EXHIBIT 2.5
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of June 11,
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1997, is entered into by and between Fox Kids Worldwide, Inc., a Delaware
corporation (the "Purchaser") and The Christian Broadcasting Network, Inc., a
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Virginia corporation (the "Seller") on the following terms and conditions:
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R E C I T A L S
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WHEREAS, as of the date hereof, the Seller beneficially owns 3,891,121
shares of Class B Common Stock, par value $0.01 per share, of International
Family Entertainment, Inc. (the "Company") (the "Class B Stock");
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WHEREAS, the Purchaser desires to purchase the Class B Stock from the
Seller, and the Seller desires to sell the Class B Stock to the Purchaser, all
on the terms and subject to the conditions contained herein;
WHEREAS, concurrently herewith, the Purchaser, Fox Kids Merger Corporation,
a Delaware corporation ("FKW Sub"), and the Company are entering into that
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certain Agreement and Plan of Merger (as the same may be amended from time to
time in accordance with its terms, the "Merger Agreement"), providing for the
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merger of FKW Sub into the Company (the "Merger"), which shall be the surviving
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corporation, pursuant to which each share of Company Stock and Non Voting Class
C Common Stock, par value $0.01 per share, of the Company (the "Class C Stock")
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which is issued and outstanding immediately prior to the effective time (the
"Effective Time") of the Merger (other than shares held by the Company, the
Purchaser or FKW Sub, or any direct or indirect subsidiary of the Company, the
Purchaser or FKW Sub) shall be canceled and extinguished and be converted into
and become a right to receive a cash payment equal to $35.00 per share (subject
to adjustment), without interest (except that any Dissenting Shares (as defined
in the Merger Agreement) shall be converted into and become a right to receive
the payment provided for under the Delaware General Corporation Law);
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Purchaser has requested that the Seller enter into this Agreement
and as a condition to its willingness to enter into this Agreement, the Seller
has required that the Purchaser and FKW Sub enter into the Merger Agreement;
WHEREAS, the Purchaser, Liberty Media Corporation, a Delaware corporation
("Liberty"), and Liberty IFE, Inc., a Colorado corporation ("LIFE"), have
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entered into that certain Contribution and Exchange Agreement, dated as of the
date hereof (as the same may be amended from time to time in accordance with its
terms, the "Contribution Agreement"), pursuant to which LIFE has agreed, on the
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terms and subject to the conditions therein, to contribute its
shares of Class C Stock and its $23 million principal amount of 6% Convertible
Secured Notes due 2004 of the Company (the "Convertible Notes"), to the
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Purchaser in exchange for shares of a newly issued class of preferred stock of
the Purchaser;
WHEREAS, in connection with the Contribution Agreement, Satellite Services,
Inc., a Delaware corporation and an affiliate of Liberty, has entered into an
amendment to its Affiliation Agreement with the Company (the "Amended
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Affiliation Agreement");
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WHEREAS, in connection with sale of the Class B Stock to the Purchaser
hereunder, the Company, M.G. "▇▇▇" ▇▇▇▇▇▇▇▇▇ ("▇▇▇ ▇▇▇▇▇▇▇▇▇"), individually and
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as trustee of the ▇▇▇▇▇▇▇▇▇ Charitable Remainder Unitrust, u/t/a dated January
22, 1990 (the "PR Charitable Trust"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇ ▇▇▇▇▇▇▇▇▇"),
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individually and as trustee of the ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Children's Trust,
u/t/a dated September 18, 1995 (the "TR Family Trust"), LIFE and CBN have
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entered into that certain Termination to Amended and Restated Shareholder
Agreement, dated as of even date herewith (the "Termination Agreement"),
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terminating the Shareholder Agreement dated September 1, 1995, by and among the
Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇, the PR Charitable Trust, ▇▇▇ ▇▇▇▇▇▇▇▇▇, the TR Family
Trust, LIFE and CBN;
WHEREAS, in connection with the sale of the Class B Stock to the Purchaser
hereunder, CBN and Regent University, a Virginia corporation ("Regent") have
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entered into that certain Termination to Assignment and Assumption Agreement,
dated as of even date herewith (the "Assignment Termination Agreement")
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terminating the Assignment and Assumption Agreement, dated June 30, 1992, by and
between CBN and Regent (the "Assignment and Assumption Agreement");
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WHEREAS, concurrently herewith, the Purchaser and Regent are entering into
that certain Stock Purchase Agreement with respect to the purchase by the
Purchaser of the shares of Class B Stock owned by Regent (as the same may be
amended from time to time in accordance with its terms, the "Regent Purchase
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Agreement");
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WHEREAS, concurrently herewith, the Purchaser has entered into a Stock
Purchase Agreement with ▇▇▇ ▇▇▇▇▇▇▇▇▇, individually and as trustee of each of
the PR Charitable Trust, the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Irrevocable Trust, u/t/a dated
December 18, 1996, the ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Irrevocable Trust, u/t/a dated
December 18, 1996, and the ▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust, u/t/a dated
December 18, 1996 (the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Irrevocable Trust, the ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ Irrevocable Trust and the ▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust, together,
the "Irrevocable Trusts"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇ as joint tenants,
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and ▇▇▇ ▇▇▇▇▇▇▇▇▇, individually, as trustee of each of the TR Family Trust and
the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Charitable Trust, u/t/a dated December 30, 1996 (the
"TR Charitable Trust"), and custodian to and for each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ under the Virginia Uniform Transfers to Minors Act (▇▇▇ ▇▇▇▇▇▇▇▇▇, the
PR Charitable Trust, the Irrevocable Trusts, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
the TR Family Trust and the TR Charitable Trust, collectively, the
"Robertsons"), as of even date herewith,
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which provides, inter alia, for the purchase of all of the shares of Class A
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Common Stock, par value $0.01 per share, of the Company (the "Class A Stock",
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and together with all of the Class B Stock, the Class C Stock and any other
shares of any other class of common stock of the Company, the "Common Stock") in
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the form of Class B Stock issuable upon conversion thereof, by the Purchaser
from the ▇▇▇ Charitable Trust, ▇▇▇ ▇▇▇▇▇▇▇▇▇ and the ▇▇▇ Family Trust, and the
purchase by the Purchaser of all of the shares of Class B Stock of the Company
owned by the Robertsons (as the same may be amended from time to time in
accordance with its terms, the "▇▇▇▇▇▇▇▇▇ Purchase Agreement"); and
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WHEREAS, as a condition to its willingness to enter into this Agreement,
the Seller has required that, in connection with the transactions to be effected
pursuant to this Agreement, The News Corporation Limited, a corporation
organized and existing under the laws of South Australia, Australia (the
"Guarantor") guarantee the obligations of the Purchaser to the Seller hereunder
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and the Guarantor has given a guaranty (the "Guaranty") in accordance with such
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determination.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows.
1. PURCHASE AND SALE OF CLASS B STOCK. On the terms and subject to the
conditions set forth in this Agreement, the Seller agrees to sell and deliver
the Class B Stock to the Purchaser, free and clear of any mortgage, pledge,
lien, security interest or other encumbrance (each, a "Lien") or Restriction
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created by or binding upon the Seller or the Class B Stock, and the Purchaser
agrees to purchase and acquire the Class B Stock from the Seller. For purposes
of this Agreement, "Restriction" means, when used with respect to any specified
security, any stockholders or other trust agreement, option, warrant, escrow,
proxy, buy-sell agreement, power of attorney or other contract, agreement or
arrangement which (i) grants to any Person the right to sell or otherwise
dispose of, such specified security or any interest therein, or (ii) restricts
the transfer of, or the exercise of any rights or the enjoyment of any benefits
arising by reason of the ownership of such specified security. For purposes of
this Agreement, "Person" means any individual, corporation, general or limited
partnership, limited liability company, trust, joint venture, association or
unincorporated entity of any kind.
2. PURCHASE PRICE. The Shares shall be purchased by the Purchaser from
the Seller thereof for a purchase price (the "Purchase Price") equal to $35.00
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per share. Notwithstanding the foregoing, the Purchase Price shall be increased
to an amount which equals (if greater than the Purchase Price provided for
herein) the per share amount actually paid, directly or indirectly, by FKWW or
any of its Affiliates, with respect to the purchase of, or agreement to
purchase, Company Stock, or securities convertible into Company Stock, which
purchase is effected or agreement is entered into after the date hereof and
through the earlier to occur of (a) the Effective Time (as defined in the Merger
Agreement) or (b) the termination of the Merger Agreement, (x) in the Merger,
(y) from (i) LIFE, (ii) the Robertsons, (iii) Regent, (iv) any holder or "group"
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(within the meaning of Rule 13d-5(b)(1) under the Exchange Act) that owns, or
has the right to dispose of, or to direct the disposition of, 2-1/2% or more of
any class of common stock of the Company, or (v) any of the Affiliates of the
entities referred to in clauses (i), (ii), (iii) or (iv) above, or (z) in any
transaction, or series of related or unrelated transactions (excluding for
purposes of this clause (z), any transaction referred to in clauses (y)(i),
(ii), (iii) or (v)), after the date hereof and through the Effective Time,
involving, in the aggregate, 5% or more of the outstanding shares of any class
of common stock of the Company. For these purposes, it is acknowledged and
agreed that (x) the $3.5 million to be paid to LIFE under the Contribution
Agreement with respect to forfeited interest income on the Convertible Notes,
and (y) amounts to be paid with respect to any "tax gross up" with respect to
the Exchange Rights under the Contribution Agreement, shall not constitute an
amount paid, directly or indirectly, with respect to the purchase of Company
Stock. Further, the Purchase Price shall not be adjusted as a result of the
provisions of the preceding sentence with respect to any purchase effected under
any of the Contribution Agreement, the Merger Agreement, the ▇▇▇▇▇▇▇▇▇ Agreement
or the Regent Agreement unless the applicable agreement has been amended after
the date hereof so as to increase the consideration to be paid by the Purchaser
or any of its Affiliates, directly or indirectly, with respect to the Company
Stock or securities convertible into Company Stock. The Purchaser shall
promptly provide notice to the Seller of any agreement or amendment to an
existing agreement entered into by the Purchaser or any of its Affiliates with
the Company, the Robertsons or Regent, or any amendment to an Other Transaction
Agreement (as defined herein) to which LIFE or any of its Affiliates is a party,
from and after the date hereof and through the Closing Date. If the Purchase
Price is adjusted pursuant to the foregoing, following the closing under such
other agreement (or the Effective Time, if applicable), the Purchaser shall
promptly pay to the Seller the amount of any increase in the Purchase Price
resulting from such agreement. For purposes of this Agreement, "Affiliate"
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means, when used with reference to a specified Person, any Person that directly
or indirectly through one or more intermediaries controls or is controlled by,
or is under common control with, such specified Person and, in the case of an
individual, such Person's spouse, parents, children, siblings, mothers- and
fathers-in-law, sons-and daughters-in-law, and brothers- and sisters-in-law.
For the purposes of this definition, "control" (including the terms controlled
by and under common control with), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. For the purposes of
this Agreement, the Purchaser shall be deemed to be an Affiliate of Fox, Inc., a
Delaware corporation, and of Saban Entertainment, Inc., a Delaware corporation,
but shall not be deemed to be an Affiliate of any of the Sellers, the Company,
LIFE, the Seller, Regent nor any of their respective Affiliates.
3. THE CLOSING. The closing (the "Closing") of the purchase and sale of
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the Class B Stock shall take place on the third business day following
satisfaction or waiver of each and every one of the conditions set forth in
Sections 6 and 7 hereof, or such other date and time as the parties shall
otherwise agree to. The date of the Closing is referred to herein as the
"Closing Date". At the Closing, the Seller shall deliver to the Purchaser
certificates representing the Shares (accompanied by signature guarantees in
customary form) against delivery by the Purchaser of
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payment of the Purchase Price therefor, by wire transfer or by immediately
available funds, to such accounts as Seller may specify.
4. REPRESENTATIONS AND WARRANTIES. The Seller hereby makes the following
representations and warranties. The representations and warranties contain
exceptions set forth in a written disclosure letter (the "Seller Disclosure
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Letter") delivered to the Purchaser concurrently with the execution hereof,
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which is numbered to correspond to the various Sections of this Agreement and
which also sets forth certain other information called for by this Agreement.
4.1 Organization, Standing and Corporate Power. The Seller is a
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corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation, with adequate corporate power and authority
to own its properties and carry on its business as presently conducted. The
Seller has the corporate power to enter into, execute and deliver this Agreement
and to consummate the transactions contemplated hereby.
4.2 Execution, Delivery and Performance. The execution, delivery and
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performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by its Board of Directors, and the
Seller has taken all other actions required by law, its charter and its bylaws
in order to consummate the transactions contemplated by this Agreement. This
Agreement constitutes the valid and binding obligations of the Seller and is
enforceable in accordance with its terms, except as enforceability may be
subject to or limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally.
4.3 No Consents. Other than filings required under the ▇▇▇▇-▇▇▇▇▇-
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▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act") and the
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filing of Forms 4 and Schedules 13D under the Securities Exchange Act of 1934,
as amended and the rules and regulations thereunder (the "Exchange Act"), no
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consent, authorization, order or approval of, or filing with or registration
with, any governmental authority, commission, board or other regulatory body of
the United States or any state or political subdivision thereof (each, a
"Governmental Entity"), is required to be made or obtained by the Seller for or
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in connection with the sale by the Seller of the Class B Stock to the Purchaser
as contemplated hereby.
4.4 Title. The Seller has, and at the Closing will have, good and
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valid title to the Class B Stock it is selling pursuant to this Agreement, free
and clear of any Liens or Restrictions (other than those Restrictions set forth
in the Shareholder Agreement) and (subject to such Restrictions) it has the full
legal right, power and authority to sell, assign, transfer and deliver the Class
B Stock to the Purchaser and to make the representations, warranties, covenants
and agreements made by it herein; upon the delivery of and payment for such
Class B Stock as contemplated hereby the Purchaser will acquire good and valid
title thereto, free and clear of all Liens or Restrictions created by or binding
upon the Seller. The Seller has sole voting power, and sole power of
disposition, with respect to all of its Class B Stock, with no Restrictions
(other than those Restrictions set forth in the Shareholder Agreement) subject
to applicable federal and state
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securities laws, on the Seller's rights of disposition pertaining thereto. The
Class B Stock constitutes all equity or debt securities issued by the Company
held by the Seller and the Seller has no right, title or interest in or to any
other equity or debt securities of the Company (other than as remainderman in
certain of the Class A Stock) or any option or right to acquire any such equity
or debt securities (other than as set forth in the Shareholder Agreement).
4.5 No Conflicts. The execution, delivery and performance by the
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Seller of this Agreement will not violate any other agreement to which the
Seller is a party, including, without limitation, any voting agreement,
stockholders agreement or voting trust, or otherwise contravene, conflict with
or result in a violation of, any federal, state, local, municipal, foreign,
international, multi-national or other administrative order, constitution, law,
ordinance, regulation, statute or treaty, or give any individual, corporation,
partnership, governmental authority or regulatory body or any other person the
right to prevent the consummation of the sale of the Class B Stock contemplated
hereby.
4.6 No Broker. The Seller has not employed any investment banker,
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broker, finder, consultant or intermediary in connection with the transactions
contemplated by this Agreement which would be entitled to any investment
banking, brokerage, finder's or similar fee or commission in connection with
this Agreement or the transactions contemplated hereby.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Seller as follows:
5.1 Organization, Standing and Corporate Power of the Purchaser. The
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Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, with adequate corporate power and
authority to own its properties and carry on its business as presently
conducted. The Purchaser has the corporate power and authority to enter into,
execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
5.2 Organization, Standing and Corporate Power of the Guarantor. The
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Guarantor is a corporation organized and existing under the laws of South
Australia, Australia, with adequate corporate power and authority to own its
properties and carry on its business as presently conducted. The Guarantor has
the corporate power and authority to enter into, execute and deliver the
Guaranty and to guarantee the obligations of the Purchaser hereunder pursuant to
such Guaranty.
5.3 Execution, Delivery and Performance by the Purchaser. The
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execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of the Purchaser, and the Purchaser has taken all other actions
required by law, its Amended and Restated Certificate of Incorporation and its
Bylaws in order to consummate the transactions contemplated by this Agreement.
This Agreement constitutes the valid and binding obligations of the Purchaser
and
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is enforceable in accordance with its terms, except as enforceability may be
subject to or limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally.
5.4 Execution, Delivery and Performance by the Guarantor. The
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execution, delivery and performance of the Guaranty and the consummation of the
transactions thereby have been duly authorized by the Board of Directors of the
Guarantor, and the Guarantor has taken all other actions required by law and its
organizational documents in order to consummate the transac tions contemplated
by the Guaranty. The Guaranty constitutes the valid and binding obligations of
the Guarantor and is enforceable in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally.
5.5 Consents. Other than filings required under the HSR Act and the
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filing of a Form 4 and Schedule 13D under the Exchange Act, no consent,
authorization, order or approval of, or filing with or registration with, any
Governmental Entity is required to be made or obtained by the Purchaser for the
purchase of the Class B Stock from the Seller as contemplated hereby or by the
Guarantor for the execution, delivery and performance of the Guaranty.
5.6 No Conflicts. The execution, delivery and performance by the
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Purchaser of this Agreement or by the Guarantor of the Guaranty will not violate
any other agreement to which the Purchaser or the Guarantor is a party, or
otherwise contravene, conflict with or result in a violation of, any federal,
state, local, municipal, foreign, international, multi-national or other
administrative order, constitution, law, ordinance, regulation, statute or
treaty, or give any individual, corporation, partnership, governmental authority
or regulatory body or any other person the right to prevent the consummation of
the sale of the Class B Stock contemplated hereby or the enforcement by the
Seller of the Guaranty.
5.7 Purchase For Investment. The Purchaser is acquiring the Class B
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Stock for its own account, for investment purposes only, and not with a view to
or for the resale or distribution thereof, in whole or in part. The Purchaser
acknowledges and represents (i) that it is aware that the Class B Stock is not
registered under the Securities Act of 1933, as amended, and are subject to the
restrictions thereof, including pursuant to Rule 144 promulgated thereunder;
(ii) that no federal or state agency has passed upon the Class B Stock or made
any finding or determination as to the fairness of the Purchaser's investment in
the Class B Stock; (iii) that there are risks of loss associated with the
Purchaser's purchase of the Class B Stock; (iv) that the investment in the Class
B Stock is an illiquid investment and the Purchaser may bear the risk of its
investment for an indefinite period of time; and (v) that it is a sophisticated
investor, able to evaluate the risks and merits of its investment and to bear
such financial risk.
5.8 No Broker. The Purchaser has not employed any investment banker,
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broker, finder, consultant or intermediary in connection with the transactions
contemplated by this Agreement which would be entitled to any investment
banking, brokerage, finder's or similar fee
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or commission in connection with this Agreement or the transactions contemplated
hereby.
5.9 Transaction Agreements. This Agreement, the Merger Agreement,
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the Other Transaction Agreements (as defined herein), and the other agreements
listed in the recitals above, are the only agreements existing as of the date
hereof between the Purchaser, on the one hand, and the respective counterparties
to such agreements and any Affiliates of such parties, on the other hand, with
respect to the acquisition of Class A Stock, Class B Stock, Class C Stock or
Convertible Notes of the Company.
6. CONDITIONS TO OBLIGATIONS OF PURCHASER. Unless waived, in whole or in
part, in writing by the Purchaser, the obligations of the Purchaser to purchase
the Class B Stock and to perform any and all of its post-closing obligations
shall be subject to the satisfaction at or prior to the Closing Date of each of
the following conditions:
6.1 Accuracy of Representations and Warranties. All representations
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and warranties of the Seller contained herein shall be true and correct in all
material respects on and as of the Closing Date, with the same force and effect
as though made on and as of the Closing Date, except for changes permitted or
contemplated by this Agreement.
6.2 Performance of Agreements. The Seller shall have performed in
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all material respects all obligations and agreements contained in this Agreement
to be performed or complied with by the Seller on or prior to or at the Closing
Date.
6.3 Certificates. The Sellers shall be prepared to deliver
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certificates for all the Class B Stock to the Purchaser upon the Closing.
6.4 Purchase of Control Stock. The Purchaser has acquired the
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Control Stock (as defined in the ▇▇▇▇▇▇▇▇▇ Purchase Agreement) from the
Robertsons pursuant to the ▇▇▇▇▇▇▇▇▇ Purchase Agreement.
6.5 No Injunctions. Neither of the parties hereto shall be subject
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to any order or injunction of a court of competent jurisdiction which prohibits
the consummation of the sale of the Class B Stock to the Purchaser contemplated
by this Agreement. In the event any such order or injunction shall have been
issued, each party agrees to use its reasonable efforts to have any such
injunction lifted.
6.6 No Adverse Enactments. There shall not have been any statute,
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rule, regulation or order promulgated, enacted or issued by any Government
Entity or court of competent jurisdiction, which would make the consummation of
the sale of the Class B Stock hereunder or the Merger illegal.
6.7 Banking Moratorium. There shall not have occurred and be
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continuing any declaration of any banking moratorium or suspension of payments
by banks in the United States
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or any general limitation on the extension of credit by lending institutions in
the United States.
6.8 Consummation of Other Transactions. All conditions to the
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consummation of the transactions (the "Other Transactions") to be effected
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pursuant to the Contribution Agreement, the ▇▇▇▇▇▇▇▇▇ Purchase Agreement and the
Regent Purchase Agreement (collectively, the "Other Transaction Agreements")
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shall have been satisfied or waived by the applicable party, and the parties to
such Other Transaction Agreements shall have consummated such Other Transactions
simultaneously with or prior to the sale of the Class B Stock to the Purchaser
as contemplated hereby.
6.9 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Notification. The waiting period (and any
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extension thereof) under the HSR Act applicable to (i) the purchase of the Class
B Stock pursuant to this Agreement and the consummation of the Other
Transactions, (ii) the conversion by the Purchaser of the Class C Stock and the
Convertible Notes acquired pursuant to the Contribution Agreement into shares of
Class B Stock of the Company, and (iii) the Merger shall have expired or have
been terminated.
6.10 Opinion of Counsel. The Purchaser shall have received an
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opinion of counsel to the Seller in a form reasonably acceptable to Purchaser
covering the matters referred to in Section 4.1 hereof.
6.11 Acquisition Agreements. Immediately following the consummation
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of this transaction and the Other Transactions (and after giving effect to the
conversion of the Class C Stock and the Convertible Notes into Class B Stock),
the Purchaser and its Affiliates will own a majority of the voting common stock
of the Company then entitled to vote in the election of the Company's directors.
7. CONDITIONS TO OBLIGATIONS OF SELLER. Unless waived, in whole or in
part, in writing by the Seller, the obligations of the Seller to sell the Class
B Stock as contemplated by this Agreement shall be subject to the fulfillment
prior to or on the Closing Date of each of the following conditions:
7.1 Accuracy of Representations and Warranties. All representations
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and warranties of the Purchaser contained herein shall be true and correct in
all material respects on and as of the Closing Date, with the same effect as
though made on and as of the Closing Date, except for changes permitted or
contemplated by this Agreement.
7.2 Performance of Agreements. The Purchaser shall have performed in
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all material respects all obligations and agreements contained in this Agreement
to be performed or complied with by the Purchaser on or prior to or at the
Closing Date.
7.3 No Adverse Enactments. There shall not have been any statute,
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rule, regulation or order promulgated, enacted or issued by any Government
Entity or court of
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competent jurisdiction which would make the consummation of the sale of the
Class B Stock hereunder or the Merger illegal.
7.4 No Injunctions. Neither of the parties hereto shall be subject
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to any order or injunction of a court of competent jurisdiction which prohibits
the consummation of the sale of the Class B Stock to the Purchaser contemplated
by this Agreement. In the event any such order or injunction shall have been
issued, each party agrees to use its reasonable efforts to have any such
injunction lifted.
7.5 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Notification. The waiting period (and any
------------------------------
extension thereof), under the HSR Act applicable to the consummation of the
purchase of the Class B Stock pursuant to this Agreement shall have expired or
have been terminated.
7.6 Purchase Price. The Purchaser shall be prepared to deliver the
--------------
aggregate Purchase Price for all the Class B Stock to the Seller in the amounts
and manner contemplated hereby upon the Closing.
7.7 Consummation of Other Transactions. Prior to or simultaneously
----------------------------------
with the sale of the Class B Stock to the Purchaser provided for by this
Agreement, all conditions to the consummation of the Other Transactions to be
effected pursuant to the Other Transaction Agreements shall have been satisfied
or waived by the applicable party, and the parties to such Other Transaction
Agreements shall have consummated such Other Transactions simultaneously with or
prior to the sale of the Class B Stock to the Purchaser as contemplated hereby.
8. COVENANTS OF THE PURCHASER. The Purchaser hereby covenants and agrees
as follows:
8.1 Filings and Other Actions. As promptly as practicable after the
-------------------------
execution of this Agreement, but in any event within 5 business days, the
Purchaser shall file notification reports under the HSR Act and shall request
early termination of the waiting period under the HSR Act and use their
commercially reasonable efforts to obtain clearance or authorization under the
HSR Act of the Merger and the purchase of the Class B Stock contemplated by this
Agreement and the Other Transactions at the earliest practicable time. The
Purchaser agrees to cooperate fully with the Seller to promptly effectuate the
filing of any notification required under the HSR Act.
8.2 Reasonable Efforts. Subject to the terms and conditions of this
------------------
Agreement, the Other Transaction Agreements and the Merger Agreement, the
Purchaser agrees to use all reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement, the Other Transaction Agreements and the Merger Agreement. The
Purchaser hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to intentionally and knowingly take any action with the
intention and knowledge that such action would make any of its representations
or warranties contained herein untrue or
10
incorrect or have the effect of preventing or disabling it from performing its
obligations under this Agreement.
9. COVENANTS OF THE SELLER. The Seller hereby covenants and agrees as
follows:
9.1 Cooperation in Filing Notification under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. The
----------------------------------------------------------
Seller agrees to cooperate fully with the Purchaser to promptly effectuate the
filing of any notification required under the HSR Act.
9.2 Additional Shares. The Seller agrees that it will not purchase
-----------------
additional shares of Common Stock of the Company whether in open market
purchases or privately negotiated purchases between the date of this Agreement
and the Closing Date. If ownership of any additional shares of Common Stock of
the Company is acquired or transferred to the Seller, the Seller hereby agrees,
while this Agreement is in effect, to promptly notify the Purchaser of the
number of additional shares of Common Stock of the Company acquired by it, if
any, after the date hereof, and hereby agrees to sell any such additional shares
of Common Stock of the Company acquired by it after the date hereof through the
Closing Date to the Purchaser pursuant to the terms of this Agreement, with a
provision for additional payment for such shares by the Purchaser to the Seller
at the Purchase Price.
9.3 Written Consent. Concurrently with the execution hereof, the
---------------
Seller has delivered to the Company its irrevocable written consent approving
the Merger Agreement and the Merger.
9.4 Reasonable Efforts. Subject to the terms and conditions of this
------------------
Agreement, the Seller agrees to use all reasonable efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, all things necessary,
proper or advisable to consummate and make effective the transactions provided
for by this Agreement. The Seller hereby agrees, while this Agreement is in
effect, and except as contemplated hereby, not to intentionally and knowingly
take any action with the intention and knowledge that such action would make any
of its representations or warranties contained herein untrue or incorrect in any
material respect or have the effect of preventing or disabling it from
performing its obligations under this Agreement.
10. POST-CLOSING COVENANTS; TERMINATION. The Seller and the Purchaser
agree to execute such further documents or instruments and to take such other
actions as are necessary to transfer the Class B Stock to the Purchaser and to
otherwise carry out the transactions provided for by this Agreement. If the
Closing Date shall not have occurred on or prior to November 30, 1997, other
than as a result of a material breach of this Agreement by either party hereto,
either party may terminate this Agreement without liability. If the Closing
Date shall not have occurred on or prior to such date as a result of material
breach of any representation, warranty, covenant or obligation by either party,
the non-breaching party shall have the right to terminate this Agreement without
liability. In addition, this Agreement may be terminated by the Seller, if
after the date hereof and before the Closing Date, the Guarantor attempts or
purports to revoke or
11
withdraw the Guaranty or a court of competent jurisdiction finally determines
that the Guaranty is unenforceable or invalid.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITY. Only the
representations and warranties of the Seller hereto contained in Section 4.4
hereto (with respect to title) shall survive the Closing and the consummation of
the transactions contemplated hereby. No party hereto shall have any monetary or
other liability or obligation to any other party hereto for breach of any of
such first party's representations or warranties contained herein or in any
certificate or other document delivered pursuant hereto and the sole consequence
of any such breach shall be limited to the failure to satisfy a condition to the
Closing pursuant to Article 6 or 7 and the termination right provided in Section
10, in each case to the extent applicable according to such Section's express
terms. With respect to a breach of its representations and warranties contained
in Section 4.4 hereto, the Seller hereby covenants and agrees with the Purchaser
that it shall indemnify the Purchaser and its directors, officers, shareholders
and Affiliates, and each of their successors and assigns and hold them harmless
from, against and in respect of any and all costs, losses, claims, liabilities,
fines, penalties (including interest which may be imposed in connection
therewith and court costs and reasonable fees and disbursements of counsel)
incurred by any of them arising out of any material breach of, or any material
inaccuracy in, such representations and warranties.
12. MISCELLANEOUS.
12.1 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns. Other than as set forth in the immediately succeeding sentence, no
party may assign any of its rights, or delegate any of its duties or obligation
hereunder, under this Agreement without the prior written consent of the other
party, and any such purported assignment or delegation shall be void ab initio.
Notwithstanding the foregoing, the Purchaser, its Affiliates, and its successors
and assigns, may assign its rights and delegate its duties (i) to any successor
entity resulting from any liquidation, merger, consolidation, reorganization, or
transfer of all or substantially all of the assets or stock of the Purchaser, or
(ii) to any Affiliate of the Purchaser; provided, that in either case, any such
--------
assignee shall expressly assume all of the obligations the Purchaser hereunder.
12.2 Notices. All notices, demands and other communications
-------
(collectively, "Notices") given or made pursuant to this Agreement shall be in
-------
writing and shall be deemed to have been duly given if sent by registered or
certified mail, return receipt requested, postage and fees prepaid, by overnight
service with a nationally recognized "next day" delivery company such as Federal
Express or United Parcel Service, by facsimile transmission, or otherwise
actually delivered to the following addresses:
(a) If to the Purchaser:
-------------------
Fox Kids Worldwide, Inc.
12
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
--------------
Fox, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to:
-------------
The News Corporation Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to:
-------------
Troop ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: C.N. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to:
-------------
Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Seller:
----------------
The Christian Broadcasting Network, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
13
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
--------------
Office of the General Counsel
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Any Notice shall be deemed duly given when received by the addressee thereof.
Any of the parties to this Agreement may from time to time change its address
for receiving notices by giving written notice thereof in the manner set forth
above.
12.3 Amendment; Waiver. No provision of this Agreement may be waived
-----------------
unless in writing signed by all of the parties to this Agreement, and the waiver
of any one provision of this Agreement shall not be deemed to be a waiver of any
other provision. This Agreement may be amended, supplemented or otherwise
modified only by a written agreement executed by all of the parties to this
Agreement.
12.4 Limitation on Liability. The liability of the Seller for any
-----------------------
breach by the Seller of this Agreement shall be limited to the actual damages
suffered by the Purchaser or any of its Affiliates under this Agreement and the
Seller shall not be liable for any consequential or other damages of the
Purchaser or any of its Affiliates, including any damages arising in connection
with any Other Transaction Agreement or the Merger Agreement.
12.5 Jurisdiction. The parties hereto irrevocably submit to the non-
------------
exclusive jurisdiction of the state and federal courts located in Delaware for
the purposes of any suit, action or other proceeding arising out of this
Agreement (and agree not to commence any action, suit or proceeding relating
hereto except in such courts). Each party hereto hereby irrevocably designates
CT Corporation System as its designee, appointee and agent to receive, for and
on behalf of it, service of process in such respective jurisdictions in any
legal action or proceeding with respect to this Agreement or any document
related thereto. It is understood that a copy of such process serviced on such
agent will be promptly forwarded by mail to it at its address set forth in
Section 12.2 hereof, but the failure to receive such copy shall not affect in
any way the service of such process. Each of the parties hereto further
irrevocably consents to the service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at its said address, such
service to become effective upon confirmed delivery. The parties irrevocably
and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the state or federal courts located in Delaware, and
hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such action, suit or proceeding brought in any such court that such
action, suit or proceeding has been brought in an inconvenient forum.
14
12.6 Dispute Resolution. Any dispute or claim arising hereunder shall
------------------
be settled by arbitration. Any party may commence arbitration by sending a
written notice of arbitration to the other party. The notice will state the
dispute with particularity. The arbitration hearing shall be commenced thirty
(30) days following the date of delivery of notice of arbitration by one party
to the other, by the American Arbitration Association ("AAA") as arbitrator.
The arbitration shall be conducted in New York City, New York in accordance with
the commercial arbitration rules promulgated by AAA, and the Seller, on the one
hand, and the Purchaser, on the other, shall retain the right to cross-examine
the opposing party's witnesses, either through legal counsel, expert witnesses
or both. The decision of the arbitrator shall be final, binding and conclusive
on all parties (without any right of appeal therefrom) and shall not be subject
to judicial review. As part of his decision, the arbitrator may allocate the
cost of arbitration, including fees of attorneys and experts, as he or she deems
fair and equitable in light of all relevant circumstances. Judgment on the
award rendered by the arbitrator may be entered in any court of competent
jurisdiction.
12.7 Governing Law. This Agreement shall be governed by and construed
-------------
both as to validity and performance and enforced in accordance with the laws of
the State of Delaware without giving effect to the choice of law principles
thereof.
12.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
12.9 Remedies Cumulative. Each of the various rights, powers and
-------------------
remedies shall be deemed to be cumulative with, and in addition to, all the
rights, powers and remedies which either party may have hereunder or under
applicable law relating hereto or to the subject matter hereof, and the exercise
or partial exercise of any such right, power or remedy shall constitute neither
an exclusive election thereof nor a waiver of any other such right, power or
remedy.
12.10 Headings. The section and subsection headings contained in
--------
this Agreement are included for convenience only and form no part of the
agreement between the parties.
12.11 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be or become
prohibited or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
12.12 Expenses. Each party shall pay its own costs, expenses,
--------
including without limitation, the fees and expenses of their respective counsel
and financial advisors.
12.13 Entire Agreement. This Agreement constitutes and embodies the
----------------
entire understanding and agreement of the parties hereto relating to the subject
matter hereof and there are no other agreements or understandings, written or
oral, in effect between the parties relating to such subject matter except as
expressly referred to herein.
15
12.14 Publicity. The initial press release relating to this Agreement
---------
shall be a joint press release in the form attached hereto as Exhibit "A", and
-----------
the Purchaser and the Seller shall use reasonable efforts to agree upon the text
of any other press release before issuing any such press release or otherwise
making public statements with respect to the transactions contemplated hereby.
12.15 Specific Performance. Both of the parties hereto recognize and
--------------------
acknowledge that a breach by it of any covenants or agreements contained in this
Agreement will cause the other party to sustain damages for which it would not
have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief, without the posting of
bond or other security, in addition to any other remedy to which it may be
entitled, at law or in equity.
12.16 No Third Party Beneficiaries. This Agreement is not intended to
----------------------------
benefit, and shall not run to the benefit of or be enforceable by, any other
person or entity other than the parties hereto and their permitted successors
and assigns.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
FOX KIDS WORLDWIDE, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
___________________________________
Its: President
___________________________________
THE CHRISTIAN BROADCASTING NETWORK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
Its: President
___________________________________
17