| ||(xii) || |
Brandon Korff (B. Korff) and Kimberlee Ostheimer (Ostheimer), each individually and in his or her capacities as a director of NAI and a manager of NAIEH;
| ||(xiii) || |
Thaddeus Jankowski (Jankowski), individually and in his capacities as an officer of each of the NAI Entities and a trustee of the Trust; and
| ||(xiv) || |
Phyllis Redstone (P. Redstone), Norman Jacobs (Jacobs) and Leonard Lewin (Lewin), each individually and in his or her capacity as a trustee of the Trust.
The individuals and entities listed in (i) through (xiv) are collectively referred to in this Amendment as the Amendment Parties. Capitalized terms used but not defined in this Amendment shall have the respective meanings specified in the Agreement.
WHEREAS, concurrently with the execution and delivery of this Agreement, CBS and Viacom Inc., a Delaware corporation, entered into that certain Agreement and Plan of Merger, dated as of August 13, 2019 (the Merger Agreement), pursuant to which, among other things, Viacom agreed to merge with and into CBS (the Merger), with CBS surviving the Merger, upon the terms and subject to the conditions set forth therein; and
WHEREAS, in accordance with Section 14(c) of the Agreement, the Amendment Parties desire to amend certain terms of the Agreement as set forth in this Amendment, which Amendment shall be effective from and after the Effective Time (as defined in the Merger Agreement).
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained in the Agreement and this Amendment, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Amendment Parties agree as follows:
1. Amendments. Each of (i) Section 1(c)-(f) (Actions with Respect to the CBS Board) and the last sentence of Section 1, and
(ii) Section 3(b)-(d) and (f) (Extraordinary Transactions), of the Agreement is hereby amended in its entirety to read as follows: [Intentionally omitted].
2. Effectiveness; Termination. This Amendment shall become effective at the Effective Time (as defined in the Merger Agreement). In the event that the Merger Agreement is terminated prior to the Effective Time (as defined in the Merger Agreement) for any reason, this Amendment shall be deemed null and void ab initio.
3. References to the Agreement. After giving effect to this Amendment, each reference in the Agreement to this Agreement, hereof, hereunder, herein or words of like import referring to the Agreement shall refer to the Agreement as amended by this Amendment; provided, that references in the Agreement to as of the date hereof or as of the date of this Agreement or words of like import shall continue to refer to the date of September 9, 2018.