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)

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Figueira Den. Tab 125 From Sent Chad Hurley Tuesday 26 2006 September 225 PM 125 To RoelofBotha Pierre bothasequoiacap.eom Tony Bates tbates Lamond Gideon Yu 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. g_ Parkway rcyIci 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 Acquisition 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 Company 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 Closing unvested equivalent ratio vesting each rights an to to Option acquire the be assumed of Shares by Google based and the 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 loogle 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 or encouragc to acquire any negotiations any portion or with respect business 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 to of merger purchase tender 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 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 will 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 SC009725 Million Dollars $1 000000 met the losses the Threshold stockholders those provided will tha 0e for the the fill Threshold amount Threshold Threshold. 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 CONFIDENTIAL SC009726

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