EXHIBIT 1.3
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VOTING AGREEMENT
by and among
FOUR MEDIA COMPANY,
TECHNICAL SERVICES PARTNERS, L.P.
and
LIBERTY MEDIA CORPORATION
dated as of
December 6, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I.
Section 1.1. Representations and Warranties of the Stockholder............ 1
Section 1.2. Representations and Warranties of Liberty.................... 3
Section 1.3. Representations and Warranties of the Company................ 4
ARTICLE II.
Section 2.1. Transfer of the Shares....................................... 5
Section 2.2. Adjustments.................................................. 5
Section 2.3. Stop Transfer................................................ 5
ARTICLE III.
Section 3.1. Voting Agreement............................................. 5
Section 3.2. No Solicitation.............................................. 6
ARTICLE IV.
Section 4.1. Termination.................................................. 7
Section 4.2. Expenses..................................................... 7
Section 4.3. Further Assurances........................................... 7
Section 4.4. Publicity.................................................... 7
Section 4.5. Enforcement of the Agreement................................. 7
Section 4.6. Miscellaneous................................................ 7
(i)
SCHEDULE 1.1(b) Additional Securities Beneficially Owned by Stockholder
SCHEDULE 1.1(c) Convertible Securities Beneficially Owned by Stockholder
SCHEDULE 1.1(f) Stockholder Defaults, Conflicts, etc.
SCHEDULE 1.2(d) Liberty Defaults, Conflicts, etc.
SCHEDULE 1.3(d) Company Defaults, Conflicts, etc.
(ii)
TABLE OF DEFINED TERMS
Page
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Agreement.................................................................. 1
Common Stock............................................................... 1
Exchange Act............................................................... 1
Lien....................................................................... 1
Merger Agreement........................................................... 1
Shares..................................................................... 1
Stockholder................................................................ 1
(iii)
VOTING AGREEMENT, dated as of December 6, 1999 (this "Agreement"), by
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and among Liberty Media Corporation, a Delaware corporation ("Liberty" and,
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collectively with AT&T Corp., a New York corporation ("Parent") and D-Group
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Merger Corp., a Delaware corporation ("Merger Sub"), the "Acquirors"), Four
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Media Company, a Delaware corporation (the "Company"), and Technical Services
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Partners L.P., a Delaware limited partnership (the "Stockholder").
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WHEREAS, as of the date hereof, Stockholder is the record and
beneficial owner of [1,432,875] shares (the "Shares") of common stock, $.01 par
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value per share (the "Common Stock") of the Company; and
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WHEREAS, concurrently with the execution of this Agreement, Parent,
Merger Sub, Liberty Media and the Company have entered into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
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to which, and upon the terms and subject to the conditions thereof, the Company
will be acquired by Parent by means of a merger (the "Merger") of Merger Sub
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with and into the Company, with the Company continuing as the surviving entity;
and
WHEREAS, as a condition to the willingness of Liberty and the Company
to enter into the Merger Agreement, Liberty has requested the Company and the
Stockholder to agree, and in order to induce Liberty to enter into the Merger
Agreement, Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
ARTICLE I.
Section 1.1. Representations and Warranties of the Stockholder. As of the date
hereof and as of the date of the closing under the Merger Agreement, Stockholder
hereby represents and warrants to Liberty as follows:
(a) Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
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which meaning will apply for all purposes of this Agreement) of, and has good
title to, all of the Shares, free and clear of any mortgage, pledge,
hypothecation, rights of others, claim, security interest, charge, encumbrance,
title defect, title retention agreement, voting trust agreement, interest,
option, lien, charge or similar restriction or limitation (each, a "Lien")
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(including any restriction on the right to vote, sell or otherwise dispose of
the Shares) except for immaterial Liens which shall not materially affect
Stockholder's ability to perform its obligations under this Agreement.
(b) Except as set forth on Schedule 1.1(b), the Shares constitute all
of the securities (as defined in Section 3(10) of the Exchange Act, which
definition will apply for all purposes of this Agreement) of the Company
beneficially owned, directly or indirectly, by
Stockholder (excluding any securities beneficially owned by any of its
affiliates or associates (as such terms are defined in Rule 12b-2 under the
Exchange Act, which definitions will apply for all purposes of this Agreement)
as to which it does not have voting or investment power.
(c) Except as set forth on Schedule 1.1(c), and except for the
Shares, Stockholder does not, directly or indirectly, beneficially own or have
any option, warrant or other right to acquire any securities of the Company that
are or may by their terms become entitled to vote or any securities that are
convertible or exchangeable into or exercisable for any securities of the
Company that are or may by their terms become entitled to vote, nor is
Stockholder subject to any contract, commitment, arrangement, understanding or
relationship (whether or not legally enforceable), other than this Agreement,
that allows or obligates it to vote or acquire any securities of the Company.
Stockholder has the sole power to vote the Shares and has not granted a proxy to
any other Person (as defined in the Merger Agreement, which definition will
apply for all purposes of this Agreement) to vote such Shares, subject to the
limitations set forth in this Agreement.
(d) Stockholder is a partnership duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and has the
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement.
(e) This Agreement has been duly executed and delivered by
Stockholder and, assuming due authorization, execution and delivery of this
Agreement by Liberty and the Company, is a valid and binding obligation of
Stockholder enforceable against Stockholder in accordance with its terms, except
that (i) the enforceability hereof may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereinafter in effect, affecting
creditors' rights generally and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(f) Neither the execution and delivery of this Agreement nor the
performance by Stockholder of its obligations hereunder will conflict with,
result in a violation or breach of, or constitute a default (or an event that,
with notice or lapse of time or both, would result in a default) or give rise to
any right of termination, amendment, cancellation, or acceleration or result in
the creation of any Lien on any Shares under (collectively, a "Conflict"), (i)
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its organizational documents, (ii) any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which Stockholder is a
party or by which Stockholder is bound, to the extent such Conflict would
materially affect Stockholder's ability to consummate the transactions
contemplated hereby or (iii) any injunction, judgment, writ, decree, order or
ruling applicable to Stockholder, to the extent such Conflict would materially
affect Stockholder's ability to consummate the transactions contemplated under
this Agreement.
(g) Except as set forth on Schedule 1.1(f), neither the execution and
delivery of this Agreement nor the performance by Stockholder of its obligations
hereunder will violate any law, decree, statute, rule or regulation applicable
to Stockholder or require any order,
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consent, authorization or approval of, filing or registration with, or
declaration or notice to, any corporation, Person, firm, Governmental Entity (as
such term is defined in the Merger Agreement) or public or judicial authority,
other than any required notices or filings with the Federal Communications
Commission ("FCC") or pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976 ("▇▇▇▇ ▇▇▇▇▇ Act"), as amended, and the rules and regulations
promulgated thereunder or the federal securities laws. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
the Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the compliance by the Stockholder with the terms
hereof.
Section 1.2. Representations and Warranties of Liberty. As of the date hereof
and the closing of the Merger Agreement, Liberty represents and warrants to
Stockholder and the Company as follows:
(a) Liberty is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, and has the
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by Liberty
and, assuming the due execution and delivery of this Agreement by Stockholder
and the Company, is the valid and binding obligation of Liberty, enforceable
against Liberty in accordance with its terms, except that (i) the enforceability
hereof may be subject to applicable bankruptcy, insolvency or other similar
laws, now or hereinafter in effect, affecting creditors' rights generally, and
(ii) the availability of the remedy of specific performance or injunctive or
other forms of equitable relief may be subject to equitable defenses and would
be subject to the discretion of the court before which any proceeding therefor
may be brought.
(c) Neither the execution and delivery of this Agreement nor the
performance by Liberty of its obligations hereunder will Conflict with (i) its
certificate of incorporation, (ii) any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which Liberty is a
party or by which Liberty is bound to the extent such Conflict would materially
affect Liberty's ability to consummate the transactions contemplated hereby or
(iii) any injunction, judgment, writ, decree, order or ruling applicable to
Liberty to the extent such Conflict would materially affect Liberty's ability to
consummate the transactions contemplated hereby.
(d) Except as set forth on Schedule 1.2(d), neither the execution and
delivery of this Agreement nor the performance by Liberty of its obligations
hereunder will violate any law, decree, statute, rule or regulation applicable
to Liberty or require any order, consent, authorization or approval of, filing
or registration with, or declaration or notice to, any corporation, Person,
firm, Governmental Entity or public or judicial authority, other than any
required notices or filings with the FCC or pursuant to the ▇▇▇▇ ▇▇▇▇▇ Act, and
the rules and regulations promulgated thereunder or the federal securities laws.
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Section 1.3. Representations and Warranties of the Company. As of the date
hereof and the closing of the Merger Agreement, the Company represents and
warrants to Stockholder and Liberty as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization, and has the
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by the
Company and, assuming due execution and delivery of this Agreement by Liberty
and Stockholder, is the valid and binding obligation of the Company, enforceable
against it in accordance with its terms, except that (i) the enforceability
hereof may be subject to applicable bankruptcy, insolvency or other similar
laws, now or hereinafter in effect, affecting creditors' rights generally, and
(ii) the availability of the remedy of specific performance or injunctive or
other forms of equitable relief may be subject to equitable defenses and would
be subject to the discretion of the court before which any proceeding therefor
may be brought.
(c) Neither the execution and delivery of this Agreement nor the
performance by the Company of its obligations hereunder will Conflict with (i)
its certificate of incorporation, (ii) any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Company is a
party or by which the Company is bound to the extent such Conflict would
materially affect its ability to consummate the transactions contemplated hereby
or (iii) any injunction, judgment, writ, decree, order or ruling applicable to
the Company to the extent such Conflict would materially affect the Company's
ability to consummate the transactions contemplated hereby.
(d) Except as set forth on Schedule 1.3(d), neither the execution and
delivery of this Agreement nor the performance by the Company of its obligations
hereunder will violate any law, decree, statute, rule or regulation applicable
to the Company or require any order, consent, authorization or approval of,
filing or registration with, or declaration or notice to, any corporation,
Person, firm, Governmental Entity or public or judicial authority, other than
any required notices or filings with the FCC or pursuant to the ▇▇▇▇ ▇▇▇▇▇ Act,
and the rules and regulations promulgated thereunder or the federal securities
laws.
(e) The Company's Board of Directors has duly and validly authorized
the execution and delivery by the Company of this Agreement and the performance
by the Company of its obligations hereunder in accordance with Section 203 of
the DGCL (as defined in the Merger Agreement) and other applicable provisions of
the DGCL. The Company will (i) take all reasonable steps to exempt this
Agreement and the Merger Agreement from the requirements of any applicable state
takeover law and (ii) assist in any challenge by any of the Acquirors or any of
their respective Affiliates to the validity or applicability to this Agreement
or the Merger or any state takeover law.
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ARTICLE II.
Section 2.1. Transfer of the Shares. During the term of this Agreement,
Stockholder will not (a) tender into any tender or exchange offer or otherwise
sell, transfer, pledge, assign, hypothecate or otherwise dispose of, or encumber
with any Lien, any of the Shares, (b) acquire any shares of Common Stock or
other securities of the Company (otherwise than in connection with a transaction
of the type described in Section 2.2 of this Agreement or pursuant to an
exercise of outstanding warrants), (c) deposit the Shares into a voting trust
(other than in connection with this Agreement), enter into any other voting
agreement or similar arrangement with respect to the Shares or grant any proxy
or power of attorney with respect to the Shares, (d) enter into any contract,
option or other arrangement or undertaking with respect to the direct or
indirect acquisition or sale, transfer, pledge, assignment, hypothecation or
other disposition of any interest in or the voting of any shares of Common Stock
or any other securities of the Company, or (e) take any action that would have
the effect of preventing or disabling Stockholder from performing its
obligations under this Agreement.
Section 2.2. Adjustments.
(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Shares or the
like or any other action that would have the effect of changing Stockholder's
ownership of the Company's capital stock or other securities or (ii) Stockholder
becomes the beneficial owner of any additional shares of Common Stock or other
securities of the Company subject to Section 2.1, then the terms of this
Agreement will apply to the shares of capital stock held by Stockholder
immediately following the effectiveness of the events described in clause (i) or
Stockholder becoming the beneficial owner thereof, as described in clause (ii),
as though they were Shares hereunder.
(b) Stockholder hereby agrees, while this Agreement is in
effect, promptly to notify Liberty of the number of any new shares of the Common
Stock acquired by Stockholder, if any, after the date hereof.
Section 2.3. Stop Transfer. Stockholder hereby agrees with, and covenants to,
each other party hereto, that Stockholder shall not request that the Company
register the transfer (book entry or otherwise) of any certificate or
uncertificated interest representing any of its Shares, unless such transfer is
made in compliance with this Agreement (including the provisions of Section 2.1
hereof). The Company agrees with, and covenants to, each other party hereto
that the Company shall not register the transfer (book entry or otherwise) of
any certificate or uncertificated interest representing any of the Shares,
unless such transfer is made in compliance with this Agreement (including the
provisions of Section 2.1 hereof).
ARTICLE III.
Section 3.1. Voting Agreement. Stockholder, by this Agreement, does hereby
constitute and appoint Liberty, or any nominee thereof, with full power of
substitution, during and for the term
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of this Agreement, as its true and lawful attorney and proxy for and in its
name, place and stead, to vote all the Shares Stockholder beneficially owns at
the time of such vote, at any annual, special or adjourned meeting of the
stockholders of the Company (and this appointment will include the right to sign
on its behalf (as a stockholder) to any consent, certificate or other document
relating to the Company that laws of the State of Delaware may require or
permit) (x) in favor of approval and adoption of the Merger Agreement and the
other transactions contemplated thereby and (y) against (a) any Extraordinary
Transaction (as defined in the Merger Agreement), (b) any action or agreement
that would result in a breach in any respect of any covenant, agreement,
representation or warranty of the Company under the Merger Agreement and (c) the
following actions (other than the other transactions contemplated by the Merger
Agreement): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or its
subsidiaries; (ii) a sale, lease or transfer of a substantial amount of assets
of the Company or one of its subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or its subsidiaries
or (iii) (A) any change in a majority of the persons who constitute the Board of
Directors of the Company as of the date hereof; (B) any change in the present
capitalization of the Company or any amendment of the Certificate of
Incorporation or Bylaws of the Company, as amended through the date hereof; (C)
any other material change in the Company's corporate structure or business; or
(D) any other action that, in the case of each of the matters referred to in
clauses (iii)(A), (B) and (C) is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or adversely affect the transactions
contemplated by this Agreement and the Merger Agreement. This proxy and power of
attorney is a proxy and power coupled with an interest, and Stockholder declares
that it is irrevocable during and for the term of this Agreement. Stockholder
hereby revokes all and any other proxies with respect to the Shares that it may
have heretofore made or granted and agrees that no other writing or instrument
shall be required in order to grant the proxy and rights to Liberty granted
hereby. For Shares as to which Stockholder is the beneficial but not the record
owner, Stockholder shall use its reasonable best efforts to cause any record
owner of such Shares to grant to Liberty a proxy to the same effect as that
contained herein.
Section 3.2. No Solicitation. Stockholder will not, directly or indirectly,
through any agent, financial advisor, attorney, accountant or other
representative or otherwise, (i) engage in any Extraordinary Transaction, (ii)
enter into any agreement or understanding with any person other than Liberty or
Parent with respect to any Extraordinary Transaction, (iii) participate or
engage in any discussions or negotiations with any person other than Liberty or
Parent relating to any of the foregoing, (iv) provide any material non-public
information regarding the Company or any of its Subsidiaries or any of the
Company's securities to any person other than Liberty, Parent or Stockholder's
affiliates and advisors in connection with any of the foregoing. Stockholder
agrees to immediately advise Liberty in writing of the receipt of any request
for information or any inquiries or proposals relating to a sale or transfer of
any of the Shares or any Extraordinary Transaction. Notwithstanding the
foregoing, this Section 3.2 shall not restrict Stockholder from fulfilling its
fiduciary duties as a director of the Company pursuant to Section 7.5(c) of the
Merger Agreement.
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ARTICLE IV.
Section 4.1. Termination. This Agreement shall become effective on the date
hereof and shall continue in effect until the earlier of (i) the termination of
the Merger Agreement in accordance with its terms (other than any such
termination following a material breach of the Merger Agreement by the Company
or Stockholder and (ii) the consummation of the Merger.
Section 4.2. Expenses. Except as otherwise expressly provided in the Merger
Agreement, all costs and expenses incurred by any of the parties hereto will be
borne by the party incurring such costs and expenses. Liberty, the Company and
Stockholder will indemnify and hold harmless each other from and against any and
all claims or liabilities for finder's fees or brokerage commissions or other
like payments incurred by reason of action taken by it or any of them, as the
case may be.
Section 4.3. Further Assurances. Each party hereto will execute and deliver
all such further documents and instruments and take all such further action as
may be necessary in order to consummate the transactions contemplated hereby.
Section 4.4. Publicity. Liberty, the Company and Stockholder shall consult
with each other and the Company before issuing any press release or otherwise
making any public statements with respect to this Agreement or the Merger
Agreement or the other transactions contemplated hereby or thereby and shall not
issue any such press release or make any such public statement before such
consultation, except as may be required by law or applicable stock exchange
rules.
Section 4.5. Enforcement of the Agreement. Stockholder, the Company and
Liberty each acknowledge 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
each party hereto will be entitled to 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, this
being in addition to any other remedy to which they are entitled at law or in
equity.
Section 4.6. Miscellaneous.
(a) All representations and warranties contained herein will
terminate upon the termination of this Agreement. The covenants and agreements
made herein will survive the Closing Date in accordance with their respective
terms.
(b) Any provision of this Agreement may be waived at any time by
the party that is entitled to the benefits thereof. No such waiver, amendment or
supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that
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party of the right thereafter to insist upon strict adherence to that term or
any other term of this Agreement.
(c) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements among such parties with respect to such matters. This Agreement
may not be amended, changed, supplemented, waived or otherwise modified, except
upon the delivery of a written agreement executed by the parties hereto.
(d) This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of laws principles thereof.
(e) With respect to any suit, action or proceeding initiated by
a party to this Agreement arising out of, under or in connection with this
Agreement, Stockholder, the Company and Liberty hereby submit to the exclusive
jurisdiction of any state or federal court sitting in the State of California
and irrevocably waive, to the fullest extent permitted by law, any objection
that they may now have or hereafter obtain to the laying of venue in any such
court in any such suit, action or proceeding.
(f) The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
(g) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by facsimile, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to Liberty:
Liberty Media Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Leaf, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
Four Media Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Stockholder:
Technical Services Partners, L.P.
c/o Triple Bogey, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Alschuler, Grossman, ▇▇▇▇▇ & Kahan LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(h) This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one agreement.
(i) This Agreement shall be executed at the same time as the
Merger Agreement and at such time shall be valid and binding obligations of each
of the parties and signatories thereto.
(j) Neither this Agreement nor any of the rights or obligations
of any party hereto may be assigned without the prior written consent of the
other parties hereto, except that Liberty may, without such consent, assign this
Agreement and any of such rights and obligations to one or more of its
affiliates. Any such assignment shall not, however, act as a release of the
assigning Person. Subject to the foregoing, this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, and no other Person shall have any right, benefit or obligation
hereunder.
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(k) If any term or provision of this Agreement is determined to
be invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
(l) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by either party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
LIBERTY MEDIA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
FOUR MEDIA COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name:
Title:
TECHNICAL SERVICES PARTNERS, L.P.
By: Triple Bogey, Inc., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
S-1
SCHEDULE 1.1(b)
ADDITIONAL SECURITIES BENEFICIALLY OWNED BY STOCKHOLDER
See Schedule 1.1(c)
SCHEDULE 1.1(c)
CONVERTIBLE SECURITIES BENEFICIALLY OWNED BY STOCKHOLDER
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Chief Executive Officer of the Company,
holds an option to purchase 2,500,000 shares of common stock of the Company at
an exercise price of $8.00 per share. ▇▇. ▇▇▇▇▇▇▇ is a limited partner of
Stockholder, as well as the sole shareholder of Triple Bogey, Inc., the general
partner of Stockholder.
SCHEDULE 1.1(f)
STOCKHOLDER DEFAULTS, CONFLICTS, ETC.
None.
SCHEDULE 1.2(d)
LIBERTY DEFAULTS, CONFLICTS, ETC.
None.
SCHEDULE 1.3(d)
COMPANY DEFAULTS, CONFLICTS, ETC.
None.