STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of June 11,
1997, is entered into by and between Fox Kids Worldwide, Inc., a Delaware
corporation (the "Purchaser") and The Christian Broadcasting Network, Inc., a
Virginia corporation (the "Seller") on the following terms and conditions:
R E C I T A L S
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");
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 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 merger of FKW Sub into the Company (the "Merger"), which shall be the
surviving 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") 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 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 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
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
Affiliation Agreement");
WHEREAS, in connection with sale of the Class B Stock to the Purchaser
hereunder, the Company, M.G. "▇▇▇" ▇▇▇▇▇▇▇▇▇ ("▇▇▇ ▇▇▇▇▇▇▇▇▇"), individually and
as trustee of the ▇▇▇▇▇▇▇▇▇ Charitable Remainder Unitrust, u/t/a dated January
22, 1990 (the "PR Charitable Trust"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇ ▇▇▇▇▇▇▇▇▇"),
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
entered into that certain Termination to Amended and Restated Shareholder
Agreement, dated as of even date herewith (the "Termination Agreement"),
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 entered into that certain Termination to Assignment and
Assumption Agreement, dated as of even date herewith (the "Assignment
Termination Agreement") terminating the Assignment and Assumption Agreement,
dated June 30, 1992, by and between CBN and Regent (the "Assignment and
Assumption Agreement");
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
Agreement");
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,
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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 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, which provides, inter alia, for the
purchase of all of the shares of Class A Common Stock, par value $0.01 per
share, of the Company (the "Class A Stock", and
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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 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
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 and the Guarantor has given a guaranty (the "Guaranty") in accordance
with such 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
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
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"
(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
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(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" 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
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 payment of the Purchase
Price therefor, by wire transfer or by immediately available funds, to such
accounts as Seller may specify.
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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 Letter") delivered to the Purchaser concurrently with the execution
hereof, 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 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 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
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act")
and the 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 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
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 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 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
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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 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, 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 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 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
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 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
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 transactions 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.
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5.5 Consents. Other than filings required under the HSR Act
and the 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 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 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, 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.
5.9 Transaction Agreements. This Agreement, the Merger
Agreement, 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:
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6.1 Accuracy of Representations and Warranties. All
representations 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 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
certificates for all the Class B Stock to the Purchaser upon the Closing.
6.4 Purchase of Control Stock. The Purchaser has acquired the
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 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, 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
continuing any declaration of any banking moratorium or suspension of payments
by banks in the United States 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
consummation of the transactions (the "Other Transactions") to be effected
pursuant to the Contribution Agreement, the ▇▇▇▇▇▇▇▇▇ Purchase Agreement and the
Regent Purchase Agreement (collectively, 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.
6.9 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Notification. The waiting period (and
any 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.
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6.10 Opinion of Counsel. The Purchaser shall have received an
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 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 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 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, 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.
7.4 No Injunctions. Neither of the parties hereto shall be
subject 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.
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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 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.
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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 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
11
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.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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: ▇▇▇-▇▇▇-▇▇▇▇
12
and a copy to:
Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Seller:
The Christian Broadcasting Network, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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
13
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.
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.
14
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.
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.
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
FOX KIDS WORLDWIDE, INC.
By:
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Its:
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THE CHRISTIAN BROADCASTING
NETWORK, INC.
By:
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Its:
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