exv10w54







Exhibit 10.54




 





Equity Purchase Agreement




By And Among




Gemstar-TV Guide International, Inc.,




UV Corporation,




TV Guide Entertainment Group, Inc.,




Lions Gate Entertainment, Inc.,




And Solely With Respect To Sections 9.5, 9.7 And 9.8 And Articles V(C), XII And 

XIII




Macrovision Solutions Corporation




January 5, 2009




 





 









 





Table Of Contents




	 	 	 	 
	 	 	Page
	ARTICLE I CERTAIN DEFINITIONS
	 	 	1
	 
	 	 	 
	ARTICLE II THE RESTRUCTURING
	 	 	10
	 
	 	 	 
	2.1 Restructuring
	 	 	10
	 
	 	 	 
	ARTICLE III THE EQUITY PURCHASE
	 	 	10
	 
	 	 	 
	3.1 Agreement to Sell and Purchase
	 	 	10
	 
	 	 	 
	3.2 The Closing
	 	 	11
	 
	 	 	 
	3.3 Payment of Total Consideration at the Closing
	 	 	11
	 
	 	 	 
	3.4 Post-Closing Adjustments
	 	 	11
	 
	 	 	 
	3.5 Further Assurances
	 	 	13
	 
	 	 	 
	3.6 Tax Withholding
	 	 	13
	 
	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY
	 	 	13
	 
	 	 	 
	4.1 Organization and Good Standing
	 	 	14
	 
	 	 	 
	4.2 Subsidiaries
	 	 	14
	 
	 	 	 
	4.3 Capitalization of the Company
	 	 	14
	 
	 	 	 
	4.4 Corporate Authority Relative to This Agreement; No Violation
	 	 	15
	 
	 	 	 
	4.5 Litigation
	 	 	15
	 
	 	 	 
	4.6 Taxes
	 	 	16
	 
	 	 	 
	4.7 Financial Statements
	 	 	17
	 
	 	 	 
	4.8 Absence of Liabilities
	 	 	18
	 
	 	 	 
	4.9 Absence of Certain Changes or Events
	 	 	18
	 
	 	 	 
	4.10 Contracts
	 	 	18
	 
	 	 	 
	4.11 Intellectual Property
	 	 	19
	 
	 	 	 
	4.12 Compliance With Applicable Laws
	 	 	21
	 
	 	 	 
	4.13 Real Property
	 	 	21
	 
	 	 	 
	4.14 Employees; Labor Matters
	 	 	21
	 
	 	 	 
	4.15 Environmental Matters
	 	 	23
	 
	 	 	 
	4.16 Transactions with Affiliates
	 	 	24
	 
	 	 	 
	4.17 Title to, Sufficiency and Condition of Assets
	 	 	24
	 
	 	 	 
	4.18 Accounts Receivable
	 	 	24
	 
	 	 	 
	4.19 [intentionally left blank]
	 	 	25






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Table Of Contents

(Continued)





	 	 	 	 
	 	 	Page
	4.20 No Brokers
	 	 	25
	 
	 	 	 
	4.21 No Additional Representations
	 	 	25
	 
	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER, SELLER AND PARENT
	 	 	25
	 
	 	 	 
	5.1 Organization and Good Standing
	 	 	25
	 
	 	 	 
	5.2 Corporate Authority Relative to This Agreement; No Violation
	 	 	25
	 
	 	 	 
	5.3 Title to Equity Interests
	 	 	26
	 
	 	 	 
	5.4 Organization and Good Standing
	 	 	27
	 
	 	 	 
	5.5 Corporate Authority Relative to This Agreement; No Violation
	 	 	27
	 
	 	 	 
	5.6 Organization and Good Standing
	 	 	27
	 
	 	 	 
	5.7 Corporate Authority Relative to This Agreement; No Violation
	 	 	27
	 
	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER
	 	 	28
	 
	 	 	 
	6.1 Organization and Good Standing
	 	 	28
	 
	 	 	 
	6.2 Corporate Authority Relative to this Agreement; No Violation
	 	 	28
	 
	 	 	 
	6.3 Funding
	 	 	29
	 
	 	 	 
	ARTICLE VII COVENANTS OF THE COMPANY OR SELLER
	 	 	29
	 
	 	 	 
	7.1 Access to Information
	 	 	29
	 
	 	 	 
	7.2 Maintenance of Network Business
	 	 	29
	 
	 	 	 
	7.3 Exclusivity
	 	 	32
	 
	 	 	 
	7.4 Non-Competition
	 	 	33
	 
	 	 	 
	ARTICLE VIII BUYER COVENANTS
	 	 	35
	 
	 	 	 
	8.1 Indemnification and Insurance
	 	 	35
	 
	 	 	 
	8.2 Employee Matters
	 	 	36
	 
	 	 	 
	8.3 Nonsolicitation
	 	 	38
	 
	 	 	 
	8.4 Cooperation with Contractual Obligations
	 	 	39
	 
	 	 	 
	ARTICLE IX OTHER COVENANTS
	 	 	39
	 
	 	 	 
	9.1 Notification of Certain Matters
	 	 	39
	 
	 	 	 
	9.2 Public Announcement
	 	 	39
	 
	 	 	 
	9.3 Confidentiality
	 	 	39
	 
	 	 	 
	9.4 Satisfaction of Conditions Precedent
	 	 	40






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Table Of Contents

(Continued)





	 	 	 	 
	 	 	Page
	9.5 Hart-Scott-Rodino
	 	 	40
	 
	 	 	 
	9.6 Settlement of Intercompany Accounts
	 	 	41
	 
	 	 	 
	9.7 Nonsolicitation
	 	 	41
	 
	 	 	 
	9.8 Insurance
	 	 	41
	 
	 	 	 
	ARTICLE X CONDITIONS TO CLOSING OF THE PURCHASE
	 	 	41
	 
	 	 	 
	10.1 Conditions to the Parties’ Obligation to Effect the Purchase
	 	 	42
	 
	 	 	 
	10.2 Additional Conditions to Obligations of Buyer
	 	 	42
	 
	 	 	 
	10.3 Additional Conditions to Obligations of Stockholder
	 	 	44
	 
	 	 	 
	ARTICLE XI TERMINATION OF AGREEMENT
	 	 	45
	 
	 	 	 
	11.1 Termination by Mutual Consent
	 	 	45
	 
	 	 	 
	11.2 Unilateral Termination
	 	 	45
	 
	 	 	 
	11.3 Effect of Termination
	 	 	46
	 
	 	 	 
	ARTICLE XII SURVIVAL OF REPRESENTATIONS, INDEMNIFICATION AND REMEDIES; CONTINUING
COVENANTS
	 	 	46
	 
	 	 	 
	12.1 Survival
	 	 	46
	 
	 	 	 
	12.2 Indemnification by Seller and Parent
	 	 	47
	 
	 	 	 
	12.3 Indemnification by Buyer
	 	 	47
	 
	 	 	 
	12.4 Third Party Claims
	 	 	47
	 
	 	 	 
	12.5 Limits on Indemnification
	 	 	48
	 
	 	 	 
	12.6 Escrow
	 	 	49
	 
	 	 	 
	12.7 Exclusive Remedy
	 	 	49
	 
	 	 	 
	12.8 Treatment of Indemnification Payments
	 	 	49
	 
	 	 	 
	12.9 Remedies Not Affected by Investigation, Disclosure or Knowledge
	 	 	50
	 
	 	 	 
	ARTICLE XIII CERTAIN TAX MATTERS
	 	 	50
	 
	 	 	 
	13.1 Transfer Taxes
	 	 	50
	 
	 	 	 
	13.2 Section 338(h)(10) Election; Allocation of ADSP
	 	 	50
	 
	 	 	 
	13.3 Tax-Sharing Agreements
	 	 	51
	 
	 	 	 
	13.4 Indemnification for Post-Closing Transactions
	 	 	51
	 
	 	 	 
	13.5 Post-Closing Transactions not in Ordinary Course
	 	 	51
	 
	 	 	 
	13.6 Responsibility for Filing Tax Returns and Payment of Taxes for Periods
through the Closing Date
	 	 	51






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Table Of Contents

(Continued)





	 	 	 	 
	 	 	Page
	13.7 Responsibility for Taxes for Periods after the Closing Date
	 	 	52
	 
	 	 	 
	13.8 Cooperation on Tax Matters
	 	 	52
	 
	 	 	 
	13.9 Tax Proceedings
	 	 	52
	 
	 	 	 
	ARTICLE XIV MISCELLANEOUS
	 	 	52
	 
	 	 	 
	14.1 Governing Law; Exclusive Jurisdiction
	 	 	52
	 
	 	 	 
	14.2 Assignment; Binding Upon Successors and Assigns
	 	 	53
	 
	 	 	 
	14.3 Severability
	 	 	53
	 
	 	 	 
	14.4 Counterparts; Facsimile Signatures
	 	 	53
	 
	 	 	 
	14.5 Other Remedies
	 	 	53
	 
	 	 	 
	14.6 Amendments and Waivers
	 	 	53
	 
	 	 	 
	14.7 Expenses
	 	 	54
	 
	 	 	 
	14.8 Attorneys’ Fees
	 	 	54
	 
	 	 	 
	14.9 Notices
	 	 	54
	 
	 	 	 
	14.10 Interpretation; Rules of Construction
	 	 	55
	 
	 	 	 
	14.11 No Third Party Beneficiary Rights
	 	 	55
	 
	 	 	 
	14.12 Entire Agreement
	 	 	56
	 
	 	 	 
	14.13 Waiver Of Jury Trial
	 	 	56







-iv-









 








List Of Exhibits




	 	 	 
	Exhibit A

	 	Transition Services Agreement
	 
	 	 
	Exhibit B-1

	 	Network Patent License Agreement
	 
	 	 
	Exhibit B-2

	 	Online Patent License Agreement
	 
	 	 
	Exhibit C-1

	 	Network Data License Agreement
	 
	 	 
	Exhibit C-2

	 	Online Data License Agreement
	 
	 	 
	Exhibit D-1

	 	Seller Trademark Assignment and Assumption Agreement
	 
	 	 
	Exhibit D-2

	 	Gemstar Development Corporation Trademark Assignment and
Assumption Agreement
	 
	 	 
	Exhibit E

	 	Trademark License Agreement
	 
	 	 
	Exhibit F

	 	Licensed Assets Agreement
	 
	 	 
	Exhibit G

	 	Restructuring







-v-









 








EQUITY PURCHASE AGREEMENT




     This Equity Purchase Agreement (this “Agreement”) is made and entered into as of
January 5, 2009 (the “Agreement Date”) by and among Gemstar-TV Guide International, Inc., a
Delaware corporation (“Seller”); UV Corporation, a Delaware corporation and an indirect
wholly-owned subsidiary of Seller (“Stockholder”); the Company (as defined below); Lions Gate
Entertainment, Inc., a Delaware corporation (“Buyer”); and solely with respect to Sections 9.5, 9.7
and 9.8 and Articles V(C), XII and XIII, Macrovision Solutions Corporation, a Delaware corporation
(“Parent”).



RECITALS




     A. The parties intend that, subject to the terms and conditions hereinafter set forth, at the
Closing, Buyer shall purchase (the “Purchase”) from Stockholder and Stockholder shall sell to Buyer
all of the issued and outstanding equity interests of the Company (the “Equity Interests”) on the
terms and subject to the conditions set forth in this Agreement.



     B. The Boards of Directors of each of Buyer, the Company, Stockholder and Parent have
determined that the transactions contemplated by this Agreement are in the best interests of their
respective stockholders, and have approved and declared advisable this Agreement and the
transactions contemplated hereby.



     C. Buyer, the Company and Stockholder desire to make certain representations, warranties,
covenants and agreements in connection with the Purchase and to prescribe various conditions to the
Purchase.



     Now, Therefore, in consideration of the foregoing and the mutual promises, covenants
and conditions contained herein, the parties hereby agree as follows:



ARTICLE I

CERTAIN DEFINITIONS




     As used in this Agreement, the following terms shall have the meanings set forth below.
Unless indicated otherwise, all mathematical calculations contemplated hereby shall be made to the
fifth decimal place.



     “Action” means any claim, action, suit, inquiry, proceeding, audit or investigation by or
before any Governmental Authority, or any other arbitration, mediation or similar proceeding.



     “affiliate” means, with respect to any Person, any other Person which, directly or indirectly,
controls, or is controlled by, or is under common control with, such Person.



     “Affiliated Group” means each consolidated, combined or affiliated group of companies of which
the Company and/or any of its Subsidiaries is, or was at any time, part.



     “Applicable Law” means, collectively, all United States federal, state, local or municipal
laws, foreign laws, statutes, ordinances, regulations, and rules, and all orders, writs,
injunctions,



1









 







awards, requests, judgments and decrees of any Governmental Authority applicable to the
assets, properties and business (and any regulations promulgated thereunder) of the applicable
company or entity.



     “Buyer Ancillary Agreements” means, collectively, each certificate to be delivered on behalf
of Buyer by an officer or officers of Buyer at the Closing pursuant to Article X and each agreement
or document (other than this Agreement) that Buyer is to enter into as a party thereto pursuant to
this Agreement.



     “Carriage Agreements” means those agreements set forth on Section 4.10(a)(ii) of the
Disclosure Schedule.



     “Cash” means cash and cash equivalents determined in accordance with GAAP.



     “Closing” means the closing of the transactions contemplated by this Agreement.



     “Closing Date” means the date on which the Closing shall occur, as specified by the parties,
which shall be no later than the second business day after the satisfaction or waiver of the
conditions set forth in Article X, or at such other time and date as the parties hereto agree in
writing.



     “Closing Date Balance Sheet” means the unaudited combined balance sheet of the Network
Business, as of the Closing Date and immediately prior to the Effective Time that has been prepared
in a manner consistent with the Balance Sheet except for the Closing Date Balance Sheet Exceptions.



     “Closing Date Balance Sheet Exceptions” means the following: (A) no depreciation expense has
been recognized during the period between the Balance Sheet Date and the Closing Date Balance Sheet
for any Network Business, (B) no amortization expense has been recognized during the period between
the Balance Sheet Date and the Closing Date Balance Sheet for any Network Business, and (C) during
the period between the Balance Sheet Date and the Closing Date Balance Sheet, assets related to the
business of syndicating TV listings and video search functionality to third parties will have been
transferred out of TVGuide.com.



     “Company” means TV Guide Entertainment Group, Inc., a Delaware corporation.



     “Company Ancillary Agreements” means, collectively, each certificate to be delivered on behalf
of the Company by an officer or officers of the Company at the Closing pursuant to Article X and
each agreement or document (other than this Agreement) that the Company is to enter into as a party
pursuant to this Agreement.



     “Contract” means any written or oral legally binding contract, agreement, instrument,
arrangement, commitment, understanding or undertaking (including leases, licenses, mortgages,
notes, guarantees, sublicenses, subcontracts and purchase orders).



     “control” (including, with its correlative meanings, “controlled by” and “under common control
with”) means the possession, directly or indirectly, of the power to direct or



2









 







cause the direction of management or policies of a Person, whether through the ownership of
securities or partnership or other ownership interests, by contract or otherwise.



     “Credit Agreement” means that certain Credit Agreement dated as of May 2, 2008 among Parent,
Macrovision Corporation, the Guarantors Party thereto, the Lenders named therein and JPMorgan Chase
Bank, N.A., as administrative agent and collateral agent.



     “Disclosure Schedule” means the disclosure schedule dated as of the Agreement Date and
delivered by the Company to Buyer on the Agreement Date listing any disclosures to be made pursuant
to the representations and warranties of the Company herein (each of which disclosures, in order to
be effective, shall clearly indicate the section and, if applicable, the subsection of Article IV
to which it relates (unless and only to the extent the relevance to other representations and
warranties is clearly apparent from the actual text of the disclosures without reference to further
documentation), and each of which disclosures shall also be deemed to be a representation and
warranty made by the Company under Article IV hereof).



     “Effective Time” means the time of the consummation of the Purchase or such later time as may
be mutually agreed by Buyer, Parent and the Company.



     “Encumbrance” means, with respect to any tangible or intangible asset, any mortgage, deed of
trust, encumbrance, pledge, charge, security interest, title retention device, collateral
assignment, adverse claim, restriction or other encumbrance of any kind in respect of such asset
(including any restriction on the voting of any security, any restriction on the transfer of any
security or other asset, any restriction on the receipt of any income derived from any asset, any
restriction on the use of any asset and any restriction on the possession, exercise or transfer of
any other attribute of ownership of any asset), including with respect to any security, any adverse
claim or third party right or interest, right of first refusal, preemptive right or restriction of
any nature, or other right of third parties, whether voluntarily incurred or arising by operation
of law, and including, without limitation, any agreements to give any of the foregoing in the
future, and any contingent sale or other title retention agreement in the nature thereof. For
purposes of clarification only, an inability to sell a security without registering such security
for sale under the Securities Act or other federal or state securities laws shall not represent an
Encumbrance.



     “Escrow Agreement” means that certain Escrow Agreement, in a customary and mutually agreed
upon form, by and among Buyer, Seller and Wells Fargo Bank, N.A., as escrow agent.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Expiration Date” means 11:59 p.m. California time on the date that is the fifteenth
(15th) month anniversary of the Closing Date.



     “GAAP” means United States generally accepted accounting principles, applied on a consistent
basis.



     “GAAP Exceptions” means the following: (A) no accounting for income taxes; (B) no accounting
for Parent’s Employee Stock Purchase Plan; and (C) not all purchase accounting entries related to
Parent’s purchase of Seller have been pushed down to the Network Business.



3









 





     “Governmental Authority” means any United States or foreign governmental or regulatory agency,
commission, court, body, entity or authority.



     “Immediate Family” with respect to any specified Person, means such Person’s spouse, parents,
children and siblings, including adoptive relationships and relationships through marriage, or any
other relative of such Person that shares such Person’s home.



     “Indebtedness” means, without duplication, (A) obligations for borrowed money or obligations
evidenced by notes, bonds, debentures or similar instruments (including all outstanding principal,
prepayment premiums, if any, change of control premiums, and accrued interest, fees and expenses
related thereto) other than intercompany borrowings from an affiliate, (B) obligations in respect
of capitalized leases (including the obligation in respect to the capitalized satellite transponder
lease) or to pay the deferred purchase price of property or services, (C) obligations to perform
services in respect of which payment has been received (except deferred revenue), (D) obligations
in respect of letters of credit, acceptances or similar obligations, (E) obligations in respect of
interest rate cap agreements, interest rate swap agreements, foreign currency exchange contracts or
other hedging contracts, (F) bank overdrafts (for the avoidance of doubt, any cash clearing account
is not considered a bank overdraft or Indebtedness) and (G) any guarantee of the obligations of
another Person with respect to any of the foregoing.



     “Indemnity Escrow Fund” means the amount escrowed pursuant to Section 12.6 hereof and
maintained in accordance with the Escrow Agreement.



     “Intellectual Property” means all intellectual property rights arising under the laws of the
United States or any other jurisdiction, including without limitation: (A) trade names, trademarks
and service marks (registered and unregistered), domain names, logos, trade dress and similar
rights, including all common law rights and all combinations thereof and all goodwill associated
with the foregoing, and all registrations and applications to register any of the foregoing
(collectively, “Marks”); (B) patents and patent applications (including all reissues, divisions,
continuation, continuation-in-part, extensions and reexaminations), and rights in respect of
utility models or industrial designs (collectively, “Patents”); (C) copyrights, whether registered
or unregistered, statutory or common law (including copyrights in software programs) and
copyrightable works and registrations and applications therefor in all nations throughout the
world, including but not limited to all derivative works, moral rights, renewals, extensions,
reversions or restorations of copyrights, now or hereafter provided by law (collectively,
“Copyrights”); and (D) know-how, inventions, discoveries, methods, processes, technical data,
specifications, research and development information, computer software, technology, data bases and
other proprietary or confidential information, including customer lists, in each case that derives
economic value (actual or potential) from not being generally known to other Persons who can obtain
economic value from its disclosure, but excluding any Copyrights or Patents that cover or protect
any of the foregoing (collectively, “Trade Secrets”).



     “knowledge” means, with respect to any party to this Agreement, the actual knowledge (after
due inquiry) of a particular fact, circumstance, event or other matter in question of the Chief
Executive Officer, Chief Financial Officer and General Counsel (as applicable) of such party.



4









 





     “Material Adverse Effect” when used with respect to an entity (which shall for this purpose
mean the Network Business) means any change, event, circumstance, condition or effect that
materially impairs the ability of such entity to perform its obligations under this Agreement or to
consummate the transactions contemplated hereby, or that is or is reasonably likely to be,
individually or in the aggregate, materially adverse to the condition (financial or otherwise),
assets (including intangible assets), liabilities, business, operations or results of operations of
such entity and its Subsidiaries, taken as a whole; provided, however, that in no
event shall any of the following be taken into account in determining whether there has been or
will be a Material Adverse Effect with respect to an entity: (A) any effect resulting directly from
the entity taking an action expressly required to be taken by it pursuant to the terms and
conditions of this Agreement, (B) with respect to the Company, any effect resulting from a change
in the industry in which the Company operates or in the worldwide economy generally which does not
effect the Company in a disproportionate manner relative to other participants in the industry, (C)
any adverse effect resulting from any change in Applicable Law or in accounting requirements or
principles required under GAAP, (D) any failure to meet internal revenue or earnings projections
(provided, that the facts or occurrences giving rise to or contributing to such failure
that are not otherwise excluded from the definition of Material Adverse Effect may be taken into
account in determining whether there has been, a Material Adverse Effect), (E) any effect resulting
from any acts of terrorism, war or natural disaster, or (F) any effect resulting from or relating
to the announcement, negotiation, execution or performance of this Agreement or the transactions
contemplated hereby.



     “Network Business” means the business of each of (A) TV Guide Network, (B) TV Guide Network
Broadband, (C) TV Guide Network Mobile, (D) TVGuide.com; and (E) TV Guide Network Video on Demand;
provided, that (i) when this term is used in connection with the Financial Statements,
“Network Business” shall not include either TV Guide Network Mobile or TVGuide.com, and (ii) when
this term is used in connection with the Interim Financial Statements “Network Business” shall not
include TVGuide.com. For the avoidance of doubt, TV Guide Network Mobile was first included in the
Network Business on May 2, 2008.



     “Net Working Capital” means (A) the Network Business’ combined total current assets, excluding
(i) cash, (ii) any intercompany payables or receivables and (iii) deferred tax assets as of the
Closing Date, less (B) the Network Business’ combined total current liabilities, excluding (i) any
cash clearing accounts, (ii) any intercompany payables or receivables and (iii) deferred Tax
liabilities as of the Closing Date; each of (A) and (B) as calculated in accordance with GAAP,
subject to the GAAP Exceptions. For the avoidance of doubt, in calculating Net Working Capital,
the term Network Business shall include each of (A) TV Guide Network, (B) TV Guide Network
Broadband, (C) TV Guide Network Mobile, (D) TVGuide.com; and (E) TV Guide Network Video on Demand.



     “Net Working Capital Decrease” means the amount by which the Net Working Capital is less than
$6,000,000.



     “Net Working Capital Increase” means the amount by which the Net Working Capital is greater
than $6,000,000.



5









 





     “Permitted Encumbrances” means (A) statutory Encumbrances for taxes that are not yet due and
payable; (B) statutory Encumbrances to secure obligations to landlords, lessors or renters under
leases or rental agreements (including, without limitation, the Encumbrances related to the
satellite transponder lease); (C) deposits or pledges made in connection with, or to secure payment
of, workers’ compensation, unemployment insurance or other social security or similar programs
mandated by Applicable Law; (D) statutory Encumbrances in favor of carriers, repairers, servicers,
bailees, warehousemen, mechanics and materialmen, to secure claims for labor, materials or supplies
and other like Encumbrances; or (E) any minor imperfection of title or similar Encumbrances,
charges or encumbrances which individually or in the aggregate with other such Encumbrances,
charges and encumbrances does not impair the value of the property subject to such Encumbrance,
charge or encumbrance or the use of such property by the Company or its Subsidiaries. Prior to the
Closing, “Permitted Encumbrances” shall also mean any security interest in the Equity Interests and
the assets of the Company and its Subsidiaries securing the guarantees by Stockholder, the Company
and the Company’s Subsidiaries of the obligations under the Credit Agreement.



     “Person” means any individual, corporation, company, limited liability company, partnership,
limited liability partnership, trust, estate, proprietorship, joint venture, association,
organization, entity or Governmental Authority.



     “Related Party” with respect to any specified Person means: (A) any affiliate of such
specified Person, or any director, executive officer, general partner or managing member of such
affiliate; (B) any Person who serves or within the past five years has served as a director,
executive officer, partner, member or in a similar capacity of such specified Person; (C) any
Immediate Family member of a Person described in clause (B); or (D) any other Person who holds,
individually or together with any affiliate of such other Person and any member(s) of such Person’s
Immediate Family, more than 5% of the outstanding equity or ownership interests of such specified
Person.



     “Representatives” means officers, directors, principals, employees, advisors, auditors,
agents, bankers and other representatives.



     “Restructuring” means the restructuring of the various Subsidiaries of Parent prior to the
Closing Date, in accordance with the plan set forth at
Exhibit G.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Seller Parties” means Seller, Stockholder, the Company and Parent.



     “Subsidiary” means, with respect to any other party, any corporation or other entity, whether
incorporated or unincorporated, of which (A) such party or any other Subsidiary of such party is a
general partner (excluding partnerships, the general partnership interests of which held by such
party or any Subsidiary of such party do not have a majority of the voting interest in such
partnership) or (B) at least a majority of the securities or other interests having by their terms
ordinary voting power to elect a majority of the Board of Directors or others performing similar
functions with respect to such corporation or other organization or a majority of the profit



6









 







interests in such other organization is directly or indirectly owned or controlled by such
party or by any one or more of its Subsidiaries, or by such party and one or more of its
Subsidiaries.



     “Tax” (and, with correlative meaning, “Taxes”) means (A) any net income, alternative or add-on
minimum tax, gross income, gross receipts, sales, use, value-added, ad valorem, transfer,
franchise, profits, license, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, environmental or windfall profit tax, custom duty and import and
export taxes, provincial health insurance plan premiums, employer health tax, United States or
other government pension plan contributions, employment insurance premiums, workman’s compensation
and other payroll taxes, deductions at source, non-resident withholding, social service provincial
sales and goods and services taxes, including estimated taxes, countervail and anti-dumping fees
and taxes, all licenses and registration fees, escheat, any related penalties, or other tax,
governmental fee or other like assessment, reassessment or charge, duties, impositions and
liabilities of any kind whatsoever, together with any interest or any penalty, addition to tax or
additional amount imposed by any Governmental Authority responsible for the imposition of any such
tax, (B) any liability for the payment of any amounts of the type described in clause (A) of this
sentence as a result of being a member of an affiliated, consolidated, combined, unitary or
aggregate group for any taxable period, and (C) any liability for the payment of any amounts of the
type described in clause (A) or (B) of this sentence as a result of being a transferee of or
successor to any Person or as a result of any express or implied obligation to indemnify any other
Person.



     “Tax Return” means any return, report or similar filing (including the attached schedules)
required to be filed with respect to Taxes, including any information return, claim for refund,
amended return or declaration of estimated Taxes.



     “Total Consideration” means (A) $255,000,000 minus (B) any Indebtedness of the Company or its
Subsidiaries outstanding as of the Closing plus (C) any Cash of the Company and its Subsidiaries as
of the Closing, plus (D) the Net Working Capital Increase, if any, estimated in accordance with
Section 3.4(a), minus (E) the Net Working Capital Decrease, if any, estimated in accordance with
Section 3.4(a).



     “TVGuide.com” means the public web business currently located at www.tvguide.com,
www.jumptheshark.com, www.tvshowsondvd.com, www.fansofrealitytv.com, www.m.tvguide.com and
www.tv-now.com and which as of the Agreement Date contains TV listings with entertainment and
TV-related content and products; provided, however, that TVGuide.com shall not
include the business of syndicating TV listings, IPGs or video search functionality to third
parties. For purposes of this definition, “syndicating” shall mean (a) any relationship whereby
data, IPGs or video search functionality is delivered by (or at the request of) Licensee’s web
sites to or on behalf of a third party web site, application or service for display to others,
regardless of whether or not by web affiliate, in-line linking, RSS, redirects, framing or
co-branding relationships, or other relationships in which content is served into a third party’s
web page, service, product or application; or (b) serving an IPG into, or using an IPG to control,
a television, set top box, recorder, wireless device or other consumer electronics device for the
express purpose of tuning, or otherwise controlling, that television, set top box, recorder,
wireless device or other consumer electronics device. For the avoidance of doubt, “syndicating”
shall not include the distribution of any isolated per program references or other



7









 







isolated pieces of information, or links to video content (with or without sound) which appear
within an article. For the further avoidance of doubt, TVGuide.com shall not include the listing
grid technology, IPGs, listings containers or online video guide search technology, all of which
are licensed to Buyer in the Licensed Asset agreement. TVGuide.com shall also not include listings
applications such as the iGoogle gadget.



     “TV Guide Network” means the linear broadcast cable television network that provides
entertainment and television guidance related programming to multi-channel video system operators,
which is currently known as TV Guide Network.



     “TV Guide Network Broadband” means an advertiser supported, video-on-demand service featuring
short-form and originally-produced and edited entertainment programs which is distributed on major
video portals.



     “TV Guide Network Mobile” means the business of repurposing TV Guide Network television
programming for mobile devices, which is currently solely comprised of the Verizon V CAST deal in
2008.



     “TV Guide Network Video on Demand” means an advertiser supported, video-on-demand television
programming services featuring short-form, originally-produced entertainment programs.”



Index of Other Defined Terms




	 	 	 
	Defined Terms	 	Section Reference
	ADSP

	 	 13.2(b)
	Agreement

	 	 Preamble
	Agreement Date

	 	 Preamble
	Allocation

	 	 13.2(b)
	Antitrust Laws

	 	 9.5(b)
	Assets

	 	 4.17
	Balance Sheet

	 	 4.7
	Balance Sheet Date

	 	 4.7
	Balance Sheet Dispute Notice

	 	 3.4(c)
	Bankruptcy and Equity Exception

	 	 4.4(a)
	Business Transaction

	 	 7.3
	Buyer

	 	 Preamble
	Buyer Indemnitee

	 	 12.2
	Claim Notice

	 	 12.4(a)
	Code

	 	 3.6(a)
	Company Benefit Plans

	 	 4.14(c)
	Company Employees

	 	 8.2(b)
	Company Foreign Plans

	 	 4.14(c)
	Company Group Employees

	 	 7.4(c)
	Company Intellectual Property

	 	 4.11(a)
	Company Registered Copyrights

	 	 4.11(b)






8









 






	 	 	 
	Defined Terms	 	Section Reference
	Company Registered IP

	 	 4.11(b)
	Company Registered Marks

	 	 4.11(b)
	Company Specified Approvals

	 	 4.4(b)
	Confidentiality Agreement

	 	 7.1
	Confirmation Certificate

	 	 3.4(c)
	Copyrights

	 	 Article I — definition of “Intellectual Property”
	Core Representations

	 	 12.1
	DOJ

	 	 9.5(a)
	Employees

	 	 4.14(a)
	End Date

	 	 11.2(b)
	environment

	 	 4.15(c)
	Environmental Law

	 	 4.15(c)
	Equity Interests

	 	 Recitals
	ERISA

	 	 4.14(c)
	ERISA Affiliate

	 	 4.14(d)
	Financial Statements

	 	 4.7
	FTC

	 	 9.5(a)
	HSR

	 	 4.4(b)
	Indemnifiable Claim

	 	 12.4(a)
	Indemnified Party

	 	 8.1(b)
	Indemnitee

	 	 12.4(a)
	Indemnitor

	 	 12.4(a)
	Independent Accountant

	 	 3.4(e)
	Independent Contractors

	 	 4.14(b)
	Interim Financial Statements

	 	 4.7
	IRS

	 	 13.2(b)
	Licensed Assets Agreement

	 	 3.1(e)
	Losses

	 	 12.2
	Marks

	 	 Article I — definition of “Intellectual Property”
	Material Contract

	 	 4.10(a)
	Materials of Environmental Concern

	 	 4.15(c)
	Network Data License

	 	 10.2(i)
	Network Patent License

	 	 10.2(g)
	New Plans

	 	 8.2(c)
	Nonsolicitation Period

	 	 8.3
	Online Data License

	 	 10.2(i)
	Online Patent License

	 	 10.2(g)
	Parent

	 	 Preamble
	Patents

	 	 Article I — definition of “Intellectual Property”
	Permits

	 	 4.12(b)
	Post-Closing Balance Sheet

	 	 3.4(b)
	Purchase

	 	 Recitals
	release

	 	 4.15(c)
	Retained Employee(s)

	 	 8.2(a)
	Section 338(h)(10) Election

	 	 13.2(a)
	Seller

	 	 Preamble






9









 






	 	 	 
	Defined Terms	 	Section Reference
	Start Date

	 	 8.2(a)
	Stockholder

	 	 Preamble
	Stockholder Indemnitee

	 	 12.3
	Tax Proceeding

	 	 13.9
	Threshold Amount

	 	 12.5(a)
	Trade Secrets

	 	 Article I — definition of “Intellectual Property”
	Trademark Assignment Agreements

	 	 3.1(c)
	Trademark License Agreement

	 	 3.1(d)
	Transfer Taxes

	 	 13.1
	Transition Services Agreement

	 	 10.2(f)
	TVGuide.com Financial Statements

	 	 4.7






ARTICLE II

THE RESTRUCTURING




     2.1 Restructuring. Prior to the Closing, each of the Company and its Subsidiaries shall
effect the Restructuring.



ARTICLE III

THE EQUITY PURCHASE




     3.1 Agreement to Sell and Purchase. At the Closing,



          (a) Stockholder shall sell, transfer and deliver to Buyer, and Buyer shall purchase and accept
from Stockholder, free and clear of any Encumbrance and with the benefits of all rights whatsoever
attaching or accruing to such Equity Interests on or after the Closing Date, the Equity Interests
held by Stockholder;




          (b) Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase
and accept from Seller all of the Seller’s right, title and interest (including all liabilities,
costs, expenses and obligations arising subsequent to the Closing) in the real property and other
leases identified on Section 3.1(b) of the Disclosure Schedule;




          (c) Seller and Gemstar Development Corporation shall assign to Buyer all of such entities’
right, title and interest in and to the Marks listed in Section 3.1(c) of the Disclosure Schedule
pursuant to the trademark assignment and assumption agreements substantially in the form attached
hereto as Exhibit D-1 and Exhibit D-2 (together, the “Trademark Assignment
Agreements”); and




          (d) Buyer shall grant to Seller a trademark license to use the Marks listed in Section 3.1(d)
of the Disclosure Schedule pursuant to a trademark license agreement substantially in the form
attached hereto as Exhibit E (the “Trademark License Agreement”).




          (e) Seller or its affiliates shall grant to Buyer a license to use the Licensed Assets (as
such term is defined in the Licensed Assets Agreement in the form attached hereto as Exhibit
F (the “Licensed Assets Agreement”)).




10









 





     3.2 The Closing. Unless otherwise mutually agreed in writing by the Company and Buyer, the
Closing shall take place at the offices of Cooley Godward Kronish LLP, 3175 Hanover Street, Palo
Alto, CA 94304, at 9:00 a.m. (California time) on the business day following the day on which the
last to be satisfied or waived of the conditions set forth in Article X (other than those
conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment
or waiver of those conditions) shall be satisfied or waived in accordance with this Agreement.



     3.3 Payment of Total Consideration at the Closing. At the Closing, Buyer shall cause the
Total Consideration (less the amount delivered to the Indemnity Escrow Fund pursuant to Section
12.6) to be delivered to Stockholder by wire transfer of immediately available funds to such
accounts as such Stockholder specifies in written instructions to Buyer prior to the Closing.



     3.4 Post-Closing Adjustments.



          (a) Not less than five (5) business days prior to the scheduled Closing Date, the Company
shall deliver to Buyer an estimated Closing Date Balance Sheet. The Closing Date Balance Sheet
shall present fairly, on a good faith basis, the estimated financial position of the Network
Business as of the Closing Date, subject to the GAAP Exceptions and the Closing Date Balance Sheet
Exceptions. Such Closing Date Balance Sheet shall serve as the basis for the estimate of the Net
Working Capital as of Closing for purposes of calculating the Total Consideration on the Closing
Date.




          (b) Within ninety (90) days of the Closing Date, Buyer shall cause to be prepared and
delivered to Stockholder an updated unaudited combined balance sheet of the Network Business as of
the Closing Date (the “Post-Closing Balance Sheet”) prepared in a manner consistent with the
Balance Sheet, subject to the Closing Date Balance Sheet Exceptions, together with Buyer’s
calculation of the Net Working Capital as of the Closing Date.




          (c) Stockholder shall have thirty (30) days following the date of delivery by Buyer to
Stockholder of the Post-Closing Balance Sheet to provide Buyer with a written certificate
confirming that the Net Working Capital as set forth in the Post-Closing Balance Sheet is correct
(the “Confirmation Certificate”) or notifying Buyer in writing of any good faith reasonable
objections to the calculation of the Net Working Capital as set forth on the Post-Closing Balance
Sheet (a “Balance Sheet Dispute Notice”), setting forth a reasonably specific and detailed
description of such objections. If a Confirmation Certificate is delivered by Stockholder pursuant
to this Section 3.4(c), then the Net Working Capital calculated by Buyer in connection with the
preparation of the Post-Closing Balance Sheet shall be deemed to be final and binding on the
parties to this Agreement. During the 30-day period immediately following Stockholder’s receipt of
the Post-Closing Balance Sheet, Stockholder shall be permitted to review Buyer’s working papers
related to the preparation of the Post-Closing Balance Sheet and determination of the Net Working
Capital.




          (d) If Stockholder shall object to the Post-Closing Balance Sheet or Buyer’s calculation of
the Net Working Capital as reflected in the Balance Sheet Dispute Notice, a representative of
Buyer, on the one hand, and Stockholder, on the other, shall attempt in good




11









 





faith to resolve any such objections within ten (10) business days of the receipt by Buyer of
the Balance Sheet Dispute Notice.




          (e) If Stockholder and Buyer shall be unable to resolve any such dispute within the ten (10)
business day period, Stockholder and Buyer (either together or separately) shall be entitled to
submit the dispute to a mutually agreed upon independent accounting firm (the “Independent
Accountant”) for review and resolution of all matters (but only such matters) which remain in
dispute, and the Independent Accountant shall make a final determination of the Net Working Capital
to the extent such amount is in dispute, in accordance with the guidelines and procedures set forth
in this Agreement. Each of Stockholder, on the one hand, and Buyer, on the other hand, shall, and
shall cause their respective Representatives to provide full cooperation to the Independent
Accountant. The Independent Accountant shall (i) act in its capacity as an expert and not as an
arbitrator, (ii) limit its review to such items and calculations as were addressed in the Balance
Sheet Dispute Notice that have not been resolved by the parties and any factual or mathematical
errors contained in the information provided to or by Buyer and (iii) be instructed to reach its
conclusions regarding any such dispute within thirty (30) days after its appointment and provide a
written explanation of its decision. In resolving any matters in dispute, the Independent
Accountant may not assign a value to any item in dispute greater than the greatest value for such
item assigned by Buyer, on the one hand, or Stockholder, on the other hand, or less than the
smallest value for such item assigned by Buyer, on the one hand, or Stockholder, on the other hand.
The Independent Accountant’s determination will be based solely on presentations by Buyer and
Stockholder which are in accordance with the guidelines and procedures set forth in this Agreement
(i.e., not on the basis of an independent review). The Post-Closing Balance Sheet and the
determination of the Net Working Capital shall become final and binding on the parties on the date
the Independent Accountant delivers its final resolution in writing to the parties. The fees and
expenses of the Independent Accountant shall be paid by the party determined by the Independent
Accountant to be the non-prevailing party in connection with the dispute; provided,
however, that if the Independent Accountant shall determine in its reasonable discretion
that neither party shall be the non-prevailing party, then such fees and expenses shall be borne
50% by Stockholder and 50% by Buyer.




          (f) If Stockholder does not deliver a Balance Sheet Dispute Notice in accordance with Section
3.4(c) above (i.e., within the 30-day period specified therein), the Post-Closing Balance Sheet
(together with Buyer’s calculation of the Net Working Capital set forth on the Post-Closing Balance
Sheet) shall be deemed to have been accepted by all of the parties to this Agreement. In the event
that Stockholder delivers a Balance Sheet Dispute Notice in accordance with the provisions above
and Stockholder and Buyer are able to resolve such dispute by mutual agreement, the Post-Closing
Balance Sheet, together with the calculation of the Net Working Capital, to the extent modified by
the mutual agreement of such parties, shall be deemed to have been accepted by all of the parties
to this Agreement. In the event that Stockholder delivers a Balance Sheet Dispute Notice in
accordance with the provisions set forth above and Stockholder and Buyer are unable to resolve such
dispute by mutual agreement, the determination of the Independent Accountant shall be final and
binding on the parties, and the Post-Closing Balance Sheet, together with the calculation of the
Net Working Capital, to the extent modified by the Independent Accountant, shall be deemed to have
been accepted by all of the parties to this Agreement.




12









 








          (g) In the event that it is determined that the Net Working Capital shall have been overstated
in the calculation of the Total Consideration for purposes of the Closing, Stockholder shall
deliver to Buyer such overstated amount by wire transfer of immediately available funds to such
accounts as Buyer specifies in written instructions to Stockholder within three (3) business days
following the final determination of such amounts pursuant to this Section 3.4.




          (h) In the event that it is determined that the Net Working Capital shall have been
understated in the calculation of the Total Consideration for purposes of the Closing, Buyer shall
deliver to Stockholder such understated amount by wire transfer of immediately available funds to
such accounts as Stockholder specifies in written instructions to Buyer within three (3) business
days following the final determination of such amounts pursuant to this Section 3.4.




     3.5 Further Assurances. If, at any time before or after the Closing, any of the parties
hereto reasonably believes or is advised by their attorneys that any further instruments, deeds,
assignments or assurances are reasonably necessary to consummate the transactions contemplated
hereby or to carry out the purposes and intent of this Agreement at or after the Closing, then
Stockholder, the Company, Buyer and their respective officers and directors shall execute and
deliver all such proper deeds, assignments, instruments and assurances and do all other things
reasonably necessary to consummate the transactions contemplated hereby and to carry out the
purposes and intent of this Agreement.



     3.6 Tax Withholding.



          (a) Buyer or any agent of Buyer shall be entitled to deduct and withhold from the Total
Consideration or other payment otherwise payable pursuant to this Agreement the amounts required to
be deducted and withheld under the Internal Revenue Code of 1986, as amended (the “Code”), or any
provision of state, local or foreign tax law, with respect to the making of such payment. To the
extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of
this Agreement as having been paid to the Person in respect of whom such deduction and withholding
was made.




          (b) Stockholder agrees to furnish Buyer with a non-foreign certification (in form and
substance reasonably satisfactory to Buyer) that satisfies the requirements of Treasury Regulation
section 1.1445-2(b)(2).




ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY




     Subject to the disclosures set forth in the Disclosure Schedule, the Company represents and
warrants to Buyer that the statements contained in this Article IV are true and correct, on and as
of the Agreement Date (except to the extent expressly made as of an earlier date, in which case
such statements are true and correct as of such date), except for those representations and
warranties that may be directly or indirectly affected by the consummation of the Restructuring, in
which case such statements are true and correct on and as of the effective date of the
Restructuring and would be true as of the Agreement Date if the Restructuring were effected
immediately prior to the Agreement Date, as applicable:



13









 





     4.1 Organization and Good Standing. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The Company has all
requisite power and authority to own, operate and lease its properties and to carry on the Network
Business. The Company is duly qualified or licensed to do business, and is in good standing, in
each jurisdiction where the character of the properties owned, leased or operated by it or the
nature of its activities makes such qualification or licensing necessary, except where failure to
be so qualified or licensed could not reasonably be expected to result in a Material Adverse Effect
on the Company. The Company is not in violation of its organizational documents as amended to
date.



     4.2 Subsidiaries. Each Subsidiary of the Company is identified on Section 4.2 of the
Disclosure Schedule, together with a listing of the jurisdiction in which each such Subsidiary is
organized. Each such Subsidiary is an entity duly formed or organized, validly existing and in
good standing under the laws of the jurisdiction in which it was formed or organized. Each such
Subsidiary has all requisite power and authority to own, operate and lease its properties and to
carry on its business as now being conducted and is duly qualified or licensed to do business, and
is in good standing, in each jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its activities makes such qualification or licensing necessary,
except where failure to be so qualified or licensed could not reasonably be expected to result in a
Material Adverse Effect on such Subsidiary. No Subsidiary is in violation of its organizational
documents as amended to date.



     4.3 Capitalization of the Company.



          (a) Company Capitalization. The authorized capital stock of the Company consists of 1,000
shares of Company Common Stock, of which 100 shares are issued and outstanding, all of which
outstanding shares are held by Stockholder. The Equity Interests have been duly authorized and
validly issued, are fully paid and nonassessable, were not issued in violation of and are not
subject to any right of rescission, right of first refusal or preemptive right, have been offered,
issued, sold and delivered by the Company in compliance with all requirements of Applicable Law and
all requirements set forth in applicable Contracts and the Company has received all consideration
due to it in connection with the sale and issuance of such Equity Interests.




          (b) No Other Rights. There are no appreciation rights, options, warrants, calls, rights,
commitments, conversion privileges or preemptive or other rights or Contracts outstanding to
purchase or otherwise acquire any interests of the Company or any securities or debt convertible
into or exchangeable for interests of the Company or obligating the Company to grant, extend or
enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or
other right or Contract. There are no voting agreements, rights of first refusal, preemptive
rights, co-sale rights or other restrictions applicable to the Equity Interests.




          (c) Subsidiary Capitalization. Section 4.3(c) of the Disclosure Schedule sets forth a list of
the number and type of equity securities held by the Company in each of the Subsidiaries identified
in Section 4.2 of the Disclosure Schedule, the percentage of all outstanding equity interests for
such Subsidiary represented by the securities held by the Company and a summary of all outstanding
options or similar arrangements to acquire equity




14









 





securities of such Subsidiaries. The Company owns 100% of the outstanding equity interests of
each of the Subsidiaries. There are no appreciation rights, options, warrants, calls, rights,
commitments, conversion privileges or preemptive or other rights or Contracts outstanding to
purchase or otherwise acquire any interest of any Subsidiary or any securities or debt convertible
into or exchangeable for interest of any Subsidiary or obligating any Subsidiary to grant, extend
or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive
or other right or Contract. There are no voting agreements, rights of first refusal, preemptive
rights, co-sale rights or other restrictions applicable to the equity interests of any such
Subsidiary.




     4.4 Corporate Authority Relative to This Agreement; No Violation.



          (a) The Company has all requisite corporate power and corporate authority to enter into,
execute, deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated under this Agreement to which it is a party. The execution, delivery and
performance by the Company of this Agreement and the Company Ancillary Agreements, have been duly
and validly approved and authorized by the Company and constitutes, or when executed and delivered
will constitute, the valid and binding agreements of the Company, enforceable against the Company
in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”).




          (b) The execution, delivery and performance by the Company of this Agreement and the Company
Ancillary Agreements and the consummation of the transactions contemplated under this Agreement to
which it is a party by the Company does not and will not require any consent, approval,
authorization or permit of, action by, filing with or notification to any Governmental Authority
other than (i) compliance with the applicable requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (“HSR”), and (ii) the other consents and/or notices set forth
on Section 4.4(b) of the Disclosure Schedule (collectively, clauses (i) and (ii), the “Company
Specified Approvals”).




          (c) Assuming receipt of or compliance with the Company Specified Approvals, the execution,
delivery and performance by the Company of this Agreement and the consummation by the Company of
the Purchase and the other transactions contemplated hereby do not and will not (i) contravene or
conflict with the organizational or governing documents of the Company or any of its Subsidiaries,
(ii) contravene or conflict with or constitute a violation in any material way of any provision of
any Applicable Law binding upon or applicable to the Company or any of its Subsidiaries or any of
their respective properties or assets, or (iii) result in any material violation of, or material
default (with or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any material obligation or to the loss of a material
benefit under, any Material Contract or result in the creation of any material Encumbrance (other
than Permitted Encumbrances) upon any of the properties or assets of the Company or any of its
Subsidiaries.




     4.5 Litigation. Except as otherwise disclosed on Section 4.5 of the Disclosure Schedule
(which disclosed items shall be the sole responsibility of Seller), there is no Action



15









 




(except for any Actions commenced by Persons other than Governmental Authorities that could
not reasonably be expected to result in a liability or loss to the Company or its Subsidiaries of
more than $300,000 individually) pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any material property or asset of the Company or any of
its Subsidiaries, or any of the officers or directors of the Company or any of its Subsidiaries in
regards to their actions as such, nor is there, to the knowledge of the Company, any basis for any
such Action. There is no (a) outstanding judgment, order, decree, award, stipulation or injunction
of any Governmental Authority against the Company or any of its Subsidiaries which seeks to or is
reasonably likely to have the effect of preventing the Company or any of its Subsidiaries from
consummating the Purchase, or (b) any Action which, if resolved adversely to the Company or any of
its Subsidiaries would be reasonably likely to impair the ability of the Company or any of its
Subsidiaries to consummate the transactions contemplated under this Agreement.




     4.6 Taxes. The Company and each of its Subsidiaries and each Affiliated Group (i) have
prepared and timely filed (taking into account any extension of time within which to file) all
material Tax Returns required to be filed by any of them and all such filed Tax Returns are
complete and accurate in all material respects; (ii) the Company and each of its Subsidiaries and
each Affiliated Group have paid all Taxes shown as due on such Tax Returns; (iii) the Company and
each of its Subsidiaries has withheld and paid all material Taxes required to have been withheld
and paid in connections with amounts owing to any employee, independent contractor, creditor,
stockholder or other third party and all Forms 1042, W-2 and 1099 required with respect thereto
have been properly completed and timely filed; (iv) neither the Company nor any of its Subsidiaries
has any liability for Taxes of any Person (other than the Company or such Subsidiaries) pursuant to
any Tax allocation or sharing agreement, under Treasury Regulations Section 1.1502-6 (or any
similar provision of state, local or foreign law), as a transferee or successor, or otherwise; (v)
there are not pending or, to the knowledge of the Company, threatened in writing, any audits,
examinations, investigations or other proceedings in respect of Taxes of the Company, any of its
Subsidiaries, or any of the Company’s or such Subsidiaries’ assets, and neither the Company nor any
of its Subsidiaries has given any currently effective waiver or extension of any statute of
limitations in respect of Taxes nor are there any currently effective waivers of or extension of
any statutes of limitations of Taxes in respect of any of the Company’s or such Subsidiaries’
assets; (vi) neither the Company nor any of its Subsidiaries has entered into any “listed
transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2); (vii) none of the
Company or its Subsidiaries has been a “controlled corporation” or a “distributing corporation” in
any distribution occurring during the two-year period ending on the Agreement Date that was
purported or intended to be governed by Section 355 of the Code; (viii) the unpaid Taxes of the
Company and each of its Subsidiaries do not exceed the reserves for Tax liability shown on the
Balance Sheet, or similar reserves for Tax liability shown on the consolidated financial statements
of Parent to the extent such reserves apply to Company’s or its Subsidiaries’ Tax Returns not yet
filed; (ix) each of the Company and its Subsidiaries has disclosed on its federal income Tax
Returns filed for its 2005 taxable year and thereafter all positions taken therein that could give
rise to a substantial understatement of federal income Tax within the meaning of IRC section 6662;
(x) there are no Encumbrances for Taxes except Permitted Encumbrances for which reserves have been
established on the Balance Sheet, and (xi) Stockholder and the Company are, and at the time of the
Closing will be,



16









 







members of Parent’s federal consolidated Tax group and included in Parent’s federal
consolidated income tax return.



     4.7 Financial Statements. Copies of (i) the audited combined balance sheet of the Network
Business as of December 31, 2007 and 2006, and the related audited combined statements of income,
parents’ net investment and cash flows of the Network Business for each of the three years in the
period ended December 31, 2007, together with all related notes and schedules thereto, accompanied
by the report thereon of the Network Business’ independent auditors (collectively referred to as
the “Financial Statements”), (ii) the unaudited combined balance sheet of the Network Business as
of September 30, 2008, and the related unaudited combined statement of income of the Network
Business (collectively referred to as the “Interim Financial Statements”), (iii) the unaudited
combined balance sheet of TVGuide.com as of September 30, 2008, June 30, 2008, March 31, 2008,
December 31, 2007 and December 31, 2006 and the related unaudited combined statement of income of
TVGuide.com (collectively referred to as the “TVGuide.com Financial Statements”), and (iv) a
schedule combining the unaudited combined balance sheet of the Network Business and the unaudited
combined balance sheet of TVGuide.com as of September 30, 2008 (the “Balance Sheet,” and such date
the “Balance Sheet Date”) are attached as Section 4.7 of the Disclosure Schedule. The Financial
Statements (a) have been prepared based on the books and records of the Network Business (except as
may be indicated in the notes thereto), (b) have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods indicated (except as may be indicated in the notes
thereto), and (c) fairly presents, in all material respects, the combined financial position,
results of operations and cash flows of the Network Business as of the respective dates thereof and
for the respective periods indicated therein, except as otherwise noted therein. The Interim
Financial Statements (i) have been prepared based on the books and records of the Network Business;
(ii) have been prepared in a manner consistent with prior quarter-end unaudited combined balance
sheets and statements of income, which is in accordance with GAAP, subject to the GAAP Exceptions;
and (iii) fairly presents, in all material respects, the combined financial position and results of
operations of the Network Business as of the respective date thereof and for the respective period
indicated therein, subject to the GAAP Exceptions; and (iv) subject to normal and recurring
year-end adjustments that will not, individually or in the aggregate, be material. The TVGuide.com
Financial Statements (a) have been prepared based on the books and records of TVGuide.com except as
may be indicated in the notes thereto; (b) have been prepared in a manner consistent with prior
quarter-end unaudited combined balance sheets and statements of income, which is in accordance with
GAAP, subject to the GAAP Exceptions, except as may be indicated in the notes thereto; (c) fairly
presents, in all material respects, the combined financial position and results of operations of
TVGuide.com as of the respective date thereof and for the respective period indicated therein,
except as otherwise noted therein; and (d) subject to normal and recurring year-end adjustments
that will not, individually or in the aggregate, be material. The Balance Sheet (a) has been
prepared based on the balance sheet contained in the Interim Financial Statements and the balance
sheet as of September 30, 2008, contained in the TVGuide.com Financial Statements, except as may be
indicated in the notes thereto; and (b) fairly presents, in all material respects, the combined
financial position of the Network Business as of the Balance Sheet Date, except as otherwise noted
therein.



17









 





     4.8 Absence of Liabilities. Except (a) to the extent reflected or reserved against in the
Balance Sheet, (b) for liabilities or obligations permitted by this Agreement, or (c) for
liabilities and obligations incurred in the ordinary course of business consistent with past
practices since the Balance Sheet Date, the Network Business does not have any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, that would be required
by GAAP, subject to the GAAP Exceptions, to be reflected on a combined balance sheet of the Network
Business. For the avoidance of doubt, for purposes of this Section 4.8, the Network Business
includes TVGuide.com.



     4.9 Absence of Certain Changes or Events. Since the Balance Sheet Date, except as otherwise
contemplated, required or permitted by this Agreement, including, without limitation, the
Restructuring, (i) the Network Business has been conducted, in all material respects, in the
ordinary course of business consistent with past practices and (ii) neither the Company nor any of
its Subsidiaries has taken any action which, if taken after the Agreement Date without the prior
consent of Buyer, would constitute a breach of any of the covenants set forth in Section 7.2 of
this Agreement. As of the Agreement Date (and, for the avoidance of doubt, solely as of such date
for all purposes of this Agreement): Between September 30, 2008 and the Agreement Date, there has
not been any event or effect that has had a Material Adverse Effect on the Network Business.



     4.10 Contracts.



          (a) For purposes of this Agreement, “Material Contract” shall mean (i) any “material contract”
(within the meaning of Item 601(b)(10) of Regulation S-K under the Securities Act, and the Exchange
Act) with respect to Parent that is solely applicable to the Network Business; (ii) the Carriage
Agreements; (iii) any Contract, except for insertion orders or carriage agreements, pursuant to
which the Company or any of its Subsidiaries received more than $500,000 over the past 12 months;
(iv) any Contract which obligates, or in the Company’s reasonable discretion is reasonably likely
to obligate, the Company or any of its Subsidiaries to pay more than $500,000 over any future 12
month period in the next five years; (v) any indemnification, employment, “change of control,”
retention, severance, consulting or other Contract with any executive officer of the Network
Business other than those Contracts terminable by the Company or any of its Subsidiaries on no more
than thirty (30) days’ notice without liability or financial obligation to the Company or any such
Subsidiary; and (vi) any mortgages, indentures, guarantees, loans or credit agreements, security
agreements or promissory notes relating to the borrowing of money, extension of credit or other
indebtedness for borrowed money by the Network Business.




          (b) Section 4.10(b) of the Disclosure Schedule sets forth a list of all the Material Contracts
as of the Agreement Date.




          (c) (i) neither the Company nor any Subsidiary of the Company is in material breach of or
material default under the terms of any Material Contract; (ii) to the knowledge of the Company, no
other party to any Material Contract is in material breach of or material default under the terms
of any Material Contract; and (iii) each Material Contract is a valid and binding obligation of the
Company or the Subsidiary of the Company which is party thereto and, to the



18









 






knowledge of the Company, of each other party thereto, and except for the Bankruptcy and
Equity Exception, is in full force and effect.




     4.11 Intellectual Property.



          (a) The Intellectual Property that is used in or necessary for, and (in either event) is
material to the operation of the Network Business as currently conducted (collectively, the
“Company Intellectual Property”); (i) is owned by the Company or a Subsidiary of the Company, (ii)
the Company or one of its Subsidiaries holds a license to or otherwise possesses legally
enforceable rights to use all such Company Intellectual Property, or (iii) to the extent held by an
affiliate, will be licensed to the Company or a Subsidiary of the Company prior to the Closing.
All such Company Intellectual Property is free and clear of any Encumbrances (excluding any rights
granted under any license or distribution agreements entered into in the ordinary course of
business consistent with past practice). None of the Company Intellectual Property owned by the
Company or its Subsidiaries is, and to the knowledge of the Company, no other Company Intellectual
Property is subject to any outstanding order, judgment or stipulation restricting the use thereof
by the Company or any of its Subsidiaries. The Company Intellectual Property is sufficient for the
conduct of the Network Business as currently conducted.




          (b) Section 4.11(b)(i) of the Disclosure Schedule sets forth an accurate and complete list of
all registered Marks and applications for registration of Marks used in the Network Business and
owned by the Company or one of its affiliates (collectively, the “Company Registered Marks”), and
Section 4.11(b)(ii) of the Disclosure Schedule sets forth an accurate and complete list of all
registered Copyrights and all pending applications for registration of Copyrights used in the
Network Business and owned by the Company or one of its affiliates (collectively, the “Company
Registered Copyrights” and, together with the Company Registered Marks, the “Company Registered
IP”). The Company and its Subsidiaries own no Patents that are used in the Network Business. As
to all Company Registered IP, the Company or one of its Subsidiaries is the owner of the right,
title and interest in such Company Registered IP as is necessary for the operation of the Network
Business as currently conducted. No Company Registered IP has been or is now involved in any
interference, reissue, reexamination, opposition or cancellation proceeding and, to the knowledge
of the Company, no such action is or has been threatened with respect to any of the Company
Registered IP. To the knowledge of the Company, (i) the Company Registered IP other than pending
applications, as to which the Company makes no representation) is valid and subsisting, (ii) there
are no pending or threatened claims challenging the validity or enforceability of any of the
Company Registered IP, and (iii) all filing, examination, issuance, post registration and
maintenance fees, annuities and the like associated with or required with respect to any of the
Company Registered IP have been paid.




          (c) As of the Agreement Date, there are no pending claims or, to the knowledge of the Company,
claims threatened in writing in the last two years by any Person alleging that the Company or any
of its Subsidiaries infringes the Intellectual Property of such Person. To the knowledge of the
Company, neither the conduct of the Network Business nor any of the products or services
distributed, sold or offered as part of the Network Business by the Company or any of its
Subsidiaries, nor any technology or materials used in connection therewith, infringes upon,
misappropriates or violates any Intellectual Property of any Person, or constitutes unfair
competition or unfair trade practices under the laws of any jurisdiction (except



19









 






for such infringements that are not, individually or in the aggregate, expected to have a
Material Adverse Effect on the Company or any of its Subsidiaries). The Company and its
Subsidiaries use the Intellectual Property not owned by them only pursuant to valid and effective
license agreements.




          (d) Except as set forth on Section 4.11(d) of the Disclosure Schedule, the execution and
delivery of this Agreement by the Company and the consummation of the transactions contemplated by
this Agreement will not, result in (i) the breach of (or with the passage of time, result in the
breach of), any agreement related to Company Intellectual Property to which the Company or a
Subsidiary of the Company is a party or by which it is bound, (ii) the creation in any Person of
the right to terminate or modify, or result in the payment to any Person of any additional fees or
other consideration under, or result in the suspension of or acceleration of any payment by or to
any Person under any agreements related to Company Intellectual Property to which the Company or a
Subsidiary of the Company is a party of by which it is bound; or (iii) the impairment of the right
of the Company or its Subsidiaries, as applicable, to use, own, sell, or license any Company
Intellectual Property owned by the Company or any of its Subsidiaries.




          (e) The Company has taken steps reasonable in the industries in which the Network Business
operates to protect and preserve its rights in any Company Intellectual Property owned by the
Company and its Subsidiaries (including executing confidentiality and intellectual property
assignment agreements with executive officers, employees and contractors that have a material role
in the development of the Company’s products, including software, and Intellectual Property of the
Company and its Subsidiaries), including in any Trade Secrets of the Company and its Subsidiaries.
To the knowledge of the Company, no prior or current employee or officer or any prior or current
consultant or contractor of the Company or any of its Subsidiaries has asserted or has any claim or
right of ownership in any Intellectual Property owned by the Company or its Subsidiaries (except
for development agreements entered into with consultants and contractors in the ordinary course of
business where the Company or any of its Subsidiaries was provided a license including terms
sufficient to conduct the business of the Company or any of its Subsidiaries as needed by such
consultants or contractors).




          (f) The Company and each of its Subsidiaries have complied with their respective privacy
policies and is in compliance with all Applicable Laws governing the disclosure, collection, use,
sharing and storage of personal information, including employee personal information.




          (g) To the knowledge of the Company, neither the Company nor any of its Subsidiaries has
licensed any of the Intellectual Property owned by the Company and its Subsidiaries to any third
party on an exclusive basis, nor has the Company or any of its Subsidiaries entered into any
Contract limiting its ability to exploit fully any of such owned Intellectual Property, including
software, except for any such Contract where such owned Intellectual Property is licensed on a
non-exclusive basis in the ordinary course of business. To the knowledge of the Company, there is
no infringement or other violation of any owned Intellectual Property that would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect. In the past three
(3) years, neither the Company nor any Subsidiary



20









 






has initiated any actions or asserted any claims for infringement or other violation of
Intellectual Property owned (or exclusively licensed to) it.




     4.12 Compliance With Applicable Laws.



          (a) Each of the Company and its Subsidiaries is in compliance in all material respects with
all Applicable Laws. None of the Company, any of its Subsidiaries or any of its or their executive
officers has received during the past year, nor is there any basis for, any notice, order,
complaint or other communication from any Governmental Authority or any other Person that the
Company or any of its Subsidiaries is not in compliance in any material respect with any Applicable
Law.




          (b) Section 4.12(b) of the Disclosure Schedule sets forth a true and complete list of all
permits, licenses, franchises, approvals, certificates, consents, waivers, concessions, exemptions,
orders, registrations, notices or other authorizations of any Governmental Authority necessary for
each of the Company and its Subsidiaries to own, lease and operate the Network Business in all
material respects as currently conducted (the “Permits”). To the knowledge of the Company, each of
the Company and its Subsidiaries is and has been in compliance in all material respects with all
such Permits. No suspension, cancellation, modification, revocation or nonrenewal of any Permit is
pending or, to the knowledge of the Company, threatened.




     4.13 Real Property. The Company has heretofore made available to Buyer true and complete
copies of all deeds of trust, leases, subleases or licenses relating to all real property owned,
leased, subleased or licensed by the Company or any of its Subsidiaries (other than storage
facilities). The Company or a Subsidiary of the Company owns and has valid title to all of its
owned real property and has valid leasehold interests in all of its leased properties, free and
clear of all material Encumbrances (except for Permitted Encumbrances and all other title
exceptions, changes, defects, easements, restrictions, encumbrances and other matters, whether or
not of record, which do not materially affect the continued use of the applicable property for the
purposes for which such property is currently being used by the Company or a Subsidiary of the
Company as of the Agreement Date).



     4.14 Employees; Labor Matters.



          (a) Section 4.14(a) of the Disclosure Schedule contains a true and complete list, as of
December 12, 2008, of all employees employed in the Network Business (the “Employees”), including,
to the extent applicable, each Employee’s (i) name, (ii) title, wage, salary and target bonus,
(iii) principal location of employment, and (iv) date of hire by the Company. Section 4.14(a) of
the Disclosure Schedule also contains a true and complete list of all Employees who are as of such
date on a short- or long-term disability leave or other leave of absence (but not including
vacation). To the knowledge of the Company, no employee, consultant or director of the Company or
any of its Subsidiaries is a party to, or is otherwise bound by, any nondisclosure,
confidentiality, noncompetition, proprietary rights, employment, consulting or similar agreement,
between such employee or director and any person or entity that materially adversely affects or
will affect the performance of his or her duties as an employee, consultant or director of the
Company or such Subsidiary (as applicable).




21









 








          (b) Section 4.14(b) of the Disclosure Schedule contains a true and complete list, as of
December 12, 2008, of all consultants and other independent contractors who are providing material
services to the Network Business (the “Independent Contractors”), including (i) each Independent
Contractor’s name, (ii) the type of services being provided by each Independent Contractor, (iii)
the principal location where services are provided by each Independent Contractor and (iv) date
when each Independent Contractor was retained by the Company. Copies of all Contracts relating to
Independent Contractors used in the Network Business have been provided to Buyer. To the knowledge
of the Company, all individuals who are performing consulting or other services for the Company or
any of its Subsidiaries are or were correctly classified by the Company or such Subsidiary as
either “independent contractors” or “employees” as the case may be and, at the Closing Date, will
qualify for such classification with immaterial exceptions.




          (c) Section 4.14(c) of the Disclosure Schedule lists all employee, consultant or director
compensation and/or benefit plans, programs, policies, agreements, or other arrangements, including
any employee welfare plan within the meaning of Section 3(1) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), any employee pension benefit plan within the meaning of
Section 3(2) of ERISA (whether or not such plan is subject to ERISA), and any bonus, incentive,
deferred compensation, savings, supplemental retirement, vacation, stock purchase, stock option,
severance, termination pay, employment, change of control or fringe benefit plan, program or
agreement, employee loan programs, other equity compensation awards, profit-sharing arrangements,
other paid-time-off programs, health, life, or disability benefit plans, retiree medical or life
insurance plans, dependent care, insurance arrangements covering employees, consultants and
directors, in each case that are sponsored, maintained, contributed to or required to be
contributed to by the Company or any of its Subsidiaries for the benefit of current or former
employees, directors or consultants of the Company or its Subsidiaries, or with respect to which
the Company or any of its Subsidiaries has or may have any liability (contingent or otherwise) (the
“Company Benefit Plans”); provided, that Company Benefit Plans shall not include any Company
Foreign Plans. For purposes of this Agreement, the “Company Foreign Plans” shall refer to each
plan, program or Contract that is subject to or governed by the laws of any jurisdiction other than
the United States, and which would have been treated as a Company Benefit Plan had it been a United
States plan, program or Contract. All Company Benefit Plans and Company Foreign Plans are in
writing. The Company has made available to Buyer the most recent copies of each Company Benefit
Plan and each Company Foreign Plan, and amendments thereto, together with, to the extent
applicable, (i) trust documents and the most recent summary plan description and any summaries of
material modifications thereto, (ii) the two most recent annual reports (Form 5500 series) and all
schedules thereto, (iii) the most recent financial statements and/or actuarial valuation reports,
and (iv) the most recent Internal Revenue Service determination letter.




          (d) Except as set forth on Section 4.14(d) of the Disclosure Schedule, at no time has any
Company or any ERISA Affiliate ever contributed to, incurred an obligation to contribute to or
otherwise incurred any liability (contingent or otherwise) with respect to any multiemployer plan
within the meaning of Section 3(37) of ERISA or a plan that is subject to Title IV of ERISA. No
liability (contingent or otherwise) under Title IV of ERISA has been incurred by the Company or any
of its ERISA Affiliates that remains unsatisfied, and, to the Company’s knowledge, no such
liability is reasonably expected to be incurred. Neither the



22









 






Company nor any ERISA Affiliate has any liability under any Company Benefit Plan that provides
health or other welfare benefits with respect to current or former employees, consultants or
directors beyond their termination of employment or service with the Company and its Subsidiaries,
other than as required by COBRA and at the expense of the participant or the participant’s
beneficiary. For purposes of this Agreement, “ERISA Affiliate” means any trade or business
(whether or not incorporated) which would be treated as a single employer with the Company or any
of its Subsidiaries under Section 414 of the Code.




          (e) (i) neither the Company nor any of its Subsidiaries is a party to, or bound by, any
collective bargaining agreement, Contract or other agreement or understanding with a labor union or
labor organization; (ii) there are no strikes, lockouts, slowdowns or work stoppages in effect or,
to the knowledge of the Company, threatened with respect to any employees of the Company or any of
its Subsidiaries, in each case, that would reasonably be expected to result in any material
liability to the Company or any Subsidiary; (iii) to the knowledge of the Company, there is no
union organizing effort pending or threatened against the Company or any of its Subsidiaries; and
(iv) there is no material unfair labor practice, charge or complaint pending, or to the Company’s
knowledge threatened, against the Company or any of its Subsidiaries and (v) the Company and its
Subsidiaries have complied in all material respects with all applicable laws relating to the
employment of labor, employment practices, terms and conditions of employment, wages, hours of work
and occupational safety and health. Neither the Company nor any of its Subsidiaries has engaged in
any plant closing or employee layoff activities since January 1, 2008 that would violate or in any
way implicate the Worker Adjustment Retraining and Notification Act of 1988, as amended, or any
similar state or local plant closing or mass layoff statute, rule or regulation.




     4.15 Environmental Matters.



          (a) The Company is in compliance with all material Environmental Laws (as defined below),
which compliance includes the possession by the Company and its Subsidiaries of all material
permits required under all Environmental Laws and compliance with the terms and conditions thereof,
in each case except where the failure to so comply would not reasonably be expected to have a
Material Adverse Effect.




          (b) The Company has not received any written communication, whether from a Governmental
Authority or other Person, that alleges that either the Company or any of its Subsidiaries is not
in compliance with any Environmental Laws or any material permits required under any applicable
Environmental Law, or that it is liable under any Environmental Law, or that it is responsible (or
potentially responsible) for the remediation of any Materials of Environmental Concern (as defined
below) at, on or beneath its facilities or at, on or beneath any land adjacent thereto or any other
property, and, to the knowledge of the Company, there are no conditions existing at such facilities
that would reasonably be expected to prevent or interfere with such full compliance or give rise to
such liability in the future. The Company has no knowledge of any condition at any of the
properties leased by the Company or any of its Subsidiaries that would reasonably be expected to
have a Material Adverse Effect.




          (c) As used in this Agreement, “release” and “environment” shall have the meaning set forth in
the Comprehensive Environmental Response, Compensation and Liability




23









 





Act of 1980, as amended; “Environmental Law” shall mean any Applicable Law existing and in
effect on the Agreement Date relating to pollution or protection of the environment, including any
statute or regulation pertaining to the (i) manufacture, processing, use, distribution, management,
possession, treatment, storage, disposal, generation, transportation or remediation of Materials of
Environmental Concern; (ii) air, water and noise pollution; (iii) the protection and use of surface
water, groundwater and soil; (iv) the release or threatened release into the environment of
hazardous substances, or solid or hazardous waste, including emissions, discharges, releases,
injections, spills, escapes or dumping of Materials of Environmental Concern; (v) the conservation,
management, or use of natural resources and wildlife, including all endangered and threatened
species; (vi) aboveground or underground storage tanks, vessels, and containers; and (vii)
abandoned, disposed of or discarded barrels, tanks, vessels and containers and other closed
receptacles; and “Materials of Environmental Concern” shall mean any substance defined as
hazardous, toxic or a pollutant under any Environmental Law, and petroleum or petroleum byproducts,
including medical or infectious waste, radioactive material and hazardous waste.




     4.16 Transactions with Affiliates. There are no Contracts or transactions between the Company
or any of its Subsidiaries, on the one hand, and any (i) officer or director of the Company or any
of its Subsidiaries, (ii) record or beneficial owner of five percent or more of any class of the
voting securities of the Company or (iii) affiliate or family member of any such officer, director
or record or beneficial owner, on the other hand, in each case of a type that would be required to
be disclosed under Item 404 of Regulation S-K under the Securities Act and the Exchange Act.



     4.17 Title to, Sufficiency and Condition of Assets. The Company and its Subsidiaries have
good and valid title to or a valid leasehold interest in all of their assets used exclusively in
the Network Business, including all of the assets reflected on the Balance Sheet or acquired in the
ordinary course of business since the Balance Sheet Date, except (a) those sold or otherwise
disposed of for fair value since the Balance Sheet Date in the ordinary course of business
consistent with past practice, and (b) those identified in Section 4.17 of the Disclosure Schedule
(collectively, the “Assets”). Immediately following the Closing, the Company and its Subsidiaries
will possess all assets, properties and rights currently used in the conduct or operation of the
Network Business and to fulfill all of Buyer’s obligations under the Syndication Advertising
Operation Term Sheet, taking into account the rights afforded Buyer pursuant to the license
agreements contemplated hereunder, the Licensed Assets Agreement and the Transition Services
Agreement. None of the Assets owned or leased by the Company or any of its Subsidiaries is subject
to any Encumbrance, other than Permitted Encumbrances. All tangible Assets owned or leased by the
Company or any of its Subsidiaries have been maintained in all material respects in accordance with
generally accepted industry practice, are in all material respects in good operating condition and
repair, ordinary wear and tear excepted, and are adequate for the uses to which they are being put.



     4.18 Accounts Receivable. All accounts receivable reflected on the Balance Sheet or to be
reflected on the Closing Date Balance Sheet represent or will represent bona fide and valid
obligations arising from sales actually made or services actually performed in the ordinary course
of business. Unless paid prior to the Closing, as of the Closing Date, all accounts receivable
will be current and collectible net of the respective reserves shown on the Balance



24









 




Sheet or to be shown on the Closing Date Balance Sheet (which reserves (a) are adequate and
calculated consistent with past practice and (b) in the case of non-specific reserves on the
Closing Balance Sheet, will not represent a greater percentage of applicable accounts receivable as
of the Closing Date then non-specific reserves represented of applicable accounts receivable on the
Balance Sheet). Subject to such reserves, each account receivable either has been or will be
collected in full, without any set-off, within the ordinary course of business. There is no
contest, claim or right of set-off, other than returns in the ordinary course of business, under
any Contract with any obligor of any accounts receivable related to the amount or validity of such
accounts receivable, and no bankruptcy, insolvency or similar proceedings have been commenced by or
against any such obligor other then those for which a reserve has been provided.




     4.19 [intentionally left blank]



     4.20 No Brokers. Except for UBS Securities LLC, the fees of which will be paid by Seller, no
broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or
commission in connection with the transactions contemplated hereby based upon arrangements made by
or on behalf of Seller, Stockholder, or the Company or any of its Subsidiaries.



     4.21 No Additional Representations. Neither the Company or any Person on behalf of the
Company makes any representation or warranty, express or implied, of any kind, including without
limitation any representation or warranty as to the accuracy or completeness of any information
regarding the Company furnished or made available to Buyer and its Representatives, in each case
except as expressly set forth in this Article IV (as modified by the Disclosure Schedule).



ARTICLE V

REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER, SELLER AND

PARENT




ARTICLE V(A) — REPRESENTATIONS AND WARRANTIES OF

STOCKHOLDER




     Stockholder represents and warrants to Buyer that the statements contained in Article V(A) are
true and correct on and as of the Agreement Date and shall be true and correct at the Closing Date,
except for those representations and warranties that may be directly or indirectly affected by the
consummation of the Restructuring, in which case such statements are true and correct on and as of
the effective date of the Restructuring and would be true as of the Agreement Date if the
Restructuring were effected immediately prior to the Agreement Date, as applicable:



     5.1 Organization and Good Standing. Stockholder is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has the corporate power
and authority to own, operate and lease its properties and to carry on its business as now
conducted and as presently proposed to be conducted.



     5.2 Corporate Authority Relative to This Agreement; No Violation.



25









 





          (a) Stockholder has all requisite corporate power and corporate authority to enter into,
execute, deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated by this Agreement to which it is a party. The execution, delivery and
performance by Stockholder of this Agreement has been duly and validly approved and authorized by
Stockholder and constitutes the valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Stockholder is a holding company with no assets (other than the stock of the Company) and no
liabilities (other than as provided herein).




          (b) The execution, delivery and performance by Stockholder of this Agreement and the Company
Ancillary Agreements and the consummation of the Purchase by Stockholder does not and will not
require any consent, approval, authorization or permit of, action by, filing with or notification
to any Governmental Authority, other than compliance with the applicable requirements of HSR, and
other than any consent, approval, authorization, permit, action, filing or notification the failure
of which to make or obtain would not (A) have a Material Adverse Effect or (B) prevent or
materially delay the consummation of the Purchase.




          (c) Assuming compliance with the applicable requirements of HSR, the execution, delivery and
performance by Stockholder of this Agreement and the consummation by Stockholder of the Purchase
and the other transactions contemplated hereby do not and will not (i) contravene or conflict with
the organizational or governing documents of Stockholder, (ii) contravene or conflict with or
constitute a violation of any provision of any Applicable Law binding upon or applicable to
Stockholder, or (iii) result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or acceleration of any
material obligation or to the loss of a material benefit under, any loan, guarantee of indebtedness
or credit agreement, note, bond, mortgage, indenture, lease or agreement binding upon Stockholder
or result in the creation of any Encumbrance (other than Permitted Encumbrances) upon any of the
properties or assets of Stockholder, other than, in the case of clauses (ii) and (iii), any such
violation, conflict, default, termination, cancellation, acceleration, right, loss or Encumbrance
that would not have a Material Adverse Effect.




     5.3 Title to Equity Interests. Stockholder owns all of the issued and outstanding capital
stock of the Company. Stockholder is the sole beneficial and record owner of such Equity Interests
and holds good and valid title to such Equity Interests, free and clear of all Encumbrances (except
for Permitted Encumbrances). Following the Closing, Buyer will have good and valid title to the
Equity Interests, free and clear of all Encumbrances.



ARTICLE V(B) — REPRESENTATIONS AND WARRANTIES OF SELLER




     Seller represents and warrants to Buyer that the statements contained in Article V(B) are true
and correct on and as of the Agreement Date and shall be true and correct at the Closing Date,
except for those representations and warranties that may be directly or indirectly affected by the
consummation of the Restructuring, in which case such statements are true and correct on and as of
the effective date of the Restructuring and would be true as of the Agreement Date if the
Restructuring were effected immediately prior to the Agreement Date, as applicable:



26









 





     5.4 Organization and Good Standing. Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the corporate power and
authority to own, operate and lease its properties and to carry on its business as now conducted
and as presently proposed to be conducted.



     5.5 Corporate Authority Relative to This Agreement; No Violation.



          (a) Seller has all requisite corporate power and corporate authority to enter into, execute,
deliver and perform its obligations under this Agreement and to consummate the transactions
contemplated by this Agreement to which it is a party. The execution, delivery and performance by
Seller of this Agreement has been duly and validly approved and authorized by Seller and
constitutes the valid and binding agreement of Seller, enforceable against Seller in accordance
with its terms, subject to the Bankruptcy and Equity Exception.




          (b) The execution, delivery and performance by Seller of this Agreement and the Company
Ancillary Agreements and the consummation of the Purchase by Seller does not and will not require
any consent, approval, authorization or permit of, action by, filing with or notification to any
Governmental Authority, other than compliance with the applicable requirements of HSR, and other
than any consent, approval, authorization, permit, action, filing or notification the failure of
which to make or obtain would not (A) have a Material Adverse Effect or (B) prevent or materially
delay the consummation of the Purchase.




          (c) Assuming compliance with the applicable requirements of HSR, the execution, delivery and
performance by Seller of this Agreement and the consummation by Seller of the Purchase and the
other transactions contemplated hereby do not and will not (i) contravene or conflict with the
organizational or governing documents of Seller, or (ii) contravene or conflict with or constitute
a violation of any provision of any Applicable Law binding upon or applicable to Seller, other
than, in the case of clause (ii), any such contravention, conflict or violation that would not have
a Material Adverse Effect.




ARTICLE V(C) — REPRESENTATIONS AND WARRANTIES OF PARENT




     Parent represents and warrants to Buyer that the statements contained in Article V(C) are true
and correct on and as of the Agreement Date and shall be true and correct at the Closing Date,
except for those representations and warranties that may be directly or indirectly affected by the
consummation of the Restructuring, in which case such statements are true and correct on and as of
the effective date of the Restructuring and would be true as of the Agreement Date if the
Restructuring were effected immediately prior to the Agreement Date, as applicable:



     5.6 Organization and Good Standing. Parent is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the corporate power and
authority to own, operate and lease its properties and to carry on its business as now conducted
and as presently proposed to be conducted.



     5.7 Corporate Authority Relative to This Agreement; No Violation.



          (a) Parent has all requisite corporate power and corporate authority to enter into, execute,
deliver and perform its obligations under this Agreement and to consummate the



27









 






transactions contemplated by this Agreement to which it is a party. The execution, delivery
and performance by Parent of this Agreement has been duly and validly approved and authorized by
Parent and constitutes the valid and binding agreement of Parent, enforceable against Parent in
accordance with its terms, subject to the Bankruptcy and Equity Exception.




          (b) The execution, delivery and performance by Parent of this Agreement and the Company
Ancillary Agreements and the consummation of the Purchase by Parent does not and will not require
any consent, approval, authorization or permit of, action by, filing with or notification to any
Governmental Authority, other than compliance with the applicable requirements of HSR, and other
than any consent, approval, authorization, permit, action, filing or notification the failure of
which to make or obtain would not (A) have a Material Adverse Effect or (B) prevent or materially
delay the consummation of the Purchase.




          (c) Assuming compliance with the applicable requirements of HSR, the execution, delivery and
performance by Parent of this Agreement and the consummation by Parent of the Purchase and the
other transactions contemplated hereby do not and will not (i) contravene or conflict with the
organizational or governing documents of Parent, or (ii) contravene or conflict with or constitute
a violation of any provision of any Applicable Law binding upon or applicable to Parent, other
than, in the case of clause (ii), any such contravention, conflict or violation that would not have
a Material Adverse Effect.




ARTICLE VI

REPRESENTATIONS AND WARRANTIES OF BUYER




     Buyer represents and warrants to the Company, Stockholder and Seller as follows:



     6.1 Organization and Good Standing. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the corporate power and
authority to own, operate and lease its properties and to carry on its business as now conducted
and as presently proposed to be conducted. Buyer is duly qualified or licensed to do business, and
is in good standing, in each jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its activities makes such qualification or licensing necessary,
except where the failure to be so qualified or licensed would not individually or in the aggregate
be material to Buyer’s ability to consummate the transactions contemplated by, or to perform its
obligations under, this Agreement and the Buyer Ancillary Agreements.



     6.2 Corporate Authority Relative to this Agreement; No Violation.



          (a) Buyer has all requisite corporate power and corporate authority to enter into, execute,
deliver and perform its obligations under this Agreement and to consummate the Purchase. The
execution, delivery and performance by Buyer of this Agreement has been duly and validly approved
and authorized by Buyer and constitutes the valid and binding agreement of Buyer, enforceable
against Buyer in accordance with their respective terms, subject to the Bankruptcy and Equity
Exception.




          (b) The execution, delivery and performance by Buyer of this Agreement and the Buyer Ancillary
Agreements and the consummation of the Purchase by Buyer does not and



28









 






will not require any consent, approval, authorization or permit of, action by, filing with or
notification to any Governmental Authority, other than compliance with the applicable requirements
of HSR, and other than any consent, approval, authorization, permit, action, filing or notification
the failure of which to make or obtain would not (A) have a Material Adverse Effect or (B) prevent
or materially delay the consummation of the Purchase.




          (c) Assuming compliance with the applicable requirements of HSR, the execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the Purchase and the other
transactions contemplated hereby do not and will not (i) contravene or conflict with the
organizational or governing documents of Buyer, (ii) contravene or conflict with or constitute a
violation of any provision of any Applicable Law binding upon or applicable to Buyer, or (iii)
result in any violation of, or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancellation or acceleration of any material obligation or to
the loss of a material benefit under, any loan, guarantee of indebtedness or credit agreement,
note, bond, mortgage, indenture, lease or agreement binding upon Buyer or result in the creation of
any Encumbrance (other than Permitted Encumbrances) upon any of the properties or assets of Buyer,
other than, in the case of clauses (ii) and (iii), any such violation, conflict, default,
termination, cancellation, acceleration, right, loss or Encumbrance that would not have a Material
Adverse Effect.




     6.3 Funding. Buyer, and any permitted assignee under Section 14.2 of this Agreement, will
have adequate funds at Closing to fund the Total Consideration.



ARTICLE VII

COVENANTS OF THE COMPANY OR SELLER




     During the time period from the Agreement Date until the earlier to occur of (a) the Closing
or (b) the termination of this Agreement in accordance with the provisions of Article XI, the
Company and as to Sections 7.1 and 7.4, Seller, covenants and agrees with Buyer as follows:



     7.1 Access to Information. During the period from the Agreement Date and continuing until the
earlier of the termination of this Agreement or the Closing, the Company shall allow Buyer and its
Representatives reasonable free access during normal business hours upon reasonable notice to its
files, books, records, Representatives, and offices, including, without limitation, any and all
information relating to Taxes, commitments, Contracts, leases, licenses, and personal property and
financial condition of the Company and its Subsidiaries. Additionally, and for the avoidance of
doubt, Seller will provide Buyer reasonable access to Seller’s employees to provide information and
cooperation to assist Buyer in planning for transition as anticipated under the Transition Services
Agreement and the attached Statement of Work. All such access under this Section 7.1 shall be
subject to the terms of the Confidentiality Agreement dated as of June 19, 2008 between Lions Gate
Entertainment Corp. and Seller, as amended from time to time (the “Confidentiality Agreement”).



     7.2 Maintenance of Network Business. Except as set forth in Section 7.2 of the Disclosure
Schedule, during the period from the Agreement Date and continuing until the earlier of the
termination of this Agreement or the Closing, the Company shall (except to the extent that Buyer
shall give its prior consent in writing) operate the Network Business in the ordinary course



29









 







in a manner consistent with past practice, shall (and shall cause its Subsidiaries to) use
commercially reasonable efforts to preserve intact its and their business organization and assets,
keep available the services of the current officers, employees and consultants of the Company and
its Subsidiaries and preserve the current relationships of the Company and its Subsidiaries with
customers, suppliers and other persons with which the Company or any of its Subsidiaries has
significant business relations. Except as expressly contemplated by this Agreement, which shall
include, without limitation, the consummation of the Restructuring, the Company shall not and shall
not permit any of its Subsidiaries to, without the prior written consent of Buyer:



          (a) amend or otherwise change its certificate of incorporation or bylaws or equivalent
organizational documents;




          (b) declare or pay any dividends on or make any other distributions (whether in cash, stock or
property) in respect of any of its outstanding securities, or split, combine or reclassify any of
its outstanding securities or issue or authorize the issuance of any other securities in respect
of, in lieu of or in substitution for the outstanding securities of such party, or purchase or
otherwise acquire, directly or indirectly, any of its securities;




          (c) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or
purchase or propose the purchase of, any of its securities, or subscriptions, rights, warrants or
options to acquire, or other agreements or commitments of any character obligating it to issue any
such securities;




          (d) acquire or agree to acquire by merging or consolidating with, or by purchasing a
substantial equity interest in or substantial portion of the assets of, or by any other manner, any
business or any corporation, partnership or other business organization or division;




          (e) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries,
or otherwise alter the Company’s or a Subsidiary’s corporate structure;




          (f) sell, lease, license or otherwise dispose of any of its properties or assets which are
material in the aggregate to the Network Business, except in the ordinary course of business;




          (g) (i) enter into any collective bargaining agreement affecting the employees of the Network
Business; or (ii) establish, adopt, enter into or amend in any material respect any bonus, profit
sharing, thrift, compensation, pension, retirement, deferred compensation, employment, termination,
severance or other plan, trust, fund, policy or arrangement for the benefit of any directors,
officers or employees; provided, that (A) this Section 7.2(g)(ii) shall not prohibit the
Company from establishing bonus targets for 2009 with respect to any employee of the Network
Business for whom the failure to establish such bonus targets would give rise to a claim for
constructive termination under an applicable employment agreement, and (B) any bonus targets
established pursuant to the preceding subclause (A) shall be determined in the ordinary course
consistent with past practices and shall be modifiable at any time (either by the Company prior to
Closing, or by Buyer subsequent to Closing) without liability to the employee to whom such bonus
targets pertain, and (C) Section 7.2(g)(ii) shall not prohibit the Company




30









 





from making ordinary course of business adjustments to compensatory arrangements;
provided, however, that the Company shall not modify or extend the existing Gemstar
Change in Control Severance Policy to the extent applicable to Network Business Employees;




          (h) incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or
sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt
securities of others, in excess of $100,000, other than intercompany borrowings from an affiliate
or trade payables incurred in the ordinary course of business;




          (i) incur or commit to incur any capital expenditures in excess of $900,000 in the aggregate
or in excess of $75,000 as to any individual matter;




          (j) enter into any Contract for the purchase or lease of any real property, except for
short-term leases of additional storage space with terms less than six months entered into in the
ordinary course of business and except for renewals of existing real property leases in Tulsa and
the entry of subleases with respect to New York leased properties;




          (k) except in the ordinary course of business: (i) amend, waive, modify or consent to the
termination of any Material Contract; or (ii) enter into any Contract which obligates, or in the
Company’s reasonable discretion, is reasonably likely to obligate, the Company or any of its
Subsidiaries to pay more than $1,500,000 over the next 12 months (except for renewals of existing
real property leases);




          (l) enter into any contract provision for the production or acquisition of any programming
which would require commitments in excess of $1,000,000 in the aggregate;




          (m) cancel, compromise, waive or release any material right or claim related to the Network
Business, except in the ordinary course of business;




          (n) guaranty or act as a surety for any obligation, except for guaranties and sureties related
to the Permitted Encumbrances;




          (o) except in the ordinary course of business, increase the compensation payable or to become
payable or the benefits provided to its employees of the Network Business, (including, without
limitation, merit and cost-of-living increases which may otherwise be provided in the ordinary
course to the employees of the Network Business), or loan any funds to any employee of Network
Business, other than such grants and loans as specified in Section 4.14(c) of the Disclosure
Schedule; provided, that the Company may, in its sole discretion, make its 2008 bonus
payments to the employees of the Network Business consistent with the Company’s past practices;




          (p) enter into any Material Contract (with the dollar amounts contained in Section
4.10(a)(iii) and 4.10(a)(iv) being $200,000) with any Related Party of the Company or any of its
Subsidiaries pursuant to which such Related Party provides or receives any information, assets,
properties, support or other services to or from the Company or any of its Subsidiaries, except (i)
any Material Contract with any Related Party related to insurance entered into in the ordinary
course of business consistent with past practices, or (ii) any Material




31









 





Contract with any Related Party entered into in the ordinary course of business consistent
with past practices;




          (q) make any change in any method of accounting or accounting practice or policy, except as
required by GAAP;




          (r) except as required by Applicable Law, make, revoke or modify any Tax election, settle or
compromise any Tax liability or file any Tax Return other than on a basis consistent with past
practice;




          (s) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted
or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the
ordinary course of business consistent with past practice, of liabilities reflected or reserved
against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent
with past practice;




          (t) permit the lapse of any existing policy of insurance relating to the Network Business,
except in the ordinary course of business, or fail to make any claim with respect to any matter
covered thereunder;




          (u) permit the lapse of any right relating to Company Intellectual Property;




          (v) accelerate the collection of or discount any accounts receivable, delay the payment of
accounts payable or defer expenses, reduce inventories or otherwise increase cash on hand, except
in the ordinary course of business consistent with past practice;




          (w) commence or settle any Action related to the Network Business;




          (x) take any action, or intentionally fail to take any action, that would cause any
representation or warranty made by the Company, Seller, Stockholder or Parent in this Agreement to
be untrue or result in a breach of any covenant made by the Company, Seller, Stockholder or Parent
in this Agreement, or that has or would reasonably be expected to have a Material Adverse Effect;
or




          (y) take, or agree in writing or otherwise to take, any of the actions described in
sub-sections (a) through (x) above.




     All communications from the Company to Buyer requesting waivers with respect to the provisions
of this Section 7.2 shall be directed to Buyer at the address set forth at Section 14.9 of this
Agreement. All such requests for waivers shall be promptly considered in good faith by Buyer whose
consent with respect thereto shall not be unreasonably withheld, conditioned or delayed;
provided further, that if Buyer does not respond to any such requests for waivers within
five (5) business days after receipt of such request, then Buyer shall be deemed to have waived the
compliance of such applicable provision of this Section 7.2 effective as of such fifth business
day.



     7.3 Exclusivity. Except for those planned dispositions of non-core assets publicly disclosed
by Macrovision Corporation in its presentation to RiskMetrics Group representatives



32









 







on April 8, 2008 publicly filed on April 8, 2008 (other than the disposition of assets
contemplated as a result of this Agreement), Seller shall not (and Seller shall cause its
affiliates, representatives, officers, managers, employees, directors and agents not to), directly
or indirectly, (a) submit, solicit, initiate, encourage or discuss any proposal or offer from any
Person (other than Buyer and its affiliates in connection with the transactions contemplated
hereby) or enter into any agreement or accept any offer relating to or consummate (other than this
Agreement or in connection with the transactions contemplated by this Agreement) any (i)
reorganization, liquidation, dissolution or recapitalization of solely the Network Business or the
Equity Interests, (ii) merger or consolidation involving solely the Network Business or the Equity
Interests, (iii) purchase or sale of all or substantially all of the assets of the Company and its
Subsidiaries used exclusively in the Network Business (other than in the ordinary course of
business), or (iv) similar transaction or business combination involving solely the Network
Business or the Equity Interests (each of the foregoing transactions described in clauses (i)
through (iv), a “Business Transaction”) or (b) furnish any information with respect to, assist or
participate in or facilitate in any other manner any effort or attempt by any Person (other than
Buyer and its affiliates) to do or seek to do any of the foregoing. Seller agrees to notify Buyer
immediately if any Person makes any proposal, offer, inquiry or contact with respect to a Business
Transaction. Seller represents and warrants that Seller and its affiliates have each ceased all
discussions with all Persons (other than Buyer) regarding all of the foregoing, and that neither
Seller nor any Seller’s officers, directors, affiliates, partners, trustees, agents or
representatives is a party to or bound by any agreement relating to any of the foregoing, other
than agreements with Buyer. Seller hereby agrees to notify Buyer immediately upon the receipt of
any proposal, offer, inquiry or contact with respect to a Business Transaction and will promptly
provide Buyer with copies of and disclose to Buyer the details concerning any such proposal,
inquiry or contact.



     For the avoidance of doubt, this Section 7.3 shall not apply to, or limit in any way, the
submission, solicitation, initiation, encouragement or discussion of proposals or offers from any
Person, or the entry into any agreement or acceptance of any offer relating to, or the consummation
of (i) the direct or indirect acquisition or purchase of all or any portion of the capital stock or
equity interests of Parent or any of its Subsidiaries or assets of Parent or any of its
Subsidiaries, (ii) any merger, consolidation or other business combination relating to Parent or
any of its Subsidiaries, or (iii) a recapitalization, reorganization or any other extraordinary
business transaction involving or otherwise relating to Parent or any of its Subsidiaries;
provided, that any Person involved in a transaction covered by this paragraph shall agree
in writing to be bound by the terms of this Agreement in connection with such transaction.



     7.4 Non-Competition.



          (a) For a period of five (5) years following the Closing Date, Seller and its affiliates shall
not, directly or indirectly through any Person or contractual arrangement, own or operate a
television network.




          (b) For a period of two (2) years following the Closing Date, Seller and its affiliates shall
not, directly or indirectly through any Person or contractual arrangement, own a website which
directly competes with TVGuide.com, as such business is conducted as of the Closing Date;
provided, that Buyer hereby agrees that Seller and its affiliates owning or



33









 






operating a website with a listing grid shall not, by itself, be deemed to directly compete
with TVGuide.com.




          (c) During the applicable non-compete period in Section 7.4(a) or 7.4(b) above, Seller and its
affiliates shall not, directly or indirectly through any Person or contractual arrangement:
solicit, recruit or hire any person who at any time on or after the Agreement Date and prior to the
Closing Date is a Company Group Employee (as defined below) primarily engaged in the Network
Business or TVGuide.com, as applicable, for purposes of the relevant non-solicitation covenant
duration; provided, that the foregoing shall not prohibit (i) a general solicitation to the
public of general advertising or similar methods of solicitation by search firms not specifically
directed at Company Group Employees or (ii) Seller or any of its affiliates from soliciting,
recruiting or hiring any Company Group Employee who has ceased to be employed or retained by the
Company, Buyer or any of their respective affiliates for at least nine (9) months. For purposes of
this Section 7.4, “Company Group Employees” means, collectively, officers, directors and employees
of the Company or any of its Subsidiaries, Buyer and their respective affiliates.




          (d) The parties agree that this Section 7.4 shall not apply to an acquiror or successor of
Parent or any entity or organization that acquires control (either directly or indirectly through
one or more intermediaries) of Parent or such a successor, or any affiliate of such entity or
organization, if, prior to such transaction, such acquiror or successor or any of their affiliates,
directly or indirectly through any Person or contractual arrangement, owns or operates (i) a
television network or (ii) a website whose primary purpose is to compete with TVGuide.com, as such
business is conducted as of the Closing Date. Further, this Section 7.4 shall not prohibit Seller
or its affiliates from engaging in those transactions or agreements or the types thereof referenced
on Section 7.4 of the Disclosure Schedule.




          (e) Seller acknowledges that the covenants of Seller set forth in this Section 7.4 are an
essential element of this Agreement and that any breach by Seller or its affiliates of any
provision of this Section 7.4 will result in irreparable injury to Buyer. Seller acknowledges that
in the event of such a breach, in addition to all other remedies available at law, Buyer shall be
entitled to seek equitable relief, including injunctive relief, and an equitable accounting of all
earnings, profits or other benefits arising therefrom, as well as such other damages as may be
appropriate. Seller has independently consulted with its counsel and after such consultation
agrees that the covenants set forth in this Section 7.4 are reasonable and proper to protect the
legitimate interest of Buyer.




          (f) If a court of competent jurisdiction determines that the character, duration or
geographical scope of the provisions of this Section 7.4 are unreasonable, it is the intention and
the agreement of the parties that these provisions shall be construed by the court in such a manner
as to impose only those restrictions on Seller’s conduct that are reasonable in light of the
circumstances and as are necessary to assure to Buyer the benefits of this Agreement. If, in any
judicial proceeding, a court shall refuse to enforce all of the separate covenants of this Section
7.4 because taken together they are more extensive than necessary to assure to Buyer the intended
benefits of this Agreement, it is expressly understood and agreed by the parties that the
provisions hereof that, if eliminated, would permit the remaining separate provisions to be




34











 




enforced in such proceeding, shall be deemed eliminated, for the purposes of such
proceeding, from this Agreement.




ARTICLE VIII

BUYER COVENANTS




     Buyer covenants and agrees with Stockholder, Seller and the Company as follows:



     8.1 Indemnification and Insurance.



          (a) Following the Closing and until May 3, 2014, Buyer and the Company shall maintain in
effect the exculpation, indemnification and advancement of expenses provisions of the Company’s and
any Company Subsidiary’s certificates of incorporation and bylaws or similar organizational
documents as in effect immediately prior to the Closing or in any indemnification agreements of the
Company or its Subsidiaries with any of their respective directors, officers or employees as in
effect immediately prior to the Closing, and shall not amend, repeal or otherwise modify any such
provisions in any manner that would adversely affect the rights thereunder of any individuals who
at the Closing were current or former directors, officers or employees of the Company or any of its
Subsidiaries; provided, however, that all rights to indemnification in respect of
any Action pending or asserted or any claim made within such period shall continue until the
disposition of such Action or resolution of such claim. From and after the Closing, Buyer shall
assume, be jointly and severally liable for, and honor, guaranty and stand surety for, and shall
cause the Company and its Subsidiaries to honor, in accordance with their respective terms, each of
the covenants contained in this Section 8.1 without limit as to time; provided, that in no
event shall such action by Buyer have the effect of increasing or otherwise broadening the scope of
the indemnification obligations of the Company to such Persons as in effect immediately prior to
the Closing.




          (b) From and after the Closing, each of Buyer and the Company shall, to the fullest extent
permitted under Applicable Law, indemnify and hold harmless (and advance funds in respect of each
of the foregoing, following receipt of any undertakings deemed desirable by Buyer or the Company),
to the same extent that such Persons are entitled to indemnification pursuant to the certificate of
incorporation and bylaws of the Company or any Subsidiary of the Company as in effect as of the
Agreement Date, each current and former director, officer or employee of the Company or any of its
Subsidiaries and each Person who served as a director, officer, member, trustee or fiduciary of
another corporation, partnership, joint venture, trust, pension or other employee benefit plan or
enterprise at the request or for the benefit of the Company (each, together with such Person’s
heirs, executors or administrators, an “Indemnified Party”) against any costs or expenses
(including advancing attorneys’ fees and expenses in advance of the final disposition of any claim,
suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by
Applicable Law and following receipt of any undertaking deemed desirable by Buyer or the Company),
judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection
with any actual or threatened Action, arising out of, relating to or in connection with any action
or omission occurring or alleged to have occurred in such Indemnified Party’s capacity as a
director, officer or employee of the Company or any of its Subsidiaries or in such Indemnified
Party’s capacity as a director, officer, member, trustee or fiduciary of another corporation,
partnership, joint venture, trust,



35









 






pension or other employee benefit plan or enterprise at the request or for the benefit of the
Company, before the Closing; provided, that nothing in this Agreement (or in such
exculpation, indemnification and advancement provisions) shall require Buyer or its affiliates
(including the Company and its Subsidiaries after the Closing) to exculpate, indemnify, or provide
advancement of expenses to any Person in connection with the dispute arising under or related to
this Agreement or any transaction or agreement entered into in connection with this Agreement. In
the event of any such Action, Buyer and the Company shall reasonably cooperate with the Indemnified
Party in the defense of any such Action.




          (c) Following the Closing, Buyer shall, or shall cause the Company to, pay all expenses,
including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing
the indemnity and other obligations provided in this Section 8.1.




          (d) The rights of each Indemnified Party hereunder shall be in addition to, and not in
limitation of, any other rights such Person may have under the certificates of incorporation or
bylaws or other organizational documents of the Company or any of its Subsidiaries, any other
indemnification arrangement, Applicable Law or otherwise. The provisions of this Section 8.1 shall
survive the Closing and expressly are intended to benefit, and are enforceable by, each of the
Indemnified Parties.




          (e) In the event Buyer, the Company or any Subsidiary of the Company, or any of their
respective successors or assigns (i) consolidates with or merges into any other Person and shall
not be the continuing or surviving corporation or entity in such consolidation or merger or (ii)
transfers all or substantially all of its properties and assets to any Person, then, and in either
such case, proper provision shall be made so that the successors and assigns of Buyer, the Company
or any Subsidiary of the Company, as the case may be, shall assume the obligations set forth in
this Section 8.1.




     8.2 Employee Matters.



          (a) On the tenth business day preceding the anticipated Closing Date, the Company shall
provide to Buyer a revised version of Section 4.14(a) of the Disclosure Schedule, updated to
reflect all changes in such section that have occurred prior to such day. No later than the fifth
business day preceding the anticipated Closing Date but effective as of the Closing Date and
contingent on the Closing, Buyer shall offer employment to all of the Employees listed on the
revised Section 4.14(a) of the Disclosure Schedule. The Company shall use its commercially
reasonable efforts to (i) provide Buyer with access to such Employees and (ii) assist Buyer in
extending offers of employment to such Employees. Buyer shall offer such employment on an “at
will” basis and at a wage and salary level (excluding performance-based or incentive compensation,
bonuses and equity-based compensation, as applicable) that is the same as that provided to the
applicable Employee on the day preceding the Closing Date. Each such offer that is made to an
Employee who is actively employed in the Network Business on the day immediately preceding the
Closing Date shall be an offer to commence employment on the Closing Date. Each such offer that is
made to an Employee who is not actively at work with the Company or any of its Subsidiaries due to
a short- or long-term disability leave or other leave of absence (but not including vacation), will
be deemed to be an offer of employment with Buyer effective as of the date such Employee is willing
and able to return to active work status (the




36









 







“Start Date”). The Company shall promptly notify Buyer if any Employees employed by the
Company or any of its Subsidiaries either (i) commences a short- or long-term disability leave or
other leave of absence (but not including vacation) during the period of time commencing with the
Agreement Date and ending on the Closing Date, or (ii) returns to active employment from any such
leave from the Agreement Date to the Closing Date. Each Employee to whom an offer of employment is
made pursuant to this Section 8.2(a) and who accepts such offer and commences such employment with
Buyer as of the Closing Date or Start Date, as applicable, shall be referred to as a “Retained
Employee” and collectively as the “Retained Employees.”




          (b) From and after the Closing, except as expressly set forth herein, the Company shall, and
Buyer shall cause the Company to, honor all compensation arrangements and agreements in accordance
with their terms as in effect immediately before the Closing and as set forth in the offers of
employment pursuant to Section 8.2(a) hereof, provided, that nothing in this Agreement
shall prohibit the amendment or termination of any such arrangements and agreements in accordance
with their terms and Applicable Law. Following the Closing (other than in the case of health
benefits, which will be provided no later than the first day of the first month following the
Closing) and at all times until May 3, 2009, Buyer shall provide, or shall cause to be provided, to
each Retained Employee and former employee of the Company and its Subsidiaries and Stockholder
terminated by, or pursuant to an agreement with, the Company or its Subsidiaries or Stockholder (a
list of which former employees is set forth on Section 8.2(b) of the Disclosure Schedule) (“Company
Employees”) compensation and benefits (other than an employee stock purchase plan) that are no less
favorable, in the aggregate, than the compensation and benefits provided to Company Employees
immediately before the Closing. Notwithstanding any other provision of this Agreement to the
contrary, (i) Buyer shall or shall cause the Company to provide Company Employees whose employment
terminates following the Closing and prior to May 3, 2009 with severance benefits in accordance
with the Gemstar Change in Control Severance Policy (a copy of which has been provided to Buyer
prior to the Agreement Date), and (ii) during such period following the Closing, severance benefits
offered to Company Employees shall be determined without taking into account any reduction after
May 2, 2008 in compensation paid to such Company Employees. Notwithstanding any term in this
Section 8.2(b) to the contrary, nothing in this Section 8.2(b) shall be deemed to restrict the
ability to hire or terminate the employment of any current or former Employees following the
Closing. Without limiting the foregoing, the parties hereby agree that Buyer shall cause the
Company to be responsible for the payment of the expenses set forth in Section 8.2(b)(i) of the
Disclosure Schedule and that Seller shall be responsible for the payment of the expenses set forth
in Section 8.2(b)(ii) of the Disclosure Schedule.




          (c) For all purposes (including purposes of vesting, eligibility to participate and level of
benefits) under the employee benefit plans of Buyer and its Subsidiaries, the Company and its
Subsidiaries and Stockholder providing benefits to any Company Employees after the Closing (the
“New Plans”), each Company Employee shall be credited with his or her years of service with the
Company and its Subsidiaries and Stockholder and their respective predecessors before the Closing,
to the same extent as such Company Employee was entitled, before the Closing, to credit for such
service under any similar employee benefit plan in which such Company Employee participated or was
eligible to participate immediately prior to the Closing, or if there was no such credit for such
service under a similar employee benefit plan, under Stockholder’s 401(k) Plan; provided,
that the foregoing shall not apply with respect to



37









 






benefit accrual under any defined benefit pension plan or to the extent that its application
would result in a duplication of benefits with respect to the same period of time. In addition,
and without limiting the generality of the foregoing, (i) each Company Employee shall be
immediately eligible to participate, without any waiting time, in any and all New Plans, and (ii)
for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to
any Company Employee, Buyer and the Company shall cause all pre-existing condition exclusions and
actively-at-work requirements of such New Plan to be waived for such employee and his or her
covered dependents, unless such conditions would not have been waived under the comparable plans of
the Company or its Subsidiaries and their respective predecessors in which such employee
participated immediately prior to the Closing and Buyer and the Company shall cause any eligible
expenses incurred by such employee and his or her covered dependents during the portion of the plan
year in which such Company Employee participated immediately before the Closing ending on the date
such employee’s participation in the corresponding New Plan begins to be taken into account under
such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket
requirements applicable to such employee and his or her covered dependents for the applicable plan
year as if such amounts had been paid in accordance with such New Plan.




          (d) Except for (i) the Company Benefit Plans listed on Section 8.2(d) of the Disclosure
Schedule that Buyer is assuming and (ii) the obligations of Buyer pursuant to Section 8.2(b)
hereof, the parties understand and agree that Buyer is not assuming any Company Benefit Plan or
Company Foreign Plan, and under no circumstances shall Buyer or its affiliates have any obligation
under, or incur any liability in respect of, any Company Benefit Plan or Company Foreign Plan. For
the avoidance of doubt, other than payment obligations pursuant to the two employment agreements
being assumed by Buyer with terms which extend beyond May 3, 2009 and except to the extent Buyer
either takes action after the Closing or consents to Seller taking action prior to the Closing to
the contrary, as a result of the transactions contemplated by this Agreement, Buyer shall not have
any liability for any severance, change of control, or other similar payments in respect of any
Retained Employee who is terminated on or after May 3, 2009.




     8.3 Nonsolicitation. For a period of one (1) year from and after the Closing Date (the
“Nonsolicitation Period”), Buyer shall not, and shall cause its affiliates not to, without the
prior written consent of Stockholder, directly or indirectly, solicit to hire (or cause to leave
the employ of a party or its Subsidiaries, other than the Company and its Subsidiaries) any
employee of Parent or its Subsidiaries unless such Person ceased to be an employee of Parent or its
Subsidiaries due to Parent’s or such Subsidiary’s termination of such Person without cause, or, in
the case of such Person’s voluntary termination of employment with Parent or its Subsidiaries, at
least nine (9) months has elapsed between such Person’s voluntary termination and such action by
Buyer or any of its affiliates as the soliciting party. In addition, neither Buyer nor any of its
affiliates shall, directly or indirectly through another Person, during the Nonsolicitation Period,
(i) call on, solicit or service any customer, supplier, licensee, licensor or other business
relation of Parent or any of its Subsidiaries in order to induce or attempt to induce such Person
to cease doing business with Parent or any of its Subsidiaries, or (ii) in any way interfere with
the relationship between any such customer, supplier, licensee or business relation and Parent or
any of its Subsidiaries (including making any negative statements or communications about Parent or
any of its Subsidiaries); provided, that nothing in this subpart (ii) shall be deemed to
impede



38









 




Buyer’s and its affiliate’s ability to independently discuss their independent contractual and
proposed contractual relations with such entities without reference to any relationship between
Parent, any of its Subsidiaries, and such entities.




     8.4 Cooperation with Contractual Obligations. The parties agree to cooperate with each other
on the matters set forth in Section 8.4 of the Disclosure Schedule.



ARTICLE IX

OTHER COVENANTS




     Buyer covenants and agrees with Stockholder and the Company, and Stockholder, the Company,
Seller (solely with respect to Sections 9.1, 9.4 and 9.6) and Parent (solely with respect to
Sections 9.5 and 9.7) agree with Buyer as follows:



     9.1 Notification of Certain Matters. Each party shall promptly advise the other party hereto
in writing of (a) any notice or other communication received by such party from any Governmental
Authority in connection with the Purchase or the other transactions contemplated hereby or from any
Person alleging that the consent of such Person is or may be required in connection with the
Purchase or the other transactions contemplated hereby, if the subject matter of such communication
or the failure of such party to obtain such consent would be material to such party; (b) any
Actions, suits, claims, investigations or proceedings commenced or, to the party’s knowledge,
threatened against, relating to or involving or otherwise affecting the party or any of its
Subsidiaries which relates to the Purchase or the other transactions contemplated hereby; (c) the
discovery of any fact or circumstance that, or the occurrence or non-occurrence of any event the
occurrence or non-occurrence of which, would cause or result in any of the conditions to the
Purchase set forth in Article X not being satisfied or satisfaction of those conditions being
materially delayed in violation of any provision of this Agreement.



     9.2 Public Announcement. Except as required by Applicable Law or as otherwise agreed among
the parties, neither Buyer (on the one hand) or Stockholder nor the Company (on the other hand),
nor any director, officer, employee or affiliate of any such party, shall make any public
announcement, whether written or oral, concerning this Agreement or the subject matter hereof
without the prior written consent of the other; provided, that Parent shall issue a press
release announcing the execution of this Agreement, which press release shall have been previously
approved by Buyer, which approval of the press release shall not be unreasonably withheld,
conditioned or delayed and provided further, that each of Parent and Buyer, and their respective
affiliates, may communicate with third parties regarding the transactions contemplated hereby,
provided, that no material non-public information is disclosed by Parent or Buyer or their
respective affiliates during such communications.



     9.3 Confidentiality. Each party acknowledges that Buyer and Parent have previously executed
the Confidentiality Agreement, which agreements shall terminate as of the Closing or the
termination date of this Agreement, as applicable, except for (a) the obligation thereunder to
maintain the confidentiality of any information not related to the Network Business, which
obligation shall terminate as of the date twelve (12) months following the Closing Date or the
termination date of this Agreement, as applicable, and (b) the obligation thereunder to maintain



39









 







the confidentiality of any information regarding the terms of the IPG agreements between
Parent and third parties, which obligation shall continue in perpetuity.



     9.4 Satisfaction of Conditions Precedent. Each party shall use its reasonable best efforts to
(a) satisfy or cause to be satisfied all the conditions precedent to be satisfied by such party as
set forth in Article X, (b) cause the transactions contemplated by this Agreement to be
consummated, and, without limiting the generality of the foregoing, (c) obtain all consents and
authorizations of third parties and to make all filings with, and give all notices to, third
parties which may be necessary or reasonably required on its part in order to effect the
transactions contemplated by this Agreement.



     9.5 Hart-Scott-Rodino.



          (a) Buyer (and/or Buyer’s ultimate parent entity) and Stockholder (and/or Stockholder’s
ultimate parent entity) shall each promptly (but in no event later than fifteen (15) business days
following the Agreement Date) prepare, execute and file a notification with the Department of
Justice (“DOJ”) and the Federal Trade Commission (the “FTC”) as required by HSR and shall promptly
(but in no event later than ten (10) business days following the Agreement Date) prepare, execute
and file any similar notification filing required by any jurisdiction other than the United States,
in each case requesting (to the extent permitted) early termination of any waiting period with
respect thereto. Buyer and Stockholder shall cooperate with each other in connection with the
preparation of such notification, and in connection with resolving any investigation or other
inquiry commenced by the FTC, DOJ, any state Attorney General or any other Governmental Authority
concerning the transactions contemplated hereby. Each of Buyer and Stockholder shall keep all
information about the other obtained in connection with the preparation of such notification
confidential. Buyer and Stockholder shall promptly inform the other of any material communication
between such party and any Governmental Authority regarding any of the transactions contemplated
hereby and of any of the understandings, undertakings or agreements (oral or written) such party
proposes to make or enter into with the FTC, DOJ, any state Attorney General or any other
Governmental Authority with respect thereto. If either party received any formal or informal
request for supplemental information or documentary material from any Governmental Authority with
respect to the transactions contemplated hereby, then the recipient of such request shall make, or
cause to be made, as soon as reasonably practicable, a response in compliance with such request
and, in making any such response, the responding party shall consider in good faith the views of
the other party hereto. Buyer and Stockholder covenant and agree that the Closing shall be subject
and conditioned upon the receipt of requisite approvals or the expiration of the applicable waiting
period under HSR and any other applicable Antitrust Laws (as defined below).




          (b) Notwithstanding anything in this Agreement to the contrary, if any administrative or
judicial Action or proceeding is instituted (or threatened to be instituted) challenging any
transaction contemplated by this Agreement as violative of any federal, state or foreign statutes,
rules, regulations, orders or decrees that are designed to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraining of trade (collectively, “Antitrust
Laws”), it is expressly understood and agreed that: (i) Buyer and Stockholder shall provide
information required by law or governmental regulation and shall comply as promptly as practicable
with any “second request” for information pursuant to the



40









 






Antitrust Laws; (ii) Buyer and Stockholder shall use their commercially reasonable efforts to
resolve such objections, if any, as may be asserted by any Governmental Authority with respect to
the transactions contemplated by this Agreement under Antitrust Laws.




     9.6 Settlement of Intercompany Accounts. The Company and its Subsidiaries shall settle or
eliminate all intercompany accounts between Seller and its affiliates prior to the Closing Date,
subject to adjustments for activity in the intercompany accounts included in the final Closing Date
Balance Sheet.



     9.7 Nonsolicitation. During the Nonsolicitation Period, Parent shall not, and shall cause its
Subsidiaries not to, without the prior written consent of Buyer, directly or indirectly, solicit to
hire (or cause to leave the employ of a party or its Subsidiaries) any employee of Buyer or its
Subsidiaries unless such Person ceased to be an employee of Buyer or its Subsidiaries due to
Buyer’s or such Subsidiary’s termination of such Person without cause, or, in the case of such
Person’s voluntary termination of employment with Buyer or its Subsidiaries, at least nine (9)
months has elapsed between such Person’s voluntary termination and such action by Parent or any of
its Subsidiaries as the soliciting party. In addition, neither Parent nor any of its Subsidiaries
shall, directly or indirectly through another Person, during the Nonsolicitation Period, call on,
solicit or service any customer, supplier, licensee, licensor or other business relation of Buyer
or any of its Subsidiaries in order to induce or attempt to induce such Person to cease doing
business with Buyer or any of its Subsidiaries, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and Buyer or any of its
Subsidiaries (including making any negative statements or communications about Buyer or any of its
Subsidiaries).



     9.8 Insurance. The parties agree and acknowledge as follows, as to events occurring  prior to
the Closing that are insured events within the meaning of those of Parent’s insurance policies that
apply to cover the Network Business (any such events, “Insurable Events”):  (i) the Company and its
Subsidiaries are, or Parent shall cause them to be, named Additional Insureds under Parent’s
insurance policies applicable to such Insurable Events, (ii) between signing and Closing, Parent or
its Subsidiaries shall use commercially reasonable efforts on an ordinary course of  business basis
to seek insurance recovery for losses arising out of such Insurable Events, and (iii) Parent and
its Subsidiaries make no representation as to any insurance coverage associated with any particular
event or events.  For the avoidance of doubt, nothing in this Section or this Agreement shall be
construed to require Parent or its Subsidiaries to litigate any claims for insurance against any of
its insurers, or to maintain any insurance coverage of the Network Business following the Closing. 
Further, to the extent any insurance payment for an Insurable Event is received after the Closing
by Parent, and not by the Company or its Subsidiaries, Parent shall promptly remit such payment to
Buyer.  For the further avoidance of doubt:  (i) following the Closing, Buyer may, as it deems
appropriate at its sole effort and expense, pursue (or continue to pursue on behalf of the
Additional Insureds) insurance claims as to Insurable Events, and (ii) events occurring after the
Closing are not subject to this covenant and shall be Buyer’s sole responsibility to seek insurance
coverage therefor as it deems appropriate at its sole effort and expense.



ARTICLE X

CONDITIONS TO CLOSING OF THE PURCHASE




41









 








     10.1 Conditions to the Parties’ Obligation to Effect the Purchase. The respective obligations
of the parties to this Agreement to effect the Purchase and the other transactions contemplated
hereby shall be subject to the satisfaction at or prior to the Closing Date of the following
conditions:



          (a) No Injunctions or Restraints; Illegality. No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the transactions contemplated hereby or
materially limiting or restricting the conduct or operation of the business of the Company by Buyer
after the Closing shall have been issued, nor shall any proceeding brought by a domestic or foreign
administrative agency or commission or other domestic or foreign Governmental Authority, seeking
any of the foregoing be pending; nor shall there be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the parties hereto which
makes the consummation of the transactions contemplated by this Agreement illegal.




          (b) Governmental Approvals. All authorizations, consents, orders or approvals of, or
declarations or filings with, or expirations of waiting periods imposed by, any Governmental
Authority, including those contemplated by HSR and any other applicable Antitrust Laws, necessary
for the consummation of the Purchase, shall have been filed, occurred or been obtained.




     10.2 Additional Conditions to Obligations of Buyer. The obligations of Buyer to effect the
Purchase and the other transactions contemplated hereby are subject to the satisfaction of each of
the following conditions, any of which may be waived in writing exclusively by Buyer.



          (a) Representations and Warranties. Each of the representations and warranties of the Company
set forth in Article IV shall be true and correct in all material respects both when made and as of
the Closing Date (except to the extent expressly made as of an earlier date, in which case as of
such date), in each case (other than as to the last sentence of Section 4.9) without regard to any
qualification as to materiality or Material Adverse Effect, unless the failure of such
representations and warranties to be so true and correct would not have a Material Adverse Effect;
and Buyer shall have received a certificate signed on behalf of the Company by the Chief Executive
Officer of the Company to such effect.




          (b) Performance of Obligations. The Company, Parent, Seller or Stockholder, as applicable,
shall have performed or complied, in all material respects, with the agreements and obligations
required to be performed or complied with by such party under this Agreement at or prior to the
Closing Date; and Buyer shall have received a certificate signed on behalf of the Company by the
Chief Executive Officer of the Company to such effect (solely with respect to the Company).




          (c) Representations and Warranties of Stockholder. Each of the representations and warranties
of Stockholder set forth in Article V(A) shall be true and correct in all material respects both
when made and as of the Closing Date (except to the extent expressly made as of an earlier date, in
which case as of such date), in each case without regard



42









 






to any qualification as to materiality or Material Adverse Effect, unless the failure of such
representations and warranties to be so true and correct would not have a Material Adverse Effect;
and Buyer shall have received a certificate signed on behalf of the Company by the Chief Executive
Officer of the Stockholder to such effect.




          (d) Representations and Warranties of Seller. Each of the representations and warranties of
Seller set forth in Article V(B) shall be true and correct in all material respects both when made
and as of the Closing Date (except to the extent expressly made as of an earlier date, in which
case as of such date), in each case without regard to any qualification as to materiality or
Material Adverse Effect, unless the failure of such representations and warranties to be so true
and correct would not have a Material Adverse Effect; and Buyer shall have received a certificate
signed on behalf of the Company by the Chief Executive Officer of the Seller to such effect.




          (e) Representations and Warranties of Parent. Each of the representations and warranties of
Parent set forth in Article V(C) shall be true and correct in all material respects both when made
and as of the Closing Date (except to the extent expressly made as of an earlier date, in which
case as of such date), in each case without regard to any qualification as to materiality or
Material Adverse Effect, unless the failure of such representations and warranties to be so true
and correct would not have a Material Adverse Effect; and Buyer shall have received a certificate
signed on behalf of the Company by the Chief Executive Officer of the Parent to such effect.




          (f) Transition Services Agreement. Seller shall have delivered to Buyer a Transition Services
Agreement, in the form attached hereto as Exhibit A (the “Transition Services Agreement”),
duly executed by an executive officer of Seller.




          (g) Patent License Agreements. Seller shall have delivered to Buyer a Network Patent License
Agreement, in the form attached hereto as Exhibit B-1 (the “Network Patent License”) and an
Online Patent License Agreement, in the form attached hereto as Exhibit B-2 (the “Online
Patent License”), each duly executed by an executive officer of Seller.




          (h) Termination of Guarantees and Security Interests. Stockholder shall have delivered to
Buyer evidence of the release and termination of (i) the guarantees by the Company and its
Subsidiaries of indebtedness under (x) the Credit Agreement and (y) the Indenture dated as of May
2, 2008 among Parent, Macrovision Corporation, the Guarantors named therein, and The Bank of New
York Trust Company, N.A., as trustee, and the 11% Senior Notes due 2013 and (ii) the liens and
security interests against and in the Equity Interests and the assets of the Company and its
Subsidiaries securing the guarantees referred to in the foregoing clause (i)(x).




          (i) Data License Agreements. Seller shall have delivered to Buyer a Network Data License
Agreement, in the form attached hereto as Exhibit C-1 (the “Network Data License”) and an
Online Data License Agreement, in the form attached hereto as Exhibit C-2 (the “Online Data
License”), each duly executed by an executive officer of Seller.




43









 








          (j) Trademark Agreements. Seller shall have, and shall have caused its appropriate Subsidiary
to have, delivered to Buyer the Trademark Assignment Agreements and the Trademark License
Agreement, each duly executed by an executive officer of Seller (or its Subsidiary, as
appropriate).




          (k) Licensed Assets Agreement. Seller shall have delivered to Buyer the Licensed Assets
Agreement duly executed by an executive officer of Seller.




          (l) Secretary’s Certificate. The Secretary of each of Parent, Seller, Stockholder and the
Company shall have delivered to Buyer a certificate certifying the resolutions of the Board of
Directors of each respective entity approving (as applicable to it) this Agreement and the
transactions contemplated thereby.




          (m) Restructuring. Buyer shall have received from Seller evidence reasonably satisfactory to
Buyer that the Restructuring has occurred in compliance with Applicable Law and Exhibit G.




          (n) Financial Statements. Buyer shall have received from Seller the financial statement
described on Section 10.2(n) of the Disclosure Schedule.




     10.3 Additional Conditions to Obligations of Stockholder. The obligation of Stockholder to
effect the Purchase and the other transactions contemplated hereby is subject to the satisfaction
of each of the following conditions, any of which may be waived, in writing, exclusively by
Stockholder:



          (a) Representations and Warranties. The representations and warranties of Buyer set forth in
Article VI, taken as a whole, shall be true and correct in all material respects both when made and
as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as
of such date), in each case without regard to any qualification as to materiality or Material
Adverse Effect, unless the failure of such representations and warranties to be so true and correct
would not have a Material Adverse Effect on Buyer; and the Company shall have received a
certificate signed on behalf of Buyer by the Chief Executive Officer of Buyer to such effect.




          (b) Performance of Obligations of Buyer. Buyer shall have performed or complied with the
agreements and obligations required to be performed or complied with by Buyer under this Agreement
at or prior to the Closing Date, except where the failure to perform or comply would not have a
Material Adverse Effect on Buyer; and the Company shall have received a certificate signed on
behalf of Buyer by the Chief Executive Officer of Buyer to such effect.




          (c) Transition Services Agreement. Buyer shall have delivered to Seller the Transition
Services Agreement duly executed by an executive officer of Buyer.




          (d) Patent Agreements. Buyer shall have delivered to Seller the Network Patent License and
the Online Patent License, each duly executed by an executive officer of Buyer.




44









 








          (e) Data License Agreements. Buyer shall have delivered to Seller the Network Data License
and the Online Data License, each duly executed by an executive officer of Buyer.




          (f) Trademark Agreements. Buyer shall have delivered to Seller the Trademark Assignment
Agreements and the Trademark License Agreement, each duly executed by an executive officer of
Buyer.




          (g) Licensed Assets Agreement. Buyer shall have delivered to Seller the Licensed Assets
Agreement duly executed by an executive officer of Buyer.




          (h) Evidence of Payment of the Total Consideration. Seller shall have received from Buyer
evidence of the payment of the Total Consideration (less the amount delivered to the Indemnity
Escrow Fund pursuant to Section 12.6).




ARTICLE XI

TERMINATION OF AGREEMENT




     11.1 Termination by Mutual Consent. This Agreement may be terminated at any time prior to the
Closing by the mutual written consent of Buyer and Stockholder.



     11.2 Unilateral Termination. This Agreement may be terminated at any time prior to the
Closing by:



          (a) Either of Buyer or Stockholder by giving written notice to the other, in the event a court
of competent jurisdiction or other Governmental Authority shall have issued a nonappealable final
order, decree or ruling, in each case having the effect of permanently restraining, enjoining or
otherwise prohibiting the Purchase.




          (b) Either of Buyer or Stockholder by giving written notice to the other, if the Purchase and
the other transactions contemplated by Section 3.1 hereof shall not have been consummated by
midnight Pacific Time on June 30, 2009 (the “End Date”); provided, however, that if
by the End Date the conditions set forth in Section 10.1(b) shall not have been satisfied but all
other conditions shall be satisfied (other than conditions, which conditions remain capable of
being satisfied, set forth in Section 10.2 and Section 10.3), the End Date may be extended by
either Buyer or Stockholder in its discretion (in which case, all other parties shall be bound by
such extension), for three (3) months from its scheduled expiry (in which case any references to
the End Date herein shall mean the End Date as extended); provided further, that the right
to terminate this Agreement pursuant to this Section 11.2(b) shall not be available to any party
whose breach of a representation or warranty or covenant made under this Agreement by such party is
the proximate cause of the failure of any condition set forth in Article X to be fulfilled or
satisfied on or before such date.




          (c) Buyer, by giving written notice to Stockholder, if the Company, Seller, Stockholder or
Parent shall have breached or failed to perform in any material respect any of its representations,
warranties, covenants or other agreements contained in this Agreement, which breach or failure to
perform (i) would result in a failure of a condition set forth in Section 10.1 or 10.2 or failure
of the Closing to occur and (ii) cannot be cured by within thirty (30) days;




45









 







provided, that Buyer shall have given the Company written notice, delivered at least
fifteen (15) days prior to such termination, stating Buyer’s intention to terminate this Agreement
pursuant to this Section 11.2(c) and the basis for such termination (and such matter shall not have
been cured); provided, however, that Buyer shall not have a right to terminate this
Agreement pursuant to this Section 11.2(c) if Buyer is then in breach of any representations,
warranties, covenants or other agreements contained in this Agreement that would result in a
failure of a condition set forth in Sections 10.1 or 10.2.




          (d) Stockholder, by giving written notice to Buyer, if Buyer shall have breached or failed to
perform in any material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement, which breach or failure to perform (i) would result in a
failure of a condition set forth in Section 10.1 or 10.3 or failure of the Closing to occur and
(ii) cannot be cured by the within thirty (30) days; provided, that Stockholder shall have
given Buyer written notice, delivered at least fifteen (15) days prior to such termination, stating
Stockholder’s intention to terminate this Agreement pursuant to this Section 11.2(d) and the basis
for such termination (and such matter shall not have been cured); provided,
however, that Stockholder shall not have a right to terminate this Agreement pursuant to
this Section 11.2(d) if Stockholder or the Company is then in breach of any representations,
warranties, covenants or other agreements contained in this Agreement that would result in a
failure of a condition set forth in Sections 10.1 or 10.2.




     11.3 Effect of Termination. In the event of termination of this Agreement as provided in
Section 11.1 or 11.2, this Agreement shall forthwith become null and void and there shall be no
liability or obligation on the part of Buyer, Stockholder, the Company or their respective
officers, directors, stockholders or affiliates; provided, however, that (i) the
provisions of Section 9.3 (Confidentiality), this Section 11.3 (Effect of Termination) and Article
XIV (Miscellaneous) shall remain in full force and effect and survive any termination of this
Agreement and (ii) nothing herein shall relieve any party hereto from liability in connection with
any breach of any of such party’s representations, warranties or covenants contained herein.



ARTICLE XII

SURVIVAL OF REPRESENTATIONS, INDEMNIFICATION

AND REMEDIES; CONTINUING COVENANTS




     12.1 Survival. The representations and warranties contained in this Agreement or in any
certificate, schedule or document delivered hereunder shall survive the Closing Date until the
Expiration Date; provided, that the representations contained in Section 4.6 and
indemnifications contained in Article XIII shall survive until the expiration of the applicable
statute of limitations plus thirty (30) days; provided further, the representations and
warranties set forth in Sections 4.1, 5.1 and 6.1 relating to organization and existence, Sections
4.4, 5.2, and 6.2 relating to authority, Section 5.3 relating to the Equity Interests, Section 4.3
relating to capitalization, and Section 4.20 relating to broker’s fees and finder’s fees (such
sections are collectively referred to herein as the “Core Representations”), and any representation
in the case of fraud, shall survive indefinitely. Any covenant or agreement to be performed after
the Closing Date shall survive in accordance with its terms. Notwithstanding the foregoing, any
representation, warranty, covenant or agreement that would otherwise terminate will continue to
survive if a Claim Notice (as defined below) shall have been given on or prior to such



46









 







termination date in good faith based on facts reasonably expected to establish a valid claim
under this Article XII, until the related claim for indemnification has been satisfied or otherwise
resolved as provided in this Article XII. The parties hereto agree that reliance shall not be an
element of any claim for misrepresentation or indemnification under the Agreement. The
indemnification provisions set forth in (a) Sections 12.2(i) and 12.3(i) shall survive until the
Expiration Date, and (b) Sections 12.2(ii), 12.3(ii) and 12.3(iii) shall survive indefinitely.



     12.2 Indemnification by Seller and Parent. After the Closing Date and subject to the
additional provisions set forth in this Article XII, Seller and Parent shall, jointly and
severally, indemnify Buyer and Buyer’s stockholders and Representatives (including without
limitation the Company and its Subsidiaries and their respective Representatives) (each a “Buyer
Indemnitee”) against, and hold each Buyer Indemnitee harmless from, any and all claims, losses,
damages, liabilities, payments and obligations, and all reasonable out-of-pocket expenses,
including, without limitation, reasonable legal fees and costs of settlement (collectively
“Losses”), incurred, suffered, sustained or required to be paid, directly or indirectly, by, or
imposed upon, such Buyer Indemnitee resulting from, related to or arising out of (i) any breach or
inaccuracy as of the Agreement Date or the Closing Date of any representation or warranty of the
Company or Stockholder contained in this Agreement or the Company Ancillary Agreements delivered to
Buyer pursuant to the provisions of this Agreement or the Company Ancillary Agreements; and (ii)
any breach by the Company or Stockholder or Seller or Parent or any failure of the Company or
Stockholder to perform any of the covenants or obligations contained in this Agreement or the
Company Ancillary Agreements delivered to Buyer pursuant to the provisions of this Agreement or the
Company Ancillary Agreements.



     12.3 Indemnification by Buyer. After the Closing Date and subject to the additional
provisions set forth in this Article XII, Buyer shall indemnify Stockholder and Stockholder’s
respective stockholders and Representatives (each a “Stockholder Indemnitee”) against, and hold
each Stockholder Indemnitee harmless from, any and all Losses, incurred, suffered, sustained or
required to be paid, directly or indirectly, by, or imposed upon, such Stockholder Indemnitee
resulting from, related to or arising out of (i) any breach or inaccuracy of any representation or
warranty of Buyer contained in this Agreement or the Buyer Ancillary Agreements delivered to
Stockholder pursuant to the provisions of this Agreement or the Buyer Ancillary Agreements; (ii)
any breach by Buyer or any failure of Buyer to perform any of the covenants contained in this
Agreement or the Buyer Ancillary Agreements delivered to Stockholder pursuant to the provisions of
this Agreement or the Buyer Ancillary Agreements; and (iii) any claim by any third party brought
against any Stockholder Indemnitee to the extent arising from the operation of the Network Business
by Buyer or its affiliates (except to the extent such claim arises from a breach of a
representation or warranty by the Company or Stockholder Indemnitee) following the Closing Date.



     12.4 Third Party Claims.



          (a) If any Buyer Indemnitee or Stockholder Indemnitee (each referred to as an “Indemnitee”)
receives notice of the assertion by any third party of any claim or of the commencement by any such
third party of any action (any such claim or action being referred to herein as an “Indemnifiable
Claim”) with respect to which Stockholder or Buyer (each referred to as “Indemnitor”) are or may be
obligated to provide indemnification, the Indemnitee shall



47









 






promptly notify the Indemnitor in writing (the “Claim Notice”) of the Indemnifiable Claim;
provided, that the failure to provide such notice shall not relieve or otherwise affect the
obligation of the Indemnitor to provide indemnification hereunder, except to the extent that any
Losses directly resulted or were caused by such failure.




          (b) The Indemnitors shall have thirty (30) days after receipt of the Claim Notice (unless the
claim or action requires a response before the expiration of such thirty-day period, in which case
the Indemnitors shall have until the date that is ten (10) days before the required response date)
to acknowledge responsibility and undertake, conduct and control, through counsel of its own
choosing, and at its expense, the settlement or defense thereof, and the Indemnitees shall
cooperate with the Indemnitors in connection therewith; provided, that (i) the Indemnitor
shall permit the Indemnitee to participate in such settlement or defense through counsel chosen by
the Indemnitee, provided, that the fees and expenses of such Indemnitee’s counsel shall not
be borne by the Indemnitors; (ii) the Indemnitor shall not settle any Indemnifiable Claim without
the Indemnitee’s consent if the settlement (A) requires the Indemnitee to admit wrongdoing, pay any
fines or refrain from any action, (B) does not include a full release of Indemnitee or (C) may
reasonably be expected to impact the ongoing operations of the Network Business; and (iii) if, in
the opinion of counsel to the Indemnitor, either (x) the Indemnitee has separate defenses from the
Indemnitor, (y) there is a conflict of interest between the Indemnitor and Indemnitee or (z) there
is any danger of criminal liability of the Indemnitee, then the Indemnitee shall be permitted to
retain special counsel of its own choosing at the reasonable expense of the Indemnitor. So long as
the Indemnitor is vigorously contesting any such Indemnifiable Claim in good faith, the Indemnitee
shall not pay or settle such claim without the Indemnitor’s consent, which consent shall not be
unreasonably withheld.




          (c) If the Indemnitor does not notify the Indemnitee within thirty (30) days after receipt of
the Claim Notice (or before the date that is ten (10) days before the required response date, if
the claim or action requires a response before the expiration of such thirty-day period), that it
acknowledges responsibility and elects to undertake the defense of the Indemnifiable Claim
described therein, the Indemnitee shall have the right to contest, settle or compromise the
Indemnifiable Claim in the exercise of its reasonable discretion; provided, that the
Indemnitee shall notify the Indemnitor of any compromise or settlement of any such Indemnifiable
Claim.




     12.5 Limits on Indemnification.



          (a) Except with respect to claims for equitable remedies, claims by any party hereto based on
actual fraud with intent to deceive in the making of the representations and warranties in this
Agreement (“fraud”), or claims relating to Tax Matters (Section 4.6 and Article XIII), following
the Closing Date, no Indemnitor shall have an indemnification obligation for any amount for Losses
arising out of or resulting from the causes enumerated in Sections 12.2(i) or 12.3(i), as
appropriate, in excess of fifteen percent (15%) of the Total Consideration, as adjusted pursuant to
Section 3.4 hereof, and no Indemnitor shall have any indemnification obligation for any amount of
Losses arising out of or resulting from the causes enumerated in Sections 12.2(i) or 12.3(i), as
appropriate, except for claims relating to Tax Matters (Section 4.6 and Article XIII) until the
total amount of resulting Losses exceeds three-fourths percent (0.75%) of the Total Consideration,
as adjusted pursuant to Section 3.4 hereof (the “Threshold



48









 






Amount”), after which time the Indemnitor shall be liable only for the amount of Losses in
excess of the Threshold Amount; provided, that the foregoing limitations shall not apply to
Losses arising out of or relating to the untruth or breach of any representation or warranty made
in any Core Representation or to any representation or warranty in the event of fraud. The amount
of any Losses indemnifiable by either party pursuant to this Article XII shall be adjusted to
reflect the value of any insurance proceeds actually received (net of any deductibles, retention or
self-insurance) by the Indemnitee or its successors or assigns in respect of such Losses;
provided, however, that no Indemnitee shall have any obligation to pursue such
insurance proceeds or recovery from third Persons. If any such proceeds or recoveries are received
by an Indemnitee with respect to any Losses after a party hereto has made a payment to an
Indemnitee with respect to such Losses, the Indemnitee shall pay to such party the amount of such
proceeds or recoveries (up to the amount of such party’s payment with respect to such Losses). If
an Indemnifiable Claim can be asserted pursuant to more than one clause of Section 12.2 or 12.3, as
applicable, then the applicable Indemnitee can elect the clause pursuant to which to assert such
claim; provided, however, that an Indemnitee cannot be compensated for the same
Loss more than once and all Losses shall be calculated net of any actual recovery of an Indemnitee.
For each Indemnifiable Claim, an Indemnitor shall only be liable for total Losses incurred as a
result of such Indemnifiable Claim, which Losses shall be calculated net of any actual recovery of
an Indemnitee, regardless of the number of Indemnitees that may have rights pursuant to such
Indemnifiable Claim. Claims for Losses made pursuant to (a) Sections 12.2(i) and 12.3(i) may be
made at any time prior to the Expiration Date and (b) Sections 12.2(ii), 12.3(ii) and 12.3(iii) may
be made indefinitely.




          (b) Except for Buyer’s obligation to pay the Total Consideration with respect to Buyer,
notwithstanding anything contained in this Agreement to the contrary, in no event shall the total
recovery of a party for Losses incurred in connection with the transactions contemplated hereby
exceed the Total Consideration actually paid by Buyer pursuant to this Agreement.




     12.6 Escrow. At Closing, Buyer will deliver fifteen percent (15%) of the Total Consideration
to the escrow account established pursuant to the Escrow Agreement, which Indemnity Escrow Fund
shall serve as a source of recovery in the event of a Claim against Seller or Parent pursuant to
this Article XII. Buyer hereby agrees that it shall first seek a remedy from the Indemnity Escrow
Fund to the extent of the amount of the Indemnity Escrow Fund with respect to any indemnification
claim asserted hereunder before seeking to recover any Losses from Seller or Parent.



     12.7 Exclusive Remedy. Except in the case of fraud or the pursuit of specific performance of
the covenants and agreements in this Agreement, following the Closing, the sole and exclusive
remedy of an Indemnitee for Losses hereunder or for any amounts owing to an Indemnitee shall be to
seek indemnification from the Indemnitor in accordance with the terms and provisions of this
Article XII.



     12.8 Treatment of Indemnification Payments. Each of Buyer and Stockholder agrees to treat any
payment made by Stockholder under this Article XII as an adjustment to the Total Consideration.



49









 





     12.9 Remedies Not Affected by Investigation, Disclosure or Knowledge. If the transactions
contemplated hereby are consummated, Buyer expressly reserves the right to seek indemnity or other
remedy under Section 12.2(i) or Section 12.2(ii) for any Losses arising out of or relating to any
breach of any representation or warranty of the Company or Stockholder contained in this Agreement
or the Company Ancillary Agreements delivered to Buyer pursuant to the provisions of this Agreement
or the Company Ancillary Agreements, or any Losses arising out of or relating to any breach of any
covenant of the Company contained in this Agreement or the Company Ancillary Agreements delivered
to Buyer pursuant to the provisions of this Agreement or the Company Ancillary Agreements,
notwithstanding (a) any investigation by, disclosure to or knowledge of Buyer in respect of any
fact or circumstances that reveals the occurrence of any such breach, whether before or after the
execution and delivery hereof or (b) any waiver of such breach in connection with the Closing.
Notwithstanding the foregoing, Buyer waives its rights to indemnity or any other remedy for Losses
arising out of or relating to the breach of any covenant set forth in this Agreement, but only to
the extent Buyer expressly waived the satisfaction or compliance of such covenant by the Company
and failed to reserve its rights to seek indemnification in connection with the delivery of such
waiver.



ARTICLE XIII

CERTAIN TAX MATTERS




     13.1 Transfer Taxes. Without limiting the generality of the foregoing, all transfer,
documentary, sales, use, stamp, registration and such other Taxes, and all conveyance fees,
recording charges and other fees and charges (collectively, the “Transfer Taxes”) incurred in
connection with the consummation of the transactions contemplated by this Agreement shall be paid
by Stockholder when due and other documentation with respect to all such Taxes, fees and charges,
and Stockholder shall at its own expense, file all necessary Tax Returns if required by Applicable
Law.



     13.2 Section 338(h)(10) Election; Allocation of ADSP.



          (a) Section 338(h)(10) Elections. In connection with the sale of the Equity Interests
contemplated hereby, the parties hereto shall cause an express election pursuant to Section
338(h)(10) of the Code to be made for the Company and its corporate Subsidiaries and shall cause
similar elections to be made where appropriate for state Tax purposes (collectively, the “Section
338(h)(10) Election”). No later than thirty (45) days prior to the last date on which the Section
338(h)(10) Election must be filed, the Buyer will deliver to the Parent and Stockholder all forms
and other schedules and documents necessary to file the Section 338(h)(10) Election, with
instructions to Stockholder and Parent with respect to the signing and filing of the Section
338(h)(10) Election, and Stockholder and Parent will comply with such instructions in signing and
filing the Section 338(h)(10) Election.




          (b) Allocation. Within ninety (90) days following the Closing, the Buyer shall prepare and
provide to Stockholder and Parent an allocation of the “aggregate deemed sales price” (“ADSP”)
among the assets of the Company and affected Subsidiaries (the “Allocation”) in accordance with the
methodology set forth in Section 13.2 of the Disclosure Schedule. The Allocation shall be set
forth on Internal Revenue Service (“IRS”) Form 8883 (and any schedule required to be attached
thereto) to be filed by the parties. Should there be any disagreement with



50









 






respect to the Allocation and/or filing Form 8883, the matter will be referred to the
Independent Accountant, who will determine the final and binding allocation of the ADSP within
thirty (30) days of such referral, taking into account the methodology set forth in Section 13.2 of
the Disclosure Schedule, which determination will thereupon be conclusive and binding on Parent,
Buyer and Stockholder for all tax purposes. The costs of such accountants will be shared equally
by Buyer and Stockholder. Buyer and Stockholder each agree to file their respective federal and
state income Tax Returns, reports and forms, including IRS Form 8883, in a manner consistent with
said Allocation.




     13.3 Tax-Sharing Agreements. Any Tax-sharing agreement between the Company or any of its
Subsidiaries, on the one hand, and Parent or Stockholder, on the other, is terminated as of the
Closing and shall have no further effect for any taxable year (whether the current year, a future
year or a past year).



     13.4 Indemnification for Post-Closing Transactions. Buyer shall indemnify Parent, Stockholder
and their affiliates for any additional tax owed by any of them resulting from any transaction
engaged in by any of the Company or any Subsidiary not in the ordinary course of its business
occurring on the Closing Date after the Effective Time, which transaction was initiated by Buyer.



     13.5 Post-Closing Transactions not in Ordinary Course. Buyer and Parent agree to report all
transactions not in the ordinary course of business occurring on the Closing Date after the
Effective Time in respect of Company or any Subsidiary on Buyer’s federal Income Tax Return to the
extent permitted by Reg. §1.1502-76(b)(1)(ii)(B).



     13.6 Responsibility for Filing Tax Returns and Payment of Taxes for Periods through the
Closing Date. Parent shall include the Company and the Subsidiaries that are members of the
selling consolidated group in Parent’s consolidated federal income Tax Returns for all periods
through the Closing Date and report income, gain and loss attributable to the transaction
contemplated by this Agreement. For all taxable periods ending on or before the Closing Date,
Parent shall cause the Subsidiaries that are members of the selling consolidated group to join in
Parent’s consolidated federal income Tax Return and, in jurisdictions in which the Acquired
Companies have in the past been included in state combined or consolidated Tax Returns, join in
such Tax Returns. Parent and Stockholder shall file the federal and applicable state and foreign
Tax Returns for the Company and its Subsidiaries for all periods through the Closing Date. All
such Tax Returns shall be prepared and filed in a manner consistent with prior practice, except as
required by a change in Applicable Law. Stockholder shall indemnify Buyer and its affiliates for
any unpaid Taxes relating to any Period through the Closing Date. Buyer shall cause the Company
and the Subsidiaries that are included in the Tax Returns to be filed under this paragraph by
Parent, Stockholder or any Subsidiary of Parent, to furnish information to Parent, Stockholder or
any Subsidiary of Parent as reasonably requested to allow Parent, Stockholder or any Subsidiary of
Parent to satisfy its obligations under this section in accordance with past custom and practice.
Buyer shall cause the Company and Subsidiaries to file all other Tax Returns to be filed after the
Closing Date. Parent and Stockholder shall indemnify Buyer and its affiliates for (i) any Taxes
relating to or attributable to a period ending on or before the Closing Date, other than any Taxes
taken into account as a liability in the Post-Closing Balance Sheet in accordance with Section 3.4,
and (ii) all Taxes relating to or attributable to the Section



51









 




338(h)(10) Election. In respect of a Tax Return with a period that starts before or on but
does not end on the Closing Date, this amount shall be deemed to be equal to the amount that would
be payable if the relevant Tax Return ended on the Closing Date. In respect of a Tax that is based
upon a time period, such Tax shall be pro rated based upon the number of days prior to the Closing
Date.




     13.7 Responsibility for Taxes for Periods after the Closing Date. Buyer shall indemnify
Stockholder and its affiliates for any Taxes relating to a period after the Closing Date, other
than Taxes for which Stockholder and Parent are required to indemnify Buyer under this Agreement.



     13.8 Cooperation on Tax Matters. Buyer, Stockholder and Parent shall cooperate fully, as and
to the extent reasonably requested by the other party, in connection with the filing of Tax Returns
pursuant to this Article XIII and any audit, litigation or other proceeding with respect to Taxes.
Such cooperation shall include the retention and (upon the other party’s request) the provision of
records and information that are reasonably relevant to any such audit, litigation or other
proceeding and making employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder. Buyer agrees to (A) retain all
books and records with respect to Tax matters pertinent to the Company and the Subsidiaries
relating to any taxable period beginning before the Closing Date until the expiration of the
statute of limitations (and, to the extent notified by Parent or Stockholder, any extensions
thereof) of the respective taxable periods, and to abide by all record retention agreements entered
into with any taxing authority, and (B) give Stockholder reasonable written notice prior to
transferring, destroying or discarding any such books and records and, if Stockholder so requests,
Buyer shall allow Stockholder to take possession of such books and records.



     13.9 Tax Proceedings. Stockholder and Buyer shall jointly control the defense and settlement
of any Tax audit, administrative or court proceedings (each, a “Tax Proceeding”) relating to any
Tax Return that includes income, gain, loss or Transfer Taxes (including Transfer Taxes to which
Section 13.1 applies) attributable to ordinary course and non-ordinary course transactions ending
prior to or on Closing Date and reportable in a taxable period ending after the Closing Date.
Stockholder shall control the defense and settlement of any Tax Proceeding at its own expense,
relating to any Tax Return that does not include income, gain, loss or Transfer Taxes (excluding
Transfer Taxes to which Section 13.1 applies) attributable to ordinary course and non-ordinary
course transactions ending after the Closing Date; provided that Buyer shall have the right to
participate in any such Tax Proceeding and to approve the settlement or disposition thereof if such
settlement or disposition could adversely affect the tax liability of Buyer, the Company or its
Affiliates for tax periods ending after the Closing Date.



ARTICLE XIV

MISCELLANEOUS




     14.1 Governing Law; Exclusive Jurisdiction. The internal laws of the State of Delaware,
irrespective of its conflicts of law principles, shall govern the validity of this Agreement, the
construction of its terms, and the interpretation and enforcement of the rights and duties of the
parties hereto. Each of the parties irrevocably agrees that any legal action or proceeding arising
out of or relating to this Agreement brought by the other party or its



52









 







successors or assigns shall be exclusively brought and determined in the Chancery Court of the
State of Delaware.



     14.2 Assignment; Binding Upon Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and permitted
assigns. This Agreement shall not be assignable (whether in whole or in part) by any party hereto
without the prior written consent of the other parties hereto; provided, however, that Buyer may
assign this Agreement to any of its wholly-owned subsidiaries prior to the Closing, subject to such
subsidiary making all of Buyer’s representations and warranties in Article VI to Seller (treating
itself as if it were the Buyer thereunder) prior to the assignment. No such assignment shall
modify Buyer’s obligation to pay the Total Consideration hereunder except to the extent fulfilled
by Buyer’s wholly-owned subsidiary assignee. Any assignment in violation of this provision shall
be void.



     14.3 Severability. If any term or provision of this Agreement or the application thereof to
any circumstance shall be invalid or unenforceable, such term or provision shall be ineffective to
the extent of such invalidity or unenforceability, and the remaining terms and provisions of this
Agreement shall remain in full force and effect. The parties further agree to replace such invalid
or unenforceable provision of this Agreement with a valid and enforceable provision that shall
achieve, to the extent practicable, the economic, business and other purposes of the invalid or
unenforceable provision.



     14.4 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of
counterparts, each of which shall be an original as regards any party whose signature appears
thereon and all of which together shall constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or taken together, shall
bear the signatures of all parties reflected hereon as signatories. This Agreement may be executed
and delivered by one party hereto to the other parties hereto by facsimile or e-mail transmission
of a photocopy of the original signature page hereto, and upon receipt of such facsimile or e-mail
transmission will be deemed to have the same effect as if the original signature had been delivered
to the other parties. The parties shall endeavor to exchange the original signature copies, but
the failure to deliver the original signature copy and/or the nonreceipt of the original signature
copy shall have no effect upon the binding and enforceable nature of this Agreement.



     14.5 Other Remedies. Except as otherwise expressly provided herein, any and all remedies
herein expressly conferred upon a party hereunder shall be deemed cumulative with and not exclusive
of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy
shall not preclude the exercise of any other. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction.



     14.6 Amendments and Waivers. Any term or provision of this Agreement may be amended, and the
observance of any term of this Agreement may be waived (either generally or



53









 







in a particular instance and either retroactively or prospectively), only by a writing signed
by Buyer, the Company, and Stockholder (on behalf of Stockholder). The waiver by a party of any
breach hereof or default in the performance hereof shall not be deemed to constitute a waiver of
any other default or any succeeding breach or default. At any time prior to the Closing, each of
the Company, Buyer, and Stockholder may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other, (b) waive any inaccuracies in the
representations and warranties made to it contained herein or in any document delivered pursuant
hereto, and (c) waive compliance with any of the agreements or conditions for its benefit contained
herein. No such waiver or extension shall be effective unless signed in writing by the party
against whom such waiver or extension is asserted. The failure of any party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of such party thereafter to
enforce such provisions.



     14.7 Expenses. Except as expressly provided otherwise herein, whether or not the Purchase and
the other transactions contemplated hereby are successfully consummated, each party shall bear its
respective legal, accountants, and financial advisory fees and other expenses incurred with respect
to this Agreement, the Purchase and the transactions contemplated hereby; provided, that if
the transactions contemplated hereby are consummated, such fees and expenses shall be borne and
paid by Seller and not by the Company or its Subsidiaries. In the event of termination of this
Agreement, the obligation of each party to pay its own expenses will be subject to any rights of
such party arising from a breach of this Agreement by the other party.



     14.8 Attorneys’ Fees. Except as expressly set forth in Section 3.4(e), should any Action be
brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled
to recover, as an element of the costs of suit and not as damages, reasonable attorneys’ fees to be
fixed by the court (including costs, expenses and fees on any appeal). The prevailing party shall
be entitled to recover its costs of any Action, regardless of whether such Action proceeds to final
judgment.



     14.9 Notices. All notices and other communications required or permitted under this Agreement
shall be in writing and shall be either hand delivered in Person, sent by facsimile and followed by
certified first-class postage pre-paid mail, sent by certified or registered first-class mail,
postage pre-paid, or sent by nationally recognized express courier service. Such notices and other
communications shall be effective upon receipt if hand delivered or sent by facsimile, three (3)
business days after mailing if sent by mail, and one business day after dispatch if sent by express
courier, to the following addresses, or such other addresses as any party may notify the other
parties in accordance with this Section 14.9:



     If to the Company (prior to the Closing), Stockholder or Parent:


c/o Macrovision Solutions Corporation

2830 De La Cruz Blvd.

Santa Clara, CA 95050

Attention: General Counsel

Fax No.: (408) 567-1807




     with a copy (which shall not constitute notice) to:



54









 




Cooley Godward Kronish LLP

Five Palo Alto Square

3000 El Camino Real

Palo Alto, CA 94306

Attention: Jon E. Gavenman

Fax No.: (650) 849-7400




     If to the Company (after the Closing) or to Buyer:


Lions Gate Entertainment, Inc.

2700 Colorado Ave, Suite 200

Santa Monica, CA 90404

Attn: Wayne Levin, EVP Corporate Operations,

General Counsel & Secretary

Fax No.: (310) 452-8934




     with a copy (which shall not constitute notice) to:


O’Melveny & Myers LLP

1999 Avenue of the Stars, Suite 700

Los Angeles, CA 90067

Attention: Robert Haymer

Fax No.: (310) 246-6779




     14.10 Interpretation; Rules of Construction. When a provision of this Agreement states that a
document or thing has been delivered to Buyer, the parties intend for the availability of that
document or thing via the electronic data room established for Buyer’s review to constitute
delivery. When a reference is made in this Agreement to Exhibits, Sections or Articles, such
reference shall be to an Exhibit to, Section of or Article of this Agreement, respectively, unless
otherwise indicated. The words “include”, “includes” and “including” when used herein shall be
deemed in each case to be followed by the words “without limitation”. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The parties hereto agree that they have been represented by
legal counsel during the negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing that ambiguities in
an agreement or other document shall be construed against the party drafting such agreement or
document.



     14.11 No Third Party Beneficiary Rights. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person other than the parties and their respective successors
and permitted assigns any legal or equitable right, benefit, or remedy of any nature under or by
reason of this Agreement, except for the provisions of Section 8.1 (which, from and after the
Closing, shall be for the benefit of each Indemnified Party), Section 8.2 (which, from and after
the Closing, shall be for the benefit of each Company Employee) and Article XII (which, from and
after the Closing, shall be for the benefit of each Indemnitee).



55









 





     14.12 Entire Agreement. This Agreement, the Exhibits and Schedules hereto, the Company
Ancillary Agreements and the Buyer Ancillary Agreements constitute the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof and supersede all prior
and contemporaneous agreements or understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto other than the Confidentiality Agreement.
The express terms hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.



     14.13 Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.



[Signature Pages Follow]




56









 





     In Witness Whereof, the parties hereto have executed this Agreement as of the date
first above written.



SELLER:




GEMSTAR-TV GUIDE INTERNATIONAL, INC.




	 	 	 	 	 
	By:

	 	/s/ Stephen Yu
 

	 	 
	Name:

	 	Stephen Yu	 	 
	Title:

	 	Secretary	 	 






STOCKHOLDER:




UV CORPORATION




	 	 	 	 	 
	By: 

Name:

	 	/s/ Stephen Yu
 

Stephen Yu
	 	 
	Title:

	 	Secretary	 	 






COMPANY:




TV GUIDE ENTERTAINMENT GROUP, INC.




	 	 	 	 	 
	By:

	 	/s/ Stephen Yu
 

	 	 
	Name:

	 	Stephen Yu	 	 
	Title:

	 	Secretary	 	 






BUYER:




LIONS GATE ENTERTAINMENT, INC.




	 	 	 	 	 
	By: 

Name:

	 	/s/ Wayne Levin
 

Wayne Levin
	 	 
	Title:

	 	General Counsel and Executive Vice President	 	 






 









 





SOLELY WITH RESPECT TO SECTIONS 9.5, 9.7 AND 9.8 AND ARTICLES V(C), XII AND XIII:




PARENT:




MACROVISION SOLUTIONS CORPORATION




	 	 	 	 	 
	By: 

Name:

	 	/s/ Stephen Yu
 

Stephen Yu
	 	 
	Title:

	 	Secretary