Indemnification. jointly

The Company
seveially

and and

each hold

of the Google agents

Company
and
its

stockholders affiliates

will their

and

indemnify
directors

and and

respective losses or

officers
liabilities

employees
suffered

and

harmless

from

against in or

that

may be

by Google
and

due to any inaccuracies or any other
provision

breaches
the

of representations
or

warranties

covenants

of

Agreement

any ancillaiy

document

Survival.

Subject

to

the

results

of

Googles

due

diligence

investigation

the

representations stockholders representations

warranties contained in

and
the

covenants Agreement
surviving

of the
shall

Company
survive the years

and

the

Company
with
the

Closing
after the

and

warranties

only

for

two

Closing

provided

that

the

representations for three

and years

warranties

reiated

to

intellectual

property shall

survive the

representations
after

and warranties of the

related applicable related

to

taxes

shall

survive

until

60

days
the

the

expiration

statute to

of limitations
shall survive

representations

and warranties

capitalization

indeflthtely claims for

and
flaudulent shall intentional survive or willful

breaches

of representation

and

warranties

indefinitely

collectively

the

Surviving

Representations.

Qp
except

The

Company
and cap

stockholders
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liability

for to
to

breaches
the aggregate

of

the

Company

representations

warranties shall apply

be

limited

Consideration of the Surviving

no

such

with respect through

any breaches

Representations

set forth

in clauses

d.
stockholders will

Basket
liable

Notwithatanding
for indemnification

the

foregoing
the

the

Company
amount

not be

until

aggregate

of

losses

exceeds

One

Cenfiulentiat

Page

of

Tern

Sheet

HIGHLY

CONFIDENTIAL

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Million

Dollars

$1 000000
met
the losses

the

Threshold
stockholders those

provided
will

tha

0e
for the

the
fill

Threshold amount Threshold
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has been of
all

Company

be

liable

flicluding related

which

comprised Claims shall

any

portion subject

of

the

and

losses

to

Surviving

not be

to the

Escivw.

Fifteen

percent deposited

15%
in

of

the

Consideration ibr

otherwise years as

payable
non-exclusive

at

Closing will
security

be

erow

by Joogle

two

for the

Company

stockholders

indemnity obligations.

Voting

Agreement

Concurrently and
their certain shares

with

the

execution to

of

the

Agreement
will
to

members
an

of

management
to vote

stockholders in favor

be

determined and

execute

agreement
their shares

of the

Acquisition

not transfer

or any

interest

thert
and which
shall

Governing

Law

This

Term

Sheet

the

letter

to

it

is

attached

be

governed

by

California

law

without regard

to

that states

choice

of law provisions.

lEND

OF TERM

SREETJ

Cbnfidnthl

PageS of

Term

Sheet

HIGHLY

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