EXHIBIT 10.42
FCN HOLDING, INC.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
September 26, 1996
▇▇▇▇▇ & Company Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President
Gentlemen:
The purpose of this letter agreement (the "Agreement") is to confirm
our understanding and agreement with respect to your financial advisory and
investment banking fees for services rendered to the parties in connection with
structuring, negotiation, formation and capitalization of Fox Kids Worldwide,
L.L.C., a Delaware limited liability company ("Fox Kids").
We hereby confirm our mutual agreement, as follows:
1. Defined Terms. All terms which are defined in that certain Strategic
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Stockholders Agreement dated as of December 22, 1995 by and among Saban
Entertainment, Inc., a Delaware close corporation ("SEI"), ▇▇▇▇ ▇▇▇▇▇ ("Saban"),
the other "SEI Stockholders" (as therein defined), Fox Broadcasting Company, a
Delaware corporation ("FBC"), FCN Holding, Inc., a Delaware close corporation
(the "Company") and FCNH Sub, Inc., a Delaware close corporation ("FCNH Sub")
(as amended by Amendment No. 1 and Amendment No. 2 thereto, and as the same may
hereafter from time to time be amended, the "Strategic Stockholders Agreement")
and which are not defined in this Agreement shall have the same meanings when
used herein.
2. Issuance of Common Stock in Satisfaction of Fees.
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(a) Financial Advisory Services. ▇▇▇▇▇ & Company Incorporated, a New
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York corporation ("▇▇▇▇▇"), has heretofore been engaged to provide financial
advisory services and other investment banking services in connection with the
structuring, negotiation, formation and capitalization of Fox Kids (individually
and collectively, the "Financial Advisory Services").
(b) Issuance and Delivery of Shares. As full compensation for the
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Financial Advisory Services, on the terms and subject to the conditions set
forth in this Agreement, concurrent with the execution and delivery of this
Agreement by the parties hereto, and the concurrent execution and delivery of
the "Other Agreements," as provided in Section 4(b) of this Agreement, the
Company has issued and sold to ▇▇▇▇▇ 16 16/99 shares (the "Shares") of the
Common Stock, without par value, of the Company; receipt of the Shares is hereby
acknowledged by ▇▇▇▇▇. The Company hereby acknowledges that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
an employee of ▇▇▇▇▇ ("▇▇▇▇▇▇"), is to contemporaneously receive a beneficial
interest in a portion of the shares from ▇▇▇▇▇. ▇▇▇▇▇ shall hold such portion
of the shares as nominee for and representative of ▇▇▇▇▇▇, subject to the terms
of this Agreement and the Other Agreements.
3. Representations and Warranties.
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(a) By the Company. The Company represents and warrants to ▇▇▇▇▇ that
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the following statements are true and correct as of the date hereof:
(i) Corporate Action; Authorization. The Company has all requisite
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corporate power and authority, and has taken all necessary action, to enter into
and perform all of its obligations under this Agreement and the Other Agreements
to which it is a party, and to issue and deliver the Shares. This Agreement and
the Other Agreements to which the Company is a party have each been duly
authorized, executed and delivered by the Company, and each constitutes the
legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms. The Shares have been duly and validly
issued, and are fully paid and non-assessable.
(ii) Outstanding Common Stock. The Company is authorized by its
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certificate of incorporation, as amended, to issue 1,000 shares of Common Stock,
without par value (the "Common Stock"), and at the date of and immediately prior
to the execution and delivery of this Agreement, 800 shares of the Common Stock
were issued and outstanding.
(iii) No Violation. The execution and delivery of this Agreement
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and each of the Other Agreements to which it is a party by the Company and the
performance by the Company of its obligations hereunder and thereunder does not
and will not (A) violate, conflict with, or constitute or result in a breach of,
any term, condition or provision of, or constitute a default (or an event which,
with notice or the lapse of time, or both, would constitute a default), or
result in the creation of any Lien upon any of its assets under the certificate
of incorporation or by-laws of the Company, or any mortgage, indenture, loan or
credit
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agreement or any other agreement or instrument to which the Company is a party,
or pursuant to which it is the direct or indirect obligor, or by which any of
the Company's properties are bound or affected; (B) violate any law, regulation,
judgment, injunction, order or decree binding upon the Company; (C) result in
the loss of any license, franchise, permit, legal privilege or legal right
enjoyed or possessed by the Company; or (D) require the consent of any third
party (including a governmental entity), other than those consents which have
already been obtained.
(iv) No Distributions. Since December 22, 1995, except as provided in
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or contemplated by the Strategic Stockholders Agreement or the other Alliance
Agreements, and except for the distribution on September 26, 1996, by the
Company to Fox Broadcasting Sub, Inc., a Delaware corporation ("Fox Broadcasting
Sub"), of all of the Company's right, title and interest in and to that certain
Stock Ownership Agreement, neither the Company nor SEI has declared or paid any
dividend or made any distributions on or with respect to its capital stock; or
redeemed, purchased or otherwise acquired any of its capital stock.
(b) By ▇▇▇▇▇. ▇▇▇▇▇ represents and warrants to the Company that the
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following statements are true and correct as of the date hereof:
(i) Corporate Action; Authorization. ▇▇▇▇▇ has all requisite
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corporate power and authority, and has taken all necessary action, to enter into
and perform all of its obligations under this Agreement and the Other
Agreements. This Agreement and each of the Other Agreements have been duly
authorized, executed and delivered by ▇▇▇▇▇ and each constitutes the legal,
valid and binding agreement of ▇▇▇▇▇, enforceable against ▇▇▇▇▇ in accordance
with its terms.
(ii) No Violation. The execution and delivery by ▇▇▇▇▇ of this
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Agreement and the Other Agreements, and the performance by ▇▇▇▇▇ of its
obligations hereunder and thereunder does not and will not (A) violate, conflict
with, or constitute or result in a breach of, any term, condition or provision
of, or constitute a default (or an event which, with notice or the lapse of
time, or both, would constitute a default), or result in the creation of any
Lien upon any of its assets under the certificate or articles of incorporation
or by-laws or other charter documents of ▇▇▇▇▇, or any mortgage, indenture, loan
or credit agreement or any other agreement or instrument to which ▇▇▇▇▇ is a
party, or pursuant to which it is the direct or indirect obligor, or by which
any of ▇▇▇▇▇'▇ properties are bound or affected; (B) violate any law,
regulation, judgment, injunction, order or decree binding upon ▇▇▇▇▇; (C) result
in the loss of any license, franchise, permit, legal privilege or legal right
enjoyed or possessed by ▇▇▇▇▇; or
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(D) require the consent of any third party (including a governmental entity).
(iii) Brokers, etc. ▇▇▇▇▇ has not incurred, directly or indirectly,
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any obligation or liability for brokers' or finders' fees, agents' commissions
or other similar charges in connection with this Agreement or the Other
Agreements or any of the transactions contemplated hereby or thereby; and,
without limiting the generality of the foregoing, none of the officers,
directors or employees of ▇▇▇▇▇, except ▇▇▇▇▇▇, have any right to receive a
beneficial interest in any of the Shares, or otherwise to participate in ▇▇▇▇▇'▇
investment in the Company.
(c) By ▇▇▇▇▇ and ▇▇▇▇▇▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ each, severally and not
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jointly, represents and warrants to the Company that the following statements
are true and correct as of the date hereof:
(i) Investment. ▇▇▇▇▇ and ▇▇▇▇▇▇ each acknowledges that the Shares
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have not been registered under the Securities Act of 1933, as amended (the
"Securities Act") nor qualified under any state securities or "Blue Sky" law, on
the basis that no distribution or public offering of the Shares is to be
effected, and in this connection the Company is relying in part on the
representations of ▇▇▇▇▇ and ▇▇▇▇▇▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ each further represents
and warrants to the Company that:
(A) Investment Intent. The Shares are being acquired by ▇▇▇▇▇
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and ▇▇▇▇▇▇ each solely for its and his own account, for investment
purposes only, and with no present intention of distributing, selling
or otherwise transferring or disposing of the Shares.
(B) Access. ▇▇▇▇▇ and ▇▇▇▇▇▇ each has had, during the course
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of this transaction and prior to its execution of this Agreement and
the Other Agreements, the opportunity to ask questions of, and receive
answers from, the Company and its management, Fox Kids and its
management, and SEI and its management, concerning the Company, Fox
Kids and SEI, their respective businesses, operations and financial
condition, and the terms and conditions of this Agreement and the
Other Agreements. ▇▇▇▇▇ and ▇▇▇▇▇▇ each acknowledges that it or its
representatives and he have received all such information as it and he
considers necessary for evaluating the risks and merits of acquiring
the Shares and for verifying the accuracy of any information furnished
to it and him or to which it and he has had access, and that ▇▇▇▇▇ and
▇▇▇▇▇▇ each has entered into this Agreement on the basis of its and
his own judgment and analysis of the Company and the transaction.
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(C) Illiquidity. ▇▇▇▇▇ and ▇▇▇▇▇▇ each understands that there
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is no public market for the Shares or for any securities which may be
issued for the Shares pursuant to the Other Agreements, and that there
may never be such a public market, and that even if a market develops
▇▇▇▇▇ and ▇▇▇▇▇▇ may never be able to sell or dispose of the Shares or
such other securities and may thus have to bear the risk of its and
his investment for a substantial period of time, or forever.
(D) Accredited Investor. ▇▇▇▇▇ and ▇▇▇▇▇▇ each is an
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"accredited investor" for purposes of Regulation D promulgated by the
Securities and Exchange Commission under the Securities Act.
(iv) Transfer Restrictions. ▇▇▇▇▇ and ▇▇▇▇▇▇ each is aware that the
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Company is a Delaware statutory close corporation, and that significant
restrictions exist under that law, this Agreement and the Other Agreements with
respect to any sale, transfer, assignment, pledge, hypothecation or other
disposition (with or without consideration) of the Shares, and ▇▇▇▇▇ and ▇▇▇▇▇▇
each agrees that it and he will abide by all such restrictions.
4. Concurrent Actions. Concurrent with the execution and delivery of this
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Agreement:
(a) Amendment No. 2 to Strategic Stockholders Agreement. ▇▇▇▇▇, the
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Company, and each other party to the Strategic Stockholders Agreement have
executed and delivered among themselves counterparts of an Amendment No. 2 to
Strategic Stockholders Agreement (the "Amendment"), in the form of Exhibit "A"
to this Agreement.
(b) Amendment No. 1 to Registration Agreement. ▇▇▇▇▇, the Company, FBC, Fox
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Broadcasting Sub, Saban and the other SEI Stockholders have executed and
delivered among themselves counterparts of an Amendment No. 1 to Registration
Agreement (the "Registration Agreement Amendment"), in the form of Exhibit "B"
to this Agreement. As used in this Agreement, the Strategic Stockholders
Agreement, as amended by the Amendment, and the "Registration Agreement," as
defined in the Amendment, and as amended by the Registration Agreement
Amendment, as such documents may hereafter from time to time be further amended,
are collectively referred to as the "Other Agreements."
(c) Amendment No. 1 to Stock Ownership Agreement. Saban, Fox Broadcasting
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Sub and FBC have executed and delivered among themselves counterparts of an
Amendment No. 1 to Stock Ownership Agreement, in the form of Exhibit "C" to this
Agreement (such
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agreement, as so amended, and as the same may from time to time hereafter be
further amended, the "Stock Ownership Agreement").
(d) Side Letter. Shuman, Allen, the Company and each other party to the
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Other Agreements have executed and delivered among themselves counterparts of a
Side Letter, in the form of Exhibit "D" to this Agreement, amending the Other
Agreements and reflecting that ▇▇▇▇▇ holds a portion of the Shares as nominee
for and representative of ▇▇▇▇▇▇ and that ▇▇▇▇▇▇ as beneficial owner of a
portion of the ▇▇▇▇▇ Shares has the same rights and is subject to the same
obligations with respect to the shares beneficially owned by him as ▇▇▇▇▇ is
under the Other Agreements; and that all references to "▇▇▇▇▇" in this Agreement
and each of the Other Agreements shall include ▇▇▇▇▇▇ with respect to the Shares
beneficially owned by ▇▇▇▇▇▇.
5. Release.
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(a) Release by ▇▇▇▇▇. ▇▇▇▇▇ hereby releases and forever discharges (i) the
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Company, (ii) Fox Kids, (iii) The News Corporation Limited, and each of its
direct and indirect Affiliates and (iv) SEI, and each of its stockholders
(including Saban), and each of their respective officers, directors and
Affiliates (collectively, the "Releasees"), and each of them, from and with
respect to (x) any and all contractual or other obligations or liabilities which
Releasees or any of them may have to ▇▇▇▇▇, and (y) any and all liabilities,
claims, accounts and causes of action, whether known or unknown, which ▇▇▇▇▇ now
owns or holds, or has at any time heretofore owned or held, against the
Releasees, or any of them, (collectively, the "Released Obligations and
Claims"), in each case to the extent, and only to the extent, that such Released
Obligations and Claims relate to or arise out of the Financial Advisory
Services, or any of the transactions which are or were the subject of, or are or
were contemplated by, the Strategic Stockholders Agreement, or any of the
Alliance Agreements; and without limiting the generality of the foregoing, any
and all agreements (other than the Other Agreements) between ▇▇▇▇▇ and either
SEI or any of the SEI Stockholders (including Saban) are hereby terminated, and
shall be without any further force or effect.
(b) Waiver. As further consideration and inducement for the execution of
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this Agreement, ▇▇▇▇▇ hereby waives and relinquishes any and all rights and
benefits pertaining to the Released Obligations and Claims under the provisions
of California Civil Code Section 1542, which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by
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him must have materially affected his settlement with the debtor."
(c) No Assignment. ▇▇▇▇▇ represents and warrants that it has made no
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assignment of any Released Obligations or Claims. ▇▇▇▇▇ agrees to indemnify and
hold the Company harmless against any such assignments.
6. Further Agreements of ▇▇▇▇▇.
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(a) Call Option.
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(i) In consideration for the issuance and delivery of the Shares to
▇▇▇▇▇, ▇▇▇▇▇ grants to the Company the right and option (the "▇▇▇▇▇ Shares Call
Option"), but not the obligation, to purchase, following the occurrence of
either of the "Triggering Events" described in subsection 6(a)(ii), below, (x)
with respect to the Triggering Event set forth in subsection 6(a)(ii)(x) below,
all, and not less than all, of the Shares owned by ▇▇▇▇▇ or any of its
transferees (including, without limitation, Saban but excluding FBC or Fox
Broadcasting Sub); and (y) with respect to the Triggering Event set forth in
subsection 6(a)(ii)(y), below, all Shares of the Successor Entity which,
pursuant to Section 6(b) of the Strategic Stockholders Agreement, are deemed to
be ▇▇▇▇▇ Shares and which are owned by ▇▇▇▇▇ or any of its transferees (other
than FBC or Fox Broadcasting Sub or Saban and excluding Shares transferred
pursuant to Section 3(a)(i) or 3(a)(ii) of the Strategic Stockholders
Agreement); (the Shares subject to the ▇▇▇▇▇ Shares Call Option are referred to
herein as the "▇▇▇▇▇ Option Shares") for the per share cash purchase price
determined pursuant to subsection 6(a)(iii), below, by delivering written notice
of its election to ▇▇▇▇▇ not later than 10 business days prior to the date of
closing determined pursuant to subsection 6(a)(iv), below.
(ii) The "Triggering Events" shall be as follows:
(x) the exercise of the "Call Option" pursuant to the Stock
Ownership Agreement; or
(y) unless the Call Option is subsequently exercised, the
exercise of the "Put Option" pursuant to Section 7 of the Strategic
Stockholders Agreement.
(iii) The per share purchase price payable for the ▇▇▇▇▇ Option Shares
upon the exercise of the ▇▇▇▇▇ Shares Call Option shall be equal to:
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(A) if the Effective Date is prior to the Initial Public Offering, an
amount equal to 50% of the Fair Market Value as of the Effective Date of
the Company and SEI and their respective subsidiaries and other
consolidated or owned operations, as such Fair Market Value has been
determined with respect to the concurrent sale of the SEI Option Shares
under subsection 7(c)(i)(A) of the Strategic Stockholders Agreement or
subsection 1.2(i) of the Stock Ownership Agreement, whichever shall be
applicable to such concurrent sale (the "Applicable Agreement"), divided by
the sum of (I) the number of shares of Common Stock then outstanding
(excluding the Later Issued FCNH Shares) plus (II) 50% of the number of
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Later Issued Shares then outstanding; or
(B) if the Effective Date is on or subsequent to the Initial Public
Offering, an amount equal to the Fair Market Value of the Successor Entity,
as such Fair Market Value has been determined with respect to the
concurrent sale of the SEI Option Shares under subsection 7(c)(i)(B) of the
Strategic Stockholders Agreement or subsection 1.2(ii) of the Stock
Ownership Agreement, whichever shall be the Applicable Agreement, divided
by the number of shares of Common Stock of the Successor Entity then issued
and outstanding (and if there is more than one class of common stock of the
Successor Entity, the divisor shall be adjusted to include on an equitable
basis all then outstanding shares of all classes of common stock).
▇▇▇▇▇ acknowledges and agrees that Saban and Fox Broadcasting Sub, or Saban and
FBC, as applicable, will have the absolute and unconditional right, in
connection with the purchase and sale of the SEI Option Shares, to determine
among themselves the Fair Market Value upon which the per share purchase price
applicable to the ▇▇▇▇▇ Option Shares will be determined; that in making such
determination, none of Saban, Fox Broadcasting Sub or FBC, as applicable, will
have any duty or obligation to consider the impact of such determination upon
▇▇▇▇▇; that ▇▇▇▇▇ will not have the right or power to participate in any such
determination; and that ▇▇▇▇▇ forever waives any right which it may have, at law
or in equity, to challenge any such determination.
(iv) The closing of the purchase and sale of the ▇▇▇▇▇ Option Shares
shall take place at the same time and place as has last been set by Saban and
FBC (or Saban and Fox Broadcasting Sub, as applicable) for the closing of the
purchase and sale of the SEI Option Shares under the Applicable Agreement; and
the Company shall advise ▇▇▇▇▇ in writing of such time and location. At the
closing, each of the holders of the ▇▇▇▇▇ Option Shares shall deliver to the
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Company documents of transfer in form and substance reasonably acceptable to the
Company and its counsel, necessary to vest in the Company good and marketable
title to the ▇▇▇▇▇ Option Shares so sold by the holder thereof, free and clear
of any and all Liens, other than those imposed under or pursuant to this
Agreement or the Other Agreements, against delivery by the Company of the
purchase price therefore, payable, at the election of the Company, by either (x)
bank cashiers' checks in immediately available funds payable to the order of the
selling holders, or (y) wire transfer of immediately available funds to an
account or accounts designated by the selling holders.
(v) If any securities of the Company are at any time issued to ▇▇▇▇▇
with respect to the Shares, whether by stock split, stock dividend or otherwise,
or if the Shares are exchanged for securities of the Successor Entity pursuant
to the provisions of the Strategic Stockholders Agreement, or otherwise, all of
such securities shall be considered "Shares" for purposes of this Section 6(a),
and shall be subject to the ▇▇▇▇▇ Shares Call Option herein provided.
(b) Confidentiality.
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(i) As used in this Section 6(b):
"Confidential Information" means all oral, written or recorded
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information about or related to the Company, Fox Kids, SEI, or any of its
or their subsidiaries or other controlled Affiliates, (or any controlling
persons or other Affiliates, to the extent such information relates to the
Company, Fox Kids, SEI or any of their respective subsidiaries or
controlled Affiliates) (individually and collectively, the "Disclosing
Party") or its or their properties, including any intellectual property,
technology, procedures, strategies, assets, liabilities, business or
prospective or planned business or business activities, which is at any
time furnished to ▇▇▇▇▇ or any of its "Representatives" (as defined below),
directly or indirectly, by the Disclosing Party, its officers, directors,
employees, agents or controlling persons, or any of them, whether furnished
before or after the date of this Agreement, and regardless of the manner in
which it is or was furnished, together with those portions of any
summaries, extracts, analyses, compilations, studies or other documents or
records prepared by ▇▇▇▇▇ or its Representatives which contain, reflect or
are generated from such information, and includes such information
regardless of whether explicitly identified as, or known to ▇▇▇▇▇ or such
Representatives to be, confidential, but does not include
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information which (x) is or becomes generally available to the public other
than as a result of a disclosure directly or indirectly by ▇▇▇▇▇ or any of
▇▇▇▇▇'▇ Representatives, (y) was or hereafter is independently acquired or
developed by ▇▇▇▇▇ or its Representatives without breach of this Section
6(b), or (z) was or becomes available to ▇▇▇▇▇ or its Representatives on a
non-confidential basis from any Person other than the Disclosing Party, its
officers, directors, employees, agents, controlling persons or advisors,
who to the actual knowledge of ▇▇▇▇▇ was not then either bound by a
confidentiality agreement with the Disclosing Parties, or any of them, or
otherwise prohibited from transmitting the information to ▇▇▇▇▇.
"Representatives" includes all Persons who receive or otherwise come
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into the possession of Confidential Information as a result of their
employment or engagement by ▇▇▇▇▇, or any of ▇▇▇▇▇'▇ controlling Persons.
(ii) (x) Except with the prior written consent of the Disclosing
Party, ▇▇▇▇▇ agrees to keep all Confidential Information confidential and
not to disclose any Confidential Information to any Person other than its
Representatives, and then only to the extent that such Persons have a need
to know the Confidential Information disclosed to them for purposes
relating to this Agreement; and to use the Confidential Information solely
for purposes related to this Agreement.
(y) If ▇▇▇▇▇ or any of its Representatives are requested pursuant
to, or required by, applicable law or regulation or by legal process to
make any disclosure otherwise prohibited under this Section 6(b), ▇▇▇▇▇
agrees to provide the Disclosing Party with prompt written notice of such
requests or requirements prior to disclosure so that (A) the Disclosing
Party (with ▇▇▇▇▇'▇ reasonable cooperation) may seek an appropriate
protective order or other remedy, or (B) ▇▇▇▇▇ and the Disclosing Party can
seek in good faith to agree on the appropriate scope and approach to
disclosure. If a protective or other remedy is not obtained, ▇▇▇▇▇ agrees
to furnish only that portion of the Confidential Information which ▇▇▇▇▇ is
legally compelled to disclose, and to use its best efforts to obtain
confidential treatment for the Confidential Information actually disclosed.
(iii) ▇▇▇▇▇ shall inform its Representatives of the confidential nature
of the Confidential Information, and shall direct its Representatives to comply
with this Section 6(b), and ▇▇▇▇▇ will not, directly or indirectly, hereafter
furnish any Confidential Information to any Representative unless and until it
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has agreed to so comply. ▇▇▇▇▇ agrees to be responsible for any disclosure or
misuse of any Confidential Information by any of its Representatives, and shall
take any action, through legal process or otherwise, necessary to ensure their
compliance with this Section 6(b).
(c) Stock Ownership Agreement. ▇▇▇▇▇ hereby confirms that ▇▇▇▇▇ shall have
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no interest in, nor rights under, the Stock Ownership Agreement.
7. Miscellaneous.
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(a) Interpretation. In this Agreement, headings are for convenience only
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and shall not affect interpretation, and except to the extent that the context
otherwise requires: (i) references to any legislation or to any provision of
any legislation include any modification or re-enactment of, or any legislative
provision substituted for, and all statutory instruments issued under, such
legislation or such provision; (ii) words denoting the singular include the
plural and vice versa; (iii) words denoting individuals include corporations and
other Persons and vice versa; (iv) words denoting any gender include all
genders; (v) references to any document, agreement or other instrument
(including this Agreement) include references to such document, agreement or
other instrument as amended, novated, supplemented or replaced from time to
time; (vi) references to clauses, sub-clauses, sections, sub-sections and
Exhibits are to clauses, sub-clauses, sections, sub-sections and Exhibits of
this Agreement; (vi) "or" is not exclusive; (viii) references to any party to
this Agreement or any other document, agreement or other instrument include its
successors or permitted assigns; and (ix) "writing" and cognate expressions
include all means of reproducing words in a tangible and permanently visible
form.
(b) Third Party Beneficiaries. The parties to this Agreement acknowledge
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and agree that this Agreement, and each of the representations, warranties,
covenants, releases and waivers of ▇▇▇▇▇ herein set forth, are intended to be
for the benefit of, and shall be directly enforceable by, Fox Kids, SEI, Saban
and the Other SEI Stockholders and each of the other parties signatory to the
Alliance Agreements, or any of them.
(c) Right and Power of Saban and FBC; Irrevocable Proxy. ▇▇▇▇▇, which is a
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recognized expert in investment banking and financial advisory services,
acknowledges and agrees (i) that the Shares represent a small minority interest
in the Company, and that FBC, as the owner of substantially all of the Common
Stock of the Company, will be in a position to control the election of
Directors, amendments to the Company's charter documents, and all other
transactions requiring the vote of the Company's
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stockholders; (ii) that the Strategic Stockholders Agreement, the Registration
Agreement and the other Alliance Agreements may each be amended or modified in
any respect or particular without the prior consent or approval of ▇▇▇▇▇; and
(iii) that, as a result of the irrevocable proxy coupled with an interest which
▇▇▇▇▇ has concurrently granted to Saban and FBC, ▇▇▇▇▇ will not have the right
or power to vote against the Reorganization, and will thus not be entitled to
appraisal rights with respect to the Reorganization; and that ▇▇▇▇▇, by entering
into this Agreement, hereby waives, to the maximum extent permitted by law, any
right which it may have to object thereto.
(d) Rights Personal to Saban. Each and every right and obligation which
------------------------
refers to "Saban" is personal to Saban; and thus, without the prior written
consent of Saban and the Company, other than as provided in this Agreement, none
of such rights or obligations may be assigned, delegated or transferred to any
other Person; provided that in the event of the incompetency or death of Saban,
--------
all rights granted to Saban hereunder shall be exercisable by his conservator,
executor or administrator, or by a single Person from time to time designated by
SEI Stockholders then holding a majority of the then outstanding shares of SEI
Common Stock held by all SEI Stockholders.
(e) Notices. All notices, demands or other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given (i) if delivered in
person, upon delivery thereof, or (ii) if mailed, certified first class mail,
postage prepaid, with return receipt requested, on the fifth day after the
mailing, or (iii) if sent by telex or facsimile transmission, with a copy mailed
on the same day in the manner provided in (ii) above, when transmitted and
receipt is confirmed by telephone or telex or facsimile response, or (iv) if
otherwise actually delivered, when delivered:
(x) If to the Company:
FCN Holding, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Fox Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
12
(y) If to Saban:
▇▇▇▇ ▇▇▇▇▇
Saban Entertainment, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to:
Troop ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Troop, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(z) if to ▇▇▇▇▇:
▇▇▇▇▇ & Company Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to:
▇▇▇▇▇ & Company Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇)▇▇▇-▇▇▇▇
or at such other address or addresses as may have been furnished by such Person
in like manner to the other parties.
(f) Severability. Should any Section or any part of a Section within this
------------
Agreement be rendered void, invalid or unenforceable by any court of law for any
reason, such invalidity or unenforceability shall not void or render invalid or
unenforceable any other Section or part of a Section in this Agreement.
13
(g) Governing Law. THE TERMS OF THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE WITHIN, AND TO BE PERFORMED WITHIN, SUCH STATE, EXCLUDING CHOICE
OF LAW PRINCIPLES OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS
OF A JURISDICTION OTHER THAN SUCH STATE.
(h) No Adverse Construction. The rule that a contract is to be construed
-----------------------
against the party drafting the contract is hereby waived, and shall have no
applicability in construing this Agreement or the terms of this Agreement.
(i) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
(j) Costs and Attorneys' Fees. In the event that any action, suit, or
-------------------------
other proceeding is instituted concerning or arising out of this Agreement, the
prevailing party shall recover all of such party's costs, and attorneys' fees
incurred in each and every such action, suit, or other proceeding, including any
and all appeals or petitions therefrom. As used herein, "attorneys' fees" shall
mean the full and actual costs of any legal services actually rendered in
connection with the matters involved, calculated on the basis of the usual fee
charged by the attorneys performing such services, and shall not be limited to
"reasonable attorneys' fees" as defined by any statute or rule of court.
(k) Successors and Assigns. Except as otherwise provided in this
----------------------
Agreement, all rights, covenants and agreements of the parties contained in this
Agreement shall be binding upon and inure to the benefit of their respective
successors and permitted assigns. Except as otherwise specifically set forth
herein, nothing in this Agreement, expressed or implied, is intended to confer
on any Person other than the parties to this Agreement or their respective
successors and assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
(l) Amendments and Waivers. Neither this Agreement nor any term hereof may
----------------------
be changed, waived, discharged or terminated orally or in writing, except that
any term of this Agreement may be amended and the observance of any such term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with (but only with) the written consent of
▇▇▇▇▇, the Company, Saban and FBC; provided, however, that no such amendment or
-------- -------
waiver shall extend to or affect any obligation not expressly waived or impair
any right consequent therein. No delay
14
or omission to exercise any right, power or remedy accruing to any party hereto
shall impair any such right, power or remedy of such party nor be construed to
be a waiver of any such right, power or remedy nor constitute any course of
dealing or performance hereunder.
(m) Entire Agreement. This Agreement, the attached Exhibits and the other
----------------
Agreements, and the agreements referred to herein and therein, together contain
the entire understanding of the parties, and there are no further or other
agreements or understandings, written or oral, in effect between the parties
relating to the subject matter hereof unless expressly referred to herein. No
party to this Agreement makes any representation or warranty except as expressly
set forth herein.
(n) Specific Performance and Other Remedies. The parties hereto
---------------------------------------
acknowledge and agree that the Shares are unique, and that the parties will have
no adequate remedy at law should any party hereto breach the provisions of
Section 6(a) or 6(b). In the event of the refusal or failure of any party
hereto fully to comply with any of those provisions, the other parties, and each
of them, shall have the right, in addition to any other rights and remedies
which it or they may have hereunder, to specific performance, or other
appropriate injunctive relief with respect thereto. In no event shall any party
to any such proceeding urge or raise as a defense in any such action that an
adequate remedy at law exists.
(o) Agreement to Perform Required Acts. Each party hereto agrees to
----------------------------------
perform any further acts and to execute and deliver any further documents that
may be reasonably necessary to carry out the provisions hereof, that may be
required to secure performance of any party's duties hereunder or that may be
required to assure the legal and binding effect of the provisions hereof.
(p) Consent to Jurisdiction; Forum Selection. Any actions, suits or
----------------------------------------
proceedings instituted in connection with this Agreement or the performance by
the parties of their obligations hereunder shall be instituted and maintained
exclusively in the Superior Court for the State of California, County of Los
Angeles or in the United States District Court for the Central District of
California. By execution and delivery hereof, each party hereto hereby
consents, for itself and in respect of its property, to the jurisdiction of the
aforesaid courts solely for the purpose of adjudicating its rights or
obligations under, or any disputes involving, this Agreement or any document
related hereto. Each party hereto hereby irrevocably waives, to the extent
permitted by applicable law, any objection, including, without limitation, any
objection that the other corporate party or parties lack the capacity to ▇▇▇ or
defend based upon its or their lack of a certificate of qualification to conduct
intrastate business in
15
California, and any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to the bringing of any
----- --- ----------
action or proceeding in such jurisdiction in respect of this Agreement or any
document related hereto.
(q) Legends. ▇▇▇▇▇ hereby agrees that each certificate or other writing
-------
evidencing any of the Shares, shall be stamped or otherwise imprinted with
legends, either on the face of such certificate, or on the reverse of such
certificate, with reference thereto appearing on the face of such certificate,
in substantially the following form:
[DESCRIBE THE SHARES] REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
OPTION TO PURCHASE UNDER THAT CERTAIN AGREEMENT DATED AS OF SEPTEMBER 26,
1996, BY AND AMONG THE RECORD HOLDER OF THE SECURITIES SUBJECT TO THIS
CERTIFICATE AND FCN HOLDING, INC. A COPY OF THE LETTER AGREEMENT SHALL BE
FURNISHED WITHOUT CHARGE BY THE ISSUER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE TO THE HOLDER HEREOF UPON SUCH HOLDER'S WRITTEN REQUEST.
[DESCRIBE THE SHARES] REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
MATERIAL RESTRICTIONS ON TRANSFER, RIGHTS OF FIRST REFUSAL, OPTIONS TO
PURCHASE AND IRREVOCABLE PROXIES, AMONG OTHER RESTRICTIONS, UNDER THAT
CERTAIN AMENDMENT NO. 2 TO STRATEGIC STOCKHOLDERS AGREEMENT DATED AS OF
SEPTEMBER 26, 1996, BY AND AMONG THE ISSUER, THE RECORD HOLDER OF THE
SECURITIES SUBJECT TO THIS CERTIFICATE AND CERTAIN OTHER PERSONS. A COPY
OF THE STRATEGIC STOCKHOLDERS AGREEMENT, TOGETHER WITH ALL AMENDMENTS
THERETO AS SHALL THEN BE IN EFFECT, SHALL BE FURNISHED WITHOUT CHARGE BY
THE ISSUER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE TO THE HOLDER
HEREOF UPON SUCH HOLDER'S WRITTEN REQUEST.
THIS CORPORATION IS A CLOSE CORPORATION. THE NUMBER OF HOLDERS OF RECORD
OF ITS SHARES OF ALL CLASSES CANNOT EXCEED 30. ANY ATTEMPTED TRANSFER
WHICH WOULD VIOLATE THIS REQUIREMENT IS VOID. REFER TO THE CERTIFICATE OF
INCORPORATION, BYLAWS AND AGREEMENTS ON FILE WITH THE SECRETARY OF THE
CORPORATION FOR FURTHER RESTRICTIONS.
The Company covenants and agrees that it shall refuse to recognize any
transfer of the Shares effected otherwise than in strict compliance with the
provisions of this Agreement and the Strategic Stockholders Agreement.
(r) Effective Date of Agreements. While this Agreement and each of the
----------------------------
agreements which are exhibits hereto have been executed
16
as of their dates, each of the agreements shall be deemed to be effective as of
April 3, 1996, and the certificates representing the ▇▇▇▇▇ Shares shall be dated
as of April 3, 1996, the date upon which the parties reached agreement on all
material terms hereof and thereof.
(s) Agreement of ▇▇▇▇▇▇. By execution of this Agreement, ▇▇▇▇▇▇ agrees to
-------------------
be bound by each and every provision of this Agreement as if he had been named a
party hereto, with each reference to "▇▇▇▇▇" and the "▇▇▇▇▇ Shares" herein to
include, with respect to the shares beneficially owned by ▇▇▇▇▇▇, ▇▇▇▇▇▇ and
such shares, respectively.
17
* * * *
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding upon the Company and ▇▇▇▇▇.
Very truly yours,
FCN HOLDING, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________
Its: EVP
_________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
▇▇▇▇▇ & COMPANY INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________
Its: EVP
_________________________
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
18
E X H I B I T S
- - - - - - - -
A. Amendment No. 2 to Strategic Stockholders Agreement
B. Amendment No. 1 to Registration Agreement
C. Amendment No. 1 to Stock Ownership Agreement
D. Side Letter
19
SIDE LETTER AGREEMENT
This Side Letter (the "Letter Agreement") is made and entered into as of
September 26, 1996, by and among Saban Entertainment, Inc., a Delaware close
corporation ("SEI"), ▇▇▇▇ ▇▇▇▇▇ ("Saban"), each of the entities listed on
Schedule "A" hereto (the "SEI Entities"), Fox Broadcasting Company, a Delaware
corporation ("FBC"), FCN Holding, Inc., a Delaware corporation ("FCNH"), FCNH
Sub, Inc., a Delaware close corporation ("FCNH Sub"), Fox Kids Worldwide, L.L.C.
("Fox Kids"), ▇▇▇▇▇ & Company Incorporated, a New York corporation ("▇▇▇▇▇") and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇").
R E C I T A L S
- - - - - - - -
A. Pursuant to a letter agreement, dated as of September 26, 1996, but
effective as of April 3, 1996 (the "▇▇▇▇▇ Agreement") by and among FCNH, ▇▇▇▇▇
and ▇▇▇▇▇▇, FCNH has, concurrently with the execution and delivery of this
Amendment, issued and sold to ▇▇▇▇▇ 16 16/99 shares (the "▇▇▇▇▇ Shares") of the
Common Stock, without par value, of FCNH.
B. The parties desire to execute and deliver this Letter Agreement among
themselves in order to acknowledge and consent to the transfer of beneficial
ownership of a portion of the ▇▇▇▇▇ Shares to ▇▇▇▇▇▇.
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing facts and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. ▇▇▇▇▇ and ▇▇▇▇▇▇ agree that the transfer of a portion of the ▇▇▇▇▇
Shares by ▇▇▇▇▇ to ▇▇▇▇▇▇ is subject to the provisions of Section 2(c) of that
certain Strategic Stockholders Agreement, dated as of December 22, 1995 (as
amended by Amendment No. 1 dated as of February 26, 1996 and Amendment No. 2 to
Strategic Stockholders Agreement dated as of this date) (together, the
"Strategic Stockholders Agreement"), and each of the parties to this Letter
Agreement (other than ▇▇▇▇▇▇ and ▇▇▇▇▇) hereby consents and agrees to the
transfer by ▇▇▇▇▇ to ▇▇▇▇▇▇ of some or all of the ▇▇▇▇▇ Shares.
2. The parties to this Letter Agreement acknowledge that a portion of the
▇▇▇▇▇ Shares is beneficially owned by ▇▇▇▇▇▇ and that ▇▇▇▇▇ holds such portion
as nominee for and representative of ▇▇▇▇▇▇, subject to the terms of the ▇▇▇▇▇
Agreement, the other agreements and this Letter Agreement.
3. ▇▇▇▇▇ and ▇▇▇▇▇▇ each hereby agree to comply with all provisions of the
Strategic Stockholders Agreement, including but not limited to, Section 2(c)
thereof.
4. ▇▇▇▇▇▇ hereby agrees to be bound by each of the Strategic Stockholders
Agreement, the Registration Agreement dated as of December 22, 1995 (as amended
by Amendment No. 1 to Registration Agreement dated as of this date) (together,
the "Registration Agreement"), and the Stock Ownership Agreement dated as of
December 22, 1995 (as amended by Amendment No. 1 to Stock Ownership Agreement)
(together, the "Stock Ownership Agreement") as if he had been named as a party
thereto, with each reference to "▇▇▇▇▇" and the "▇▇▇▇▇ Shares" to apply, with
respect to the shares beneficially owned by ▇▇▇▇▇▇, to ▇▇▇▇▇▇ and such shares
respectively, and each of such agreements is hereby amended to add that ▇▇▇▇▇▇
is entitled to the same rights and subject to the same terms and conditions
provided to ▇▇▇▇▇ under each of the Strategic Stockholders Agreement,
Registration Agreement and Stock Ownership Agreement.
5. While this Letter Agreement has been executed as of its date, it shall
be deemed to be effective as of April 3, 1996.
IN WITNESS WHEREOF, the parties have executed this Letter Agreement as of
the day and year first above written.
FOX KIDS WORLDWIDE, L.L.C.
By: /s/ ▇▇▇ ▇▇▇▇▇
---------------------
/s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------
Its: ▇▇▇▇ ▇▇▇▇▇
---------------------
SABAN ENTERTAINMENT, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------
Its:
-------------------
QUARTZ ENTERPRISES, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------
Its:
-------------------
MERLOT INVESTMENTS
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------
Its:
--------------------
SILVERLIGHT ENTERPRISES, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------
Its:
--------------------
▇▇▇▇▇ ENTERPRISES, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------
Its:
--------------------
FOX BROADCASTING COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
Its: EVP
--------------------
FCN HOLDING, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
Its: EVP
--------------------
FCNH SUB, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
Its: EVP
--------------------
▇▇▇▇▇ & COMPANY INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Its: EVP
--------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇