\n| \n Voting NewCo Debt<\/p>\n<\/td>\n | \n 2.01(b)(ii)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n iii<\/p>\n
\nINVESTMENT AGREEMENT dated as of April 27, 2012 (this “Agreement<\/u>“),
\namong BARNES & NOBLE, INC., a Delaware corporation (the “Parent<\/u>“),
\nMORRISON INVESTMENT HOLDINGS, INC., a Nevada corporation (the
\n“Investor<\/u>“) and, solely for purposes of Section 3.06, MICROSOFT
\nCORPORATION, a Washington corporation (“Microsoft<\/u>“).<\/p>\n WHEREAS Parent desires to sell to the Investor, and the Investor desires to
\npurchase, a minority interest in Parent153s Digital Business and College Business.\n<\/p>\n WHEREAS subject to Section 3.04, the form of the Investor153s investment is
\nintended to be the purchase pursuant to the terms and conditions set forth in
\nthis Agreement of Preferred Membership Interests in a newly formed Delaware
\nlimited liability company (“NewCo<\/u>“) to which Parent shall, prior to the
\nClosing, transfer its Digital Business and College Business.<\/p>\n NOW, THEREFORE, in consideration of the representations, warranties,
\ncovenants and agreements contained in this Agreement, and subject to the
\nconditions set forth herein, the parties hereto, intending to be legally bound,
\nhereby agree as follows:<\/p>\n ARTICLE I<\/p>\n Pre-Closing; Purchase and Sale; Closing<\/u><\/p>\n SECTION 1.01 Formation of NewCo<\/u>. (a) Prior to the Closing, Parent
\nshall form NewCo pursuant to and in accordance with the Delaware Limited
\nLiability Company Act (the “Act<\/u>“).<\/p>\n (b) Promptly thereafter, Parent shall cause NewCo to become a party to this
\nAgreement and adopt this Agreement with the same force and effect as if it were
\noriginally a party hereto by executing a Joinder Agreement in the form attached
\nas Exhibit A (a “Joinder Agreement<\/u>“).<\/p>\n SECTION 1.02 Purchase and Sale of the Preferred Membership Interests<\/u>.
\nOn the terms and subject to the conditions set forth in this Agreement, at the
\nClosing, Parent shall cause NewCo to issue, sell and deliver to the Investor,
\nand the Investor shall purchase and acquire from NewCo, 300,000 Preferred
\nMembership Interests for a purchase price per Preferred Membership Interest
\nequal to $1,000, payable as set forth in Section 1.03(b). The purchase and sale
\nof the Preferred Membership Interests is referred to in this Agreement as the
\n“Preferred Membership Interest Purchase<\/u>“.<\/p>\n SECTION 1.03 Closing<\/u>. (a) The closing of the Preferred Membership
\nInterest Purchase (the “Closing<\/u>“) shall take place at the offices of
\nCravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York,
\nNew York 10019, on the second Business Day following the satisfaction (or, to
\nthe extent permitted by law, the waiver by the parties entitled to the benefits
\nthereof) of the conditions set forth in Article IV, other than conditions that
\nby their nature are to be satisfied as of the Closing, or, if on such second
\nBusiness Day any condition set forth in Article IV is not satisfied (or, to the
\nextent permitted by Law, waived by the party or parties entitled to the benefits
\nthereof), as soon as practicable after all the conditions set forth in Article
\nIV are satisfied (or, to the extent permitted by Law, waived by the party or
\nparties entitled to the benefits thereof), or at such other place, time and date
\nas shall be agreed between Parent and the Investor. The date on which the
\nClosing occurs is referred to in this Agreement as the “Closing Date”.<\/p>\n
\n (b) At the Closing, (i) Parent shall cause NewCo to deliver to the Investor a
\ncertificate representing 300,000 Preferred Membership Interests issued to such
\nInvestor, duly registered in the name of the Investor, (ii) the Investor shall
\npay to NewCo, by wire transfer to a bank account designated in writing by NewCo
\nof immediately available funds, $300,000,000 and (iii) Parent and the Investor
\nshall amend and restate NewCo153s limited liability company agreement to be
\nsubstantially in the form of Annex A hereto (the “LLC Agreement<\/u>“).<\/p>\n ARTICLE II<\/p>\n Representations and Warranties<\/u><\/p>\n SECTION 2.01 Representations and Warranties of Parent<\/u>. (a) Except as
\nset forth in the Disclosure Letter, Parent represents and warrants as of the
\ndate hereof and as of the Closing Date to the Investor as follows:<\/p>\n (i) Organization, Standing and Corporate Power<\/u>. Parent and each of its
\nSubsidiaries is duly organized and validly existing under the Laws of its
\njurisdiction of organization and has all requisite corporate or other entity
\npower and authority to own or lease all of its properties and assets and to
\ncarry on its business as presently conducted. Each of Parent and its
\nSubsidiaries is duly qualified or licensed to do business and is in good
\nstanding (where such concept is recognized under applicable Law) in each U.S.
\njurisdiction where the nature of its business or the ownership, leasing or
\noperation of its properties makes such qualification or licensing necessary,
\nother than where the failure to be so qualified, licensed or in good standing
\nwould not, individually or in the aggregate, reasonably be expected to have a
\nmaterial adverse effect on the ability of Parent or NewCo to consummate the
\ntransactions contemplated by this Agreement.<\/p>\n (ii) Authorization; Enforceability<\/u>. (A) Parent has all requisite
\ncorporate power and authority to execute and deliver this Agreement and to
\nconsummate the transactions contemplated by this Agreement. The execution and
\ndelivery of this Agreement by Parent and the consummation of the transactions
\ncontemplated by, and compliance with the provisions of, this Agreement by Parent
\nhave been duly authorized and approved by all necessary corporate action on the
\npart of Parent. On or prior to the date of this Agreement, the board of
\ndirectors of Parent has duly adopted resolutions approving this Agreement and
\nthe transactions contemplated hereby (and, as of the date of this Agreement, the
\nresolutions giving effect to such corporate actions have not been rescinded,
\nmodified or withdrawn in any way). This Agreement has been duly executed and
\ndelivered by Parent and, assuming the due authorization, execution and delivery
\nby the Investor, constitutes a legal, valid and binding obligation of Parent,
\nenforceable against Parent in accordance with its terms, subject, as to
\nenforceability, to bankruptcy, insolvency and other Laws of general
\napplicability relating to or affecting creditors153 rights and to general equity
\nprinciples, whether considered in a proceeding at law or in equity.<\/p>\n 2<\/p>\n
\n(B) No vote, consent or approval of the stockholders of Parent is required
\nunder applicable Law, under Parent153s Certificate of Incorporation or Parent153s
\nBy-Laws, or under any Contract between Parent and any stockholder of Parent, to
\nauthorize or approve this Agreement or the transactions contemplated hereby.\n<\/p>\n (iii) No Conflict<\/u>. (A) Parent is not in violation or default of any
\nprovision of its Certificate of Incorporation or its By-Laws. The execution and
\ndelivery by Parent of this Agreement do not, and the consummation of the
\ntransactions contemplated by this Agreement and compliance by Parent with the
\nprovisions of this Agreement will not conflict with, or result in any violation
\nor breach of, or default (with or without notice or lapse of time, or both)
\nunder, or give rise to a right of termination, cancelation or acceleration of
\nany obligation or to the loss of a benefit under, or result in the creation of
\nany right or benefit on the part of any third party under, or result in the
\ncreation of any conflicts, violations, breaches, defaults, rights, losses or
\npledges, liens, charges, mortgages, encumbrances or security interests of any
\nkind or nature (collectively, “Liens<\/u>“) upon any of the properties or
\nassets of Parent or any of its Subsidiaries under any term, condition or
\nprovision of (1) Parent153s Certificate of Incorporation or By-Laws or (2) (x) any
\nloan or credit agreement, license, contract, lease, sublease, indenture, note,
\ndebenture, bond, mortgage or deed of trust or other agreement, arrangement or
\nunderstanding (a “Contract<\/u>“) to which Parent or any of its Subsidiaries
\nis a party or by which any of their respective properties or assets are bound
\nand that is material to the business of Parent and its Subsidiaries, taken as a
\nwhole, (y) any supranational, Federal, national, state, provincial or local
\nstatute, law (including common law), ordinance, rule or regulation of any
\nGovernmental Entity (“Law<\/u>“) that is material to Parent and its
\nSubsidiaries, taken as a whole, or (z) any judgment, injunction, order or decree
\nof any Governmental Entity (“Judgment<\/u>“), permit, concession, grant or
\nfranchise, in each case, applicable to Parent or any of its Subsidiaries or any
\nof their respective properties or assets, other than, in the case of such
\nsub-clause (2) above, any such conflicts, violations, breaches, defaults,
\nrights, losses or Liens that would not, individually or in the aggregate,
\nreasonably be expected to have a material adverse effect on the ability of
\nParent or NewCo to consummate the transactions contemplated by this Agreement.\n<\/p>\n (B) Other than in connection or in compliance with the provisions of the
\nSecurities Act of 1933, as amended (the “Securities Act<\/u>“), the securities
\nor blue sky laws of the various states, no notice to, registration, declaration
\nor filing with, review by, or authorization, consent, order, waiver or approval
\nof, any governmental or regulatory (including any stock exchange) authorities,
\nagencies, courts, commissions or other entities, whether Federal, state, local
\nor foreign, or applicable self-regulatory organizations (each, a
\n“Governmental Entity<\/u>“) is necessary for the consummation by Parent of the
\ntransactions contemplated by this Agreement.<\/p>\n 3<\/p>\n
\n(iv) SEC Documents; Undisclosed Liabilities; Disclosure Controls and
\nProcedures<\/u>. (A) Parent has filed all material reports, schedules, forms,
\nstatements and other documents with the Securities and Exchange Commission (the
\n“SEC<\/u>“) required to be filed by Parent pursuant to the Securities Act or
\nthe Securities Exchange Act of 1934, as amended (the “Exchange Act<\/u>“),
\nsince January 31, 2009 (the “SEC Documents<\/u>“). As of their respective
\neffective dates (in the case of SEC Documents that are registration statements
\nfiled pursuant to the requirements of the Securities Act) and as of their
\nrespective dates of filing (in the case of all other SEC Documents), the SEC
\nDocuments complied in all material respects with the requirements of the
\nSecurities Act or the Exchange Act, as the case may be, and the rules and
\nregulations of the SEC promulgated thereunder applicable thereto, and, except to
\nthe extent amended or superseded by a subsequent filing with the SEC prior to
\nthe date of this Agreement, as of such respective dates, none of the SEC
\nDocuments contained any untrue statement of a material fact or omitted to state
\na material fact necessary in order to make the statements therein, in light of
\nthe circumstances under which they were made, not misleading. As of the date of
\nthis Agreement, there are no outstanding or unresolved comment letters received
\nfrom the SEC or its staff. The audited consolidated financial statements and the
\nunaudited quarterly financial statements (including, in each case, the notes
\nthereto) of Parent included or incorporated by reference in the SEC Documents
\nwhen filed complied in all material respects with the published rules and
\nregulations of the SEC with respect thereto, have been prepared in all material
\nrespects in accordance with generally accepted accounting principles
\n(“GAAP<\/u>“) (except, in the case of unaudited quarterly statements, as
\npermitted by Form 10-Q of the SEC or other rules and regulations of the SEC)
\napplied on a consistent basis during the periods involved (except as may be
\nindicated in the notes thereto) and fairly present in all material respects the
\nconsolidated financial position of Parent and its consolidated Subsidiaries as
\nof the dates thereof and the consolidated results of their operations and cash
\nflows for the periods then ended (subject, in the case of unaudited quarterly
\nstatements, to normal year-end adjustments).<\/p>\n (B) Except for matters reflected or reserved against in the consolidated
\nbalance sheet of Parent (or the notes thereto) included in Parent153s Form 10-Q
\nfor the quarterly period ended January 28, 2012, neither Parent nor any of its
\nSubsidiaries has any liabilities (whether absolute, accrued, contingent, fixed
\nor otherwise) of any nature that would be required under GAAP, as in effect on
\nthe date of this Agreement, to be reflected on a consolidated balance sheet of
\nParent (including the notes thereto), except liabilities that (1) were incurred
\nsince the date of such balance sheet in the ordinary course of business, (2) are
\nincurred in connection with the transactions contemplated by this Agreement or
\n(3) would not, individually or in the aggregate, reasonably be expected to have
\na material adverse effect on the business, assets or properties of Parent and
\nits Subsidiaries, taken as a whole. There are no unconsolidated Subsidiaries of
\nParent or any off-balance sheet arrangements of any type (including any
\noff-balance sheet arrangement required to be disclosed pursuant to Item
\n303(a)(4) of Regulation S-K promulgated under the Securities Act) that have not
\nbeen so described in the SEC Documents nor any obligations to enter into any
\nsuch arrangements.<\/p>\n 4<\/p>\n
\n(C) Parent has established and maintains disclosure controls and procedures
\nand a system of internal controls over financial reporting (as such terms are
\ndefined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the
\nExchange Act) as required by Rule 13a-15 under the Exchange Act. Since January
\n31, 2009, neither Parent nor Parent153s independent registered public accounting
\nfirm has identified or been made aware of “significant deficiencies” or
\n“material weaknesses” (as defined by the Public Company Accounting Oversight
\nBoard) in the design or operation of Parent153s internal controls and procedures
\nwhich would reasonably be expected to adversely affect in any material respect
\nParent153s ability to record, process, summarize and report financial data, in
\neach case which has not been subsequently remediated. To the knowledge of
\nParent, there is no fraud, whether or not material, that involves Parent153s
\nmanagement or other employees who have a significant role in the preparation of
\nfinancial statements or the internal control over financial reporting utilized
\nby Parent and its Subsidiaries.<\/p>\n (v) NewCo Subsidiaries<\/u>. Parent owns, directly or indirectly, all of
\nthe outstanding membership interests of Barnes & Noble College Booksellers
\nLLC and barnesandnoble.com llc (the “NewCo Subsidiaries<\/u>“), free and clear
\nof any Liens, and all of such shares or equity interests are duly authorized and
\nvalidly issued and are fully paid, nonassessable and free of preemptive rights,
\nwith no personal liability attaching to the ownership thereof. As of the Closing
\nNewCo will own, directly or indirectly, all of the outstanding membership
\ninterests in each NewCo Subsidiary, free and clear of any Liens, and all of such
\nshares or equity interests are duly authorized and validly issued and are fully
\npaid, nonassessable and free of preemptive rights, with no personal liability
\nattaching to the ownership thereof.<\/p>\n (b) Except as set forth in the Disclosure Letter, Parent represents and
\nwarrants as of the Closing Date to the Investor as follows:<\/p>\n (i) Organization, Standing and Corporate Power of NewCo<\/u>. NewCo is duly
\norganized and validly existing under the Act and has all requisite limited
\nliability company power and authority to own or lease all of its properties and
\nassets and to carry on its business as proposed to be conducted.<\/p>\n (ii) Capitalization of NewCo<\/u>. The total number of Membership Interests
\nthat NewCo shall have the authority to issue is unlimited. NewCo may issue
\nCommon Membership Interests (the “Common Membership Interests<\/u>“) and
\nPreferred Membership Interests (together with the Common Membership Interests,
\nthe “NewCo Membership Interests<\/u>“). After giving effect to the Closing,
\n(A) 1,400,000 Common Membership Interests will be issued and outstanding, (B)
\n300,000 Preferred Membership Interests will be issued and outstanding and (C)
\n300,000 Common Membership Interests will be reserved and available for issuance
\nin connection with conversion of the Preferred Membership Interests to Common
\nMembership Interests. Except as set forth in the previous sentence, as of the
\nClosing Date, no membership interests or other voting securities of or equity
\ninterests in NewCo will be issued, reserved for issuance or outstanding and no
\nsecurities of NewCo or any of its Subsidiaries convertible into or exchangeable
\nor exercisable for membership interests or other voting securities of or equity
\ninterests<\/p>\n 5<\/p>\n
\nin NewCo will be issued or outstanding. All outstanding NewCo Membership
\nInterests are duly authorized, validly issued, fully paid and nonassessable. As
\nof the Closing Date, the Preferred Membership Interests and Common Membership
\nInterests have the terms and conditions and entitle the holders thereof to the
\nrights set forth in the LLC Agreement and will be free and clear of all Liens.
\nThere are no bonds, debentures, notes or other indebtedness of NewCo having the
\nright to vote (or convertible into, or exchangeable for, securities having the
\nright to vote) on any matters on which holders of Common Membership Interests
\nmay vote (“Voting NewCo Debt<\/u>“). Except for any obligations pursuant to
\nthis Agreement, or as otherwise set forth above in this Section 2.01(b)(ii),
\nthere are no options, warrants, rights, convertible or exchangeable securities,
\nstock-based performance units, Contracts or undertakings of any kind to which
\nNewCo or any of its Subsidiaries is a party or by which NewCo is bound (A)
\nobligating NewCo or any of its Subsidiaries to issue, deliver or sell, or cause
\nto be issued, delivered or sold, additional membership interests or other voting
\nsecurities of or equity interests in, or any security convertible or
\nexchangeable for any membership interests or other voting securities of or
\nequity interests in, NewCo or any Voting NewCo Debt, (B) obligating NewCo or any
\nof its Subsidiaries to issue, grant or enter into any such option, warrant,
\nright, security, unit, Contract or undertaking or (C) that give any person the
\nright to receive any economic interest of a nature otherwise accruing to the
\nholders of Common Membership Interests. There are no outstanding obligations of
\nNewCo or any of its Subsidiaries to repurchase, redeem or otherwise acquire any
\nmembership interests or options, warrants, rights, convertible or exchangeable
\nsecurities, stock-based performance units or other rights to acquire membership
\ninterests of NewCo.<\/p>\n (iii) Authorization; Enforceability<\/u>. NewCo will have all requisite
\nlimited liability company power and authority to execute and deliver the Joinder
\nAgreement and to consummate the transactions contemplated therein. The execution
\nand delivery of the Joinder Agreement by NewCo and the consummation of the
\ntransactions contemplated by, and compliance with the provisions of, the Joinder
\nAgreement by NewCo has been duly authorized and approved by all necessary
\nlimited liability company action on the part of NewCo. The Joinder Agreement has
\nbeen duly executed and delivered by NewCo and, assuming the due authorization,
\nexecution and delivery by the Investor, constitutes a legal, valid and binding
\nobligation of NewCo, enforceable against NewCo in accordance with its terms,
\nsubject, as to enforceability, to bankruptcy, insolvency and other Laws of
\ngeneral applicability relating to or affecting creditors153 rights and to general
\nequity principles, whether considered in a proceeding at law or in equity.<\/p>\n (iv) No Conflict<\/u>. (A) NewCo is not in violation or default of any
\nprovision of NewCo153s certificate of formation, the limited liability company
\nagreement as of the date of formation of NewCo or the LLC Agreement as of the
\nClosing Date. The execution and delivery by NewCo of the Joinder Agreement and
\ncompliance with the provisions thereof and hereof will not conflict with or
\nresult in any violation or default under NewCo153s certificate of formation,
\nNewCo153s limited liability company agreement as of the date of formation of NewCo
\nor the LLC Agreement as of the Closing Date.<\/p>\n 6<\/p>\n
\n(B) Other than in connection or in compliance with the provisions of the
\nSecurities Act, the securities or blue sky laws of the various states, no notice
\nto, registration, declaration or filing with, review by, or authorization,
\nconsent, order, waiver or approval of, any Governmental Entity is necessary for
\nthe consummation by NewCo of the transactions contemplated by this Agreement.\n<\/p>\n (v) Private Offering<\/u>. None of NewCo, its Subsidiaries, its Affiliates
\nand its or their Representatives has, directly or indirectly, made any offers or
\nsales of the Preferred Membership Interests or Common Membership Interest or
\nsolicited any offers to buy the Preferred Membership Interests or Common
\nMembership Interest, under circumstances that would require registration of the
\nPreferred Membership Interests or Common Membership Interest under the
\nSecurities Act. None of NewCo, its Subsidiaries, its Affiliates and its or their
\nRepresentatives has, directly or indirectly, made any offers or sales of any
\nsecurity or solicited any offers to buy any security under circumstances that
\nwould cause this offering of the Preferred Membership Interests to be integrated
\nwith prior offerings by NewCo for purposes of the Securities Act. None of NewCo,
\nits Subsidiaries, its Affiliates and its or their Representatives has taken any
\naction or steps referred to in the two preceding sentences that would require
\nregistration of any of the Preferred Membership Interests under the Securities
\nAct. Assuming the accuracy of the representations made by the Investor in
\nSection 2.02, the sale and delivery of the Preferred Membership Interests
\nhereunder are exempt from the (A) registration and prospectus delivery
\nrequirements of the Securities Act and (B) the registration and qualification
\nrequirements of all applicable securities laws of the states of the United
\nStates.<\/p>\n (vi) Sufficiency of Assets<\/u>. Following consummation of the NewCo
\nFormation Transactions, NewCo will own all material assets, rights and
\nproperties of Parent and its Subsidiaries, in each case subject to receipt of
\napplicable third party consents, that, together with the assets to be made
\navailable to NewCo pursuant to this Agreement and the assets and services to be
\nmade available in accordance with the Separation Principles, are necessary to
\nconduct the Digital Business and the College Business in all material respects
\nas presently conducted by Parent and its Subsidiaries on the date hereof. As of
\nthe Closing, NewCo will not be engaged in any business, or hold any material
\nliabilities or assets, rights or properties relating to any business (except for
\nliabilities, assets, rights or properties of NewCo or its Subsidiaries the
\ntransfer of which to Parent and its Subsidiaries other than NewCo and its
\nSubsidiaries is subject to receipt of third-party consent which has not been
\nreceived), other than the Digital Business and College Business and the
\ninvestment by the Investor.<\/p>\n (vii) Taxes<\/u>. All material Tax Returns required to be filed by NewCo,
\nany of its Subsidiaries, the College Business or the Digital Business or with
\nrespect to any of their income or assets have been timely filed in accordance
\nwith applicable Law, and all such Tax Returns are complete and correct in all
\nmaterial respects. All material Taxes imposed on or with respect to NewCo, any
\nof its Subsidiaries, the College Business or the Digital Business or with
\nrespect to any of their income or assets have been paid in full in accordance
\nwith applicable Law. All material amounts of Taxes required to be withheld by
\nNewCo or any of its Subsidiaries have been duly withheld and remitted to the
\nappropriate taxing authority as required by applicable Law. Neither NewCo nor
\nany of its Subsidiaries has any liability for any Taxes of any other person
\nunder Treasury Regulations section 1.1502-6 or any similar provision of state,
\nlocal or foreign Law, as a transferee or successor, by contract or otherwise.
\nNeither NewCo nor any of its Subsidiaries is a party to any Tax sharing,
\nindemnification, or similar agreement or arrangement. NewCo and its Subsidiaries
\nhave collected all material sales, value-added, goods and services, use, or
\nsimilar Taxes required to be collected and have remitted such Taxes to the
\napplicable taxing authority as required by applicable Law. There are no material
\nLiens with respect to Taxes upon any of the assets of either NewCo or any of its
\nSubsidiaries, other than with respect to Taxes not yet due and payable. NewCo
\nand each of its Subsidiaries is currently, and has been since the date of its
\nformation, a disregarded entity for U.S. federal income tax purposes.<\/p>\n 7<\/p>\n
\nSECTION 2.02 Representations and Warranties of the Investor<\/u>. The
\nInvestor hereby represents and warrants to Parent as of the date hereof and as
\nof the Closing Date and to NewCo as of the Closing Date:<\/p>\n (a) Organization and Authority<\/u>. The Investor is duly organized,
\nvalidly existing and in good standing under the Laws of its jurisdiction of
\norganization and has all requisite corporate power and authority to carry on its
\nbusiness as presently conducted.<\/p>\n (b) Authorization; Enforceability<\/u>. The Investor has all requisite
\ncorporate power and authority to execute and deliver this Agreement and to
\nconsummate the transactions contemplated by this Agreement. The execution and
\ndelivery of this Agreement by the Investor and the consummation of the
\ntransactions contemplated by, and compliance with the provisions of, this
\nAgreement, by the Investor have been duly authorized by all necessary corporate
\naction on the part of the Investor (and, as of the date of this Agreement, the
\nresolutions giving effect to such corporate actions have not been rescinded,
\nmodified or withdrawn in any way). This Agreement has been duly executed and
\ndelivered by the Investor and, assuming the due authorization, execution and
\ndelivery by Parent and due authorization, execution and delivery of a Joinder
\nAgreement by NewCo, constitutes a legal, valid and binding obligation of the
\nInvestor, enforceable against the Investor in accordance with its terms,
\nsubject, as to enforceability, to bankruptcy, insolvency and other Laws of
\ngeneral applicability relating to or affecting creditors153 rights and to general
\nequity principles.<\/p>\n (c) No Conflict<\/u>. The execution and delivery by the Investor of this
\nAgreement do not, and the transaction contemplated by this Agreement and
\ncompliance with the provisions of this Agreement will not, conflict with, or
\nresult in any violation or breach of, or default (with or without notice or
\nlapse of time, or both) under, or give rise to a right of termination,
\ncancellation or acceleration of any obligation or to the loss of a benefit
\nunder, or result in the creation of any right or benefit on the part of any
\nthird party under, or result in the creation of any Lien upon any of the
\nproperties or assets of the Investor under, the Certificate of Incorporation or
\nBy-laws, or similar organizational documents, of the Investor, any term,
\ncondition or provision of any Contract to which the Investor or any of its
\nSubsidiaries is a party or by which any of its properties or assets are bound
\nand that is material to the business of the Investor and its Subsidiaries, taken
\nas a whole, or any Law that is material to the Investor and its Subsidiaries,
\ntaken as a whole, or Judgment, permit, concession, grant or franchise, in each
\ncase, applicable to the Investor or any of its Subsidiaries or any of its
\nproperties or assets, other than any such conflicts, violations, breaches,
\ndefaults, rights, losses or Liens that would not, individually or in the
\naggregate, reasonably be expected to have a material adverse effect on the
\nInvestor153s ability to consummate the transactions contemplated by this
\nAgreement.<\/p>\n 8<\/p>\n
\n(d) Consents<\/u>. Other than in connection or in compliance with the
\nprovisions of the Securities Act and the securities or blue sky laws of the
\nvarious states or any applicable antitrust, merger or competition law, no notice
\nto, registration, declaration or filing with, review by, or authorization,
\nconsent, order, waiver, authorization or approval of any Governmental Entity is
\nnecessary for the consummation by the Investor of the transactions contemplated
\nby this Agreement.<\/p>\n (e) Purchase for Investment<\/u>. The Investor acknowledges that the
\nPreferred Membership Interests will not have been registered under the
\nSecurities Act or under any state securities laws. The Investor (i) is acquiring
\nthe Preferred Membership Interests pursuant to an exemption from registration
\nunder the Securities Act solely for investment with no present intention or view
\nto distribute any of the Preferred Membership Interests to any person in
\nviolation of the Securities Act, (ii) will not sell or otherwise dispose of any
\nof the Preferred Membership Interests, except in compliance with the
\nregistration requirements or exemption provisions of the Securities Act and any
\nother applicable securities laws, (iii) has such knowledge and experience in
\nfinancial and business matters and in investments of this type, that it is
\ncapable of evaluating the merits and risks of its investment in the Preferred
\nMembership Interests and of making an informed investment decision, and has
\nconducted an independent review and analysis of the business and affairs of
\nNewCo that it considers sufficient and reasonable for purposes of its making its
\ninvestment in the Preferred Membership Interests, and (iv) is an “accredited
\ninvestor” (as such term is defined in Rule 501 of Regulation D promulgated under
\nthe Securities Act).<\/p>\n ARTICLE III<\/p>\n Covenants<\/u><\/p>\n SECTION 3.01 Further Assurances<\/u>. (a) Each of Parent, the Investor and
\nNewCo will cooperate and consult with the other and use commercially reasonable
\nefforts (i) to prepare and file all necessary documentation, (ii) to effect all
\nnecessary applications, notices, petitions, filings and other documents, (iii)
\nto obtain all necessary permits, consents, orders, approvals and authorizations
\nof, or any exemption by, all Governmental Entities and any other third parties,
\nand expiration or termination of any applicable waiting periods, necessary or
\nadvisable to consummate the transactions contemplated by this Agreement, (iv) to
\ntake actions necessary to cause the conditions to Closing to be satisfied as
\npromptly as reasonably practicable and (v) to perform the covenants contemplated
\nby this Agreement, it being agreed that each of Parent, NewCo and the Investor
\nshall make or file any such applications, notices, petitions or filings required
\nto be made by it with Governmental Entities in connection with the transactions
\ncontemplated by this Agreement as promptly as practicable. Parent and NewCo
\nshall take all material action necessary to effect the NewCo Formation
\nTransactions as promptly as reasonably practicable following the date hereof. To
\nthe extent Parent and NewCo enter into any Contracts to effect the NewCo
\nFormation<\/p>\n 9<\/p>\n
\nTransactions, the terms of such Contracts shall be consistent with the
\nSeparation Principles. Each party shall execute and deliver after the Closing
\nsuch further certificates, agreements and other documents and take such other
\nactions as the other party may reasonably request to consummate or implement
\nsuch transactions or to evidence such events or matters. For assets and
\nliabilities the transfer of which from (i) Parent (or Parent153s Subsidiaries
\n(other than NewCo and its Subsidiaries)) to NewCo or its Subsidiaries or (ii)
\nNewCo (or NewCo153s Subsidiaries) to Parent or its Subsidiaries (other than NewCo
\nand its Subsidiaries) is subject to receipt of third-party consent which has not
\nbeen received prior to the Closing Date, Parent and NewCo shall use commercially
\nreasonable efforts to implement arrangements to allow NewCo (in the case of
\nclause (i)) or Parent (in the case of clause (ii)) to the maximum extent
\nreasonably practicable to obtain the benefits and bear the burdens of such
\nassets and liabilities until such consent is obtained. After the Closing, Parent
\nand NewCo shall hold and shall promptly transfer and deliver to the other party,
\nfrom time to time as and when received by it, any cash, checks with appropriate
\nendorsements (using commercially reasonable efforts not to convert such checks
\ninto cash), or other property that they may receive which properly belongs to
\nthe other party, including any payments of accounts receivable and insurance
\nproceeds, and shall account to the other party for all such receipts. Each of
\nParent, the Investor and NewCo will have the right to review in advance, and to
\nthe extent practicable each will consult with the other, in each case subject to
\napplicable Laws relating to the exchange of information, with respect to all the
\ninformation relating to the other party, and any of their respective
\nSubsidiaries, which appears in any filing made with, or written materials
\nsubmitted to, any third party or any Governmental Entity in connection with the
\ntransactions contemplated by this Agreement. In exercising the foregoing right,
\neach of the parties hereto agrees to act reasonably and as promptly as
\npracticable. Each party hereto agrees to keep the other party apprised of the
\nstatus of matters relating to completion of the transactions contemplated
\nhereby. Parent, the Investor and NewCo shall promptly furnish each other, to the
\nextent permitted by applicable Laws, with copies of written communications
\nreceived by them or their Affiliates from, or delivered by any of the foregoing
\nto, any Governmental Entity in respect of the transactions contemplated by this
\nAgreement.<\/p>\n (b) NewCo or Parent, as the case may be, shall give prompt written notice to
\nthe Investor upon becoming aware of any Claim commenced or, to the knowledge of
\nNewCo, to which NewCo is or may become a party (including any such Claim in the
\nright of NewCo) (x) relating to or involving this Agreement or the transactions
\ncontemplated hereby, or (y) seeking to enjoin, restrain, restrict, limit or
\nprohibit the transactions contemplated hereby or any of the rights, privileges
\nor preferences to which the Investor is entitled as set forth in the LLC
\nAgreement or the other agreements contemplated by this Agreement. NewCo or
\nParent, as the case may be, shall give the Investor the opportunity to
\nparticipate in (but not control) the defense and settlement of any such Claims
\nand NewCo and Parent agree to use, and to cause their or Parent153s, as the case
\nmay be, Affiliates, directors and officers to use, its commercially reasonable
\nefforts to defend or contest any such Claim, subject to the right of NewCo to
\nsettle such Claim in compliance with the LLC Agreement. The Investor will
\ncooperate (at Parent153s sole cost and expense) with NewCo and Parent in its
\ndefense of such Claims as NewCo may reasonably request.<\/p>\n (c) Except for matters set forth in Section 3.01(c) of the Disclosure Letter
\nor otherwise expressly permitted or required by the terms of this Agreement or
\nexpressly contemplated in connection with the NewCo Formation Transactions and,
\nto the extent applicable, consistent with the Separation Principles, from the
\ndate of this Agreement to the earlier of the Closing or termination of this
\nAgreement, Parent shall conduct its Digital Business and College Business in the
\nusual, regular and ordinary course, and shall use commercially reasonable
\nefforts to keep intact its Digital Business and College Business and preserve
\nthe relationships of its Digital Business and College Business with customers,
\nsuppliers, licensors, licensees, strategic partners, distributors and others
\nwith whom its Digital Business and College Business deal.<\/p>\n 10<\/p>\n
\n(d) At the Closing Date, Parent and the Investor shall, and Parent shall
\ncause NewCo to, execute and deliver the LLC Agreement and the Registration
\nRights Agreement.<\/p>\n (e) From the date of this Agreement until the earlier of the Closing or the
\ntermination of this Agreement, none of Parent, NewCo or any of their respective
\nSubsidiaries shall consummate any transaction that would require any
\nantidilution adjustment to be made under the LLC Agreement as if entered into on
\nthe date of this Agreement.<\/p>\n SECTION 3.02 Expenses<\/u>. Except as otherwise provided in this Agreement,
\neach party shall bear and pay its own costs, fees and expenses incurred by it in
\nconnection with this Agreement and the transactions contemplated by this
\nAgreement, provided<\/u> that, except as otherwise provided in the Separation
\nPrinciples, all costs, fees and expenses in connection with NewCo Formation
\nTransactions shall be borne by Parent.<\/p>\n SECTION 3.03 Confidentiality<\/u>. Each of Parent, NewCo and Investor
\nhereby agrees to keep confidential and to cause its respective employees,
\nofficers, directors, Affiliates and Representatives to keep confidential any and
\nall confidential information of the Investor on the one hand, and NewCo and
\nParent on the other, including non-public information relating to their
\nrespective finances and results, trade secrets, know-how, customers, business
\nplans, marketing activities, financial data and other business affairs that was
\ndisclosed by the Investor on the one hand, and NewCo or Parent on the other, or
\ntheir respective Affiliates or Representatives on or prior to the date of this
\nAgreement.<\/p>\n SECTION 3.04 Change to Transaction Structure<\/u>. The parties agree that
\nprior to the Closing Parent shall have the right to modify the structure of
\nNewCo as reasonably necessary, so long as (i) any such modification does not
\nalter the terms of the preferred equity interests to be purchased by the
\nInvestor or otherwise adversely impact the Investor other than in a de
\nminimis<\/em> respect (including with respect to the Tax consequences to the
\nInvestor with respect to the purchase, ownership, or disposition of the
\nPreferred Membership Interests) and (ii) NewCo is not classified as an
\nassociation taxable as a corporation for U.S. federal income tax purposes. Upon
\nParent giving written notice to the Investor of such election, the parties
\nshall, if necessary, enter into an amendment to this Agreement to implement any
\nchanges to this Agreement necessitated by such modification (including replacing
\nor modifying the forms of governing documents of NewCo).<\/p>\nSECTION 3.05 Taxes<\/u>. Parent shall be responsible for and shall timely
\npay to the applicable taxing authority as required by Law the full amount of any
\nTaxes incurred in connection with the NewCo Formation Transactions, including
\nany sales, use, transfer or value-added Taxes imposed in connection therewith.\n<\/p>\n 11<\/p>\n
\nSECTION 3.06 Guarantee<\/u>. Microsoft hereby irrevocably and
\nunconditionally guarantees, and agrees to cause the Investor to satisfy, all
\nobligations of the Investor under this Agreement, on the terms and subject to
\nthe conditions set forth in this Agreement. This guarantee (i) is a present and
\ncontinuing guarantee of payment and not of collectability, and (ii) is in no way
\nconditioned or contingent upon any attempts to collect or upon any other
\ncondition or contingency.<\/p>\n ARTICLE IV<\/p>\n Conditions<\/u><\/p>\n SECTION 4.01 Conditions to the Obligations of Each Party153s
\nObligations<\/u>. The respective obligations of each party to effect the
\ntransactions set forth in this Agreement are subject to the satisfaction or (to
\nthe extent permitted by law) waiver on or prior to the Closing Date of the
\nfollowing conditions:<\/p>\n (a) Legal Restraints<\/u>. No Governmental Entity shall have issued any
\norder, decree or ruling, and no law shall be in effect, enjoining, restraining
\nor otherwise prohibiting any transaction contemplated by this Agreement.<\/p>\n (b) Definitive Agreements<\/u>. The Commercial Agreement among Parent,
\nNewCo and Microsoft dated on or about the date hereof and effective as of the
\nClosing Date (the “Commercial Agreement<\/u>“) shall be effective.<\/p>\n SECTION 4.02 Conditions to the Obligations of Parent and NewCo<\/u>. The
\nobligations of Parent and NewCo to effect the transactions set forth in this
\nAgreement are subject to the satisfaction or (to the extent permitted by law)
\nwaiver on or prior to the Closing Date of the following conditions:<\/p>\n (a) LLC Agreement<\/u>. The Investor shall have executed and delivered the
\nLLC Agreement.<\/p>\n (b) Representations and Warranties<\/u>. The representations and warranties
\nof the Investor in this Agreement shall be true and correct at and as of the
\nClosing Date, with the same force and effect as if made on the Closing Date,
\nexcept for such failures to be true and correct (without giving effect to any
\nlimitation or qualification as to “materiality” or “material adverse effect” set
\nforth in such representations and warranties) as, individually or in the
\naggregate, has not had, and would not reasonably be expected to have, a material
\nadverse effect on the ability of the Investor to consummate the transactions
\ncontemplated by this Agreement.<\/p>\n (c) Performance of Obligations of the Investor<\/u>. The Investor shall
\nhave performed in all material respects all obligations required to be performed
\nby it under this Agreement at or prior to the Closing Date.<\/p>\n (d) Credit Facility Consent<\/u>. Parent shall have received any required
\nconsent of the lenders under the Parent153s Amended and Restated Credit Agreement
\ndated as of April 29, 2011, as amended (the “Credit Agreement<\/u>“), to the
\nconsummation of the transactions contemplated hereby and the NewCo Formation
\nTransactions.<\/p>\n 12<\/p>\n
\nSECTION 4.03 Conditions to the Obligations of the Investor<\/u>. The
\nobligations of the Investor to effect the transactions set forth in this
\nAgreement are subject to the satisfaction or (to the extent permitted by law)
\nwaiver on or prior to the Closing Date of the following conditions:<\/p>\n (a) Definitive Agreements<\/u>. Parent and NewCo shall have executed and
\ndelivered the LLC Agreement, the Registration Rights Agreement and the Joinder
\nAgreement.<\/p>\n (b) Representations and Warranties<\/u>. The representations and warranties
\nof Parent in this Agreement (including with respect to NewCo) shall be true and
\ncorrect at and as of the Closing Date, with the same force and effect as if made
\non the Closing Date, except to the extent such representations and warranties
\nexpressly relate to an earlier date (in which case such representations and
\nwarranties shall be true and correct or true and correct on such earlier date),
\nexcept for such failures to be true and correct (without giving effect to any
\nlimitation or qualification as to “materiality” or “material adverse effect” set
\nforth in such representations and warranties) as, individually or in the
\naggregate, has not had, and would not reasonably be expected to have, a material
\nadverse effect on NewCo and its Subsidiaries after giving effect to the NewCo
\nFormation Transactions, taken as a whole, or on the ability of Parent and NewCo
\nto consummate the transactions contemplated by this Agreement.<\/p>\n (c) Performance of Obligations of NewCo<\/u>. Parent and NewCo shall have
\nperformed in all material respects all obligations required to be performed by
\nthem under this Agreement at or prior to the Closing Date.<\/p>\n (d) NewCo Formation Transactions<\/u>. The NewCo Formation Transactions
\nshall have been consummated.<\/p>\n (e) Certificate<\/u>. Parent and NewCo shall have delivered to the Investor
\na certificate, dated as of the Closing Date and signed on behalf of Parent and
\nNewCo by the Chief Executive Officers or Chief Financial Officers of Parent and
\nNewCo, certifying the satisfaction of the conditions in Sections 4.03(b), (c)
\nand (d).<\/p>\n ARTICLE V<\/p>\n Termination<\/u><\/p>\n SECTION 5.01 Termination<\/u>. This Agreement may be terminated at any time
\nprior to the Closing Date:<\/p>\n (a) by mutual written consent of Parent and the Investor;<\/p>\n (b) by either Parent or the Investor, if<\/p>\n (i) the Closing Date shall not have occurred by February 3, 2013 (such date,
\nthe “Outside Date<\/u>“); provided<\/u> that the party seeking termination
\nof this Agreement pursuant to this Section 5.01(b)(i) is not then in material
\nbreach of any of its representations, warranties, covenants or agreements
\ncontained in this Agreement; provided<\/u> further<\/u>, that (A) if on the
\nOutside Date, Parent has been pursuing completion of the NewCo Formation
\nTransactions in good faith but the NewCo Formation Transactions have not been
\nconsummated, the Investor shall on the Outside Date either (1) exercise its
\nright to terminate this Agreement in accordance with this Section 5.01(b)(i) and
\nthe Settlement and License Agreement shall terminate pursuant to Section 5.2.3
\nthereof or (2) extend the Outside Date to May 3, 2013 (the “Extended Outside
\nDate<\/u>“) by giving written notice thereof to Parent, in which event, this
\nAgreement may thereafter be terminated by either party prior the Extended
\nOutside Date (provided<\/u> that, if Parent has been pursuing completion of
\nthe NewCo Formation Transactions in good faith, (x) in the event of a
\ntermination by the Investor, the Settlement and License Agreement shall
\nterminate pursuant to Section 5.2.3 thereof and (y) in the event of a
\ntermination by Parent, Parent shall have the right to terminate the Settlement
\nand License Agreement solely to the extent it is entitled to do so under Section
\n5.2 thereof) and (B) if the conditions to the Investor153s obligations to effect
\nthe transactions contemplated by this Agreement are not satisfied on the
\nExtended Outside Date, the Investor shall not be required to concurrently
\nterminate the Settlement and License Agreement in order to exercise its right to
\nterminate this Agreement in accordance with this Section 5.01(b)(i); or<\/p>\n 13<\/p>\n
\n(ii) any Governmental Entity issues an order, decree or ruling or has taken
\nany other action permanently enjoining, restraining or otherwise prohibiting any
\ntransaction contemplated by this Agreement and such order, decree, ruling or
\nother action shall have become final and nonappealable.<\/p>\n ARTICLE VI<\/p>\n Miscellaneous<\/u><\/p>\n SECTION 6.01 Survival<\/u>. The representations and warranties of the
\nparties set forth in Article II of this Agreement shall survive until the second
\nanniversary of the Closing, except that Sections 2.01(a)(i), (ii), Sections
\n2.01(b)(i), (ii) and (iii) and Sections 2.02(a) and (b) shall survive
\nindefinitely and Section 2.01(a)(vii) shall survive until the close of business
\non the 60th day following the expiration of the applicable statute of
\nlimitations. All of the covenants or other agreements of the parties contained
\nin this Agreement shall survive until fully performed or fulfilled.<\/p>\n SECTION 6.02 Amendments, Waivers, etc<\/u>. This Agreement may be amended
\nor waived if, and only if, such amendment or waiver is in writing and signed by
\nthe party against whom such amendment or waiver shall be enforced. The failure
\nof any party hereto to exercise any right, power or remedy provided under this
\nAgreement or otherwise available in respect hereof at law or in equity, or to
\ninsist upon compliance by any other party hereto with its obligations hereunder,
\nshall not constitute a waiver by such party of its right to exercise any such
\nother right, power or remedy or to demand such compliance.<\/p>\n SECTION 6.03 Counterparts and Facsimile<\/u>. This Agreement may be
\nexecuted in two or more identical counterparts (including by facsimile), each of
\nwhich shall be an original, with the same effect as if the signatures thereto
\nand hereto were upon the same instrument, and shall become effective when one or
\nmore counterparts have been signed by each of the parties and delivered (by
\ntelecopy or otherwise) to the other parties.<\/p>\n 14<\/p>\n
\nSECTION 6.04 Specific Enforcement; Governing Law; Submission to
\nJurisdiction; Waiver of Jury Trial<\/u>. (a) This Agreement shall be governed by
\nand construed in accordance with the Laws of the State of New York.<\/p>\n (b) THE PARTIES ACKNOWLEDGE AND AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN
\nTHE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN
\nACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS
\nACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR
\nINJUNCTIONS TO PREVENT BREACHES OR THREATENED BREACHES OF THIS AGREEMENT AND TO
\nENFORCE SPECIFICALLY THE TERMS AND PROVISIONS OF THIS AGREEMENT IN ANY COURT OF
\nCOMPETENT JURISDICTION, IN EACH CASE WITHOUT PROOF OF DAMAGES OR OTHERWISE (AND
\nEACH PARTY HEREBY WAIVES ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND
\nIN CONNECTION WITH SUCH REMEDY), THIS BEING IN ADDITION TO ANY OTHER REMEDY TO
\nWHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. THE PARTIES AGREE NOT TO ASSERT
\nTHAT A REMEDY OF SPECIFIC ENFORCEMENT IS UNENFORCEABLE, INVALID, CONTRARY TO LAW
\nOR INEQUITABLE FOR ANY REASON, NOR TO ASSERT THAT A REMEDY OF MONETARY DAMAGES
\nWOULD PROVIDE AN ADEQUATE REMEDY. IN ADDITION, EACH OF THE PARTIES HERETO
\nIRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
\nAGREEMENT AND THE RIGHTS AND OBLIGATIONS ARISING HEREUNDER, OR FOR RECOGNITION
\nAND ENFORCEMENT OF ANY JUDGMENT IN RESPECT OF THIS AGREEMENT AND THE RIGHTS AND
\nOBLIGATIONS ARISING HEREUNDER, BROUGHT BY THE OTHER PARTY HERETO OR ITS
\nSUCCESSORS OR ASSIGNS SHALL BE BROUGHT AND DETERMINED EXCLUSIVELY IN ANY STATE
\nOR FEDERAL COURT IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, SO LONG AS ONE
\nOF SUCH COURTS SHALL HAVE SUBJECT MATTER JURISDICTION OVER SUCH LEGAL ACTION OR
\nPROCEEDING, AND THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT SHALL BE
\nDEEMED TO HAVE ARISEN FROM A TRANSACTION OF BUSINESS IN THE STATE OF NEW YORK.
\nEACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS WITH REGARD TO ANY SUCH
\nACTION OR PROCEEDING FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
\nUNCONDITIONALLY, TO THE PERSONAL JURISDICTION OF THE AFORESAID COURTS AND AGREES
\nTHAT IT WILL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF THE
\nTRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN ANY COURT OTHER THAN THE
\nAFORESAID COURTS. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AND
\nAGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, COUNTERCLAIM OR OTHERWISE,
\nIN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, (1) ANY CLAIM THAT
\nIT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS FOR
\nANY REASON, (2) ANY CLAIM THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM
\nJURISDICTION OF ANY SUCH COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH
\nCOURTS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
\nATTACHMENT IN AID OF EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE)
\nAND (3) TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW, ANY CLAIM THAT
\n(A) THE SUIT, ACTION OR PROCEEDING IN SUCH COURT IS BROUGHT IN AN INCONVENIENT
\nFORUM, (B) THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER OR (C) THIS
\nAGREEMENT, OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR BY SUCH
\nCOURTS. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
\nIN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS
\nAGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, ON BEHALF
\nOF ITSELF OR ITS PROPERTY, BY U.S. REGISTERED MAIL TO SUCH PARTY153S RESPECTIVE
\nADDRESS SET FORTH BELOW, AND NOTHING IN THIS SECTION 6.04(b) SHALL AFFECT THE
\nRIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.\n<\/p>\n 15<\/p>\n
\n(c) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
\nAPPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT,
\nACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF, UNDER OR IN CONNECTION WITH
\nTHIS AGREEMENT. EACH PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE OF ANY
\nOTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
\nNOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE
\nFOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
\nBEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
\nWAIVER AND CERTIFICATIONS IN THIS SECTION 6.04(c).<\/p>\n SECTION 6.05 Notices<\/u>. Any notice required to be given hereunder shall
\nbe sufficient if in writing, and sent by facsimile transmission (provided that
\nany notice received by facsimile transmission or otherwise at the addressee153s
\nlocation on any Business Day after 5:00 p.m. (addressee153s local time) shall be
\ndeemed to have been received at 9:00 a.m. (addressee153s local time) on the next
\nBusiness Day), by reliable overnight delivery service (with proof of service),
\nor hand delivery, addressed as follows:<\/p>\n (a) If to Parent or NewCo:<\/p>\n Barnes & Noble, Inc.<\/p>\n 122 Fifth Avenue<\/p>\n New York, NY 10011<\/p>\n Attention: Eugene V. DeFelice<\/p>\n Vice President, General Counsel & Secretary<\/p>\n Facsimile: (212) 463-5683<\/p>\n 16<\/p>\n
\nwith a copy to (which copy alone shall not constitute notice):<\/p>\n Cravath, Swaine & Moore LLP<\/p>\n Worldwide Plaza<\/p>\n 825 Eighth Avenue<\/p>\n New York, NY 10019<\/p>\n Attention: Scott A. Barshay, Esq.<\/p>\n Andrew R. Thompson, Esq.<\/p>\n Facsimile: (212) 474-3700<\/p>\n (b) If to the Investor:<\/p>\n Morrison Investment Holdings, Inc.<\/p>\n c\/o Microsoft Corporation<\/p>\n One Microsoft Way<\/p>\n Redmond, Washington 98052-6399<\/p>\n Attention: Keith R. Dolliver<\/p>\n President<\/p>\n Facsimile: (425) 706-7329<\/p>\n with a copy to (which copy alone shall not constitute notice):<\/p>\n Simpson Thacher & Bartlett LLP<\/p>\n 425 Lexington Avenue<\/p>\n New York, NY 10017<\/p>\n Attention: Alan M. Klein, Esq.<\/p>\n Facsimile: (212) 455-2502<\/p>\n (c) If to Microsoft:<\/p>\n Microsoft Corporation<\/p>\n One Microsoft Way<\/p>\n Redmond, Washington 98052-6399<\/p>\n Attention: Peter Klein<\/p>\n Chief Financial Officer<\/p>\n Fax: (425) 706-7329<\/p>\n 17<\/p>\n
\nwith a copy to (which copy alone shall not constitute notice):<\/p>\n Simpson Thacher & Bartlett LLP<\/p>\n 425 Lexington Avenue<\/p>\n New York, NY 10017<\/p>\n Attention: Alan M. Klein, Esq.<\/p>\n Facsimile: (212) 455-2502<\/p>\n or to such other address as any person shall specify by written notice so
\ngiven, and such notice shall be deemed to have been delivered as of the date so
\ntelecommunicated, personally delivered or scheduled to be received if sent by
\novernight delivery service. Any party to this Agreement may notify any other
\nparty of any changes to the address or any of the other details specified in
\nthis paragraph; provided<\/u>, however<\/u>, that such notification shall
\nonly be effective on the date specified in such notice or five Business Days
\nafter the notice is given, whichever is later. Rejection or other refusal to
\naccept or the inability to deliver because of changed address of which no notice
\nwas given shall be deemed to be receipt of the notice as of the date of such
\nrejection, refusal or inability to deliver.<\/p>\n SECTION 6.06 Entire Agreement, etc<\/u>. This Agreement (including the
\nAnnexes hereto), together with the Related Agreements, constitutes the entire
\nagreement, and supersedes all other prior agreements, understandings,
\nrepresentations and warranties, both written and oral, between the parties, with
\nrespect to the subject matter hereof and thereof, including the term sheets with
\nrespect to the subject matter hereof and thereof and the Settlement Discussion
\nAgreement between Parent and Microsoft, dated as of July 12, 2011.<\/p>\n SECTION 6.07 Definitions<\/u>. (a) “Affiliate” means, with respect to any
\nspecified person or entity, any other person or entity directly or indirectly
\ncontrolling or controlled by, or under direct or indirect common control with,
\nsuch specified person or entity; provided, that none of Parent and its
\nSubsidiaries, and NewCo and its Subsidiaries shall be deemed to be Affiliates of
\nthe Investor or any of its respective Affiliates. For the purposes of this
\ndefinition, “control”, when used with respect to any specified person, means the
\npower to direct the management and policies of such person, directly or
\nindirectly, whether through the ownership of voting securities, by contract or
\notherwise; and the terms “controlling” and “controlled” have meanings
\ncorrelative to the foregoing.<\/p>\n (b) “Business Day<\/u>” means any weekday that is not a day on which
\nbanking institutions in New York, New York are authorized or required by law,
\nregulation or executive order to be closed.<\/p>\n (c) “Claim<\/u>” means any demand, action, claim, suit, litigation,
\narbitration, prosecution, proceeding (including any civil, criminal,
\nadministrative, investigative or appellate proceeding, at law or in equity),
\nhearing, examination or investigation.<\/p>\n (d) “College Business<\/u>” means the assets, rights and properties,
\nincluding all goodwill relating thereto, whether tangible or intangible, real,
\npersonal or mixed, and liabilities of Parent and its Subsidiaries primarily
\nrelated to, or used primarily in connection with, the college bookstore business
\nconducted by Parent and its Subsidiaries as of the date hereof (but with respect
\nto any asset, right and property or liability the transfer of which has not been
\nconsented to by any third-party with the right to consent to such transfer,
\nsubject to the receipt of such consent), including:<\/p>\n 18<\/p>\n
\n\n\n\n| <\/td>\n | \n (i)<\/p>\n<\/td>\n | \n 100% of the equity interests in Barnes & Noble College Booksellers, LLC;\n<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (ii)<\/p>\n<\/td>\n | \n Intellectual property associated solely with such college bookstore business
\nand a license for use (but not ownership) of the Barnes & Noble name and
\ntrademark;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (iii)<\/p>\n<\/td>\n | \n Customer data originating in such college bookstore business (subject to
\napplicable restrictions under privacy policies and applicable Law) and
\nContracts, including management agreements and licenses or other rights from
\npublishers and authors, relating to such college bookstore business;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (iv)<\/p>\n<\/td>\n | \n Claims arising out of or relating to the businesses, assets and liabilities
\ntransferred to NewCo primarily related to such college bookstore business,
\nincluding all Claims against third parties, whether choate or inchoate, known or
\nunknown, contingent or non-contingent, or otherwise, and the right to obtain all
\nproceeds therefrom;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (v)<\/p>\n<\/td>\n | \n Obligations with respect to third-party channel partner returns, price
\nprotection agreements with third-party channel partners, rebates and offsets of
\nrebates from suppliers and liabilities with respect to gift cards, in each case
\nprimarily related to such college bookstore business;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (vi)<\/p>\n<\/td>\n | \n Substantially all the employees of Parent or its Subsidiaries (other than
\nBarnes & Noble College Booksellers LLC) who as of the date of the separation
\nare engaged primarily in such college bookstore business (and the liabilities
\nassociated therewith);<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (vii)<\/p>\n<\/td>\n | \n Such other assets, rights, properties, obligations and liabilities described
\nor referenced in the sections of Parent153s Annual Report on Form 10-K for the
\nyear ended April 30, 2011, and subsequently filed Quarterly Reports on Form
\n10-Q, primarily relating to “B&N College”; and<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (viii)<\/p>\n<\/td>\n | \n All credits and deposits (including customer deposits, security deposits for
\nrent, electricity, telephone or otherwise), and prepaid charges and expenses,
\nand all permits or franchises, in each case, primarily related to such college
\nbookstore business;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n subject, in each case, to the Separation Principles.<\/p>\n (e) “Digital Business<\/u>” means the assets, rights and properties,
\nincluding all goodwill relating thereto, whether tangible or intangible, real,
\npersonal or mixed, and liabilities of Parent and its Subsidiaries primarily
\nrelated to, or used primarily in connection with, the digital device, digital
\ncontent, eCommerce and nook.com businesses (including barnesandnoble.com llc,
\nbut excluding assets and liabilities primarily related to the retail business
\n(including the Barnes & Noble trademark)) conducted by Parent and its
\nSubsidiaries as of the date hereof (but with respect to any asset or liability
\nthe transfer of which has not been consented to by any third-party with the
\nright to consent to such transfer, subject to the receipt of such consent),
\nincluding:<\/p>\n 19<\/p>\n
\n\n\n\n| <\/td>\n | \n (i)<\/p>\n<\/td>\n | \n 100% of the equity interests in barnesandnoble.com llc;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (ii)<\/p>\n<\/td>\n | \n Digital device manufacturing, development, sale and distribution work and
\nrights and each Nook line of devices;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (iii)<\/p>\n<\/td>\n | \n Application software development, sale and distribution work and rights;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (iv)<\/p>\n<\/td>\n | \n Intellectual property to the extent associated with such digital device,
\ndigital content, eCommerce and nook.com businesses (including patents primarily
\nrelated to such digital device, digital content, eCommerce and nook.com
\nbusinesses, the Nook trademark and copyrights and licenses for digital content,
\nbut only including certain URLs, such as nook.com);<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (v)<\/p>\n<\/td>\n | \n Customer data, including all data associated with a customer153s consumption of
\ndigital content (including bookmarks, last page read, highlighting and
\nannotations), originating in such digital device, digital content, eCommerce and
\nnook.com businesses and rights to maintain digital lockers for digital customers
\n(subject to applicable restrictions under privacy policies and applicable Law);\n<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (vi)<\/p>\n<\/td>\n | \n Rights to sell digital content, including electronic books, magazines,
\nnewspapers, periodicals, comic books, children153s books and other reading and
\nreading-related content, together with associated data thereto including any
\nannotations by such end user, and Contracts related to such digital device,
\ndigital content, eCommerce and nook.com businesses;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (vii)<\/p>\n<\/td>\n | \n Claims primarily relating to the businesses, assets and liabilities
\ntransferred to NewCo primarily related to such digital device, digital content,
\neCommerce and nook.com businesses, including all Claims against third parties,
\nwhether choate or inchoate, known or unknown, contingent or non-contingent, or
\notherwise, and the right to obtain all proceeds therefrom;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (viii)<\/p>\n<\/td>\n | \n Rights and obligations under the leases for office space located at 3400
\nHillview Avenue, Palo Alto, California and 76 9th Avenue, New York, New York;\n<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (ix)<\/p>\n<\/td>\n | \n Obligations with respect to third-party channel partner returns, price
\nprotection agreements with third-party channel partners, rebates and offsets of
\nrebates from suppliers and liabilities with respect to gift cards, in each case
\nprimarily related to such digital device, digital content, eCommerce and
\nnook.com businesses;<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (x)<\/p>\n<\/td>\n | \n Obligations under digital device warranties (including pre-separation digital
\ndevice warranties);<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (xi)<\/p>\n<\/td>\n | \n Obligations under the Settlement and License Agreement from and after the
\ndate of separation;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 20<\/p>\n
\n\n\n\n| <\/td>\n | \n (xii)<\/p>\n<\/td>\n | \n Substantially all the employees of Parent or its Subsidiaries who as of the
\ndate of the separation are engaged primarily in such digital device, digital
\ncontent, eCommerce and nook.com businesses (and the liabilities associated
\ntherewith);<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (xiii)<\/p>\n<\/td>\n | \n Such other assets, rights, properties, obligations and liabilities described
\nor referenced in the sections of Parent153s Annual Report on Form 10-K for the
\nyear ended April 30, 2011, and subsequently filed Quarterly Reports on Form 10-Q
\nas are primarily related to “B&N.com”; and<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n (xiv)<\/p>\n<\/td>\n | \n All credits and deposits (including customer deposits, security deposits for
\nrent, electricity, telephone or otherwise), and prepaid charges and expenses,
\nand all permits or franchises, in each case, primarily related to such digital
\ndevice, digital content, eCommerce and nook.com businesses;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n subject, in each case, to the Separation Principles.<\/p>\n (f) “Disclosure Letter<\/u>” means the letter dated as of the date hereof
\ndelivered by Parent to the Investor.<\/p>\n (g) “NewCo Formation Transactions<\/u>” means (i) the formation of NewCo,
\n(ii) the separation of substantially all the Digital Business and College
\nBusiness from Parent and the transfer of substantially all the Digital Business
\nand College Business into NewCo, including the transfer of the assets, rights
\nand properties primarily related to the Digital Business and the College
\nBusiness to NewCo free and clear of all Liens (other than any Liens under the
\nCredit Agreement and any Permitted Encumbrances (as defined in the Credit
\nAgreement)), (iii) the transfer of substantially all the employees who as of the
\ndate of separation were primarily engaged in the conduct of the Digital Business
\nand College Business and (iv) the entry of NewCo and Parent into commercial
\narrangements and transition services arrangements, in each case, in accordance
\nwith the Separation Principles.<\/p>\n (h) “Preferred Membership Interests<\/u>” means the Series A Preferred
\nMembership Interests of NewCo, having the powers, preferences and rights, and
\nthe qualifications, limitations and restrictions, specified in the LLC
\nAgreement.<\/p>\n (i) “registration<\/u>” shall refer to a registration effected by preparing
\nand filing a registration statement with the SEC in compliance with the
\nSecurities Act and applicable rules and regulations thereunder, and the
\ndeclaration or ordering of effectiveness of such registration statement by the
\nSEC.<\/p>\n (j) “Registration Rights Agreement<\/u>” means the registration rights
\nagreement among Parent, NewCo and the Investor dated as of the Closing Date and
\nto be substantially in the form of Annex B hereto.<\/p>\n (k) “Related Agreements<\/u>” means (i) the Settlement and License
\nAgreement, (ii) the Commercial Agreement and (iii) any other agreements between
\nor among Parent, NewCo, Microsoft and any of their respective Affiliates entered
\ninto in connection with the transactions contemplated herein or therein.<\/p>\n 21<\/p>\n
\n(l) “Representative<\/u>” means, with respect to any person, the directors,
\nofficers, employees, investment bankers, financial advisors, attorneys,
\naccountants or other advisors, agents or representatives of such person.<\/p>\n (m) “Separation Principles<\/u>” means the principles with respect to the
\nseparation of Parent153s Digital Business and College Business to NewCo which are
\nset forth on Annex C.<\/p>\n (n) “Settlement and License Agreement<\/u>” means the Settlement and Patent
\nLicense Agreement among Parent, barnesandnoble.com llc, Microsoft and Microsoft
\nLicensing GP, dated as of the date hereof.<\/p>\n (o) A “Subsidiary<\/u>” of any person means another person, an amount of
\nthe voting securities, other voting rights or voting partnership interests of
\nwhich is sufficient to elect at least a majority of its board of directors or
\nother governing body (or, if there are no such voting interests, more than 50%
\nof the equity interests of which) is owned directly or indirectly by such first
\nperson. For purposes of this Agreement, “person” means any individual,
\ncorporation, partnership, limited liability company, joint venture, association,
\njoint-stock company, trust, unincorporated organization or Governmental Entity
\nor other entity.<\/p>\n (p) “Tax<\/u>” or “Taxes<\/u>” means any federal, state, local or foreign
\nincome, gross receipts, property, sales, use, license, excise, franchise,
\nemployment, payroll, withholding, alternative or add on minimum, ad valorem,
\ntransfer or excise tax, or any other tax, custom, duty, governmental fee or
\nother like assessment or charge of any kind whatsoever, together with any
\ninterest or penalty, imposed by any taxing authority.<\/p>\n (q) “Tax Return<\/u>” means any return, declaration, report or similar
\nstatement required to be filed with respect to any Tax (including any attached
\nschedules), including, without limitation, any information return, claim for
\nrefund, amended return or declaration of estimated Tax.<\/p>\n SECTION 6.08 Interpretation<\/u>. When a reference is made in this
\nAgreement to an Article, Section or Schedule, such reference shall be to an
\nArticle or Section of, or a Schedule to, this Agreement unless otherwise
\nindicated. The table of contents and headings contained in this Agreement are
\nfor reference purposes only and shall not affect in any way the meaning or
\ninterpretation of this Agreement. Whenever the words “include”, “includes” or
\n“including” are used in this Agreement, they shall be deemed to be followed by
\nthe words “without limitation”. The words “hereof”, “herein” and “hereunder” and
\nwords of similar import when used in this Agreement shall refer to this
\nAgreement as a whole and not to any particular provision of this Agreement. The
\nword “or” shall not be exclusive. All references to “$” mean the lawful currency
\nof the United States of America. The definitions contained in this Agreement are
\napplicable to the singular as well as the plural forms of such terms and to the
\nmasculine as well as to the feminine and neuter genders of such term. Except as
\nspecifically stated herein, any agreement, instrument or statute defined or
\nreferred to herein or in any agreement or instrument that is referred to herein
\nmeans such agreement, instrument or statute as from time to time amended,
\nmodified or supplemented, including (in the case of agreements or instruments)
\nby waiver or consent and (in the case of statutes) by succession of comparable
\nsuccessor statutes and references to all attachments thereto and instruments
\nincorporated therein. Except as otherwise specified herein, references to a
\nperson are also to its permitted successors and assigns. Each of the parties has
\nparticipated in the drafting and negotiation of this Agreement. If an ambiguity
\nor question of intent or interpretation arises, this Agreement must be construed
\nas if it is drafted by all the parties and no presumption or burden of proof
\nshall arise favoring or disfavoring any party by virtue of authorship of any of
\nthe provisions of this Agreement.<\/p>\n 22<\/p>\n
\nSECTION 6.09 Severability<\/u>. Any term or provision of this Agreement
\nwhich is invalid or unenforceable in any jurisdiction shall, as to that
\njurisdiction, be ineffective to the extent of such invalidity or
\nunenforceability without rendering invalid or unenforceable the remaining terms
\nand provisions of this Agreement in any other jurisdiction. If any provision of
\nthis Agreement is so broad as to be unenforceable, such provision shall be
\ninterpreted to be only so broad as is enforceable.<\/p>\n SECTION 6.10 No Third-Party Beneficiaries<\/u>. Nothing expressed or
\nreferred to in this Agreement will be construed to give any person, other than
\nthe parties to this Agreement, any legal or equitable right, remedy or claim
\nunder or with respect to this Agreement or any provision of this Agreement.<\/p>\n SECTION 6.11 Assignment<\/u>. Except as otherwise provided herein, neither
\nthis Agreement nor any of the rights, interests or obligations hereunder shall
\nbe assigned by any of the parties hereto (whether by operation of law or
\notherwise) without the prior written consent of the other parties;
\nprovided<\/u> that the Investor (and any of the Investor153s permitted assignees
\nunder this Section 6.11) may assign its rights, interests and obligations
\nhereunder to Microsoft or any of Microsoft153s wholly owned subsidiaries;
\nprovided<\/u>, however<\/u>, that any assignment of the rights, interests or
\nobligations hereunder shall not modify the obligations of Microsoft under
\nSection 3.06.<\/p>\n SECTION 6.12 Public Announcements<\/u>. Parent and the Investor agree that
\nthe initial press release announcing the execution and delivery of this
\nAgreement and the transactions contemplated by this Agreement shall be a joint
\nrelease of Parent and the Investor. Subject to each party153s disclosure
\nobligations imposed by Law or the rules of any stock exchange upon which its
\nsecurities are listed compliance with which shall not require consultation with,
\nor the consent of, the other party, neither Parent nor the Investor will make
\nany public news release or other public disclosure with respect to this
\nAgreement or the transactions contemplated hereby in which the other party is
\nnamed without first consulting with the other, and, in each case, also receiving
\nthe other153s consent (which shall not be unreasonably withheld or delayed).<\/p>\n [Signature Pages Follow]<\/p>\n 23<\/p>\n
\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
\nthe parties hereto as of the date first written above.<\/p>\n \n\n\n| <\/td>\n | \n BARNES & NOBLE, INC.,<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ Eugene V. DeFelice<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name: Eugene V. DeFelice<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title: Vice President, General Counsel & Secretary<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n [Signature Page to the Investment Agreement<\/em>]<\/p>\n
\n\n\n\n| <\/td>\n | \n MORRISON INVESTMENT HOLDINGS, INC.,<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ Keith R. Dolliver<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name: Keith R. Dolliver<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title: President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n [Signature Page to the Investment Agreement<\/em>]<\/p>\n
\n\n\n\n| <\/td>\n | \n Solely for purposes of Section 3.06,<\/p>\n MICROSOFT CORPORATION,<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n<\/tr>\n | \n| \n by<\/p>\n<\/td>\n | \n \/s\/ Steven A. Ballmer<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name: Steven A. Ballmer<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title: Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n [Signature Page to the Investment Agreement<\/em>]<\/p>\n
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