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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)
BET HOLDINGS, INC.
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(Name of issuer)
Class A Common Stock, Par Value $.02 per share
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(Title of class of securities)
086585-10-6
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(CUSIP number)
Robert L. Johnson
Chairman of the Board and Chief Executive Officer
One BET Plaza, 1900 W Place, N.E., Washington, D.C. 20018-1211
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(Name, address and telephone number of person
authorized to receive notices and communications)
August 26, 1996
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1 (b)(3) or (4), check the following
box [_].
Check the following box if a fee is being paid with the statement [_].
(Page 1 of Pages)
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CUSIP No. 086585-10-6 Page ____ of ____Pages
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1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Robert L. Johnson
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
7,066,110
SHARES ---------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY 79,600/*/
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OWNED BY EACH 9 SOLE DISPOSITIVE POWER
7,066,110
REPORTING ---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON WITH 79,600/*/
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,145,710/*/
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN
SHARES [_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47%
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14 TYPE OF REPORTING PERSON
IN
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2
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* Includes 79,600 shares beneficially owned by Mr. Johnson's spouse, as to
which shares Mr. Johnson disclaims beneficial ownership.
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This statement amends and supplements the Statement on Schedule 13D,
as heretofore filed by Robert L. Johnson with respect to his ownership of Class
A Common Stock, par value $.02 per share (the "Class A Stock"), of BET Holdings,
Inc. (the "Company").
Item 1. Security and Issuer.
The principal executive offices of the Company are located at One BET
Plaza, 1900 W Place, N.E., Washington, D.C. 20018-1211. The class of securities
to which this statement relates is the Class A Stock of the Company.
Item 2. Identity and background
Mr. Johnson's business address is One BET Plaza, 1900 W Place, N.E.,
Washington, DC 20018-1211 and his principal occupation is Chairman of the Board
of Directors and Chief Executive Officer of the Company.
During the last five years, Mr. Johnson has not been convicted in a
criminal proceeding (excluding traffic violations and similar misdemeanors), nor
has he been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction resulting in a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
Mr. Johnson is a United States citizen.
Item 4. Purpose of Transaction
The shares of Class A Stock held by Mr. Johnson are held for
investment. Mr. Johnson may acquire, subject to any required regulatory
approvals, additional shares of the Company, or may dispose of such shares, in
the open-market, in privately negotiated transactions or otherwise depending
upon the price and availability of shares, general economic and stock market
conditions and other factors. In addition, Mr. Johnson may acquire additional
shares of Class A Stock through the exercise of his stock options.
Other than as set forth in this Schedule 13D, and excepting that Mr.
Johnson, as Chairman of the Board and Chief Executive Officer of the Company,
may from time to time explore or be presented with corporate actions or
transactions relating to the items set forth below, Mr.
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Johnson has no present plans or proposals which relate to or would result in:
(a) The acquisition by any person of additional securities of the
issuer, or the disposition of securities of the issuer;
(b) An extraordinary corporate tranasction, such as a merger,
reorganization or liquidation, involving the issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the issuer
or of any of its subsidiaries;
(d) Any change in the present board of directors or management of the
issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacanies on the board;
(e) Any material change in the present capitalization or dividend
policy of the issuer;
(f) Any other material change in the issuer's business or corporate
structure, including but not limited to, if the issuer is a registered closed-
end investment company, any plans or proposals to make any changes in its
investment policy for which a vote is required by Section 13 of the Investment
Company Act of 1940;
(g) Changes in the issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the issuer by any person;
(h) Causing a class of securities of the issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
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Item 5. Interest in Securities of the Issuer.
(a) As of August 26, 1996, Mr. Johnson beneficially owned 7,145,710
shares of Class A Stock, representing 47% of the outstanding Class A Stock, as
set forth below:
(i) Sole Voting and Dispositive Power.
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Form of Holding No. of Shares
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Class A Stock 2,165,310
Class C Stock 4,820,000
(Class C Stock is entitled to
10 votes per share and is
convertible to Class A Stock
at any time on a share-for-share
basis)
Stock Option Agreements to 80,800
Purchase Class A Stock
(ii) Shared Voting and Dispositive Power.
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Form of Holding No. of Shares
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Class A Stock 100
(Held by Spouse)
Stock Option Agreements to 79,500
Purchase Class A Stock
(Held by Spouse)
(b) Mr. Johnson has the sole power to vote and to dispose of all the
shares identified in ITEM 5(a)(i) above (subject, in the case of options, to the
exercise of such options and the issuance of the shares). Mr. Johnson has
shared power to vote and to dispose of all of the shares identified in ITEM
5(a)(ii) above with his spouse, Sheila Crump Johnson. Mr. Johnson disclaims
beneficial ownership of the shares of Class A Stock identified in ITEM 5(a)(ii)
above.
(c) Within the last sixty days, Mr. Johnson engaged in the following
open market sales transactions:
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<TABLE>
<CAPTION>
=============================================
Date No. of Price
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Shares Sold
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<S> <C> <C>
6/14/96 1,465 $27.50
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6/17/96 500 $27.00
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6/18/96 3,900 $27.375
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6/18/96 4,700 $27.25
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6/18/96 10,200 $27.125
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6/18/96 2,000 $27.00
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6/24/96 500 $27.00
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6/25/96 1,000 $28.00
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6/27/96 1,000 $26.625
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6/27/96 2,000 $26.875
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6/28/96 500 $26.50
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6/28/96 4,500 $26.125
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7/22/96 100 $26.125
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7/22/96 200 $26.875
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7/22/96 500 $26.875
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7/22/96 1,000 $26.00
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7/23/96 500 $25.375
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7/23/96 200 $25.750
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7/23/96 300 $25.50
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7/23/96 9,000 $25.00
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7/24/96 800 $24.625
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7/25/96 800 $24.750
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7/25/96 700 $24.875
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7/25/96 500 $24.625
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7/25/96 1,000 $25.25
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7/29/96 300 $25.00
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7/30/96 200 $24.875
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</TABLE>
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7/30/96 100 $25.00
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7/30/96 500 $24.875
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7/31/96 200 $24.625
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7/31/96 400 $24.25
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7/31/96 1,000 $24.50
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8/1/96 10,000 $23.925
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8/1/96 10,000 $23.50
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8/1/96 400 $24.625
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8/7/96 10,000 $23.60
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8/8/96 19,800 $24.00
=============================================
On August 26, 1996, Mr. Johnson transferred 842,105 shares of Class A
Stock to FW Strategic Partners, L.P. (the "Partnership") in exchange for limited
partnership interests in the Partnership pursuant to a Subscription Agreement
dated as of August 2, 1996 (the "Subscription Agreement").
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
On November 6, 1991, Mr. Johnson, TW/BET Holding Co. and LMC BET, Inc.
(collectively, the "Parties") entered an Agreement Among Stockholders pursuant
to which the Parties agreed that each Party (i) has the right to designate one
nominee to the Board of Directors of the Company as long as such Party holds at
least 1,500,000 shares of either the Company's Class B Common Stock or Class C
Common Stock and (ii) will vote in favor of each other such Party's designee. On
December 13, 1995, Time Warner Entertainment Company, L.P. ("Time Warner"), the
successor in interest to TW/BET Holding Co., sold 1,518,300 shares of Class B
Common Stock and 1,518,300 shares of Class A Stock to the Company, representing
a complete divestiture of all stock held by Time Warner. As a result, Time
Warner no longer has any rights
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or obligations under the Agreement Among Stockholders, although Mr. Johnson is
still bound by its terms.
Pursuant to the terms of the Subscription Agreement (a copy of which
is attached hereto), on August 26, 1996, Mr. Johnson transferred 842,105 shares
of Class A Stock to the Partnership in exchange for Partnership interests.
Item 7. Materials to be Filed as Exhibits.
(a) FW Strategic Partners, L.P. Subscription Agreement dated as of
August 2, 1996.
(b) Agreement Among Stockholders by and among Robert L. Johnson,
TW/BET Holding Co. and LMC BET, Inc. dated as of November 6, 1991.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: August 29, 1996
/s/ Robert L. Johnson
---------------------------------
Name: Robert L. Johnson
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FW Strategic Partners, L.P.
(A Delaware Limited Partnership)
SUBSCRIPTION AGREEMENT
SECTION 1
SUBSCRIPTION CONTRIBUTED SECURITIES
1.1 Subscription. Subject to the terms and conditions hereof, the
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undersigned (the "Subscriber") subscribes for and agrees to purchase a limited
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partnership interest ("Interest"), in FW Strategic Partners, L.P., a Delaware
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limited partnership (the "Partnership"), on the terms and conditions described
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herein. The Subscriber has received the Confidential Amended Preliminary
Private Placement Memorandum dated June 19, 1996 (the "Memorandum") and a draft
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of the Agreement of Limited Partnership of the Partnership (the "Partnership"
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Agreement"). Prior to the commencement of the Inspection Period (as defined in
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Section 1.2), the Partnership shall deliver to the Subscriber the Partnership
Agreement to be executed by the Subscriber and a Confidential Final Private
Placement Memorandum (the "Final Memorandum"). The Subscriber agrees to
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contribute to the capital of the Partnership the securities described on Annexes
I and II hereto (upon delivery into escrow pursuant to Section 1.3(a), the
"Contributed Securities") and the amount in cash, if any, listed on Annex
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III hereto (upon delivery into escrow pursuant to Section 1.3(a), the
"Contributed Cash") by delivery thereof to the Partnership, under the terms
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and subject to the conditions set forth herein.
The Partnership has entered into or expects to enter into separate
subscription agreements (the "Other Subscription Agreements" and, together with
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this Subscription Agreement, the "Subscription Agreements") with other
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purchasers (the "Other Purchasers"), providing for the purchase by the Other
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Purchasers of Interests in the Partnership on the First Closing Date (as defined
in Section 1.7), or such other dates determined pursuant to the last paragraph
of Section 1.7 of the Subscription Agreements. This Subscription Agreement and
the Other Subscription Agreements are separate agreements, and the purchase of
Interests by the undersigned and the Other Purchasers are to be separate
purchases.
1.2 Inspection Report. The Partnership shall deliver a report (the
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("Inspection Report") by overnight mail for next-day delivery to the Subscriber
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which shall describe the securities proposed to be contributed to the
Partnership by the Subscriber and the Other Purchasers, state the current value,
as determined by the General Partner (as defined in the Partnership Agreement),
in its sole discretion, of such securities, state the amount of cash,
<PAGE>
if any, proposed to be contributed to the Partnership by the Subscriber and the
Other Purchasers, provide the names of the Subscriber and the Other Purchasers
and identify the anticipated First Closing Date. The Inspection Report shall
also describe the expected initial non-readily marketable asset position that
will be acquired by the Partnership and the expected initial hedging position of
the Partnership and shall specify a period (the "Inspection Period") which shall
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begin on the business day immediately following the mailing of the Inspection
Report to the Subscriber and shall end ten (10) days thereafter. In the event
the Subscriber and/or the Other Purchasers withdraw, and/or the General Partner
rejects, collectively, more than twenty percent twenty percent (20%) (in the
aggregate) of the value (as specified in the Inspection Report) of the
securities and/or cash to be contributed to the Partnership pursuant to the
Subscription Agreements, the General Partner will distribute a revised
Inspection Report to the Subscriber and the Other Purchasers and extend the
Inspection Period by three (3) days. If during such extended Inspection Period
or further extended Inspection Periods pursuant to this sentence the Subscriber
and/or the Other Purchasers withdraw, and/or the General Partner rejects,
collectively, more than twenty percent (20%) (in the aggregate) of the value (as
specified in such revised Inspection Report or future revised Inspection Reports
issued pursuant to this sentence), of the securities and/or cash to be
contributed to the Partnership pursuant to the Subscription Agreements, the
General Partner will distribute a revised Inspection Report to the Subscriber
and the Other Purchasers and extend the Inspection Period by an additional three
(3) days.
1.3 Delivery of Contributed Securities and Contributed Cash and Valuation
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of Capital Contribution.
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(a) The Subscriber shall deliver the securities described on Annexes I and
II hereto and the amount in cash, if any, listed on Annex III hereto to The
Bank of New York (The "Escrow Agent") by registered mail, return receipt
------------
requested, or overnight courier no later than the date hereof along with a
Letter of Transmittal from the Subscriber to the Escrow Agent in the form of
Annex IV hereto. The Escrow Agent shall hold such securities and cash, if any,
in escrow in accordance with the terms of an Escrow Agreement, dated as of July
19, 1996, between the Partnership and the Escrow Agent (the "Escrow Agreement"),
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a copy which the Subscriber hereby acknowledges receipt. Certificates or other
instruments evidencing the securities described on Annexes I and II hereto
shall be delivered by registered mail or overnight courier to the Escrow Agent.
Subscribers who prefer to transfer their interest in their securities by
different means should contact the Partnership for details on the appropriate
procedures. The amount in cash, if any, listed on Annex III hereto shall be
paid only in United States dollars and delivered to the Escrow Agent either by
(i) a certified bank check payable to "The Bank of New York" delivered by
registered mail, return receipt requested, or overnight courier to the Escrow
Agent or (ii) a wire transfer to such account as the Partnership shall specify,
such wire transfer to include the name of the Subscriber and the Partnership in
the reference message sent with such wire transfer.
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(b) The General Partner, in its sole discretion, will determine whether
the Contributed Securities are Marketable Securities (as defined in the
Partnership Agreement) in accordance with Section 5.5(b) of the Partnership
Agreement. For purposes of determining the amount of capital contribution (the
"Capital Contribution") of the Subscriber, the market value of the Contributed
--------------------
Securities shall be determined by the General Partner at the close of business
on the day preceding the First Closing Date or, if applicable, the Delayed
Closing Date (as defined in Section 1.7) with (i) Marketable Securities valued
at the average of the trading values for such securities on that day and the
previous four (4) trading days (the "Averaging Period") in the manner set forth
----------------
in Section 5.5(b) of the Partnership Agreement and (ii) all other Contributed
Securities valued by the General Partner in the manner set forth in Section
5.5(c) of the Partnership Agreement; provided that if the same class of
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securities have been purchased by the Partnership, Keystone or their Affiliates
(as such terms are defined in the Partnership Agreement) within sixty (60) days
prior to the First Closing Date, or if applicable, the Delayed Closing Date, the
General Partner may, in its sole discretion, value such Contributed Securities
at their purchase price. Notwithstanding the calculation of the value of
Marketable Securities pursuant to clause (i) above, if such Marketable
Securities become "ex" any rights (other than the right to receive Securities
(as defined in the Partnership Agreement)) during the Averaging Period, then the
value of such right, as determined by the General Partner, in its sole
discretion, shall be deducted from the value of such Marketable Securities as
determined for all trading days in the Averaging Period preceding the day such
Marketable Securities become "ex".
1.4 Rights in Contributed Securities. Prior to the First Closing Date
--------------------------------
or, if applicable, the Delayed Closing Date, ownership of the Contributed
Securities will be held by the Escrow Agent for the separate account of the
Subscriber. During such period, the Subscriber will be entitled to exercise all
rights as owner of such Contributed Securities, including, without limitation,
voting, dividend and subscription rights and the Partnership shall issue Proper
Instructions (as defined in the Escrow Agreement)to the Escrow Agent pursuant to
instruction from the Subscriber for purposes of such rights. All rights (other
than the right to receive Securities) in the Contributed Securities which are
"ex" such rights at the close of business on the day preceding the First Closing
Date or, if applicable, the Delayed Closing Date shall be vested in the
Subscriber. All such rights which thereafter are "ex" and all rights to receive
Securities shall be vested in the Partnership upon the Subscriber's admission
thereto. For purposes hereof, Securities issued in respect of Contributed
Securities shall be considered Contributed Securities.
1.5 Rights in Contributed Cash. Prior to the First Closing Date or, if
--------------------------
applicable, the Delayed Closing Date, the Contributed Cash will be held by the
Escrow Agent for the separate account of the Subscriber. Interest, if any,
earned pursuant to the Escrow Agreement with respect to such Contributed Cash up
to and including the day preceding the First Closing Date or, if applicable, the
Delayed Closing Date will be for the account of the
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Subscriber. Interest, if any, earned thereafter shall be for the account of the
Partnership upon the Subscriber's admission thereto.
1.6 Acceptance or Rejection.
-----------------------
(a) In accordance with the procedures set forth in clause (c) below,:
(i) the Subscriber may withdraw the Contributed Securities and
Contributed Cash on any date prior to the close of the Inspection Period by
providing written notice of such withdrawal to the General Partner, which
notice shall be received by the General Partner prior to the close of
business on the last day of the Inspection Period.
(ii) the General Partner may reject, in its sole discretion and
whether or not previously accepted, the Contributed Securities and
Contributed Cash on any date up to three (3) days prior to the close of the
Inspection Period by providing written notice of such rejection to the
Subscriber, which notice shall be received by the Subscriber no later than
the close of business on the second (2nd) day prior to the close of the
Inspection Period.
(iii) the General Partner may reject, whether or not previously
accepted, the Contributed Securities and Contributed Cash at any time prior
to the closing for such Contributed Securities and Contributed Cash if the
Subscriber delivers information to the General Partner pursuant to Section
2.1(q) hereof or the General Partner otherwise ascertains that any of the
representations, warranties or covenants of the Subscriber are untrue or
incorrect.
(b) Unless the Contributed Securities and Contributed Cash are withdrawn
or rejected pursuant to clause (a)(i) or (a)(ii) above, the Subscriber shall
tender to the Partnership executed copies of the Partnership Agreement prior to
the close of business on the last day of the Inspection Period.
(c) If the Subscriber's subscription is withdrawn or rejected pursuant to
the terms hereof, the Partnership promptly thereupon shall (i) return to the
Subscriber the copies of the Partnership Agreement (if previously submitted
pursuant to clause (b) above) and any documents submitted by the Subscriber
herewith, and this Subscription Agreement shall have no further force or effect
thereafter and (ii) instruct the Escrow Agent to release the Subscriber's
Contributed Securities and Contributed Cash and distributions with respect
thereto to the Subscriber in accordance with the Escrow Agreement.
(d) If the Subscriber's subscription is accepted, the Partnership shall
notify the Subscriber of such acceptance.
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1.7 Closing. The first closing (the "First Closing") of the Partnership
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will take place at the offices of Cleary, Gottlieb, Steen & Hamilton, One
Liberty Plaza, New York at 12:00 p.m. (New York City time) on such date as the
Partnership shall designate upon not less than three (3) business days' prior
written notice to you ( the date of the First Closing being the "First Closing
-------------
Date"); provided that such First Closing Date shall be at least twenty (20) days
- ---- --------
after the mailing of the Inspection Report. By no later than the date hereof,
the Subscriber shall tender to the Partnership a United States Internal Revenue
Service Form W-9 and the organizational and governing documents of the
Subscriber (if the Subscriber is not an individual). By the First Closing Date,
the Subscriber shall tender to the Partnership any additional information
reasonably requested by the Partnership in connection with this subscription,
including, without limitation, any such information requested at least two (2)
business days' prior to the First Closing Date or, if applicable, the Delayed
Closing Date, in order to verify the truth and accuracy of the representations
contained herein.
Promptly after the First Closing Date or, if applicable, the Delayed
Closing Date, the Partnership will deliver to the Subscriber or its
representative, if the Subscriber's subscription has been accepted, the
Partnership Agreement executed by or on behalf of the General Partner and any
other documents and instruments necessary to reflect the Subscriber's admission
as a limited partner in the Partnership, including any documents and instruments
to be delivered pursuant to this Subscription Agreement. If at the First Closing
Date or, if applicable, the Delayed Closing Date, any of the conditions
specified in Section 4.1 shall not have been satisfied or waived, the Subscriber
shall, at the Subscriber's election, be relieved of all further obligations
under this Subscription Agreement. If at the First Closing Date or, if
applicable, the Delayed Closing Date, any of the conditions specified in Section
4.2 shall not have been satisfied or waived, the Partnership shall, at its
election, be relieved of all further obligations under this Subscription
Agreement.
Notwithstanding anything to the contrary herein, if the Subscriber
notifies the Partnership in writing at least ten (10) days prior to the First
Closing Date that the Subscriber is not permitted to transfer the Contributed
Securities to the Partnership on the First Closing Date under applicable
securities laws or policies of the issuer of the Contributed Securities
applicable to the Subscriber, the Subscriber agrees that such Contributed
Securities and Contributed Cash will remain in escrow pursuant to the Escrow
Agreement until Delayed Closing Date. The Subscriber shall notify the
Partnership in writing of such period of time (the "Open Window Period") during
------------------
which the Subscriber is first permitted to so transfer such Contributed
Securities to the Partnership. The General Partner shall designate a closing
(the "Delayed Closing") for such Contributed Securities and the Contributed Cash
---------------
to occur no later than five (5) trading days after the beginning of such Open
Window Period (the date of the Delayed Closing being the "Delayed Closing
---------------
Date").
- ----
1.8 Subscription Fee. The Subscriber shall elect in paragraph A to
-----------------
Schedule I hereto the Class of Book Capital Account (as such terms are defined
in the Partnership
5
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Agreement) it wishes to elect with respect to its Interest. If the Subscriber
elects Class B or Class D on Schedule I hereto, the General Partner shall not be
paid a subscription fee (the "Subscription Fee") upon the admission of the
----------------
Subscriber to the Partnership. If the Subscriber elects Class A or Class C on
Schedule I hereto, the General Partner shall be paid a Subscription Fee equal to
two percent (2%) of the value (as determined pursuant to Section 1.3(b)) of the
Subscriber's Contributed Securities and Contributed Cash accepted for
contribution. Such Subscription Fee shall be allocated as a decrease in the
Subscriber's Book Capital Account (as defined in the Partnership Agreement)
pursuant to the Partnership Agreement concurrently with the Subscriber's
admission to the Partnership. Upon the admission of the Subscriber to the
Partnership, the Partnership shall issue a number of Interests in the
Partnership equal to the value (as determined pursuant to Section 1.3(b)) of the
Subscriber's Contributed Securities and Contributed Cash accepted for
contribution divided by $1000 and rounded to the nearest 1/100th of an Interest.
The General Partner shall notify the Subscriber of the establishment of the
initial balance in the Subscriber's Book Capital Account and Tax Capital
Account. No certificates will be issued for the Interests.
SECTION 2
SUBSCRIBER REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 Certain Subscriber Representations, Warranties and
--------------------------------------------------
Covenants. The Subscriber hereby acknowledges, represents and warrants to, and
- ---------
agrees with, the Partnership, as of the date hereof and as of the First Closing
Date or, if applicable, the Delayed Closing Date, as follows:
(a) If the Subscriber is a corporation, partnership, trust,
estate or other entity, (i) it is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized, (ii) it is
empowered, authorized and qualified to subscribe hereunder, to commit capital to
the Partnership hereunder and to become a limited partner in, and, subject to
the terms and conditions of the Partnership Agreement, to make its Capital
Contributions to, the Partnership and (iii) the person signing this Subscription
Agreement and the Partnership Agreement on behalf of such entity has been duly
authorized by such entity to do so and has the power to delegate authority
pursuant to a power of attorney to be granted under the Partnership Agreement.
If the Subscriber is an individual, the Subscriber is of legal age to execute
this Subscription Agreement and the Partnership Agreement and is legally
competent to do so.
(b) The Subscriber has the full right, power and authority
to enter into this Subscription Agreement and the Partnership Agreement and to
carry out and perform its obligations hereunder and thereunder. Each of this
Subscription Agreement and the Partnership Agreement has been duly authorized
and has been or will be duly executed and delivered by or on behalf of the
Subscriber and, assuming the due authorization, execution and
6
<PAGE>
delivery of each of them by the other parties hereto and thereto, constitutes or
will constitute a valid and binding instrument or agreement of the Subscriber.
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental agency or body is
required for the consummation by the Subscriber of the transactions on its part
contemplated herein.
(d) The Subscriber is acquiring the Interest for the Subscriber's
own account as principal for investment and not with a view to the distribution
or sale thereof, subject to any requirement of law that its property at all
times be within its control.
(e) The Subscriber is an "accredited investor" within the meaning of
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Securities Act"). In particular, and without limitation:
--------------
(i) If the Subscriber is an individual, the Subscriber
either (A) has an individual net worth or joint net worth with his or
her spouse of at least $1,000,000 or (B) had an individual income of
more than $200,000 in each of the two most recent years or joint income
with his or her spouse in excess of $300,000 in each of those years and
has a reasonable expectation of reaching the same level in the current
year; and
(ii) If the Subscriber is not a natural person, either (A) it
is not formed or recapitalized for the specific purpose of acquiring an
Interest in the Partnership and has total assets in excess of $5,000,000
or (B) each of the equity owners of the Subscriber satisfies the
requirements of clause (e)(i) above.
(f) The beneficial ownership by the Subscriber of its Interests
constitutes beneficial ownership for purposes of Section 3(c)(1) of the
Investment Company Act of 1940, as amended (the "Investment Company Act") by the
----------------------
number of persons certified by the Subscriber to the Partnership in paragraph B
to Schedule I hereto and will at all times during which the Subscriber holds
Interests constitute beneficial ownership for such purposes by no more than such
number of persons.
(g) If the Subscriber is not a natural person, either (i) all the
Subscriber's outstanding securities (as such term is defined in the Investment
Company Act) are beneficially owned by the number of persons specified in clause
(f) and will be so owned by no more than such number of persons at any time
during which the Subscriber holds Interests or (ii)(A) is not formed or
recapitalized for the specific purpose of acquiring an Interest in the
Partnership and (B) the value of all securities (other than short-term paper, as
defined in the Investment Company Act) owned by such Subscriber of all issuers
which are or would, but for the exception set forth in subparagraph (A) of
Section 3(c)(1) of the Investment Company, be excluded from the definition of
"investment company" under the Investment Company Act
7
<PAGE>
solely by Section 3(c)(1) of the Investment Company Act, does not exceed 10% of
the value of the Subscriber's total assets, and will not fail to satisfy (A) or
(B) at any time during which the Subscriber holds Interests.
(h) The Subscriber agrees to deliver to the Partnership such other
information relevant to the Subscriber's purchase of Interests as is reasonably
requested by the Partnership, including, without limitation, information as to
certain matters under the Securities Act and the Investment Company Act as the
Partnership may reasonably request in order to ensure compliance with such Acts
and the availability of any exemption thereunder.
(i) The Subscriber has been given the opportunity to ask questions
of, and receive answers from, the General Partner and its personnel relating to
the Partnership, concerning the terms and conditions of this offering and other
matters pertaining to this investment, and has had access to such financial and
other information concerning the Partnership as it has considered necessary to
make a decision to invest in the Partnership and has availed itself of this
opportunity to the full extent desired.
(j) No representations or warranties have been made to the
Subscriber with respect to this investment or the Partnership other than the
representations of the Partnership set forth herein and the Subscriber has not
relied upon any representation or warranty not provided herein in making this
subscription.
(k) If the Subscriber is not a United States person (as defined
below), the Subscriber has heretofore notified the Partnership in writing of its
status as such a person. For this purpose, "United States person" means a
--------------------
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
(l) Neither the execution, delivery and performance of this
Subscription Agreement or the Partnership Agreement, the contribution of the
Contributed Securities being contributed by the Subscriber nor the consummation
of any other of the transactions herein contemplated by the Subscriber or the
fulfillment of the terms hereof or thereof by the Subscriber will result in the
creation or imposition of any security interests, rights of first refusal or to
acquire, claims, liens, pledges, equities or encumbrances (collectively,
"Encumbrances") upon any of the assets of the Subscriber pursuant to the terms
------------
of or provisions of, or conflict with, result in a breach or violation of, or
constitute a default (or an event which with the giving of notice or the lapse
of time or both would constitute a default) under the organizational documents,
charter or by-laws of the Subscriber if the Subscriber is a corporation,
partnership, trust, estate or other entity or the terms of any indenture, loan
agreement, bond, note, evidence of indebtedness, mortgage, deed of trust, lease,
license, permit, franchise, certificate or other agreement or instrument to
which the Subscriber or any
8
<PAGE>
of its subsidiaries is a party or by which they are bound or to which any of
their properties are subject, or require any authorization or approval under or
pursuant to any of the foregoing, or violate in any material respect any
statute, treaty, rule, regulation, ordinance, judgment, order, writ, ruling,
injunction or decree applicable to the Subscriber or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Subscriber or any of its subsidiaries.
(m) The Subscriber is not any entity exempt from federal income
taxation and subject to taxation on "unrelated business taxable income" under
Sections 511 and 512 of the Internal Revenue Code of 1986, as amended (the
"Code").
----
(n) If the Subscriber is a corporation, partnership, trust, estate or
other entity, neither it nor any of its subsidiaries is an "investment company"
or under the "control" of an "investment company" as such terms are defined in
the Investment Company Act, or an investment company within the meaning of
Section 368(a)(2)(F)(iii) of the Code.
(o) All information furnished to the Partnership by or on behalf of
the Subscriber, including, without limitation, as set forth in Annexes I, II and
III, is and will be true and correct in all material respects and to the
knowledge of the Subscriber such information does not and will not contain an
untrue statement of a material fact or omit any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
(p) The Subscriber agrees that each of the representations,
warranties and covenants made in this Subscription Agreement will be deemed to
be reaffirmed by the Subscriber on the First Closing Date or, if applicable, the
Delayed Closing Date.
(q) The Subscriber shall notify the Partnership immediately upon its
knowledge of any facts or circumstances that would make any of its
representations or warranties contained in this Subscription Agreement untrue or
incorrect as of the First Closing Date or, if applicable, the Delayed Closing
Date.
(r) The Subscriber shall not, and shall not cause or permit any other
person, to act in a manner that would violate any covenant of the Subscriber
contained in this Subscription Agreement.
2.2. Subscriber Representations, Warranties and Covenants with Respect
-----------------------------------------------------------------
to Contributed Securities. The Subscriber herby acknowledges, represents and
- -------------------------
warrants to, and agrees with, the Partnership, as of the date hereof and as of
the First Closing Date or, if applicable, the Delayed Closing Date, as follows:
(a) The Subscriber is the lawful owner of the Contributed Securities
free and clear of any Encumbrances and upon contribution and delivery of such
Contributed Securities
9
<PAGE>
as provided herein the Subscriber will convey good and marketable title to such
Contributed Securities, free and clear of any Encumbrances whatsoever.
(b) No stamp or other issuance or transfer taxes or duties are payable by
or on behalf of the Partnership or the General Partner in connection with the
contribution of the Contributed Securities by the Subscriber to the Partnership
in the manner contemplated herein.
(c) The Contributed Securities of the Subscriber proposed to be
contributed to the Partnership have been placed in escrow, for delivery pursuant
to the terms of this Subscription Agreement, under an Escrow Agreement with the
Escrow Agent for the Subscriber. The Subscriber agrees that the Contributed
Securities represented by the certificates so held in escrow for the Subscriber
are for the benefit of and subject to the interests hereunder of the
Partnership, that the arrangements for such escrow and delivery of such
certificates, made by the Partnership hereunder are irrevocable and not subject
to termination by any acts of the Subscriber except as expressly provided herein
or by operation of law, whether by the death, incapacity or liquidation of the
Subscriber or the occurrence of any other event. If any such death, incapacity,
liquidation or any other such event shall occur before the delivery of such
Contributed Securities hereunder, certificates for the Contributed Securities
will be delivered by the Escrow Agent in accordance with the terms and
conditions of this Subscription Agreement and the Escrow Agreement as if such
death, incapacity or other event had not occurred, regardless of whether or not
the Escrow Agent shall have received notice of such death, incapacity or other
event.
(d) None of the Contributed Securities or Contributed Cash are assets of
an employee benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), whether or not such plan is
-----
subject to ERISA, or a plan described in Section 4975(e)(1) of the Code.
(e) The Contributed Securities are not subject to any restrictions upon
their sale by the Partnership by reason of any agreement, commitment or
representation the Subscriber has made in respect thereof, or by reason of the
Subscriber being in control of, controlled by or under common control with the
issuer(s) thereof within the meaning of the Securities Act, or for any other
reason, including, without limitation any charter or by-law provision of the
issuer(s) thereof except to the extent, if any, specifically noted on Annex II
hereto.
2.3 Investor's Awareness. The Subscriber acknowledges that:
--------------------
(a) No federal or state agency has passed upon the Interests or made any
finding or determination as to the fairness of this investment. Neither the
Memorandum, the Final Memorandum nor the Partnership Agreement has been or will
be filed with the Securities and Exchange Commission or with any securities
administrator under state securities laws.
10
<PAGE>
(b) There are substantial risks incident to the purchase of Interests,
including those summarized in the Memorandum.
(c) There will be substantial restrictions on the transferability of the
Interests under the Partnership Agreement, including, without limitation, as set
forth in Section 9.1 thereof, and under applicable law; pursuant to the
Partnership Agreement, the prior written consent of the General Partner will be
required for all transfers of Interests; there will be no established market for
the Interests and no public market for the Interests will develop; the Interests
will not be, and investors in the Partnership have no rights to require that
the Interests be, registered under the Securities Act or the securities laws of
the various states and therefore cannot be resold, pledged, assigned or
otherwise disposed of unless subsequently registered or unless an exemption
from such registration is available; the Subscriber may have to hold the
Interest herein subscribed for and bear the economic risk of this investment
indefinitely and it may not be possible for the Subscriber to liquidate its
investment in the Partnership.
(d) With respect to the tax and other legal consequences of an investment
in the Interest, the Subscriber is relying solely upon the advice of its own tax
and legal advisors and not upon the general discussion of such matters set forth
in the Memorandum or Final Memorandum.
(e) Immediately prior to the Subscriber's purchase of the Interest, the
Subscriber has such knowledge and experience in financial and business matters
that the Subscriber is and will be capable of evaluating the merits and risks of
the prospective investment.
(f) The Subscriber has no need for liquidity in this investment and has
the ability to bear the economic risk of this investment and to retain its
Interest for the full term of the Partnership.
(g) The Subscriber has reviewed the Memorandum and a draft of the
Partnership Agreement, including all appendices thereto, and will review the
Final Memorandum and the Partnership Agreement, including all appendices
thereto, and understands the risks of, and other considerations relating to, a
purchase of Interests and the Partnership's investment objectives, policies and
strategies.
SECTION 3
PARTNERSHIP REPRESENTATIONS
3.1 Partnership Representations. The Partnership hereby represents to the
---------------------------
Subscriber, as of the date hereof and as of the First Closing Date or, if
applicable, the Delayed Closing Date, as follows:
11
<PAGE>
(a) The Partnership is duly organized, validly existing and in good
standing as a limited partnership under the laws of the State of Delaware, with
full power and authority to perform its obligations under this Subscription
Agreement, the Partnership Agreement and the Escrow Agreement.
(b) The Partnership is empowered, authorized and qualified to enter into
this Subscription Agreement, the Partnership Agreement and the Escrow Agreement,
and the person signing this Subscription Agreement, the Partnership Agreement
and the Escrow Agreement on behalf of the Partnership has been duly authorized
by the Partnership to do so.
(c) Each of this Subscription Agreement, the Partnership Agreement and the
Escrow Agreement has been duly authorized and has been or will be duly executed
and delivered by the Partnership and, assuming the due authorization, execution
and delivery of each of them by the other parties hereto and thereto,
constitutes or will constitute a valid and binding instrument or agreement of
the Partnership.
(d) Neither the execution, delivery and performance of this Subscription
Agreement, the Partnership Agreement and the Escrow Agreement by the Partnership
nor the consummation of any other of the transactions herein contemplated by the
Partnership or the fulfillment of the terms hereof or thereof by the Partnership
will conflict with, result in a breach or violation of, or constitute a default
(or any event which with the giving of notice or the lapse of time or both would
constitute a default) under the organizational documents of the Partnership or
the terms of any indenture, loan agreement, bond, note, evidence of
indebtedness, mortgage, deed of trust, lease, license, permit, franchise,
certificate or other agreement or instrument to which the Partnership is a
party or by which it is bound or to which any of its properties are subject, or
require any authorization or approval under or pursuant to any of the foregoing,
or violate in any material respect any statute, treaty, rule, regulation,
ordinance, judgment, order, writ, ruling, injunction or decree applicable to the
Partnership of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Partnership.
(e) Upon consummation of the First Closing, the assumptions specified in
Annex B to the opinion of Cleary, Gottlieb, Steen & Hamilton in the form of
Exhibit B will be accurate as applied to the Partnership; provided that the
--------
Partnership is relying solely on the representations of the Subscriber and the
Other Purchasers for purposes of paragraph 8 of such Annex B.
12
<PAGE>
SECTION 4
CONDITIONS TO CLOSING
4.1 Subscriber Conditions to Closing. The Subscriber's obligations
--------------------------------
hereunder are subject to the fulfillment (or waiver by the Subscriber), prior
to or at the First Closing Date, of the following conditions:
(a) Partnership Agreement. The Partnership Agreement shall have
---------------------
been authorized, executed and delivered by or on behalf of the General
Partner and all filings made as required by the laws of the State of Delaware.
(b) General Partner Capital Commitment. The General Partner shall
----------------------------------
have made a Capital Contribution which, when combined with the Capital Contri-
butions of Keystone and its other Affiliates (as such terms are defined in the
Partnership Agreement), equals at least the lesser of (i) five percent (5%) of
the aggregate Capital Contributions of all Partners as of the First Closing
Date and (ii) $50,000,000.
(c) Performance. The Partnership shall have duly performed and
-----------
complied in all material respects with all agreements and conditions contained
in this Subscription Agreement required to be performed or complied with by it
prior to or at the First Closing Date.
(d) Opinions of Partnership Counsel. The Subscriber shall have
-------------------------------
received a legal opinion, dated the First Closing Date from (i) Morris, Nichols,
Arsht & Tunnell, special Delaware counsel to the Partnership, substantially in
the form of Exhibit A, and (iii) Cleary, Gottlieb, Steen & Hamilton, counsel to
the Partnership, substantially in the form of Exhibit B.
4.2 Partnership Conditions to Closing. The Partnership's obligations
---------------------------------
hereunder are subject to the fulfillment (or waiver by the Partnership), prior
to or at the time of the First Closing or, if applicable, the Delayed Closing
Date, of the following conditions:
(a) Performance. The Subscriber shall have duly performed and
-----------
complied in all material respects with all agreements and conditions contained
in this Subscription Agreement required to be performed or complied with by
it prior to or at the First Closing or, if applicable, the Delayed Closing
Date, and all representations and warranties of the Subscriber shall be true
and correct as of such date.
(b) Opinion of Subscriber Counsel. The Partnership may request, at
-----------------------------
its sole discretion, and the Subscriber shall deliver, a legal opinion from
counsel to the Subscriber satisfactory to the Partnership.
13
<PAGE>
SECTION 5
MISCELLANEOUS
5.1 Modification. Neither this Subscription Agreement nor any
------------
provisions hereof shall be modified, changed, discharged or terminated except by
an instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought.
5.2 Revocability. Except as otherwise provided herein, this
------------
Subscription Agreement may not be withdrawn or revoked by the Subscriber in
whole or in part without the consent of the Partnership.
5.3 Notices. All notices, consents, requests, demands, offers,
-------
reports and other communications required or permitted to be given pursuant to
this Subscription Agreement shall be in writing and shall be considered properly
given and received when personally delivered to the party entitled thereto, or
when sent by facsimile or by overnight courier, or seven (7) business days after
being sent by certified United States mail, return receipt requested, in a
sealed envelope, with postage prepaid, addressed, if to the Partnership or the
General Partner, to FW Strategic Asset Management, L.P., 3100 Texas Commerce
Bank Tower, 201 Main Street, Fort Worth, Texas 76102, and, if to the
Subscriber, to the address set forth below the Subscriber's signature on the
counterpart of this Subscription Agreement which the Subscriber originally
executed and delivered to the Partnership; provided that any notice sent by
--------
facsimile shall be promptly followed by a copy of such notice sent by mail or
overnight courier in the manner described herein. The Partnership, the General
Partner or the Subscriber may change its address by giving notice to the other.
-----------
5.4 Counterparts. This Subscription Agreement may be executed in
------------
multiple counterpart copies, each of which shall be considered an original and
all of which constitute one and the same instrument binding on all the parties,
notwithstanding that all parties are not signatories to the same counterpart.
5.5 Headings. The headings of the Sections of this Subscription
--------
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Subscription Agreement.
5.6 Successors. Except as otherwise provided herein, this
----------
Subscription Agreement and all of the terms and provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective heirs,
executors, administrators, successors, trustees and legal representatives. If
the Subscriber is more than one person, the obligation of the Subscriber shall
be joint and several and the agreements, representations, warranties and
acknowledgments herein contained shall be deemed to be made by and be binding
upon each such person and such person's heirs, executors, administrators,
successors, trustees and legal representatives.
14
<PAGE>
5.7 Assignability. This Subscription Agreement is not transferable or
-------------
assignable by the Subscriber. Any purported assignment of this Subscription
Agreement shall be null and void.
5.8 Confidentiality. The Subscriber shall, and shall direct those of
---------------
its affiliates, directors, officers, employees, attorneys, accountants and
advisors (the "Representatives") who have access to Confidential Information (as
---------------
defined below) to, keep confidential and not disclose any Confidential
Information without the express consent, in the case of Confidential Information
acquired from the Partnership, of the Partnership or, in the case of
Confidential Information acquired from the General Partner or any Other
Purchaser, the General Partner or such Other Purchaser, unless (a) such
disclosure shall be required by applicable law, governmental rule or regulation,
court order, administrative or arbitral proceeding or by any bank regulatory
authority having jurisdiction over the Subscriber or (b) such disclosure is in
connection with any litigation against the Partnership, the Subscriber, any
Other Purchaser or the General Partner. Such Confidential Information may be
used by the Subscriber only in connection with Partnership matters.
"Confidential Information" shall mean any information that the Subscriber may
------------------------
acquire from the Partnership or the General Partner including, without
limitation, the information contained in the Inspection Report, and which (i) is
not already available through publicly available sources of information (other
than as a result of disclosure by the Subscriber), (ii) was not available to the
Subscriber on a non-confidential basis prior to its disclosure to the Subscriber
by the Partnership, or (iii) does not become available to the Subscriber on a
non-confidential basis from a third party, provided that such third party is not
--------
bound by this Subscription Agreement or another confidentiality agreement with
the Partnership. Such Confidential Information may include, without limitation,
information that pertains or relates to (A) the business and affairs of the
General Partner or any Other Purchaser, (B) any investments or proposed
investments of the Partnership or (C) any other Partnership matters. In the
event that the Subscriber or any Representative of the Subscriber is required to
disclose any of the Confidential Information, the Subscriber will use its best
efforts to provide the Partnership with prompt written notice so that the
Partnership may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Subscription Agreement, and the
Subscriber will use its best efforts to cooperate with the Partnership in any
effort any such person undertakes to obtain a protective order or other remedy.
In the event that such protective order or other remedy is not obtained, or that
the Partnership waives compliance with the provisions of this Section 5.8, the
Subscriber and its Representatives will furnish only that portion of the
Confidential Information which is required and will exercise their best efforts
to obtain reliable assurance that the Confidential Information will be accorded
confidential treatment. In its sole discretion, the General Partner may agree to
waive any or all of the provisions of this Section 5.8 with respect to the
Subscriber. The General Partner and the Partnership may disclose the identity of
the Subscriber only (a) in accordance with the restrictions set forth in the
foregoing sentence or (b) on a confidential basis to any Other Purchaser of
Interests. The provisions of this Section 5.8 shall survive the termination of
this Agreement and the
15
<PAGE>
formation and dissolution of the Partnership, whether or not the Subscriber's
subscription is accepted or rejected or the Subscriber is admitted to the
Partnership.
5.9 Governing Law. This Subscription Agreement and the rights and
-------------
obligations of the parties hereto shall be interpreted and enforced in
accordance with and governed by the law of the State of Delaware (without giving
effect to the conflicts of laws principles thereof) applicable to agreements
made and to be performed wholly within that jurisdiction.
5.10 Jurisdiction; Venue.
-------------------
(a) Any action or proceeding against the parties relating in any way
to this Subscription Agreement may be brought and enforced in the courts of the
State of Delaware or (to the extent subject matter jurisdiction exists therefor)
the United States District Court for the District of Delaware, and the parties
irrevocably submit to the jurisdiction of both such courts in respect of any
such action or proceeding, and each party agrees that legal process in any such
action or proceeding may be served in accordance with clause (c) hereof and the
notice procedure set forth in Section 5.3. The Subscriber agrees that any action
it may bring against the Partnership shall be brought in the State of Delaware.
(b) The parties irrevocably waive, to the fullest extent permitted by
law, any objection that they may now or hereafter have to the laying of venue of
any such action or proceeding in the courts of the State of Delaware or the
United States District Court for the District of Delaware and any claim that any
such action or proceeding brought in any such court has been brought in any
inconvenient forum.
(c) If the Subscriber is a non-United States person, it shall appoint
an authorized agent that at all times shall have an office located in the State
of Delaware upon which process may be served in any action or proceeding against
the Subscriber relating in any way to this Subscription Agreement and shall
deliver the acceptance of such appointment to the Partnership. The Subscriber
further agrees that service of process upon such authorized agent together with
written notice of said service to the Subscriber by the person serving the same
shall be deemed in every respect effective service of process upon the
Subscriber in any such action or proceeding. The Subscriber may appoint a
successor authorized agent and upon delivery to the Partnership of acceptance of
such appointment by such a successor the appointment of the prior authorized
agent shall terminate. The Subscriber further agrees to take any and all action,
including the filing of any and all documents and instruments as may be
necessary to continue such designation and appointment of such authorized agent
in full force and effect until the later of the termination of this Agreement or
such time as the Subscriber no longer holds any Interests.
5.11 Severability. To the extent that any provision of this
------------
Subscription Agreement shall be held to be invalid, illegal or unenforceable, it
shall be deemed severable.
16
<PAGE>
and the validity, legality and enforceability of the remaining provisions of
this Subscription Agreement shall not in any way be affected or impaired.
5.12 Entire Agreement. This Subscription Agreement and the
----------------
Partnership Agreement constitute the entire agreement among the parties hereto
and thereto with respect to the subject matter hereof and thereof and supersede
all other prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and thereof.
5.13 Survival of Representations, Warranties and Covenants. The
-----------------------------------------------------
representations, warranties and covenants in Sections 2.1, 2.2, 2.3 and 3.1
shall survive the formation and dissolution of the Partnership.
17
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the 24 day of August , 1996.
---- -----------
Signature of Subscriber
(if individual)
/s/ Robert L. Johnson
---------------------------------------
Signature of Subscriber
(if other than individual)
Robert L. Johnson
---------------------------------------
(Print Name of Subscriber)
By:
------------------------------------
------------------------------------
(Print Name and Title of Person
Signing on Behalf of Subscriber)
Subscriber's Name and Mailing Address
and Tax Identification Number:
Robert L. Johnson
- ----------------------------------
(Name)
One BET Plaza, 1900 W Place, N.E.
- ----------------------------------
(Street)
Washington, D.C. 20018-1211
- ----------------------------------
(City) (State) (Zip Code)
(202) 608-2171
- ------------------
(Telephone Number)
(202) 608-2504
- ------------------
(Facsimile Number)
###-##-####
- ----------------------------------------------
(Tax Identification or Social Security Number)
18
<PAGE>
Subscriber's Address for Notices
if Different from Address Above:
- -----------------------------------------
(Street)
- -----------------------------------------
(City) (State) (Zip Code)
- -----------------------
(Telephone Number)
- -----------------------
(Facsimile Number)
Status of the Subscriber (check one):
[_] General Partnership [_] Trust
[_] Limited Partnership [_] "Grantor" Trust
[_] Corporation [_] Estate
[_] S Corporation [_] Limited Liability Company
[x] Individual [_] Other (identify)
-------------------
IN WITNESS WHEREOF, the Partnership has executed this Subscription
Agreement as of the day of , 1996.
------------------------------------
FW STRATEGIC PARTNERS, L.P.
By: FW STRATEGIC ASSET
MANAGEMENT, L.P., General
Partner
By:
-------------------------------------
General Partner
------------------,
By:
------------------------------
Name:
Title:
19
<PAGE>
Subscriber's Address for Notices
if Different from Address Above:
______________________________________
(Street)
______________________________________
(City) (State) (Zip Code)
__________________
(Telephone Number)
__________________
(Facsimile Number)
Status of the Subscriber (check one):
[_] General Partnership [_] Trust
[_] Limited Partnership [_] "Grantor" Trust
[_] Corporation [_] Estate
[_] S Corporation [_] Limited Liability Company
[_] Individual [_] Other (identify)___________________
IN WITNESS WHEREOF, the Partnership has executed this Subscription
Agreement as of the 8TH day of AUGUST, 1996.
--- ------
FW STRATEGIC PARTNERS, L.P.
By: FW STRATEGIC ASSET
MANAGEMENT, L.P., General
Partner
By: STRATEGIC GENPAR INC.
-------------------------------------
_____________________ General Partner
By: /s/ Gary Reese
------------------------------
Name: Gary Reese
Title: Vice President
19
<PAGE>
AGREEMENT AMONG STOCKHOLDERS
----------------------------
THIS AGREEMENT AMONG STOCKHOLDERS (this "Agreement"), dated as of November
6, 1991, is made by and among BET Holdings, Inc. (the "Company"), Robert L.
Johnson ("Johnson"), TW/BET Holding Co. ("TW/BET"), and LMC BET, Inc. ("LMC")
(Johnson, TW/BET and LMC are sometimes referred to herein collectively as the
"Stockholders" and individually as a "Stockholder").
R E C I T A L S:
- - - - - - - -
WHEREAS, the Company's securities have been reclassified pursuant to the
Company's Restated Certificate of Incorporation and a related Plan of
Recapitalization;
WHEREAS, at the time of effectiveness of such Restated Certificate of
Incorporation and Plan of Recapitalization, each share of previously issued
$1.00 par value common stock held by the stockholders of the Company at such
time was converted into 72,300 shares of Class A Common Stock and 72,300 shares
of Class C Common Stock;
WHEREAS, the parties intend that only Robert L. Johnson shall continue to
own Class C Common Stock and each of the TW/BET and LMC shall instead own Class
B Common Stock;
WHEREAS, on November 6, 1991, Robert L. Johnson offered 375,000 shares of
Class A Common Stock, as a selling stockholder, pursuant to the Company's
initial public offering (the "Public Offering") of its Class A Common Stock;
WHEREAS, Home Box Office, Inc., a Delaware corporation, transferred its
shares of stock of the Company to Time Warner
<PAGE>
Entertainment Company, L.P., which transferred such shares to TW/BET;
WHEREAS, each share of Class C Common Stock of the Company ("Class C
Stock") is convertible into either one share of Class B Common Stock of the
Company ("Class B Stock") or one share of Class A Common Stock of the Company
("Class A Stock")(the Class A Stock, Class B Stock, and Class C Stock,
collectively, the "Company Stock");
WHEREAS each share of Class B Stock is convertible into one share of Class
A Stock; and
WHEREAS, the Stockholders and the Company believe that it is in their best
interests to enter into this Agreement in order to create and define certain
rights and obligations with respect to the Company's recapitalization, election
of director of the Company, and registration of the Class A Stock under the
Securities Act of 1933, as amended, and the rules and regulations issued under
such Act, as they each may, from time to time, be in effect (the "Securities
Act").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereby agree as follows:
1. Conversion by TW/BET and LMC of
Class C Stock to Class B Stock.
------------------------------
TW/BET and LMC hereby agree to convert each share of Class C Common Stock
issued to Home Box Office, Inc. and LMC under the Plan of Recapitalization into
an equal number of shares of Class B Common Stock without any other action on
the part of
<PAGE>
-3-
any person, effective as of the effectiveness of the Company's Restated
Certificate of Incorporation and Plan of Recapitalization. TW/BET and LMC agree
that certificates representing shares of Class C Common Stock need not be issued
in their names; instead they request that certificates representing the
appropriate number of shares of Class B Common Stock issuable upon conversion of
their Class C Common Stock be issued to them without the intermediate step of
issuing certificates representing Class C Common Stock. Each of TW/BET and LMC
agrees to deliver duly executed instruments of transfer, in form reasonably
satisfactory to the Company if requested by the Company.
2. Representation on Board of Directors.
------------------------------------
(a) Right To Nominate Director. So long as any Stockholder shall
--------------------------
continue to be the holder of record, in the aggregate, of not less than
1,500,000 shares of either Class B Stock or each such Qualified Stockholder
shall have the right to nominate one person to the Company's Board of Directors
at all times; and each of the other Stockholders covenants and agrees to be
counted for a quorum at each meeting of the Company's stockholders in which any
seat on the Company's Board of Directors is being filled (an "Election
Meeting"), and to vote any voting security held by it or any affiliate (as
defined by Rule 12b-2 of the Securities Exchange Act of 1934, as amended) so
that, at any Election Meeting, the Qualified Stockholders' nominees shall be
elected.
<PAGE>
- 4 -
(b) Notice of Election Meeting. The Company shall deliver to each
--------------------------
Qualified Stockholder written notice of the time and place of any Election
Meeting by hand, facsimile, or telex no more than 60 nor less than 30 days prior
to the Election Meeting and such notice shall request that each Qualified
Stockholder designate a nominee. Each Qualified Stockholder shall designate its
nominee by notice to the Company not later than 20 days after receipt of the
notice of the Election Meeting.
3. Registration Rights.
-------------------
(a) Demand Registration.
-------------------
(1) Each of Johnson, TW/BET and LMC may make a maximum of two
written requests to the Company for the registration of Class A Stock held by
such requesting party in accordance with the provisions of the Securities Act,
in each case with respect to at least 500,000 shares of Class A Stock ("Demand
Registration"); provided, however, that if any such request is delivered at a
-------- -------
time when (i) the Company has requested authority from its Board of Directors to
file any registration statement (other than on Form S-8 or its successor) with
the Securities and Exchange Commission (the "Commission") for a public offering
and sale of securities of the Company on behalf of the Company or any other
party (so long as such registration statement is filed with respect thereto
within three months of the party's request for a Demand Registration), or (ii)
such registration would, in the good faith determination of the directors of the
Company, adversely affect a material acquisition
<PAGE>
-5-
or merger to which the Company is or proposes to be a party, the Company may,
once with respect to each of the two requests for a Demand Registration, require
the requesting party to postpone such request, in the case of a determination to
file any registration statement, until the later of the expiration of the 90 day
period following the effective date of such registration or six months from the
day of the party's request for such Demand Registration; or, in the case of an
acquisition or merger, for an appropriate period as determined by the Company,
not in excess of 180 days. In the event that the Company elects to require such
requesting Stockholder to postpone such registration by reason of clause (i) or
(ii) in the preceding sentence, the Company will promptly so notify in writing
the requesting Stockholder under which of such clauses the Company will require
such postponement, in which event the request shall be deemed withdrawn unless
such requesting Stockholder notifies the Company in writing of its intention
that such request remains in effect, but subject nonetheless to such
postponement.
(2) Each Demand Registration for more than five percent (5%) of
the shares of Class A Stock issued and outstanding at the time of filing of such
Demand Registration shall be in connection with an underwritten offering on a
firm commitment basis, the managing underwriter or underwriters of which shall
be selected by the requesting party, be of nationally recognized standing and
shall be reasonably acceptable to the Company. A Demand Registration for a
lesser percentage of shares
<PAGE>
-6-
of Class A Stock may be in connection with a "best efforts underwriting"
provided that any such Registration Statement shall not remain effective for
more than 20 trading days.
(3) If upon any request for Demand Registration the Company shall
have filed a registration statement but prior to its becoming effective the
requesting party shall withdraw its request, and shall reimburse the Company
for its costs and expenses in connection with such filing, then although the
Company shall be deemed to have satisfied its obligation with respect to such
request, such requesting party shall be deemed not to have made one of its two
written requests pursuant to subparagraph 3(a)(1) above.
(b) Piggyback Registration.
----------------------
(1) Whenever the Company proposes to file a registration statement
with the Commission for a public offering and sale of securities of the Company
(other than a registration statement on Form S-8 or Form S-4, or their
successors or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another corporation in a
transaction subject to Rule 145 under the Securities Act), including any
proposed filing in response to a request from another stockholder (a
"Registration Statement") to register shares of Class A Stock (other than
pursuant to an agreement entered into with a person other than a Stockholder
which agreement requires the filing of such Registration
<PAGE>
- 7 -
Statement and which precludes the registration of any other shares of Class A
Stock under such Registration Statement) ("Piggyback Registration"), it will,
prior to such filing, give written notice to each other party hereto of its
intention to do so and, upon the written request of any such party given within
20 days after the Company provides such notice (which request shall state the
intended method of disposition of such Class A Stock), the Company shall
(subject to Section 3(b)(3) below) use its reasonable best efforts to cause all
Class A Stock which the Company has been requested by each such party to
register to be registered under the Securities Act to the extent necessary to
permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of each such party; provided, however,
-------- -------
that the Company shall have the right to postpone or withdraw any registration
effected pursuant to this Section 3(b)(1) without obligation to any such party.
(2) If such proposed registration of Class A Stock, or any
portion thereof, is on behalf of the Company and is to be distributed by or
through an underwriter or underwriters, who shall be chosen in the sole
discretion of the Company, with regard to the inclusion of such Class A Stock
therein each party requesting Piggyback Registration must agree (i) to sell
such Class A Stock on the same basis as provided in the underwriting arrangement
approved by the Company and (ii) to complete and execute, in a timely manner,
all questionnaires, powers of attorney, indemnities, hold-back agreements,
underwriting
<PAGE>
- 8 -
agreements and other documents required either under the terms of such
arrangement or by the Commission.
(3) If, in the written opinion of the managing underwriter
for an underwritten offering (a copy of which written opinion the Company shall
cause to be delivered to each party requesting Piggyback Registration pursuant
hereto), the registration of all, or part of, the Class A Stock which the other
parties have requested be included in such public offering would have an adverse
effect thereon, then, the Company shall be required to include in the
underwriting only that number of shares of Class A Stock, if any, which the
managing underwriter reasonably believes may be sold without causing such
adverse effect. If the number of shares to be included in the underwriting in
accordance with the foregoing is less than the number of shares which all
persons permitted by the Company or otherwise entitled to participate in the
registration have requested be included (whether pursuant to the exercise of
registration rights or otherwise) the Company shall be entitled to include all
shares which it had intended to register, after which the parties requesting
Piggyback Registration shall participate in the underwriting pro rata with the
holders of all other shares permitted by the Company, or otherwise entitled,
participate in the underwriting pursuant to registration rights or otherwise,
based upon their respective total ownership of shares of Company Stock, and if
any holder would thus be entitled to include more shares than such holder
requested to be
<PAGE>
- 9 -
registered, the excess shall be allocated among other requesting holders pro
rata based upon their respective total ownership of shares of Company Stock. If
requested by any underwriter or underwriters, each party requesting Piggyback
Registration shall agree to sell its shares of Class A Stock which are to be
included in the Piggyback Registration to or through such underwriter or
underwriters at the same price to be paid to the Company or other selling
stockholders.
(c) Right to Deny Registration. Notwithstanding the provisions
--------------------------
of Section 3(a) and Section 3(b) above, the Company shall not be required to
cause a Registration Statement to be filed pursuant thereto or to remain
effective if, within 15 days after its receipt of a request to register Class A
Stock or at any time a registration statement is effective, counsel for the
Company delivers an opinion to each requesting party, in form and substance
reasonably satisfactory to counsel to each such requesting party, respectively,
that the entire number of shares of Class A Stock proposed to be sold by it may
be sold by it pursuant to the provisions of Rule 144 of the Securities Act or
(any successor rules) within a period of not more than 90 days from the date of
such opinion (based on the number of shares of Class A Stock outstanding on the
date of such opinion and the average weekly trading volume for such Class A
Stock for the four weeks preceding the date of such opinion).
<PAGE>
- 10 -
(d) Registration Procedures. In the case of each registration
-----------------------
effected by the Company pursuant to this Agreement, the Company will use its
reasonable best efforts to:
(1) prepare and file promptly with the SEC a registration
statement with respect to the Class A Stock held by such requesting party and
use its best efforts to cause such registration statement to become effective;
(2) keep any Demand Registration or Piggyback Registration
effective for a period of 90 days or until the distribution contemplated by the
Registration Statement is completed, whichever first occurs;
(3) furnish to each party participating in such distribution
such number of copies of the Registration Statement, each amendment and
supplement thereto, the prospectus included in the Registration Statement
(including the preliminary prospectus) and such other documents as each such
party may reasonably request to facilitate disposition of the shares of Class A
Stock to be sold by it; and
(4) cause the shares of Class A Stock to be sold to be
registered or qualified under the state securities laws or "blue sky" laws of
such jurisdictions as each participating party may reasonably request and to do
any and all other acts and things which may be necessary or advisable to
<PAGE>
enable each participating party to consummate the disposition of the Class A
Stock to be sold; provided, however, that the Company shall not be required to
-------- -------
register or qualify Class A Stock in any jurisdiction where such registration or
qualification would require the Company to subject itself to taxation in such
jurisdiction or to register or require it to qualify for authority to do
business as a foreign corporation.
(e) Additional Conditions of Participation. It shall be a condition
--------------------------------------
precedent to the obligation of the Company to File a Registration statement
including shares of Class A Stock held by any other party hereto that such party
shall furnish promptly to the Company instruments in writing duly executed
containing all such information as the Company shall reasonably request for use
in connection with the preparation of the Registration Statement or the
prospectus or preliminary prospectus included therein, as well as all
undertakings which the Commission may request or the Company may reasonably
request relating to compliance with Rule 10b-6 under the Securities Exchange Act
of 1934, as amended, and the rules and regulations issued under such Act, as
they each may, from time to time, be in effect (the "Exchange Act"). In
connection with any registration of Class A Stock, if requested by the
underwriter, each participating party will agree not to sell or otherwise
transfer or dispose of any Class A Stock (except that this obligation shall not
apply to Class A Stock included in such underwritten registration) during
<PAGE>
the 30-day period prior to and the 90-day period following the consummation of
such underwritten offering.
(f) Payment of Expenses.
-------------------
(1) With regard to the registration of Class A Stock pursuant to a
Piggyback Registration or a Qualified Demand Registration (as hereinafter
defined), except as otherwise provided for in this Section 3(f) (1) and Section
3(f) (2) below, the Company shall bear all usual and customary costs and
expenses incidental to the preparation of the registration statement, including
all registration, filing and qualification fees and expenses necessary with
regard to the Securities Act, all fees and expenses of counsel to the Company,
all fees and expenses of the Company's independent auditors, all fees and
expenses of underwriters and all printing costs and all fees and expenses
incidental to complying with state securities or "blue sky" laws; provided,
--------
however, that each participating party shall bear all fees and expenses of
- -------
counsel retained by such party, all fees and expenses of underwriters that are
customarily paid by selling stockholders, such as all selling expenses and
underwriter commissions attributable to the shares offered by such party, and
all fees and expenses of any special experts retained by such party in
connection with the requested registration. The term "Qualified Demand
Registration" shall mean a Demand Registration of Class A Stock that can be
effected through the use of a Form S-3 registration statement or its successor.
<PAGE>
(2) With regard to the registration of Class A Stock pursuant to a Demand
Registration that is not a Qualified Demand Registration (including, without
limitation, any such Demand Registration that is, with respect to any other
party hereto, a Piggyback Registration), except as otherwise provided for in
this Section 3(f)(2) below, the Company shall bear usual and customary costs and
expenses incidental to the preparation of the registration statement, including
registration, filing and qualification fees and expenses necessary with regard
to the Securities Act, fees and expenses of counsel to the Company, fees and
expenses of the Company's independent auditors, fees and expenses of
underwriters and printing costs and fees and expenses incidental to complying
with state securities or "blue sky" laws; provided, however, that the amount of
-------- -------
such costs and expenses to be paid by the Company shall not exceed $40,000 (or,
if more than one Stockholder participates, $80,000); provided, further, that
-------- -------
each participating party shall bear all fees and expenses of counsel retained by
such party, all fees and expenses of underwriters that are customarily paid by
selling stockholders, such as all selling expenses and underwriter commissions
attributable to the shares offered by such party, all fees and expenses of any
special experts retained by such party in connection with the requested
registration, and, a percentage, calculated by dividing the number of shares
registered by such participating party by the aggregate number of shares
registered, of the costs and expenses in excess of $40,000 (or, if more than one
Stockholder participates, $80,000).
<PAGE>
(g) Indemnification.
---------------
(1) Indemnification by the Company. In the event of any
------------------------------
registration of any of the Class A Stock under the Securities Act pursuant to
this Agreement, the Company will indemnify and hold harmless each participating
party, its directors, officers, employees and each person who controls each
participating party (within the meaning of Section 15 of the Securities Act)
against any and all losses, claims, damages or liabilities, joint or several, to
which any of such participating parties, directors, officers, employees and
controlling persons may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement under which such shares of Class A Stock were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made; provided, however, that the Company will not be liable in any such
-------- -------
case to: (i) a participating party or any of its officers, directors, employees
or persons controlling such party to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
omission
<PAGE>
made in such Registration Statement, preliminary prospectus or prospectus, or
any such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company by or on behalf of such party or (ii) a
participating party or any of its officers, directors, employees or persons
controlling such party to the extent that any such loss, claim, damage or
liability arises out of or is based upon such party's failure to send or give a
copy of the final prospectus, as the same may be then supplemental or amended,
to the person asserting an untrue statement or omission at or prior to the
written confirmation of the sale of the Class A Stock to such person if such
statement or omission was corrected in such final prospectus and if the party
failing to deliver such prospectus had a duty, under the Securities Act or
otherwise, to do so.
(2) Indemnification by Johnson, TW/BET and LMC. In the event of
------------------------------------------
any registration of any of the Class A Stock under the Securities Act pursuant
to this Agreement, each participating party (other than the Company) will, to
the extent permitted by law, indemnify and hold harmless the Company, each of
its directors, officers and employees, each underwriter and each person, if any,
who controls the Company (within the meaning of Section 15 of the Securities
Act) against any and all losses, claims, damages or liabilities, joint or
several to which the Company or any of such directors, officers, employees
underwriters and controlling persons may become subject under the Securities
Act, Exchange Act or otherwise, insofar as such
<PAGE>
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement under which such shares
of Class A Stock were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made, if the statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of such party specifically for use in
connection with the preparation of such Registration Statement, prospectus,
amendment or supplement.
(3) Indemnification Procedure. Each party entitled to indemnity
-------------------------
under this Section 3(g) (an "Indemnified Party") shall, within 30 days after
the receipt of notice of the commencement of any action against such party
in respect of which indemnity may be sought from any other party to this
Agreement (an "Indemnifying Party") on account of an indemnity agreement
contained in this Section 3(g), notify the Indemnifying Party in writing of
the commencement of such action. The failure of any Indemnified Party to so
notify an Indemnifying Party shall relieve the Indemnifying Party from any
liability with respect to
<PAGE>
such action that it may have to such Indemnified Party on account of the
indemnity agreement contained in this Section 3(g), unless such Indemnified
Party can establish that the Indemnifying Party has not been prejudiced in its
ability to defend such action or settle such action by such failure. The
Indemnifying Party will be entitled to participate in any action with respect to
which indemnity is being sought to the extent it may wish, jointly with any
other Indemnifying Party similarly notified. Without limiting the generality of
the foregoing, the Indemnifying Party shall be entitled to assume the defense in
any action with respect to which indemnity is being sought with counsel
reasonably satisfactory to the Indemnified Party by giving to the Indemnified
Party notice of its election to assume the defense thereof and acknowledgement
in writing that the claim in question is one for which the Indemnifying Party is
obligated to indemnify the Indemnified Party. Thereafter, the Indemnifying Party
will not be liable to such Indemnified Party for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof; provided, however, that if the Indemnified Party has a reasonable basis
-------- -------
to believe, and does believe, that its interests in such action conflict with
those of the Indemnifying Party or any other Indemnifying Party, the Indemnified
Party may so notify the Indemnifying Party and the Indemnifying Party will
remain liable to the Indemnified Party for all reasonable legal or other
expenses incurred by the Indemnified Party in connection with defense of such
action. Whether of not the Indemnifying Party assumes defense of an
<PAGE>
action, it shall have no obligation to the Indemnified Party with respect to any
settlement effected without the Indemnifying Party's consent, which shall not be
unreasonably withheld and which may be given without an admission by the
Indemnifying Party of its obligation to indemnify any party seeking
indemnification.
4. Miscellaneous.
-------------
(a) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors,
permitted assigns, heirs, personal representatives and executors; provided,
--------
however, that, except for assignments or transfers to affiliates, as that term
- -------
is defined by Rule 12b-2 of the Securities Exchange Act of 1934, as amended,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto without the prior written consent
of the other parties. This Agreement may not be modified or amended except in a
writing signed by all of the parties hereto.
(b) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be an original and all of which together shall
constitute a single instrument.
(c) No Waiver. No course of dealing nor any delay in exercising any
---------
right or remedy hereunder shall constitute a waiver of any such right or remedy
or any other right or remedy hereunder.
<PAGE>
(d) Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing and shall be deemed to have been duly
given when delivered in person or when deposited in the United States mail,
registered or certified mail, return receipt requested, postage prepaid and
addressed as follows:
If to the Company:
BET Holdings, Inc.
1232 31st Street, N.W.
Washington, D.C. 20007
Attn: President
If to TW/BET:
TW/BET Holding Co.
c/o Home Box Office, Inc.
1100 Avenue of the Americas, 8th Floor
New York, NY 10036
Attn: President
With a separately delivered copy to:
Home Box Office, Inc.
1100 Avenue of the Americas
New York, NY 10036
Attn: General Counsel
If to LMC:
LMC BET, Inc.
8101 E. Prentice Ave. Suite 5
Englewood, CO 80111
Attn: President
If to Johnson
Robert L. Johnson
BET Holdings, Inc.
1232 31st Street, N.W.
Washington, D.C. 20007
(e) Entire Agreement. This Agreement contains the entire agreement
----------------
of the parties hereto with respect to the
<PAGE>
subject matter hereof and supersedes all prior agreements, understandings and
statements with respect to such matters, whether oral or written.
(f) Choice of Law. This Agreement shall be construed and
-------------
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of Delaware.
(g) Headings. The descriptive headings of the several
--------
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
(h) Third Parties. Except as specifically set forth or
-------------
referred to herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give any person, other than the parties hereto and
their successors or permitted assigns, any rights or remedies under or by reason
of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
BET Holdings, Inc.
Date: By:
------------------- ----------------------------------------
STOCKHOLDERS:
Date:
------------------- ---------------------------------------------
Robert L. Johnson
TW/BET Holding Co.
Date: By:
------------------- ----------------------------------------
LMC BET, Inc.
Date: 12-17-93 By: /s/ John Draper
------------------- ----------------------------------------
V.P.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
BET Holdings, Inc.
Date: 12/17/93 By: /s/ Robert L. Johnson
------------------------ ----------------------------
STOCKHOLDERS:
Date: 12/17/93 /s/ Robert L. Johnson
------------------------ ---------------------------------
Robert L. Johnson
TW/BET Holding Co.
By TW Service Holding I, L.P.
Its General Partner
Date: 12/17/93 /s/ Diane Moss
------------------------ ---------------------------------
LMC BET, Inc.
Date: By:
------------------------ ----------------------------
