EXHIBIT 10.2
Time Warner Inc.
75 Rockefeller Plaza
New York, NY 10019
October 5, 2000
EMI Group plc
4 Tenterden Street
London W1A 28Y
ENGLAND
Restated Combination Agreement
Dear Sirs:
We refer to the Restated Combination Agreement (the "Combination
Agreement") dated as of January 23, 2000, between Time Warner Inc. ("TWI") and
EMI Group plc ("EMI") relating to the proposed combination of the Warner Music
Group and the EMI Music Group. This letter agreement reflects the agreement
between TWI and EMI as follows:
1. Termination of Combination Agreement. TWI and EMI hereby agree that
the effect of the termination of the Combination Agreement pursuant
to the agreement between the parties dated today will be as set forth
in Section 7.03 of the Combination Agreement.
2. Exclusivity. (a) Prior to January 31, 2001, EMI will not, nor will it
permit any of its officers, directors, employees, advisors or
representatives to (i) solicit, initiate or knowingly encourage the
submission of or (ii) take any other action to knowingly encourage,
any inquiries or the making of any proposal regarding the acquisition
by a third party of any equity securities of EMI (other than options
issued in the ordinary course of business) or greater than 30% of the
consolidated total assets of EMI; provided, however, that this
paragraph shall not prohibit EMI from (i) responding to any
unsolicited requests, inquiries or proposals that it may receive from
any third party, providing confidential information to such third
parties, negotiating, entering into or performing definitive
agreements with such third parties or recommending a transaction with
such third party to its shareholders, (ii) carrying out its
obligations under applicable law or rules, the English Takeover Code
and the rules of any applicable securities exchange or (iii) ordinary
course discussions with the investment
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community. EMI will notify TWI immediately upon the receipt of a
Competing EMI Proposal (as defined below) (including the material
terms thereof and the identity of the Person making such Competing
EMI Proposal), upon any determination by EMI to engage in discussions
with such Person and of any change to the material terms of such
Competing EMI Proposal and will keep TWI generally informed of the
status of such Competing EMI Proposal; provided, however, that any
such notification by EMI will be kept in strict confidence by TWI.
(b) Prior to January 31, 2001, TWI will not, nor will it permit
any of its officers, directors, employees, advisors or
representatives to (i) solicit, initiate or knowingly encourage the
submission of or (ii) take any other action to knowingly encourage,
any inquiries or the making of any proposal regarding the
acquisition by a third party of greater than 30% of the consolidated
total assets of the Warner Music Business; provided, however, that
this paragraph shall not prohibit TWI from (i) responding to any
unsolicited requests, inquiries or proposals that it may receive
from any third party, (ii) carrying out its obligations under
applicable law or rules, and the rules of any applicable securities
exchange or (iii) ordinary course discussions with the investment
community. TWI will notify EMI immediately upon the receipt of a
Competing Warner Proposal (as defined below) (including the material
terms thereof and the identity of the Person making such Competing
Warner Proposal), upon any determination by TWI to engage in
discussions with such Person and of any change to the initial terms
of such Competing Warner Proposal; provided, however, that any such
notification by TWI shall be kept in strict confidence by EMI.
(c) In this letter agreement:
A "Change of Control" of EMI means (1) any person or group of
persons acting in concert owning 30% or more of EMI's voting rights,
(2) more than one-third of the members of the EMI board being
"subject directors". For purposes of this definition, a "subject
director" of EMI is a person (A) who was originally nominated or
designated for election as a director, directly or indirectly, by a
shareholder, or group of shareholders acting in concert, of EMI or
(B) whose original election to the EMI board (either by the EMI
board or EMI's shareholders) took place when there were other
subject directors and whose original election was not approved by
all the then directors of EMI who were not
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subject directors or (3) any winding-up or other insolvency or
administration of EMI. For the avoidance of doubt, a reorganization
of EMI that does not result in a change in the board of directors of
EMI or the shareholders of EMI shall not be a Change of Control of
EMI.
"Competing EMI Proposal" means any bona fide publicly announced
proposal from a third party unaffiliated with TWI relating to either
(a) a transaction that, if consummated, would constitute a Change of
Control of EMI or (b) the issuance by EMI of equity securities
equivalent to over 30% of its equity securities as consideration for
the purchase of assets or securities of any person.
"Competing Warner Proposal" means any bona fide publicly
announced proposal from a third party unaffiliated with EMI relating
to the proposed acquisition of greater than 30% of the consolidated
total assets of the Warner Music Business.
3. Publicity. TWI and EMI will consult with each other before issuing
any press release or making any public statement or filing with
respect to the Combination Agreement, this letter agreement or the
possible combination of Warner Music Group and EMI Music Group and,
except as may be required by applicable law or any listing agreement
with, or the listing rules of, any securities exchange or other
applicable regulatory body, will not issue any such press release or
make any such public statement or filing prior to such consultation.
4. Governing Law. This letter agreement shall be governed by, and
construed in accordance with, the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof; provided, however, that the
laws of the respective jurisdictions of incorporation of each of the
parties hereto shall govern the relative rights, obligations, powers,
duties and other internal affairs of such party and its board of
directors.
5. Enforcement. Each party hereby consents to the exclusive jurisdiction
of (i) the United States Federal courts located in the State of New
York with respect to disputes arising out of this letter agreement in
actions brought against TWI and (ii) the High Court of England with
respect to disputes arising out of this letter agreement in actions
brought against EMI. There
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are not any intended third-party beneficiaries of any provision of
this letter agreement.
6. Counterparts. This letter agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other
parties.
7. Waiver of jury trial. Each of the parties hereto hereby irrevocably
waives any and all rights to trial by jury in any legal proceeding
arising out of or related to this letter agreement.
Please confirm your agreement with the foregoing by signing and
returning the duplicate copy of this letter agreement.
Very truly yours,
Time Warner Inc.
By: /s/ Spencer B. Hays
-------------------------
Name: Spencer B. Hays
Title: Vice President
Accepted and Agreed to
as of the date first written
above.
EMI Group plc
By: /s/ Eric L. Nicoli
------------------------
Name: Eric L. Nicoli
Title: Chairman