EXHIBIT 12
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CONTRIBUTION AGREEMENT
by and among
HALLMARK ENTERTAINMENT INVESTMENTS CO.,
HALLMARK ENTERTAINMENT HOLDINGS, INC.
and
THE OTHER SIGNATORIES HERETO
dated as of
March 11, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS........................................................1
1.1 Definitions..................................................1
ARTICLE II - THE CLOSING.......................................................4
2.1 The Closing..................................................4
2.2 Related Documents............................................4
ARTICLE III - THE EXCHANGES....................................................4
3.1 The Exchanges................................................4
3.2 Delivery of Share Certificates...............................4
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF HEH.............................4
4.1 Corporate Existence..........................................4
4.2 Power and Authority..........................................4
4.3 Enforceability, etc..........................................5
4.4 Capitalization...............................................5
4.5 Consents and Approvals.......................................6
4.6 No Liabilities...............................................6
4.7 Brokers, etc.................................................6
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE MINORITY CONTRIBUTORS........6
5.1 Existence; Power and Authority...............................6
5.2 Enforceability, etc..........................................7
5.3 Ownership....................................................7
5.4 Consents and Approvals.......................................7
5.5 Purchase for Investment......................................7
5.6 Financial Matters............................................7
5.7 Brokers, etc.................................................8
ARTICLE VI - INDEMNIFICATION...................................................8
6.1 Indemnification..............................................8
6.2 Procedure for Indemnification................................8
6.3 Time Limitations on Indemnity................................9
6.4 Limitations on Indemnity.....................................9
ARTICLE VII - GENERAL PROVISIONS; OTHER AGREEMENTS.............................9
7.1 Expenses.....................................................9
7.2. Governing Law; Jurisdiction and Forum........................9
7.3. Further Assurances...........................................9
7.5 Headings....................................................10
7.6 Notices.....................................................10
7.7 Parties in Interest.........................................10
7.8 Entire Agreement............................................10
7.9 Counterparts................................................10
7.10 Amendment...................................................10
7.11 Gender, etc.................................................10
7.12 Severability................................................10
7.13 No Waiver...................................................11
Item 4.4 Company Capitalization Schedule
Item 4.4(a) Liens on Crown Stock
Item 5.1 Jurisdiction of Organization
Item 5.4 Minority Shareholder Required Consents
Appendix I Contributors and Contributions
Appendix II Notices
ii
This CONTRIBUTION AGREEMENT, dated as of March 11, 2003, (this
"Agreement"), by and among Hallmark Entertainment Investments Co., a Delaware
corporation (the "Company"), Hallmark Entertainment Holdings, Inc., a Delaware
corporation ("HEH"), and the other parties hereto (each such other party a
"Minority Contributor," together with HEH, the "Contributors").
WHEREAS, the Parties desire to consummate the transactions contemplated
herein, pursuant to which each Contributor will contribute to the Company the
number of shares of Class A common stock, par value $.01 per share ("Crown Class
A Stock"), of Crown Media Holdings, Inc., a Delaware corporation ("Crown"), and,
if any, the number of shares of Class B common stock, par value $.01 per share
(" Crown Class B Stock"), of Crown set forth across from its name in Appendix I
in exchange for the number of shares of Class A common stock, par value $.01 per
share ("Class A Stock"), of the Company and, if any, Class B common stock, par
value $.01 per share ("Class B Stock"), of the Company set forth across from its
name in Appendix I; and
WHEREAS, for Federal income tax purposes, it is intended that the
contributions will qualify as transfers to a controlled corporation under the
provisions of Section 351 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Treasury Regulations thereunder;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the Parties agree
as follows:
ARTICLE I - DEFINITIONS
1.1 Definitions. As used herein, the following terms shall have
the following meanings:
"Actions" means all complaints, actions, suits, proceedings or
investigations.
"Adverse Consequences" means all claims, judgments, damages,
penalties, fines, costs, losses, liabilities or other monetary obligations
(including all reasonable attorney and expert fees incurred to enforce the terms
of this Agreement) net of any recovery from any third party including, without
limitation, insurance proceeds.
"Agreement" has the meaning set forth in the Preamble.
"Blue Sky Laws" has the meaning set forth in Section 4.4(a).
"Class A Stock" has the meaning set forth in the Recitals.
"Class B Stock" has the meaning set forth in the Recitals.
"Closing" has the meaning set forth in Section 2.1.
"Closing Date" has the meaning set forth in Section 2.1.
"Code" has the meaning set forth in the Recitals.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means, collectively, the Class A Stock and the
Class B Stock.
"Company" has the meaning set forth in the Preamble.
"Company Capitalization Schedule" has the meaning set forth in
Section 4.4(a).
"Company Indemnified Persons" has the meaning set forth in Section
6.1(c).
"Company Stockholders Agreement" means the Stockholders Agreement
to be entered into by and among the Company and the Contributors substantially
in the form set forth in Exhibit B.
"Consent and Waiver" means a consent and waiver pursuant to the
Crown Stockholders Agreement with respect to this Agreement and the transactions
contemplated hereunder.
"Contributor" has the meaning set forth in the Preamble.
"Contributor Indemnified Persons" has the meaning set forth in
Section 6.1(a).
"Crown" has the meaning set forth in the Recitals.
"Crown Class A Stock" has the meaning set forth in the Recitals.
"Crown Class B Stock" has the meaning set forth in the Recitals.
"Crown Stockholders Agreement" means the Second Amended and
Restated Stockholders Agreement, dated as of August 30, 2001, by and among HEH
(as transferee of the shares of Crown Class A Stock and Crown Class B Stock held
by Hallmark Entertainment, Inc.), Liberty Media Corporation, Liberty Crown,
Inc., VISN Management Corp., ▇▇ ▇▇▇▇▇▇ Partners (BHCA), L.P., DIRECTV
Enterprises, Inc. and Crown.
"Encumbrance" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge against or interest in property to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever, including the interest of a vendor, lessor or
licensor under any conditional sale, capitalized lease, exclusive license or
other title retention agreement.
"Governmental Entity" means any Federal, state or local government
or any court, administrative agency or commission or other governmental
authority or agency, domestic or foreign.
"HEH" has the meaning set forth in the Preamble.
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"Indemnified Party" has the meaning set forth in Section 6.2.
"Indemnifying Party" has the meaning set forth in Section 6.2.
"Interest" means any evidence of equity ownership of any Person,
whether represented by common stock, preferred stock, securities, options,
warrants or other rights to repurchase or acquire any equity ownership of such
Person (including convertible debentures, notes or other securities convertible
or exchangeable into or exercisable for the purchase or other acquisition of
capital stock), trust certificates, general or limited partnership interests or
any other type of capital stock or equity interest.
"Law" means any law, statute, regulation, rule, ordinance,
requirement or other binding action or requirement of any governmental,
regulatory or administrative body, agency or authority or any court of judicial
authority.
"Material Adverse Effect" means a material adverse effect on (i)
with respect to the Company or HEH, the business, results of operation or
financial condition of the Company and its Subsidiaries taken as a whole or HEH
and its Subsidiaries taken as a whole, as applicable; and (ii) with respect to
any of the Contributors, the legal ability of such Contributor to consummate the
transactions contemplated by this Agreement, other than by reason of the
inability of the other Contributors to consummate such transactions.
"Minority Contributor" has the meaning set forth in the Preamble.
"Order" means any decree, order, judgment, writ, award,
injunction, stipulation or consent of or by any governmental, regulatory or
administrative body, agency or authority or any court or judicial authority.
"Party" means any of the Company or any of the Contributors.
"Person" means any individual, corporation, general or limited
partnership, joint venture, association, limited liability company, joint stock
company, trust, business trust, bank, trust company, estate (including any
beneficiaries thereof), unincorporated entity, cooperative, association,
government branch, agency or political subdivision thereof or organization of
any kind.
"Related Documents" means the Company Stockholders Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations issued in respect thereto.
"Subsidiary" of any Person means any corporation or other entity
of which securities or other ownership interests having voting power to elect a
majority of the Board of Directors or other Persons performing similar functions
are at the time directly or indirectly owned or controlled by such Person or one
or more Subsidiaries of such Person.
"Written Notice" has the meaning set forth in Section 6.2.
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ARTICLE II - THE CLOSING
2.1 The Closing. The closing of the transactions contemplated
herein (the "Closing") shall take place at the offices of the Company, Kansas
City, Missouri, on the date of this Agreement (the "Closing Date").
2.2 Related Documents. Simultaneously, at the Closing, a Consent
and Waiver is being executed and delivered by DIRECTV Enterprises, Inc., and the
Company Stockholders Agreement is being executed and delivered by the Company,
HEH and the other signatories thereto.
ARTICLE III - THE EXCHANGES
3.1 The Exchanges. At the Closing, each of the Contributors shall
contribute to the Company the number of shares of Crown Class A Stock and, if
any, the number of shares of Crown Class B Stock set forth opposite its name on
Appendix I hereto, and the Company shall issue to such Stockholder the number of
shares of Class A Stock and, if any, Class B Stock set forth opposite its name
on Appendix I hereto.
3.2 Delivery of Share Certificates. At the Closing, each of the
Contributors will deliver to the Company share certificates or other documents,
which certificates or other documents shall be either duly endorsed in blank or
accompanied by stock powers duly executed in blank, representing its respective
shares of Crown Class A Stock and, if any, Crown Class B Stock to be contributed
to the Company pursuant to Section 3.1, and the Company will deliver to the
Contributors share certificates representing the Common Stock to be issued to
the Contributors pursuant to Section 3.1.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF HEH
HEH hereby represents and warrants as follows as of the date hereof:
4.1 Corporate Existence. Each of the Company and HEH is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware, and is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction in which the ownership or use of
any of its assets or properties, or the conduct or nature of its business, makes
such qualification necessary, except for any jurisdictions in which the failure
to be so qualified could not reasonably be expected to have a Material Adverse
Effect on HEH or the Company, respectively. The Company has all requisite power
and authority to conduct its business and own its properties as now conducted
and owned, except for such failure to have such power and authority which could
not reasonably be expected to have a Material Adverse Effect on the Company. HEH
has previously provided to each of the Contributors true and complete copies of
the Certificate of Incorporation and By-laws of the Company as in effect on the
date hereof.
4.2 Power and Authority. Each of the Company and HEH has the
requisite power and authority, and has taken all required action necessary, to
execute, deliver and perform
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this Agreement and all Related Documents to which it is a party. None of the
foregoing actions will (i) violate any provision of the By-laws, Certificate of
Incorporation or other organizational document of the Company or any of its
Subsidiaries, or HEH (ii) result in the breach of or constitute a default under
any material contract, lease, license, franchise, permit, indenture, mortgage,
deed of trust, note, agreement or other instrument to which the Company or any
of its Subsidiaries is a party or by which any of them is bound, (iii) result in
the creation or imposition of any material lien, claim or encumbrance on any
asset of the Company or any of its Subsidiaries, (iv) give any Person rights to
terminate any contracts or agreements of the Company or otherwise to exercise
rights against the Company or (v) to the knowledge of HEH, give any Person
rights to terminate any contracts or agreements of the Company's Subsidiaries or
otherwise to exercise rights against the Company's Subsidiaries or (vi) violate
any Law or Order applicable to or bearing upon the Company or any of its
Subsidiaries or their assets or businesses except, in the case of each of
clauses (ii), (iii), (iv), (v) or (vi) for such violations, breaches, defaults,
rights and impairments that could not reasonably be expected to have a Material
Adverse Effect on the Company and its Subsidiaries taken as a whole.
4.3 Enforceability, etc. Assuming the due authorization, execution
and delivery of each other party thereto, this Agreement and each of the Related
Documents have been duly executed and delivered by each of the Company and HEH,
and constitute the legal, valid and binding obligation of each of the Company
and HEH, as applicable, enforceable against them in accordance with their
respective terms, subject to (i) the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and (ii) general equitable
principles (whether considered in a proceeding in equity or at law).
4.4 Capitalization.
(a) Item 4.4 of the Disclosure Schedule sets forth, as of the
date of this Agreement and, upon completion of the exchange set forth in Section
3.1, a true and complete statement of the outstanding Interests of the Company
(the "Company Capitalization Schedule"). Except as set forth on the Company
Capitalization Schedule, the Company has not issued any Interests, nor are any
such Interests (or any rights to acquire or purchase any such Interests)
outstanding. Except for Encumbrances set forth on Item 4.4(a) of the Disclosure
Schedule, the shares of Crown Class A Stock and Crown Class B Stock owned by HEH
are owned, and will be delivered to the Company, free and clear of any
Encumbrances, preemptive rights, escrows, options, rights of first refusal or
other agreements, arrangements, commitments, understandings or obligations,
whether written or oral, or any other restrictions affecting rights and other
incidents of record and beneficial ownership, other than (i) as set forth herein
or in the Related Documents and (ii) restrictions on transferability imposed
generally under the Securities Act and under the securities laws of the several
states and the rules and regulations issued in respect thereto (such state laws,
rules and regulations being, collectively, "Blue Sky Laws").
(b) The Class A Stock and Class B Stock to be delivered to
the Contributors, when issued and delivered to the Contributors pursuant to this
Agreement against payment of the consideration set forth herein, will be duly
authorized, validly issued, fully paid and non-assessable and will be free and
clear of any Encumbrances, preemptive rights, escrows, options, rights of first
refusal or other agreements, arrangements, commitments, understandings
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or obligations, whether written or oral, or any other restrictions affecting
rights and other incidents of record and beneficial ownership, other than (i) as
set forth herein or in the Related Documents and (ii) restrictions on
transferability imposed generally under the Securities Act and under Blue Sky
Laws.
(c) The issuance and delivery of the Common Stock to the
Contributors on the terms and conditions contemplated herein are exempt from the
registration requirements of the Securities Act and the Blue Sky Laws or will be
qualified as may be necessary.
4.5 Consents and Approvals. Except as set forth on Item 4.5 of the
Disclosure Schedule, neither the execution, delivery and performance of this
Agreement or any Related Documents by the Company or HEH, nor the consummation
by the Company or HEH of any transaction related hereto or thereto, nor the
issuance or delivery of the Common Stock will require any consent, approval,
Order or authorization of, filing, registration, declaration or taking of any
other action with, or notice to, any Person, other than such consents,
approvals, filings or actions (i) under the Federal securities laws or the Blue
Sky Laws, (ii) the failure of which to take or obtain would not reasonably be
expected to have a Material Adverse Effect on the Company or HEH, as applicable
or (iii) which have already been obtained.
4.6 No Liabilities. The Company was incorporated on July 14, 1998.
The Company currently has no liabilities (contingent or otherwise). There are no
actions, suits proceedings, orders, investigations or claims pending or
threatened against the Company.
4.7 Brokers, etc. None of HEH or the Company is obligated to pay
any fee or commission to any broker, finder or other similar Person in
connection with the transaction contemplated hereby or any of the transactions
contemplated by this Agreement or the Related Documents.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE MINORITY
CONTRIBUTORS
Each Minority Contributor, severally and not jointly, represents and
warrants as to those matters pertaining to itself only (and not the other
Minority Contributors) as follows as of the date hereof:
5.1 Existence; Power and Authority. Such Minority Contributor is
duly organized, validly existing and in good standing under the laws of the
jurisdiction set forth opposite its name as set forth on Item 5.1 of the
Disclosure Schedule. Such Minority Contributor has all requisite power and
authority and has taken all required action necessary to execute and deliver and
perform this Agreement, the Related Documents and each other document or
instrument related hereto or thereto to which it is a party, and to carry out
the terms hereof and thereof. None of the foregoing actions will (i) violate any
provision of the organizational documents of such Minority Contributor, (ii)
result in the breach of or constitute a default under any material contract,
lease, license, franchise, permit, indenture, mortgage, deed of trust, note,
agreement or other instrument to which such Minority Contributor is a party or
is bound, (iii) violate any Law or Order applicable to or bearing upon such
Minority Contributor or any of their
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respective assets or business, except, in the case of (ii) and (iii), for such
conflicts, violations, breaches, rights and impairments that could not
reasonably be expected to have a Material Adverse Effect on such Minority
Contributor.
5.2 Enforceability, etc. Assuming the due authorization, execution
and delivery by each other party thereto, this Agreement and the Related
Documents have been duly executed and delivered by such Minority Contributor and
constitute the legal, valid and binding obligation of such Minority Contributor,
enforceable against it in accordance with their respective terms, subject to (i)
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and (ii) general equitable principles (whether considered in a
proceeding in equity or at law).
5.3 Ownership. The shares of Crown Class A Stock to be contributed
by such Minority Contributor to the Company are owned, and will be delivered to
the Company, free and clear of any Encumbrances, preemptive rights, escrows,
options, rights of first refusal or other agreements, arrangements, commitments,
understandings or obligations, whether written or oral, or any other
restrictions affecting rights and other incidents of record and beneficial
ownership, other than (i) as set forth herein or in the Related Documents and
(ii) restrictions on transferability imposed generally under the Securities Act
and under Blue Sky Laws.
5.4 Consents and Approvals. Except as set forth on Item 5.4 of the
Disclosure Schedule, neither the execution, delivery and performance of this
Agreement or any Related Document by such Minority Contributor, nor the
consummation by such Minority Contributor of any transaction related hereto or
thereto will require any consent, approval, Order or authorization of, filing,
registration, declaration or taking of any other action with, or notice to, any
Person, other than such consents, approvals, filings or actions (i) under the
Federal securities laws or the Blue Sky Laws, (ii) the failure of which to take
or obtain would not reasonably be expected to have a Material Adverse Effect on
such Minority Contributor or (iii) which have already been obtained.
5.5 Purchase for Investment. Such Minority Contributor, as
applicable, is acquiring the Class A Stock pursuant to Section 3.1 for its own
account for investment purposes and not as a nominee or agent for any other
Person and with no present intention of distribution thereof within the meaning
of the Securities Act. Such Minority Contributor understands that the Class A
Stock must be held indefinitely unless it is registered under the Securities Act
or an exemption from such registration becomes available.
5.6 Financial Matters. Such Minority Contributor acquiring Class A
Stock pursuant to Section 3.1 represents and understands that the acquisition of
the Class A Stock involves substantial risk and that such Minority Contributor's
financial condition and investments are such that it is in a financial position
to hold the Class A Stock for an indefinite period of time and to bear the
economic risk of, and withstand a complete loss of, such Class A Stock. Such
Minority Contributor that is acquiring Class A Stock pursuant to Section 3.1
represents that it is an "accredited investor" as that term is defined in
Regulation D promulgated under the Securities Act, and that it is a
sophisticated investor, capable of evaluating the merits and risks of investing
in the Company given its current stage of development.
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5.7 Brokers, etc. Such Minority Contributor is not obligated to
pay any fee or commission to any broker, finder or other similar Person in
connection with the transaction contemplated hereby or any of the transactions
contemplated by this Agreement or the Related Documents.
ARTICLE VI - INDEMNIFICATION
6.1 Indemnification.
(a) HEH agrees from and after the Closing to (i) indemnify
and hold harmless the Minority Contributors, all of their respective officers,
directors, affiliates, employees and agents, and each of the successors and
assigns of any of the foregoing (the "Contributor Indemnified Persons") from and
against any Adverse Consequences (but excluding any consequential damages of the
Contributor Indemnified Persons), and (ii) defend the Contributor Indemnified
Persons against any Actions, to the extent such Adverse Consequences or Actions
arise out of or result from (A) the breach or inaccuracy of any representation
or warranty of HEH or the Company contained in Article IV or the corresponding
Items of the Disclosure Schedules hereto or (B) activities of the Company prior
to the date hereof.
(b) Each of the Minority Contributors, severally and not
jointly, agrees from and after Closing to (i) indemnify and hold harmless the
Company, all of its officers, directors, affiliates, employees and agents, and
each of the successors and assigns of any of the foregoing (the "Company
Indemnified Persons") from and against, and waive any claim for contribution
against the Company with respect to, any Adverse Consequences (but excluding any
consequential damages of the Company Indemnified Persons), and (ii) defend the
Company Indemnified Persons against any Actions, to the extent such Adverse
Consequences or Actions arise out of or result from the breach or inaccuracy of
any of its representations or warranties contained in Article V or the
corresponding Items of the Disclosure Schedule hereto.
To clarify the intention of the Parties with respect to the
indemnification obligations of the Company, HEH, and the Minority Contributors
under this Section 6.1, the Parties hereto acknowledge that if the
indemnification of any Indemnified Person(s) pursuant to this Section 6.1
directly or indirectly reduces or eliminates the Adverse Consequences suffered
by any other Indemnified Person(s), the Indemnifying Party shall not be required
to indemnify such other Indemnified Person(s) to the extent that such Adverse
Consequences have been reduced or eliminated. The Contributors will have the
right to cause the Company to assert a claim for indemnification under this
Section 6.1 and will have the right to conduct and control any resulting action
against the Indemnifying Party (at such Contributor(s)' expense subject to any
indemnification obligation of the Indemnifying Party in respect thereof).
6.2 Procedure for Indemnification. If any Person shall claim
indemnification (the "Indemnified Party") hereunder for any claim other than a
third party claim, the Indemnified Party shall promptly give written notice to
the other party from whom indemnification is sought (the "Indemnifying Party")
of the nature and amount of the claim. If an Indemnified Party shall claim
indemnification hereunder arising from any claim or demand of a third party, the
Indemnified Party shall promptly give written notice (a "Written Notice") to the
Indemnifying
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Party of the basis for such claim or demand, setting forth the nature of the
claim or demand in detail. The Indemnifying Party shall have the right to
compromise or, if appropriate, defend at its own cost and through counsel of its
own choosing (reasonably acceptable to the Indemnified Party), any claim or
demand set forth in a Written Notice giving rise to such claim for
indemnification. In the event the Indemnifying Party undertakes to compromise or
defend any such claim or demand, it shall promptly (and in any event, no later
than thirty (30) days after receipt of the Written Notice) notify the
Indemnified Party in writing of its intention to do so. If the Indemnifying
Party fails to notify the Indemnified Party of its intent to undertake the
compromise or defense of such claim or demand, then the Indemnified Party may do
so at the expense of the Indemnifying Party. The parties shall fully cooperate
in the defense or compromise of any indemnified claim or demand. After the
assumption of the defense by the Indemnifying Party, the Indemnifying Party
shall not be liable for any legal or other expenses subsequently incurred by the
Indemnified Party, in connection with such defense, but the Indemnified Party
may participate in such defense at its own expense. No settlement of a third
party claim or demand defended by the Indemnifying Party shall be made without
the written consent of the Indemnified Party, such consent not to be
unreasonably withheld. The Indemnifying Party shall not, except with written
consent of the Indemnified Party, consent to the entry of a judgment or
settlement which does not include as an unconditional term thereof, the giving
by the claimant or plaintiff to the Indemnified Party of an unconditional
release from all liability in respect of such third party claim or demand.
6.3 Time Limitations on Indemnity. The representations and
warranties made herein by the Parties and the corresponding indemnifications
contained in Section 6.1 shall survive the Closing without limitation.
6.4 Limitations on Indemnity. The sole and exclusive remedies of
the Parties with respect to breaches of this Agreement shall be pursuant to this
Article VI; provided, that nothing herein shall limit the rights of any Party to
seek any relief in equity or limit in any way any Party's remedies in respect of
fraud by another party in connection herewith or the transactions contemplated
hereby.
ARTICLE VII - GENERAL PROVISIONS; OTHER AGREEMENTS
7.1 Expenses. The Company shall pay for all of its expenses
incurred in connection with the transactions contemplated by this Agreement.
Each Contributor shall bear its own expenses incurred in connection with the
transactions contemplated by this Agreement.
7.2 Governing Law; Jurisdiction; Forum. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
including, without limitation, Sections 5-1401 and 5-1402 of the New York
General Obligations Law and New York Civil Practice Laws and Rules 327(b). The
Parties agree that the appropriate and exclusive forum for any disputes between
the Parties arising out of this Agreement or the transactions contemplated
hereby will be any state or federal court in the States of New York.
7.3 Further Assurances. Each Party agrees to use its reasonable
best efforts to take, or cause to be taken, all actions, and to do, or cause to
be done, and to assist and cooperate
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with the other Parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement and the Related Documents to which
it is a Party, including the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Agreement and the Related Documents.
7.4 Headings. Article and Section headings used in this Agreement
are for convenience only and shall not affect the meaning or construction of
this Agreement.
7.5 Notices. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any Party when
delivered by hand, by messenger or by a nationally recognized overnight delivery
company, when delivered by facsimile and confirmed by return facsimile, or when
delivered by first class mail, postage prepaid and return receipt requested, in
each case to the applicable addresses set forth on Appendix II.
7.6 Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the Parties and their respective successors and permitted assigns; provided,
that, except as otherwise expressly set forth in this Agreement, neither the
rights nor the obligations of any Party may be assigned or delegated without the
prior written consent of each of the other Parties and any purported assignment
in violation hereof shall be null and void.
7.7 Entire Agreement. This Agreement, the Related Documents, and
any agreements set forth as an exhibit to this Agreement or any Related Document
constitute the entire agreement between the Parties hereto and thereto and
supersede all prior agreements, representations, warranties and understandings,
both written and oral, with respect to the subject matter hereof or thereof.
7.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
7.9 Amendment. This Agreement may be modified or amended only by
an instrument in writing signed by all of the Parties.
7.10 Gender, etc. Whenever the context may require, any pronouns
used herein shall be deemed to refer to the masculine, feminine, or neuter
forms, and the singular form of nouns, pronouns and verbs shall include the
plural, and vice versa. Whenever used herein, the terms "include," "includes"
and "including" shall mean to include without limitation.
7.11 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 prohibited
by or invalid under applicable law, such provisions 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.
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7.12 No Waiver. No failure to exercise and no delay in exercising
any right, power or privilege granted under this Agreement shall operate as a
waiver of such right, power or privilege. No single or partial exercise of any
right, power or privilege granted under this Agreement shall preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
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SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Parties hereto have duly executed this
Agreement as of the date first written above.
HALLMARK ENTERTAINMENT INVESTMENTS, CO.
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
HALLMARK ENTERTAINMENT HOLDINGS, INC.
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
LIBERTY CROWN, INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
VISN MANAGEMENT CORP.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Chair - VMC
▇▇ ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.,
By JPMP MASTER FUND MANAGER, L.P.,
its general partner
By JPMP CAPITAL CORP.,
its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO THE CONTRIBUTION AGREEMENT]
APPENDIX I
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SHARES OF CROWN COMMON STOCK SHARES OF COMMON STOCK TO BE
CONTRIBUTED RECEIVED
----------------------------------------------------------------------------------------------
CONTRIBUTOR CROWN CLASS A CROWN CLASS B CLASS A STOCK CLASS B STOCK
COMMON STOCK COMMON STOCK
----------------------------------------------------------------------------------------------
Hallmark Entertainment 39,259,480 30,670,422 39,260 30,670
Holdings, Inc.
----------------------------------------------------------------------------------------------
Liberty Crown, Inc. 9,416,746 9,417
----------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇ Partners 3,836,620 3,837
(BHCA), L.P.
----------------------------------------------------------------------------------------------
VISN Management Corp. 633,803 634
----------------------------------------------------------------------------------------------