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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest
event reported): June 11, 1997
INTERNATIONAL FAMILY ENTERTAINMENT, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 001-11121 541522360
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(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
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2877 Guardian Lane, Virginia Beach, Virginia 23452
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, inc. area code: (757) 459-6422
ITEM 5. OTHER EVENTS.
On June 11, 1997, International Family Entertainment, Inc. (the
"Company") entered into an Agreement and Plan of Merger (the "Merger Agreement")
with Fox Kids Worldwide, Inc., a Delaware Corporation ("FKWW"), and Fox Kids
Merger Corporation, a Delaware corporation and a wholly-owned subsidiary of FKWW
("FKW Sub"), providing for the merger (the "Merger") of FKW Sub into the
Company, as the surviving corporation, pursuant to which each share of Common
Stock (as defined below) of the Company issued and outstanding immediately prior
to the effective time of the Merger (other than shares owned by FKWW, FKW Sub or
the Company, or any of their respective subsidiaries, or by stockholders who
have validly perfected their appraisal rights under the Delaware General
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Corporation Law) will be converted into the right to receive a cash payment
equal to $35 per share, without interest, subject to adjustment as provided in
the Merger Agreement. A copy of the Merger Agreement is attached hereto as
Exhibit 1.1 and incorporated herein by reference. The Robertson Sellers (as
defined below), The Christian Broadcasting Network, Inc., a Virginia corporation
("CBN"), and Regent University, a Virginia corporation ("Regent"), who
collectively hold a majority of the outstanding voting power of the Company's
Common Stock, approved the Merger by written consent delivered to the Company on
June 11, 1997 following the execution of the Merger Agreement.
Concurrently with the execution of the Merger Agreement,
(i) (a) M.G. "Pat" Robertson ("Pat Robertson"), individually and as
trustee of each of the Robertson Remainder Unitrust, the Gordon P. Robertson
Irrevocable Trust, the Elizabeth F. Robinson Irrevocable Trust and the Ann R.
Lablanc Irrevocable Trust; Lisa N. Robertson and Timothy B. Robertson, as joint
tenants; and Timothy B. Robertson ("Tim Robertson"), individually, as trustee of
each of the Timothy and Lisa Robertson Children's Trust and the Timothy B.
Robertson Charitable Trust and as custodian for his children (collectively, the
"Robertson Sellers"), (b) CBN and (c) Regent have each entered into a Stock
Purchase Agreement (collectively, the "Stock Purchase Agreements") with FKWW
providing for the sale to FKWW of an aggregate of 15,587,427 shares of Class B
common stock, par value $0.01 per share (the "Class B Stock")(including
5,000,000 shares of Class B Stock issuable upon conversion of all of the
Company's outstanding Class A common stock, par value $0.01 per share (the
"Class A Stock"), held by certain of the Robertson Sellers and 1,250,000 shares
of Class B Stock issuable upon the exercise of options held by Pat Robertson and
Tim Robertson) for $35 per share in cash, subject to adjustment in the same
manner as the Merger Consideration; and
(ii) Liberty IFE, Inc. ("LIFE"), a Colorado corporation and a wholly
owned subsidiary of Liberty Media Corporation, a Delaware corporation, which
holds 7,088,732 shares of Class C non-voting Common Stock, par value $0.01 per
share, of the Company (the "Class C Stock" and, together with the Class A Stock
and Class B Stock, the "Common Stock") and $23,000,000 aggregate principal
amount of 6% Convertible Secured Notes due 2004 of the Company (the "Convertible
Notes"), convertible into 2,587,500 shares of Class C Stock, has entered into a
Contribution and Exchange Agreement (the "Contribution Agreement") with FKWW
pursuant to which LIFE has agreed to contribute such shares of Class C Stock and
Convertible Notes to FKWW in exchange for shares of a new series of preferred
stock of FKWW, in a transaction intended to constitute a tax free exchange. The
FKWW preferred stock will be exchangeable at the holder's option, upon the
happening of certain events, into shares of a new series of preferred stock of
News Publishing Australia Limited ("NPAL"), the primary U.S. holding company for
The News Corporation Limited, a corporation organized and existing under the
laws of South Australia ("News Corp."). Each series of preferred stock will have
a liquidation preference of $35.00 per share or share equivalent of Class C
Stock, subject to adjustment in the same manner as the Merger Consideration,
plus $6.33 million representing interest income foregone on the Convertible
Notes and partial compensation for certain tax consequences, and shall be
entitled to receive cumulative dividends at a rate of 8.5% per annum of the
liquidation price, payable quarterly, increasing to 11% if any quarterly
dividend is not declared and paid in full when due.
News Corp., which indirectly holds 49.9 percent of the voting rights of
FKWW and has the right to designate 50% of its board of directors, has entered
into guarantees for the benefit of the Company, the Robertson Sellers, CBN and
Regent guaranteeing the performance of FKWW's and FKW Sub's obligations under
the Merger Agreement and respective Stock Purchase Agreements, and, together
with NPAL, has entered into a Funding Agreement with LIFE supporting the
obligations of FKWW and NPAL under the preferred stock issuable to LIFE. A copy
of the Guaranty, dated as of June 11, 1997,
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of FKWW's and FKWW Sub's obligations under the Merger Agreement is attached
hereto as Exhibit 1.2 and incorporated herein by reference.
Consummation of the Merger and the closings under each of the Stock
Purchase Agreements and the Contribution Agreement are subject to the
satisfaction of certain conditions, including expiration or termination of all
applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the "HSR Act"). Although the purchase by FKWW of Common Stock held
by the Robertson Sellers, CBN and Regent, pursuant to the Stock Purchase
Agreements, and the contribution by LIFE to FKWW of Class C Stock and
Convertible Notes, pursuant to the Contribution and Exchange Agreement, are
expected to occur prior to the Merger, consummation of the Merger is not
conditioned upon the consummation of these transactions. In any event, the
Merger will not be consummated until the expiration of twenty days from the date
a definitive information statement pursuant to Section 14(c) of the Securities
Exchange Act of 1934, as amended, is first sent or given to the Company's
stockholders.
In connection with the execution of the Stock Purchase Agreements and
the Merger Agreement,
(i) all parties to that certain Amended and Restated Shareholder
Agreement dated as of September 1, 1995 (the "Shareholder Agreement"),
previously filed as Exhibit 2(c) to the Company's Current Report on Form 8-K
dated December 15, 1995, including the Company, have executed an agreement (the
"Termination to Shareholder Agreement"), a copy of which is attached hereto as
Exhibit 2.1 and incorporated herein by reference, terminating the Shareholder
Agreement upon the terms and conditions set forth therein;
(ii) the Company and CBN have entered into an amendment (the "Amendment
No. 1 to Program Time Agreement"), a copy of which is attached hereto as Exhibit
3.1 and incorporated herein by reference, clarifying and amending that certain
Program Time Agreement dated as of January 5, 1990, previously filed with the
Company's Registration Statement (No. 33-45967) on Form S-1 under the Securities
Act of 1933, as amended; and
(iii) the Company and Satellite Services, Inc. ("SSI") have entered
into a letter agreement (the Amended Affiliation Agreement"), amending that
certain Affiliation Agreement dated as of December 28, 1989, previously filed
with the Company's Registration Statement (No. 33-45967) on Form S-1 under the
Securities Act of 1933, as amended.
A Press Release announcing the actions described above was issued by
the Company on June 11, 1997 and is attached hereto as Exhibit 5.1 and
incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibits:
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1.1 Agreement and Plan of Merger, dated as of June 11, 1997, by
and among the Company, FKWW and FKW Sub.
1.2 Guaranty, dated as of June 11, 1997, by News Corp. in favor of
the Company.
2.1 Termination to Shareholder Agreement, dated as of June 11,
1997, by and among the Company, the Robertson Sellers, CBN and
LIFE.
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3.1 Amendment No. 1 to Program Time Amendment, dated as of June
11, 1997, between the Company and CBN.
4.1 Amended Affiliation Agreement, dated June 11, 1997, between
the Company and SSI. (Confidential treatment has been
requested with respect to the filing of such exhibit pursuant
to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended, and, in accordance therewith, such exhibit has been
filed separately with the Commission.)
5.1 Press Release, dated June 11, 1997, issued by the Company
(attached as Exhibit B to the Agreement and Plan of Merger
found in Exhibit 1.1 hereto).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Company has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
INTERNATIONAL FAMILY ENTERTAINMENT, INC.
Dated: June 20, 1997 By: /s/ David R. Humphrey
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EXHIBIT INDEX
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1.1 Agreement and Plan of Merger, dated as of June 11, 1997, by
and among International Family Entertainment, Inc. (the
"Company"), Fox Kids Worldwide, Inc. and Fox Kids Merger
Corporation.
1.2 Guaranty, dated as of June 11, 1997, by the News Corporation
Limited in favor of the Company.
2.1 Termination to Shareholder Agreement, dated as of June 11,
1997, by and among the Company, M.G. "Pat" Robertson,
individually and as trustee of the Robertson Remainder
Unitrust, u/t/a dated January 22, 1990, Timothy B. Robertson,
individually and as trustee of the Timothy and Lisa Robertson
Children's Trust, u/t/a dated September 18, 1995, Liberty IFE,
Inc. and The Christian Broadcasting Network, Inc. ("CBN").
3.1 Amendment No. 1 to Program Time Amendment, dated as of June
11, 1997, between the Company and CBN.
4.1 Amended Affiliation Agreement, dated June 11, 1997, between
the Company and Satellite Services, Inc. (Confidential
treatment has been requested with respect to the filing of
such exhibit pursuant to Rule 24b-2 of the Securities Exchange
Act of 1934, as amended, and, in accordance therewith, such
exhibit has been filed separately with the Commission.)
5.1 Press Release, dated June 11, 1997, issued by the Company
(attached as Exhibit B to the Agreement and Plan of Merger
found in Exhibit 1.1 hereto).
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of June 11,
1997, is by and among FOX KIDS WORLDWIDE, INC., a Delaware corporation ("FKWW"),
FOX KIDS MERGER CORPORATION, a Delaware corporation and wholly-owned subsidiary
of FKWW ("FKW Sub"), and INTERNATIONAL FAMILY ENTERTAINMENT, INC., a Delaware
corporation (the "Company").
RECITALS
WHEREAS, it is the intention of the parties that FKW Sub merge with and
into the Company, upon the terms and subject to the conditions set forth herein
(the "Merger"), with the Company surviving as a wholly owned subsidiary of FKWW;
WHEREAS,
(a) M.G. "Pat" Robertson, individually and as trustee of each of the
Robertson Charitable Remainder Unitrust, u/t/a dated January 22,
1990 (the "PR Charitable Trust"), the Gordon P. Robertson
Irrevocable Trust, u/t/a dated December 18, 1996, the Elizabeth F.
Robinson Irrevocable Trust, u/t/a dated December 18, 1996, and the
Ann R. Lablanc Irrevocable Trust, u/t/a dated December 18, 1996 (the
Gordon P. Robertson Irrevocable Trust, the Elizabeth F. Robinson
Irrevocable Trust and the Ann R. Lablanc Irrevocable Trust,
together, the "Irrevocable Trusts"), Lisa N. Robertson and Timothy
B. Robertson ("Tim Robertson") as joint tenants, and Tim Robertson,
individually, as trustee of each of the Timothy and Lisa Robertson
Children's Trust, u/t/a dated September 18, 1995 (the "TR Family
Trust") and the Timothy B. Robertson Charitable Trust, u/t/a dated
December 30, 1996 (the "TR Charitable Trust"), and as custodian to
and for each of Abigail H. Robertson, Laura N. Robertson, Elizabeth
C. Robertson, Willis H. Robertson and Caroline S. Robertson under
the Virginia Uniform Transfers to Minors Act (Pat Robertson, the PR
Charitable Trust, the Irrevocable Trusts, Lisa N. Robertson, Tim
Robertson, the TR Family Trust and the TR Charitable Trust being
sometimes collectively referred to herein as the "Robertson
Sellers"), have agreed to sell to FKWW, all of the outstanding
shares of Class A Common Stock, par value $0.01 per share, of the
Company (the "Class A Stock"), in the form of Class B Common Stock,
par value $0.01 per share, of the Company (the "Class B Stock")
issuable upon conversion thereof, and the shares of Class B Stock
owned by them or issuable to them upon exercise of outstanding stock
options, pursuant to that certain Stock Purchase Agreement, dated of
even date herewith, by and among
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FKWW, on the one hand, and each of the Robertson Sellers, on the
other hand (as amended from time to time in accordance with its
terms, the "Robertson Purchase Agreement");
(b) The Christian Broadcasting Network, Inc., a Virginia corporation
("CBN"), has agreed to sell to FKWW, all of the Class B Stock owned
by it, pursuant to the terms of that certain Stock Purchase
Agreement, dated of even date herewith, by and between FKWW and CBN
(as amended from time to time in accordance with its terms, the "CBN
Purchase Agreement");
(c) Regent University, a Virginia corporation ("Regent"), has agreed to
sell to FKWW all of the Class B Stock owned by it, pursuant to the
terms of that certain Stock Purchase Agreement, dated of even date
herewith, by and between FKWW and Regent (as amended from time to
time in accordance with its terms, the "Regent Purchase Agreement,"
and, collectively with the Robertson Purchase Agreement and the CBN
Purchase Agreement, the "Stock Purchase Agreements");
(d) Liberty IFE, Inc., a Colorado corporation ("LIFE"), has agreed to
contribute to FKWW all of the shares of Class C Common Stock, par
value $0.01 per share, of the Company (the "Class C Stock," and
together with the Class A Stock and the Class B Stock, the "Company
Stock"), and $23 million principal amount of 6% Convertible Secured
Notes due 2004 of the Company (the "Convertible Notes"), in exchange
for shares of Series A Preferred Stock, par value $0.01 per share,
of FKWW pursuant to that certain Contribution and Exchange
Agreement, dated of even date herewith, by and among LIFE, Liberty
Media Corporation, a Delaware corporation, and FKWW (as amended from
time to time in accordance with its terms, the "Contribution
Agreement," and together with the Stock Purchase Agreements, the
"Other Transaction Agreements"); and
WHEREAS, the respective Boards of Directors of FKWW, FKW Sub and the
Company have each unanimously approved the Merger, in accordance with the
General Corporation Law of the State of Delaware (the "DGCL"), and the Board of
Directors of the Company has recommended the Merger to the Company's
stockholders;
WHEREAS, this Agreement and the Merger shall be approved by the
stockholders of the Company for purposes of the DGCL at such time as the Company
is in receipt of written consents approving this Agreement and the Merger
executed by the holders of that number of shares of Class A Stock and Class B
Stock (voting as a single class) representing the right to cast a majority of
the votes entitled to be cast at a meeting to consider the Agreement and the
Merger;
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WHEREAS, immediately following execution of this Agreement by the Company
and concurrently with the execution of this Agreement by FKWW and FKW Sub, the
Robertson Sellers, CBN and Regent (which holders hold of record a number of
shares of Class A Stock and Class B Stock representing a majority of the votes
entitled to be cast at a meeting to consider the Agreement and the Merger) are
delivering their written consent (the "Consent") approving this Agreement and
the Merger (a copy of which is being provided to FKWW and FKW Sub), which
consent constitutes the only action necessary by stockholders of the Company
required in order to authorize this Agreement and the Merger under the Company's
Amended and Restated Certificate of Incorporation and the DGCL; and
WHEREAS, The News Corporation Limited ("Guarantor") has guaranteed the
obligations of FKWW and FKW Sub under each of this Agreement and the Stock
Purchase Agreements by separate Guaranty Agreements (the Guaranty Agreement
delivered in connection with this Agreement, being referred to herein as the
"Guaranty") delivered to the Company, the Robertson Sellers, CBN and Regent.
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties and covenants herein contained, and for other good
and valuable consideration the receipt and adequacy of which is hereby
acknowledged, FKWW, FKW Sub and the Company hereby agree as set forth below. An
index of defined terms used throughout this Agreement appears at Section 9.16
hereof.
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions of this
Agreement, at the Effective Time (as defined in Section 1.3 hereof), in
accordance with this Agreement and the DGCL, FKW Sub shall be merged with and
into the Company, the separate existence of FKW Sub shall cease, and the Company
shall continue as the surviving corporation (the "Surviving Corporation"). The
Company and FKW Sub are sometimes referred to herein as the "Constituent
Corporations."
1.2 Effect of the Merger. The Merger shall have the effects set
forth in the DGCL. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all of the properties, rights, privileges,
powers and franchises of the Company and FKW Sub shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and FKW Sub
shall become the debts, liabilities and duties of the Surviving Corporation.
1.3 Consummation of the Merger. On the later of (i) two business
days after the satisfaction or waiver of the conditions set forth in Article VII
hereof or (ii) the 20th calendar day after the Information Statement is first
sent or given to the Company's stockholders, the parties hereto shall cause the
Merger to be consummated by filing with the Secretary of State of the State of
Delaware a certificate of merger in such form as required by, and executed in
accordance with, the relevant provisions of the DGCL and take all such further
actions as may be required by law to make the Merger effective (the "Merger
Filing"). The
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Merger shall become effective at the time of day on the date that the
certificate of merger is filed with the Secretary of State of the State of
Delaware or such later time as may be mutually agreed to by the parties hereto
and specified in the Merger Filing (the "Effective Time").
1.4 Certificate of Incorporation and Bylaws. The Amended and
Restated Certificate of Incorporation of the Company in effect immediately prior
to the Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation. The By-Laws of FKW Sub in effect immediately prior to the Effective
Time shall be the By-Laws of the Surviving Corporation.
1.5 Directors and Officers. The directors of the Company immediately
prior to the Effective Time shall be the initial directors of the Surviving
Corporation, and the officers of the Company immediately prior to the Effective
Time shall be the initial officers of the Surviving Corporation, in each case
until their successors are duly elected and qualified.
1.6 Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of FKW Sub, the Company, the
Surviving Corporation or the holder of any outstanding share of the Class A
Stock, Class B Stock or Class C Stock (each, a "Share" and collectively, the
"Shares"):
(a) Each Share which is issued and outstanding immediately
prior to the Effective Time (other than Shares held by FKWW, FKW Sub or the
Company or by any Subsidiary of FKWW, FKW Sub or the Company) shall be canceled
and extinguished and be converted into and become a right to receive (i) in the
case of all such Shares other than Dissenting Shares, a cash payment equal to
$35.00 per Share (subject to adjustment as provided for in Section 1.6(d)
below), without interest (the "Merger Consideration"), and (ii) in the case of
Dissenting Shares, the consideration set forth in Section 1.7 hereof;
(b) Each Share which is issued and outstanding immediately
prior to the Effective Time and held by FKWW, FKW Sub, or the Company or by any
Subsidiary of FKWW, FKW Sub, or the Company shall be canceled and extinguished
and no consideration shall be paid therefor;
(c) Each share of capital stock of FKW Sub, par value $0.001
per share, outstanding immediately prior to the Effective Time shall be
converted into and become one share of Class B Common Stock, par value $0.001
per share, of the Surviving Corporation; and
(d) The Merger Consideration shall be increased to an amount
which equals (if greater than the Merger Consideration provided for herein) the
per share amount actually paid, directly or indirectly, by FKWW or any of its
Affiliates, with respect to the purchase of, or agreement to purchase, Company
Stock, or securities convertible into Company Stock, which purchase is effected
or agreement is entered into after the date hereof and through the Effective
Time (x) from (i) any of the Robertson Sellers, (ii) LIFE, (iii) CBN, (iv)
Regent, (v) any holder or "group" (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act) that owns, or has the right to dispose of, or to direct the
disposition of, 2-1/2% or more of any class
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of common stock of the Company, (vi) any of the Affiliates of the entities
referred to in clauses (i), (ii), (iii), (iv) or (v) above, or (y) in any
transaction, or series of related or unrelated transactions (excluding for
purposes of this clause (y), any transaction referred to in clauses (x)(i),
(ii), (iii), (iv) and (vi)), after the date hereof and through the Effective
Time, involving, in the aggregate, 5% or more of the outstanding shares of any
class of common stock of the Company. For these purposes, it is acknowledged and
agreed that (x) the $3.5 million to be paid to LIFE under the Contribution
Agreement with respect to forfeited interest income on the Convertible Notes,
and (y) amounts to be paid with respect to any "tax gross up" with respect to
the Exchange Rights under the Contribution Agreement, shall not constitute an
amount paid, directly or indirectly, with respect to the purchase of Company
Stock. Further, the Merger Consideration shall not be adjusted as a result of
the provisions of the preceding sentence with respect to any purchase effected
under any of the Contribution Agreement, the Robertson Purchase Agreement, CBN
Purchase Agreement or the Regent Purchase Agreement unless the applicable
agreement has been amended after the date hereof so as to increase the
consideration to be paid by FKWW or any of its Affiliates, directly or
indirectly, with respect to the Company Stock or securities convertible into
Company Stock. FKWW shall promptly provide notice to the Company of any
agreement or amendment to an existing agreement entered into by FKWW or any of
its Affiliates with a Robertson Seller, CBN or Regent, or any amendment to an
Other Transaction Agreement to which LIFE or any of its Affiliates is a party,
from and after the date hereof and through the Effective Time.
1.7 Dissenting Shares.
(a) Notwithstanding anything in this Agreement to the
contrary, Shares which are issued and outstanding immediately prior to the
Effective Time and which are held by stockholders who have not voted such Shares
in favor of the Merger or consented thereto in writing, who shall have delivered
a written demand for appraisal of such Shares in the manner provided in the DGCL
and who, as of the Effective Time, shall not have effectively withdrawn or lost
such right to appraisal ("Dissenting Shares") shall not be converted into or
represent a right to receive the Merger Consideration pursuant to Section 1.6
hereof, but the holders thereof shall be entitled only to such rights as are
granted by Section 262 of the DGCL. Each holder of Dissenting Shares who becomes
entitled to payment for such Shares pursuant to Section 262 of the DGCL shall
receive payment therefor from the Surviving Corporation in accordance with the
DGCL; provided, however, that (i) if any such holder of Dissenting Shares shall
have failed to establish his entitlement to appraisal rights as provided in
Section 262 of the DGCL, or (ii) if any such holder of Dissenting Shares shall
have effectively withdrawn his demand for appraisal of such Shares or lost his
right to appraisal and payment of his Shares under Section 262 of the DGCL, or
(iii) if neither any holder of Dissenting Shares nor the Surviving Corporation
shall have filed a petition demanding a determination of the value of all
Dissenting Shares within the time provided in Section 262 of the DGCL, such
holder or holders (as the case may be) shall forfeit the right to appraisal of
such Shares, and each such Share shall thereupon be deemed to have been
converted, as of the Effective Time, into and represent the right to receive
payment from the Surviving Corporation of the Merger Consideration, without
interest thereon, as provided in Section 1.6 hereof.
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(b) Prior to the Effective Time, the Company shall give FKW
Sub (i) prompt notice of any written demands for appraisal, withdrawals of
demands for appraisal and any petitions served pursuant to Section 262 of the
DGCL received by the Company, and (ii) the opportunity to direct all
negotiations and proceedings with respect to demands for appraisal under Section
262 of the DGCL. The Company shall not, except with the prior written consent of
FKW Sub, voluntarily make any payment with respect to any demands for appraisal
or offers to settle or settle any such demands.
1.8 Stock Options and Other Plans.
(a) Prior to the Effective Time, the Board of Directors of the
Company (or, if appropriate, any committee thereof) shall adopt appropriate
resolutions and use its reasonable good faith efforts to take all other actions
necessary to provide for the cancellation, effective at the Effective Time,
subject to the payment provided for in the next sentence being made, of all the
outstanding stock options, warrants or rights to purchase Shares heretofore
granted (collectively, the "Options") under any outstanding stock option plan or
pursuant to any outstanding warrant agreement or any other outstanding plan,
program or arrangement of the Company providing for the issuance or grant of any
other interest in respect of the capital stock of the Company or any Subsidiary
of the Company (collectively, the "Stock Plans") such that, immediately prior to
the Effective Time, (i) each Option, whether or not then vested or exercisable,
shall no longer be exercisable for the purchase of Shares, but shall entitle
each holder thereof, in cancellation and settlement therefor, to payments in
cash (subject to any applicable withholding taxes, the "Cash Payment"), at the
Effective Time, equal to the product of (x) the total number of Shares subject
to such Option, whether or not then vested or exercisable, and (y) the excess of
the Merger Consideration over the exercise price per Share subject to such
Option, each such Cash Payment to be paid to each holder of an outstanding
Option at the Effective Time; provided, however, that with respect to any Person
subject to Section 16 of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (the "Exchange Act"), any such amount shall
be paid, without interest, as soon as practicable after the first date payment
can be made without liability to such Person under Section 16(b) of the Exchange
Act, and (ii) each Share previously issued in the form of grants of restricted
stock or grants of contingent shares shall fully vest in accordance with their
respective terms. Any then outstanding stock appreciation rights or limited
stock appreciation rights shall be canceled immediately prior to the Effective
Time without any payment therefor. The Company will use its reasonable good
faith efforts to ensure that, at the Effective Time, neither the Company nor any
of its Subsidiaries is or will be bound by any Options or Stock Plans which
would entitle any Person to acquire or hold any capital stock of the Surviving
Corporation or any of its Subsidiaries or to receive any payment in respect
thereof other than as set forth in this Agreement or the MTM Stock Plan,
providing for the issuance to employees of MTM Entertainment, Inc., a Delaware
corporation ("MTM"), a wholly owned Subsidiary of the Company, of shares of
common stock of MTM, all as, and other than as, disclosed in the Company
Disclosure Letter, including using its reasonable good faith efforts to obtain
all necessary consents and releases to ensure that after the Effective Time, the
only rights of the holders of Options will be to receive the Cash Payment in
cancellation and settlement thereof. Notwithstanding any other provision of this
Section 1.8 to the contrary, the Cash Payment may be withheld with respect to
any Option until necessary consents and releases are obtained.
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(b) All provisions in any Stock Plan providing for the future
issuance or grant of any capital stock of the Company or any interest in respect
of any capital stock of the Company shall terminate or be amended as of the
Effective Time to provide no continuing rights to acquire or be issued or
granted any capital stock or any interest in any capital stock (including, but
not limited to Options) of the Company or the Surviving Corporation (other than
in respect of capital stock or interests in capital stock (including, but not
limited to, Options) granted prior to the Effective Time, which are governed by
the provisions of Section 1.8(a) above).
1.9 Exchange of Certificates.
(a) From and after the Effective Time, a bank or trust company
to be designated by FKW Sub and reasonably acceptable to the Company (the
"Exchange Agent") shall act as exchange agent in effecting the exchange of the
Merger Consideration for certificates representing Shares entitled to payment
pursuant to Section 1.6 (the "Certificates"). At or prior to the Effective Time,
FKW Sub shall deposit with the Exchange Agent the amount necessary to enable the
Exchange Agent to exchange the Merger Consideration for Certificates received by
the Exchange Agent.
(b) Promptly after the Effective Time, the Exchange Agent
shall mail to each record holder of Certificates a letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates to the
Exchange Agent) and instructions for use in surrendering Certificates and
receiving the Merger Consideration therefor. Upon the surrender of each
Certificate, together with such letter of transmittal duly executed and
completed in accordance with the instructions thereto, the holder of such
Certificate shall be entitled to receive in exchange therefor an amount equal to
the Merger Consideration multiplied by the number of Shares represented by such
Certificate, and such Certificate shall be canceled. Until so surrendered and
exchanged, each such Certificate shall represent solely the right to receive an
amount equal to the Merger Consideration multiplied by the number of Shares
represented by such Certificate. No interest shall be paid or accrue on the
Merger Consideration payable upon the surrender of the Certificates. If any
Merger Consideration is to be paid to a Person other than the Person in whose
name the Certificate surrendered in exchange therefor is registered, such
Certificate shall be accompanied by all documents required to evidence and
effect such transfer, and it shall be a condition to such exchange that the
Person requesting such exchange shall pay to the Exchange Agent any transfer or
other taxes required by reason of the payment of such Merger Consideration to a
Person other than the registered holder of the Certificate surrendered, or such
Person shall establish to the satisfaction of the Exchange Agent that such tax
has been paid or is not applicable. Notwithstanding the foregoing, neither the
Exchange Agent nor any party hereto shall be liable to a holder of Shares for
any Merger Consideration delivered to a public official pursuant to applicable
abandoned property, escheat and similar laws.
(c) Promptly following the date which is 180 days after the
Effective Time, the Exchange Agent's duties shall terminate, and any funds
deposited with the Exchange Agent that remain unclaimed by holders of
Certificates shall be paid to the Surviving Corporation upon demand. Thereafter,
each holder of a Certificate may surrender such
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Certificate to the Surviving Corporation along with the applicable letter of
transmittal and (subject to applicable abandoned property, escheat and similar
laws) receive in exchange therefor an amount equal to the Merger Consideration
multiplied by the number of Shares represented by such Certificate, without any
interest thereon, but shall have no greater rights against the Surviving
Corporation than may be accorded to general creditors of the Surviving
Corporation.
(d) After the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of any Shares. If, after
the Effective Time, Certificates are presented to the Surviving Corporation or
the Exchange Agent, they shall be canceled and exchanged for the applicable
Merger Consideration, as provided in this Article I, subject to applicable law
in the case of Dissenting Shares.
1.10 Taking of Necessary Action: Further Action. If, at any time
after the Effective Time, any reasonable and lawful further action is necessary
or desirable to carry out the purposes of this Agreement and to vest the
Surviving Corporation with full right, title and possession to all assets,
property, rights, privileges, powers and franchises of either of the Constituent
Corporations, the officers and directors of such corporations are fully
authorized in the name of their corporation or otherwise to take, and shall
take, all such lawful and necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF FKWW
As an inducement to the Company to enter into this Agreement, FKWW
hereby makes the following representations and warranties:
2.1 Organization. Etc. of FKWW. FKWW is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own and operate
its properties and assets and to carry on its business as now conducted. FKWW is
duly qualified and in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the businesses conducted by it
makes such qualification necessary and where the failure to be so qualified
would be reasonably expected to have a material adverse effect on the business,
results of operations or financial condition of FKWW and its Subsidiaries taken
as a whole. FKWW has obtained from appropriate governmental regulatory
authorities, domestic or foreign (each a "Governmental Entity") all approvals,
permits and licenses necessary for the conduct of its business and operations as
currently conducted, which approvals, permits and licenses are valid and in full
force and effect, except where the failure to have obtained such approvals,
permits or licenses or the failure of such approvals, permits or licenses to be
valid and in full force and effect would not be reasonably expected to have a
material adverse effect on the business, results of operations or financial
condition of FKWW and its Subsidiaries taken as a whole. Other than FKW Sub,
FKWW has no Subsidiaries. As used in this Agreement, "Subsidiary" of a specified
Person means (i) any corporation of which equity securities possessing a
majority of the ordinary voting power in electing the board of directors are, at
the time as of which such determination is being made, owned or controlled by
such specified Person either directly or indirectly or in
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<PAGE> 9
combination with one or more Subsidiaries of such specified Person, or (ii) any
Person (other than a corporation) in which such specified Person either directly
or indirectly through or in combination with one or more Subsidiaries, at the
time as of which such determination is being made, (x) is a general partner, or
(y) owns or controls more than a 50% ownership interest and has the right to
elect a majority of the members of the governing authority of such specified
Person.
2.2 Organization. Etc. of the Guarantor. The Guarantor is a
corporation organized and existing under the laws of South Australia, Australia,
with adequate corporate power and authority to own its properties and carry on
its business as presently conducted. The Guarantor has the corporate power and
authority to enter into, execute and deliver the Guaranty and to guarantee the
obligations of FKWW hereunder pursuant to such Guaranty.
2.3 Authorization. This Agreement and the consummation of the
transactions contemplated hereby have been unanimously approved by the Board of
Directors of FKWW and have been duly authorized by all other necessary corporate
action on the part of FKWW. This Agreement has been duly executed and delivered
by a duly authorized officer of FKWW and (assuming the same to be valid and
binding obligations of the other parties hereto) constitutes the valid and
binding agreement of FKWW, enforceable against FKWW in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application which
may affect the enforcement of creditors' rights generally and by general
equitable principles. FKWW has delivered to the Company true and correct copies
of resolutions adopted by the Board of Directors of FKWW approving this
Agreement.
2.4 Execution. Delivery and Performance by the Guarantor. The
execution, delivery and performance of the Guaranty and the consummation of the
transactions contemplated thereby have been duly authorized by the Board of
Directors of the Guarantor, and the Guarantor has taken all other actions
required by law and its organizational documents in order to consummate the
transactions contemplated by the Guaranty. The Guaranty constitutes the valid
and binding obligations of the Guarantor and is enforceable in accordance with
its terms, except as enforceability may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally.
2.5 No Consents. The execution and delivery of this Agreement by
FKWW or by the Guarantor of the Guaranty, do not, and the performance of FKWW's
obligations under this Agreement and the Guarantor of its obligations under the
Guaranty, and the consummation of the transactions contemplated hereby or
thereby by FKWW and the Guarantor, respectively, will not require any consent,
approval, authorization or permit of, or filing with or notification to any
Governmental Entity, except (i) for (A) applicable requirements of the Exchange
Act, the Securities Act of 1933, as amended and the rules and regulations
thereunder (the "Securities Act"), and state securities or "blue sky" laws or
state anti-takeover laws ("Blue Sky Laws"), (B) the pre-merger notification
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended and the rules and regulations thereunder (the "HSR Act"), and (C) the
Merger Filing, and (ii) where the failure to obtain such consents, approvals,
authorizations or
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<PAGE> 10
permits, or to make such filings or notifications, (x) would not, individually
or in the aggregate, reasonably be expected to prevent consummation of the
Merger, or otherwise prevent FKWW or the Guarantor from performing their
respective obligations under this Agreement or the Guaranty in any material
respect, and (y) would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, results of
operations or financial condition of FKWW and its Subsidiaries taken as a whole.
2.6 Brokers and Finders. FKWW has not employed any investment
banker, broker, finder, consultant or intermediary in connection with the
transactions contemplated by this Agreement which would be entitled to any
investment banking, brokerage, finder's or similar fee or commission payable
after the date hereof in connection with this Agreement or the Merger.
2.7 Compliance with Other Instruments. Etc. As of the date hereof,
FKWW is not in violation of any term of (a) its charter, by-laws or other
organizational documents, (b) any material agreement or instrument including any
such related to Indebtedness, (c) any applicable law, ordinance, rule or
regulation of any Governmental Entity, or (d) any applicable order, judgement or
decree of any court, arbitrator or Governmental Entity, the consequences of
which violation, whether individually or in the aggregate, would be reasonably
expected to have a material adverse effect on (i) the business, results of
operations or financial condition of FKWW or (ii) the ability of FKWW to perform
its obligations under this Agreement. The execution, delivery and performance of
this Agreement by FKWW will not result in any violation of or conflict with,
constitute a default under, or require any consent under any term of the
charter, bylaws or other organizational document of FKWW or any such agreement,
instrument, law, ordinance, rule, regulation, order, judgement or decree or
result in the creation of (or impose any obligation on FKWW to create) any Lien
upon any of the properties or assets of FKWW pursuant to any such term, except
where such violation, conflict or default, or the failure to obtain such
consent, individually or in the aggregate, would not be reasonably expected to
have a material adverse effect on (i) the business, results of operations or
financial condition of FKWW and its Subsidiaries taken as a whole or (ii) the
ability of FKWW to perform its obligations under this Agreement. For purposes of
this Agreement, "Lien" means any mortgage, pledge, lien, security interest or
other encumbrance of any kind or nature.
2.8 Litigation. As of the date hereof, there are no actions, suits,
investigations or proceedings (adjudicatory or rulemaking) pending or, to the
knowledge of FKWW, threatened against FKWW or any of its respective properties
in any court or before any arbitrator of any kind or before or by any
Governmental Entity, except actions, suits, investigations or proceedings which,
in the aggregate, would not be reasonably expected to have a material adverse
effect on the ability of FKWW to perform its obligations under this Agreement.
2.9 Information True and Correct. None of the information supplied
or to be supplied by FKWW for inclusion in the Information Statement will, at
the date the definitive Information Statement is first sent or given to the
stockholders of the Company, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. No representation is made by FKWW with respect to
any
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information supplied by the Company or any of its Affiliates for inclusion in
the Information Statement.
2.10 Transaction Agreements. This Agreement, the Other Transaction
Agreements and the other agreements listed in the recitals above, are the only
agreements existing as of the date hereof between FKWW, on the one hand, and the
respective counterparties to such agreements and any Affiliates of such parties,
on the other hand, with respect to the acquisition of Class A Stock, Class B
Stock, Class C Stock or Convertible Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FKW SUB
As an inducement to the Company to enter into this Agreement, FKW
Sub hereby makes the following representations and warranties:
3.1 Organization. Etc. FKW Sub is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to own and operate its
properties and assets and to carry on its business as now conducted. FKW Sub is
duly qualified and in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the businesses conducted by it
makes such qualification necessary and where the failure to be so qualified
would be reasonably expected to have a material adverse effect on the business,
results of operations or financial condition of FKW Sub and its Subsidiaries
taken as a whole. FKW Sub has obtained from the appropriate Government Entities
all approvals, permits and licenses necessary for the conduct of its business
and operations as currently conducted, which approvals, permits and licenses are
valid and in full force and effect, except where the failure to have obtained
such approvals, permits or licenses or the failure of such approvals, permits or
licenses to be valid and in full force and effect would not be reasonably
expected to have a material adverse effect on the business, results of
operations or financial condition of FKW Sub and its Subsidiaries taken as a
whole. At the date of this Agreement, FKW Sub has no Subsidiaries.
3.2 Authorization. This Agreement and the consummation of the
transactions contemplated hereby have been unanimously approved by the Board of
Directors of FKW Sub and have been duly authorized by all other necessary
corporate action on the part of FKW Sub. This Agreement has been duly executed
and delivered by a duly authorized officer of FKW Sub and (assuming the same to
be valid and binding obligations of the other parties hereto) constitutes the
valid and binding agreement of FKW Sub, enforceable against FKW Sub in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application which may affect the enforcement of creditors' rights generally and
by general equitable principles.
3.3 No Consents. The execution and delivery of this Agreement by FKW
Sub do not, and the performance of its obligations under this Agreement and the
consummation of the transactions contemplated hereby by FKW Sub will not,
require any consent, approval, authorization or permit of, or filing with or
notification to any Governmental Entity, except (i)
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<PAGE> 12
for (A) applicable requirements of the Exchange Act, the Securities Act, and the
Blue Sky Laws, (B) the pre-merger notification requirements of the HSR Act, and
(C) the Merger Filing, and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
(x) would not, individually or in the aggregate, be reasonably expected to
prevent consummation of the Merger, or otherwise prevent FKW Sub from performing
its obligations under this Agreement in any material respect, and (y) would not,
individually or in the aggregate, be reasonably expected to have a material
adverse effect on the business, results of operations or financial conditions of
FKWW and its Subsidiaries taken as a whole.
3.4 Brokers and Finders. FKW Sub has not employed any investment
banker, broker, finder, consultant or intermediary in connection with the
transactions contemplated by this Agreement which would be entitled to any
investment banking, brokerage, finder's or similar fee or commission payable
after the date hereof in connection with the Merger.
3.5 Compliance with Other Instruments, Etc. As of the date hereof,
FKW Sub is not in violation of any term of (a) its charter, by-laws or other
organizational documents, (b) any material agreement or instrument including any
such related to Indebtedness, (c) any applicable law, ordinance, rule or
regulation of any Governmental Entity, or (d) any applicable order,judgement or
decree of any court, arbitrator or Governmental Entity, the consequences of
which violation, whether individually or in the aggregate, would be reasonably
expected to have a material adverse effect on (i) the business, results of
operations or financial condition of FKWW and its Subsidiaries taken as whole,
or (ii) the ability of FKW Sub to perform its obligations under this Agreement.
The execution, delivery and performance of this Agreement by FKW Sub will not
result in any violation of or conflict with, constitute a default under, or
require any consent under any term of the charter, bylaws or other
organizational document of FKW Sub or any such agreement, instrument, law,
ordinance, rule, regulation, order, judgement or decree or result in the
creation of (or impose any obligation on FKW Sub to create) any Lien upon any of
the properties or assets of FKW Sub pursuant to any such term, except where such
violation, conflict or default, or the failure to obtain such consent,
individually or in the aggregate, would not be reasonably expected to have a
material adverse effect on (i) the business, results of operations or financial
condition of FKWW and its Subsidiaries taken as a whole, or (ii) the ability of
FKW Sub to perform its obligations under this Agreement.
3.6 Litigation. As of the date hereof, there are no actions, suits,
investigations or proceedings (adjudicatory or rulemaking) pending or, to the
knowledge of FKW Sub, threatened against FKW Sub or any of its respective
properties in any court or before any arbitrator of any kind or before or by any
Governmental Entity, except actions, suits, investigations or proceedings which,
in the aggregate, would not be reasonably expected to have a material adverse
effect on the ability of FKW Sub to perform its obligations under this
Agreement.
3.7 Information True and Correct. None of the information supplied
or to be supplied by FKW Sub for inclusion in the Information Statement will, at
the date the definitive Information Statement is first sent or given to the
stockholders of the Company, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein
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<PAGE> 13
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. No representation is
made by FKW Sub with respect to any information supplied by the Company or any
of its Affiliates for inclusion in the Information Statement.
3.8 Fraudulent Transfer Laws. Assuming the Company is not Insolvent
immediately prior to the Effective Time, and further assuming the
representations and warranties of the Company contained in this Agreement are
true and accurate in all material respects immediately prior to the Effective
Time, the Surviving Corporation will not be Insolvent immediately after the
Effective Time (taking into account changes in assets and liabilities of the
Surviving Corporation as a result of the Merger). For purposes hereof, an entity
will be deemed to be Insolvent if (i) such entity's financial condition is such
that either the sum of its debts is greater than the fair value of its assets or
the fair saleable value of its assets is less than the amount required to pay
its probable liability on existing debts as they mature, (ii) such entity has
unreasonably small capital with which to engage in its business or (iii) such
entity has incurred liabilities beyond its ability to pay as they become due.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an inducement to FKWW and FKW Sub to enter into this Agreement,
the Company hereby makes the following representations and warranties. Whether
or not specifically referred to therein, such representations and warranties
contain exceptions set forth in a written disclosure letter (the "Company
Disclosure Letter") delivered to FKWW and FKW Sub concurrently with the
execution hereof, which is numbered to correspond to the various sections of
this Agreement and which also sets forth certain other information called for by
this Agreement.
4.1 Organization. Etc., of the Company. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own and
operate its properties and assets and to carry on its business as now conducted.
The Company is duly qualified and in good standing in each jurisdiction in which
the property owned, leased or operated by it or the nature of the businesses
conducted by it makes such qualification necessary and where the failure to be
so qualified would be reasonably expected to have a material adverse effect on
the business, results of operations or financial condition of the Company and
its Subsidiaries taken as a whole. As of the date hereof, the Company has
obtained from the appropriate Government Entities all approvals, permits and
licenses necessary for the conduct of its business and operations as currently
conducted, which approvals, permits and licenses are, as of the date hereof,
valid and in full force and effect, except where the failure to have obtained
such approvals, permits or licenses or the failure of such approvals, permits or
licenses to be valid and in full force and effect would not be reasonably
expected to have a material adverse effect on the business, results of
operations or financial condition of the Company and its Subsidiaries taken as a
whole.
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4.2 Operations of Subsidiaries. Each Subsidiary of the Company (a)
is a corporation or other legal entity duly organized, validly existing and (if
applicable) in good standing under the laws of the jurisdiction of its
organization and has the requisite corporate or other organizational power and
authority to own its properties and assets and conduct its business and
operations as currently conducted, except where the failure to be duly
organized, validly existing and in good standing would not be reasonably
expected to have a material adverse effect on the business, results of
operations or financial condition of the Company and its Subsidiaries taken as a
whole, (b) is duly qualified and in good standing in each jurisdiction in which
the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except where the failure to
be so qualified or in good standing would not reasonably be expected to have a
material adverse effect on the business, results of operations or financial
condition of the Company and its Subsidiaries taken as a whole, and (c) has, as
of the date hereof, obtained from the appropriate Government Entities all
approvals, permits and licenses necessary for the conduct of its business and
operations, as currently conducted, which approvals, permits and licenses are,
as of the date hereof, valid and remain in full force and effect, except where
the failure to have obtained such approvals, permits and licenses or the failure
of such approvals, permits or licenses to be valid and in full force and effect
would not be reasonably expected to have a material adverse effect on the
business, results of operations or financial condition of the Company and its
Subsidiaries taken as a whole. The Company Disclosure Letter sets forth a true
and correct list of each Subsidiary of the Company as of the date hereof. All of
the outstanding capital stock of each such Subsidiary is owned entirely by the
Company or by a Subsidiary of the Company, as the case may be, as of the date
hereof, free and clear of all Liens and Restrictions, except for such
restrictions on transfer as are imposed by state and federal securities laws and
except for Liens and Restriction as will not reasonably be expected to have a
material adverse effect on the business, results of operations or financial
condition of the Company and its Subsidiaries taken as a whole. For purposes of
this Agreement, "Restriction," means, when used with respect to any specified
security, any shareholders or other trust agreement, option, warrant, escrow,
proxy, buy-sell agreement, power of attorney or other contract, agreement or
arrangement which (i) grants to any Person the right to purchase or otherwise
acquire, or obligates any Person to sell or otherwise dispose of, such specified
security or any interest therein, or (ii) restricts the transfer of, or the
exercise of any rights or the enjoyment of any benefits arising by reason of,
the ownership of such specified security. All such shares of capital stock have
been duly authorized and validly issued and are fully paid and nonassessable.
There are no agreements, understandings or undertakings governing the rights and
duties of the Company or any Subsidiary of the Company as a stockholder of any
Subsidiary (other than a Subsidiary wholly owned by the Company or by a direct
or indirect wholly owned Subsidiary of the Company) under which the Company or
any Subsidiary is or may become obligated, directly or indirectly, to acquire or
dispose of any equity interest in, make any capital contribution or extend
credit to, or act as guarantor, surety or indemnitor for any liability of any
Subsidiary (other than a Subsidiary wholly owned by the Company or by a direct
or indirect wholly owned Subsidiary of the Company). Other than Subsidiaries of
the Company, the Company has no interest in any corporation, joint venture,
limited liability company, limited liability partnership, or other business
enterprise of any nature, other than investments in marketable securities
acquired in the ordinary course of business.
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4.3 Authorization. This Agreement and the consummation of the
transactions contemplated hereby have been approved by the Board of Directors of
the Company and upon execution of the Consent, this Agreement and the Merger
shall have been duly authorized by all other necessary corporate action on the
part of the Company, including any required stockholder action. This Agreement,
upon execution and delivery thereof, will be duly executed and delivered by a
duly authorized officer of the Company and (assuming the same to be valid and
binding obligations of the other parties hereto) this Agreement constitutes the
valid and binding Agreement of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application which may affect the enforcement of creditors' rights generally and
by general equitable principles. The Company has delivered to FKWW and FKW Sub
true and correct copies of resolutions adopted by the Board of Directors.
4.4 Fairness Opinion: Approval by Board of Directors. On or prior to
the date hereof, the Board of Directors of the Company (i) approved the terms of
this Agreement and the Merger, (ii) determined that the Merger is fair to and in
the best interests of the holders of the Shares (other than FKWW, FKW Sub, the
Company, and their respective Affiliates), and (iii) has recommended this
Agreement and the Merger to the Company's stockholders. The Board of Directors
of the Company has received an oral opinion, as of the date hereof, of (x) Bear,
Stearns & Co. Inc. to the effect that the consideration to be received by the
holders of the Shares (other than FKWW, FKW Sub, the Company, and their
respective Affiliates) pursuant to this Agreement is fair to such holders from a
financial point of view, and (y) Goldman Sachs & Co. to the effect that the
consideration to be received by the holders of the Shares (other than FKWW, FKW
Sub, the Company and their respective Affiliates) pursuant to this Agreement is
fair to such holders. At the date hereof, such opinions (which, when confirmed
in writing, will be provided to FKWW and FKW Sub) have not been withdrawn,
revoked or modified. It is agreed and understood that such opinions are for the
use of the Board of Directors of the Company in considering this Agreement and
the Merger and may not be relied upon by FKWW or FKW Sub. Based on such
opinions, and such other factors as it deemed relevant, the Board of Directors
of the Company has taken all of the actions set forth in clauses (i) and (ii)
above and has directed that this Agreement be submitted to the stockholders of
the Company for their approval.
4.5 Capital Stock.
(a) The authorized capital stock of the Company consists of
(i) 10,000,000 shares of Class A Stock, of which 5,000,000 shares are
outstanding as of the date hereof, (ii) 100,000,000 shares of Class B Stock, of
which 32,781,795 shares are outstanding as of the date hereof, (iii) 20,000,000
shares of Class C Stock, of which 7,088,732 shares are outstanding as of the
date hereof, and (iv) 400,000 shares of 10% Convertible Cumulative Preferred
Stock, par value $0.001 per share, of which none are issued and outstanding as
of the date hereof. All outstanding Shares are duly authorized, validly issued,
fully paid and nonassessable.
(b) As of the date hereof, there are (i) no options, warrants,
calls, subscriptions, convertible securities or other rights (including
preemptive rights), agreements,
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understandings, arrangements or commitments of any character obligating the
Company now or at any time in the future to issue or sell any of its capital
stock or other equity interests in the Company or any of its Subsidiaries, (ii)
there are no obligations, contingent or otherwise, of the Company or any of its
Subsidiaries, to repurchase, redeem or otherwise acquire any shares of capital
stock or other equity interests of the Company or any of its Subsidiaries, (iii)
there are no outstanding bonds, debentures, notes or other obligations of the
Company or any of its Subsidiaries, the holders of which have the right to vote
(or which are convertible into or exercisable for securities having the right to
vote) with the holders of the Class A Stock and the Class B Stock on any matter,
(iv) there are no obligations, contingent or otherwise, guaranteeing the value
of any of the Shares or the capital stock of any of its Subsidiaries either now
or at any time in the future, and (v) there are no voting trusts, proxies or
other agreements or understandings to which the Company is a party or is bound
with respect to the voting of any capital stock or other equity interests of the
Company or any of its Subsidiaries. None of the Shares or any other equity
interest of the Company or any other securities convertible into or exchangeable
for Shares or any other equity interests of the Company, or options to acquire
Shares or securities convertible into Shares or equity interests of the Company
are held by any of the Company's Subsidiaries.
4.6 Consents. The execution and delivery of this Agreement by the
Company do not, and the performance of its obligations under this Agreement and
the consummation of the Merger by the Company will not, require any consent,
approval, authorization or permit of, or filing with or notification to any
Governmental Entity, except (i) for (A) applicable requirements of the Exchange
Act, the Securities Act, and the Blue Sky Laws, (B) the pre-merger notification
requirements of the HSR Act, and (C) the Merger Filing, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, (x) would not, individually or in the
aggregate, be reasonably expected to prevent the consummation of the Merger, or
otherwise prevent the Company from performing its obligations under this
Agreement in any material respect, and (y) with respect to any such requirement
in effect on the date hereof, would not, individually or in the aggregate, be
reasonably expected to have a material adverse effect on the business, results
of operations or financial condition of the Company and its Subsidiaries taken
as a whole.
4.7 SEC Reports and Financial Statements. Since January 1, 1994 up
to and including the date hereof, the Company has filed with the SEC all forms,
reports, schedules, registration statements, proxy statements and other
documents (collectively, "Company SEC Reports") required to be filed by the
Company with the Securities and Exchange Commission (the "SEC") under the
Securities Act, Exchange Act, and the rules and regulations thereunder. As of
their respective dates, or in the case of registration statements, as of their
respective effective dates, all of the Company SEC Reports, including all
exhibits and schedules thereto and all documents incorporated by reference
therein, (i) complied as to form in all material respects with the applicable
requirements of the Securities Act and the Exchange Act applicable thereto, and
(ii) did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except for such statements, if any, as have been modified or
superseded by subsequent filings prior to the date hereof. The consolidated
financial statements of the Company and its Subsidiaries included in such
reports
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complied as of the respective dates thereof as to form in all material respects
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto, were prepared in accordance with
United States generally accepted accounting principles ("GAAP") as in effect on
their respective dates applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto or, in the case of the
unaudited interim financial statements, as permitted by Form 10-Q of the SEC)
and fairly presented (subject, in the case of the unaudited interim financial
statements, to normal, year-end audit adjustments) the consolidated financial
position of the Company and its Subsidiaries as at the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended. Since December 31, 1996, and up to and including the date hereof, neither
the Company nor any of its Subsidiaries has incurred any liabilities or
obligations (whether absolute, accrued, fixed, contingent, liquidated,
uniiquidated or otherwise and whether due or to become due) of any nature, which
would be required by GAAP, as of the date hereof, to be set forth on a
consolidated balance sheet of the Company and its Subsidiaries or in the notes
thereto except liabilities, obligations or contingencies (a) which are
disclosed, reflected or reserved for on the unaudited balance sheets of the
Company and its Subsidiaries as of March 31, 1997 (including the notes thereto)
or in this Agreement or the Company Disclosure Letter or (b) which (i) were
incurred in the ordinary course of business after December 31, 1996, and
consistent with past practices, or (ii) are disclosed or reflected or reserved
for in the Company SEC Reports filed after December 31, 1996, or (iii) would not
reasonably be expected to, individually or in the aggregate, have a material
adverse effect on the business, results of operations or financial condition of
the Company and its Subsidiaries taken as a whole, or (c) which were incurred as
a result of actions taken or refrained from being taken (i) in furtherance of
the transactions contemplated by this Agreement, or (ii) at the request of FKWW
and FKW Sub. Since December 31, 1996, there has been no change in any of the
significant accounting (including tax accounting) policies, practices or
procedures of the Company or any of its Subsidiaries except as required by GAAP
or applicable law.
4.8 Absence of Certain Changes or Events. Since December 31, 1996
and up to and including the date hereof, except as disclosed in the Company
Disclosure Letter or the Company SEC Reports, (A) the Company has not declared
or paid any dividend or made any distribution on or with respect to its capital
stock; redeemed, purchased or otherwise acquired any of its capital stock;
granted any options, warrants or other rights to purchase shares of, or any
other securities which may be convertible into or exchangeable for, its capital
stock; or issued any shares of its capital stock; (B) there has been no increase
in the compensation or benefits (including but not limited to any bonus,
severance or option plan, program, arrangements or understanding) payable or to
become payable to any officer or director of the Company or any of the 25 most
highly compensated (based on cash compensation paid in or with respect to
services rendered in calendar 1996) employees of the Company and its
Subsidiaries (including officers and directors of the Company, as applicable)
(collectively, including officers and directors of the Company, Highly
Compensated Persons"), other than increases in the ordinary course of business
and consistent with past practice; (C) there has been no pledge, disposition,
encumbrance, hypothecation, sale or other transfer of any material portion of
the properties or assets of the Company and its Subsidiaries taken as a whole
(whether tangible or intangible), except in the ordinary course of business and
consistent with past practice; and (D) there has been no agreement binding upon
the Company or any of its Subsidiaries to do any of
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the foregoing. Since December 31, 1996 and up to and including the date of this
Agreement, other than as disclosed in the Company Disclosure Letter or the
Company SEC Reports or as contemplated by this Agreement, the Company and each
of its Subsidiaries have conducted their respective businesses in the ordinary
course and there has been no change in the condition (financial or otherwise),
business, properties, assets or liabilities of the Company and its Subsidiaries
taken as a whole, except such failures to so conduct their businesses and such
changes, which, when considered as a whole, have not had a material adverse
effect on the business, results of operations or financial condition of the
Company and its Subsidiaries taken as a whole.
4.9 Service Mark. The Company and its Subsidiaries own or have
adequate rights, including the underlying intellectual property rights, with
respect to the mark, "The Family Channel," in the United States.
4.10 DGCL Section 203. The Company is not subject to the provisions
of Section 203 of the DGCL.
4.11 Material Contracts and Commitments. None of M.G. "Pat"
Robertson, Timothy B. Robertson, Anthony D. Thomopoulos, Richard L. Sirvaitis,
K.J. "Gus" Lucas, Stephen D. Lentz, or Louis A. Isakoff (collectively, the
"Responsible Officers") has, as of the date hereof, Actual Knowledge that the
Company or any other party to any of the Company's contracts or agreements is in
breach of any of their respective obligations under such contracts or agreements
other than breaches which, individually or in the aggregate, would not
reasonably be expected to have a material adverse affect on the business,
results of operations or financial condition of the Company and its Subsidiaries
taken as a whole.
4.12 Agreements with Related Parties. Other than as set forth in the
Company SEC Reports or the Company Disclosure Letter, as of the date hereof,
none of Pat Robertson, Tim Robertson, the officers and directors of the Company,
LIFE, CBN, Regent or their respective Affiliates (except Affiliates controlled
by the Company) (collectively, "Related Parties") is a party to any agreement
with the Company or any of its Subsidiaries providing for the payment of an
amount or amounts in excess of $250,000 in the aggregate, or has any interest in
any property (real, personal or mixed, tangible or intangible) used in or
pertaining to the business of the Company or any of its Subsidiaries which is
material to the Company and its Subsidiaries taken as a whole, except this
Agreement (the "Related Party Agreements"). No Person shall be deemed to have
any agreement or interest referred to in this Section 4.12 solely because such
Person holds an equity interest in a Person (who is not an Affiliate of such
Person) which is party to such agreement or has such interest. None of the
Related Party Agreements, in the form previously delivered to FKWW, has been
modified or amended in any material respect through the date hereof except as
contemplated by this Agreement, the Stock Purchase Agreements or the
Contribution Agreement.
4.13 Affiliation Agreements. The Company Disclosure Letter includes
a true and complete list as of the date hereof of the contracts between the
Company and the top 25 cable carriers relating to carriage of The Family Channel
(determined by reference to subscriber count as of the most recent practicable
dates) (the "Affiliation Agreements"). At the date hereof,
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to the Actual Knowledge of the Responsible Officers, the Company has not
received any notice (written or oral) that any such cable carrier (a) has
canceled or terminated, or has a specific intention to cancel or terminate, any
Affiliation Agreement, which cancellations or terminations would involve, in the
aggregate, the loss of more than 1,000,000 subscribers, or (b) has a specific
intention to effect a planned reduction in the number of subscribers covered by
such Affiliation Agreement other than reductions which would not reasonably be
expected to have a material adverse effect on the business, results of
operations or financial condition of the Company and its Subsidiaries taken as a
whole.
4.14 Brokers and Finders. Except for the fees and expenses payable
to Goldman, Sachs & Co. and Bear, Stearns & Co. Inc., which fees shall be paid
by the Surviving Corporation, the Company has not employed any investment
banker, broker, finder, consultant or intermediary in connection with the
transactions contemplated by this Agreement which would be entitled to any
investment banking, brokerage, finder's or similar fee or commission payable
after the date hereof in connection with this Agreement or the Merger
contemplated hereby.
4.15 Information Statement. None of the information supplied or to
be supplied by the Company for inclusion in the definitive Information Statement
to be filed with the SEC relating to the Merger as required by the Exchange Act
(the "Information Statement"), will, at the date such Information Statement is
first sent or given to stockholders of the Company, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Information
Statement will, when first sent or given to stockholders of the Company, comply
as to form in all material respects with the requirements of the Exchange Act.
No representation is made by Company with respect to any information supplied by
FKWW or FKW Sub expressly for inclusion in the Information Statement.
ARTICLE V
CONDUCT OF BUSINESS
5.1 Conduct of Business of the Company. Prior to the earlier of the
Effective Time of the Merger or the termination of this Agreement pursuant to
its terms, unless FKWW and FKW Sub shall otherwise consent in writing or unless
otherwise set forth in the Company Disclosure Letter:
(i) except as otherwise contemplated by this Agreement, the
Company shall, and shall cause its Subsidiaries to, carry on their
respective businesses in the usual, regular and ordinary course in
substantially the same manner as heretofore conducted;
(ii) except as required or permitted by this Agreement and
except as required by any existing agreement of the Company or any of its
Subsidiaries or in order to comply with the legal requirements of the
jurisdiction of incorporation of any Subsidiary, the Company shall not and
shall not propose to, nor shall it permit any of its Subsidiaries to or
propose to (A) sell or pledge or agree to sell or pledge any capital
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stock owned by it (or any of its Subsidiaries) in any of its Subsidiaries,
(B) amend its Certificate of Incorporation or By-Laws, (C) split, combine,
reclassify or amend the terms of its outstanding capital stock or issue or
authorize or propose the issuance of any other securities in respect of,
in lieu of, or in substitution for, shares of capital stock of the
Company, or declare, set aside or make any dividend or other distribution
payable in cash, stock or property, or (D) directly or indirectly redeem,
purchase or otherwise acquire or agree to redeem, purchase or otherwise
acquire any shares of the capital stock of the Company or any options or
rights to purchase any shares of capital stock except as required by this
Agreement;
(iii) except as required by any existing agreement of the
Company or any Subsidiary or in order to comply with the legal
requirements of the jurisdiction of incorporation of any Subsidiary, the
Company shall not, nor shall it permit any of its Subsidiaries to, except
as required by this Agreement, authorize, issue, deliver, pledge, encumber
or sell or agree to authorize, issue, deliver, pledge, encumber or sell
any additional shares of, or rights of any kind to acquire any shares of,
its capital stock of any class, or any option, rights or warrants to
acquire, or securities convertible into, shares of capital stock;
(iv) except as otherwise contemplated by this Agreement, the
Company shall not, and shall cause its Subsidiaries not to: (A) adopt any
material employee benefit plan or (B) amend any material employee benefit
plan in a manner that significantly increases the benefits thereunder or
(C) adopt, extend or amend any employment agreement (including any
severance agreement) for senior management employees of the Company or (D)
make any increase in the compensation of any Highly Compensated Person,
whether now or hereafter payable, other than in the ordinary course of
business consistent with past practice (except that no such increase shall
be effected pursuant to any option, stock purchase, or other plan,
arrangement, contract or commitment providing for the issuance of capital
stock of the Company or any option or other right to acquire capital stock
of the Company), or (E) hire any new employee of the Company or any
Subsidiary at a cash compensation (including salary and anticipated bonus)
in excess of $100,000 per annum other than any replacement for a departing
employee pursuant to substantially equivalent compensation arrangements,
which replacements shall be made, if at all, only after consulting with
FKWW;
(v) the Company shall not and shall cause its Subsidiaries to
not, take or agree to take any action with the intent and knowledge that
such action would cause a breach of any of the representations or
warranties of the Company contained in this Agreement in any material
respect or prevent the Company from performing or cause the Company not to
perform any of its covenants hereunder in any material respect;
(vi) the Company shall not submit any matters to the
stockholders of the Company for a vote prior to the Effective Date other
than the Merger;
(vii) the Company shall not, and shall cause its Subsidiaries
to not, sell, pledge, dispose of, encumber or hypothecate any material
portion of the assets of the
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Company and its Subsidiaries taken as a whole, except in the ordinary
course of business and consistent with past practice;
(viii) the Company shall not, and shall cause its Subsidiaries
to not, acquire (by merger, consolidation or acquisition of stock or
assets) any corporation, partnership or any other business organization or
division thereof, or any material interest therein other than marketable
securities purchased in the ordinary course of business consistent with
past practice;
(ix) the Company shall not, and shall cause its Subsidiaries
to not, incur any liability in respect of (i) borrowed money, (ii)
capitalized lease obligations, (iii) the deferred purchase price of
property or services (other than trade payables in the ordinary course of
business), (iv) reimbursement obligations in respect of letters of credit
and (v) guarantees of any of the foregoing incurred by any Person other
than the Company and its direct or indirect wholly owned Subsidiaries
(collectively, "Indebtedness") except (x) to the extent of such
liabilities as of the date hereof, including any replacements,
refinancings or renewals thereof on terms not materially more onerous to
the Company, or (y) under revolving credit facilities existing on the date
hereof or (z) other obligations which do not exceed $1 million
individually or in the aggregate;
(x) the Company shall not, and shall cause its Subsidiaries to
not, authorize any capital expenditures or the purchase of any fixed
assets other than (i) expenditures or purchases which are included in the
capital budget of the Company previously delivered by the Company to FKWW
and FKW Sub or, if not included in such capital budget, do not exceed $10
million individually or in the aggregate, or (ii) expenditures necessary
to continue to operate the technical facility of the Company following the
occurrence of any emergency in order to continue to telecast the Family
Channel (subject in the case of (ii) above, to the receipt of approval of
FKWW, which approval shall not be unreasonably withheld and shall be
deemed given, if not previously given or reasonably withheld, upon the
expiration of 24 hours following confirmed, actual delivery of notice,
however delivered, to any of Chase Carey, Jay Itzkowitz, Larry Jacobson,
Haim Saban, Margaret Loesch or Mel Woods, which notice identifies the
emergency, provides an estimate of the expenditures to be incurred and
expressly refers to the requirement that notice of approval or the
withholding of approval be delivered to the Company within 24 hours. The
provisions of Section 9.2 hereof expressly do not apply to this Section
5.1(x);
(xi) the Company shall not, and shall cause its Subsidiaries
to not, authorize any expenditure for television or motion picture
productions or programming other than expenditures or purchases which are
included in the programming budget of the Company previously delivered by
the Company to FKWW and FKW Sub or, if not included in such capital
budget, do not exceed $10 million individually or in the aggregate;
(xii) the Company shall not, and shall cause its Subsidiaries
to not, enter into any transaction or incur or make any payment to any
Related Party of the Company
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except for goods or services provided in the ordinary course of business
consistent with past practice and except for payments incurred or made or
other transactions effected pursuant to any agreements existing on the
date hereof;
(xiii) the Company shall not, and shall cause its Subsidiaries
to not, take any action to change any of the significant accounting
(including tax accounting) policies, practices or procedures of the
Company or any of its Subsidiaries other than as required in order to
comply with GAAP or applicable law;
(xiv) the Company shall not, and shall cause its Subsidiaries
to not, enter into any agreement with any Person other than FKWW or FKW
Sub granting such other Person the right to program any block of time on
The Family Channel other than arrangements which (i) terminate on or prior
to September 1, 1998, or (ii) which are terminable by the Company on not
more than 30 days notice without any payment with respect thereto other
than reimbursement of any advance payments;
(xv) the Company shall not, and shall cause its Subsidiaries
to not, to launch a new cable channel without first consulting with FKWW;
(xvi) the Company shall not and shall cause its Subsidiaries
to not, cancel, revoke or fail to renew any of the Affiliation Agreements
or take any action with the intent and knowledge that such action would
cause a material breach or violation of any Affiliation Agreement; and
(xvii) the Company shall not, and shall cause its Subsidiaries
to not enter into any contract, agreement, commitment or arrangement with
respect to any of the foregoing subsections.
5.2 Conduct of Business of FKW Sub. Prior to the earlier of the
Effective Time of the Merger or the termination of this Agreement pursuant to
its terms, FKW Sub shall not engage in any activities of any nature except as
provided in or contemplated by this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Preparation of Information Statement. The Company shall, as
promptly as practicable, prepare and file a preliminary Information Statement
with the SEC and shall use its reasonable good faith efforts to respond to any
comments of the SEC and to cause the Information Statement to be mailed to the
Company's stockholders at the earliest practicable time. Each of the parties
hereto shall supply such information reasonably requested by the Company (or in
the case of the Company, as is necessary) in its possession for inclusion in the
Information Statement. The Company will notify FKWW and FKW Sub promptly of the
receipt of any comments from the SEC or its staff and of any request by the SEC
or its staff for amendments or supplements to the Information Statement or for
additional information and will supply FKWW and FKW Sub with copies of all
correspondence between the Company or any
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of its representatives, on the one hand, and the SEC or its staff, on the other
hand, with respect to the Information Statement or the Merger.
6.2 Filings and Other Actions. As promptly as practicable after the
execution of this Agreement, but in any event within 5 business days, FKWW, FKW
Sub and the Company shall file notification reports under the HSR Act and shall
request early termination of the waiting period under the HSR Act and use their
reasonable good faith efforts to obtain clearance or authorization under the HSR
Act of the Merger and the other transactions contemplated by this Agreement at
the earliest practicable time.
6.3 Fees and Expenses. Except as set forth in Section 9.11, whether
or not the Merger is consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
6.4 Further Assurances.
(a) Subject to the terms and conditions herein provided, each
of the parties hereto agrees to use all reasonable good faith efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement, and to cooperate
with each other in connection with the foregoing, including, but not limited to,
using reasonable good faith efforts (a) to obtain all necessary waivers,
consents and approvals from other parties to material loan agreements, leases
and other contracts; (b) to obtain all necessary consents, approvals and
authorizations as are required to be obtained under any federal, state or
foreign law or regulation; (c) to defend all lawsuits or other legal proceedings
challenging this Agreement or the transactions contemplated hereby; (d) to lift
or rescind any injunction or restraining order or other order adversely
affecting the ability of the parties to consummate the transactions contemplated
hereby; (e) to effect all necessary filings with respect to the transactions
contemplated hereby, including, but not limited to, filings under the HSR Act
and submissions of information requested by Government Entities; and (f) to
fulfill all conditions to this Agreement. Notwithstanding the foregoing, nothing
contained herein shall require any party to waive any of the conditions to the
Merger or other transactions contemplated by this Agreement.
(b) FKWW and FKW Sub hereby agree, while this Agreement is in
effect, and except as contemplated hereby, not to take any action with the
intention and knowledge that such action would make any of their representations
or warranties contained herein untrue or incorrect in any material respect or
have the effect of preventing or disabling them from performing their
obligations under this Agreement. FKWW and FKW Sub shall not enter into, permit
or give any consent to, any amendment, supplement or other modification of, or
give any consent or waiver or otherwise take any action (including agreeing to a
delayed closing date) under, any of the Other Transaction Agreements (or any of
the agreements related thereto) (collectively, a "Modification") which could
reasonably be expected to delay the Effective Time, and shall not in any event
waive, amend, modify or terminate the condition set forth in Section 8.6 of the
Contribution Agreement, or terminate any of the Other Transaction Agreements (or
any of the agreements related thereto), without the prior written consent of the
Company (subject
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to Section 6.8, if applicable). Notwithstanding the foregoing, FKWW and FKW Sub
may effect any Modification to the Other Transaction Agreements (or any of the
agreements related thereto) which they determine in good faith to be reasonably
necessary to effect the transactions contemplated thereby, provided they use
their reasonable good faith efforts to cause the closing thereunder to occur as
soon as practicable and provided further that such Modification will not delay
the Effective Time beyond November 30, 1997.
6.5 Notification of Certain Matters. The Company shall use
reasonable good faith efforts to promptly give written notice to FKWW and FKW
Sub, and FKWW and FKW Sub shall use reasonable good faith efforts to promptly
give written notice to the Company, upon becoming aware of the occurrence or, to
its knowledge, impending or threatened occurrence, of any event which would
cause or constitute a breach of any of its representations, warranties or
covenants contained or referenced in this Agreement and use its reasonable good
faith efforts to prevent or promptly remedy the same.
6.6 Access and Information. From the date hereof to the Effective
Time, the Company shall, and shall cause its Subsidiaries and its and their
respective officers, directors, employees and agents to, afford the officers,
employees and agents of FKWW and FKW Sub and their respective affiliates
reasonable access during normal business hours (or at such other times as FKWW
or FKW Sub and the Company may mutually agree) to its properties, books,
contracts, commitments and records and shall furnish FKWW and FKW Sub and their
respective affiliates all financial, operating and other data and information as
FKWW or FKW Sub or any of their respective affiliates, through their respective
officers, employees or agents, may reasonably request. All information disclosed
pursuant to this Section 6.6, shall be subject to those certain Confidentiality
Agreements entered into by and between FKWW and the Company as of May 2, 1996,
December 17, 1996, and December 31, 1996 (the "Confidentiality Agreements").
6.7 Acquisition Proposals. Prior to the Effective Time, the Company
agrees (a) that neither it nor any of its Subsidiaries shall authorize or permit
any of its officers, directors, employees, agents and representatives
(including, without limitation, any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) to initiate, solicit or encourage,
directly or indirectly, any inquiries or the making or implementation of any
proposal or offer (including, without limitation, any proposal or offer to its
stockholders) with respect to a merger, acquisition, consolidation or similar
transaction involving, or any purchase of all or any significant portion of the
assets or any equity securities of, the Company or any of its Subsidiaries (any
such proposal or offer being hereinafter referred to as an "Acquisition
Proposal") or engage in any negotiations concerning, or provide any confidential
information or data to, or have any discussions with, any Person relating to an
Acquisition Proposal, or otherwise facilitate any effort or attempt to make or
implement an Acquisition Proposal; (b) that it will immediately cease and cause
to be terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing and will take
the necessary steps to inform the individuals or entities referred to above of
the obligations undertaken in this Section 6.7; and (c) that it will notify FKWW
and FKW Sub immediately if any such inquiries or proposals are received by, any
such information is received from, or any such negotiations or discussions are
sought to be initiated or continued with, it; provided,
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however, that nothing contained in this Section 6.7 shall prohibit the Board of
Directors of the Company from (i) furnishing information to or entering into
discussions or negotiations with, any Person or entity that makes an unsolicited
bona fide proposal to acquire the Company pursuant to a merger, consolidation,
share exchange, purchase of a substantial portion of the assets, business
combination or other similar transaction, if, and only to the extent that (A)
the Board of Directors determines in good faith, based as to legal matters on
advice of outside legal counsel, that the failure to take such action would
involve a substantial risk of breach of fiduciary duty to the Company's
shareholders imposed by applicable law, (B) prior to furnishing such information
to, or entering into discussions or negotiations with, such Person or entity,
the Company provides notice to FKWW and FKW Sub to the effect that it is
furnishing information to, or entering into discussions or negotiations with,
such Person or entity, and (C) subject to any confidentiality agreement with
such Person or entity (which the Company executed after determining in good
faith, based as to legal matters on advice of outside counsel, that the failure
to take such action would involve a substantial risk of breach of the Board of
Directors' fiduciary duty to stockholders imposed by applicable law), the
Company keeps FKWW and FKW Sub informed of the status (not the terms) of any
such discussions or negotiations; and (ii) to the extent applicable, complying
with Rule 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an
Acquisition Proposal. Nothing in this Section 6.7 shall (x) permit any party to
terminate this Agreement (except as specifically provided in Section 8.1
hereof), (y) permit any party to enter into any agreement with respect to an
Acquisition Proposal during the term of this Agreement (it being agreed that
during the term of this Agreement, no party shall enter into any agreement with
any Person that provides for, or in any way facilitates, an Acquisition Proposal
(other than a confidentiality agreement in customary form)), or (z) affect any
other obligation of any party under this Agreement.
6.8 Board of Directors. In the event FKWW and the other parties
thereto consummate the purchase of the Company Stock from the Robertson Sellers
pursuant to the Robertson Purchase Agreement prior to the Closing of the Merger,
FKWW shall, from and after such closing, be entitled to designate, at its
option, upon notice to the Company, up to that number of directors, rounded to
the nearest whole number, of the Company's Board of Directors, subject to
compliance with Section 14(f) of the Exchange Act, as will make the percentage
of the Company's directors designated by FKWW equal to the aggregate voting
power of the Shares of Company Stock held by FKWW or any of its Subsidiaries
(after giving effect to the conversion of the Class A Stock to Class B Stock and
the conversion of any Class C Stock and any Convertible Notes then held by FKWW
or its Subsidiaries into Class B Stock); provided, however, that the Company
shall not be obligated and need not appoint any designee or designees to the
Board of Directors of the Company who, in the Board's good faith judgment, are
not fit to be Directors of the Company; and provided, further, that in the event
that FKWW designees are elected to the Board of Directors of the Company, such
Board of Directors shall have, until the Effective Time, at least two directors
who are Class B Directors on the date of this Agreement (the "Continuing
Directors"), and provided, further that, in such event, if the number of
Continuing Directors shall be reduced below two for any reason whatsoever, the
remaining Continuing Directors shall be permitted to designate an individual to
fill such vacancy who would be an "independent director" under the rules of the
New York Stock Exchange (such designee to be deemed to be a Continuing Director
for purposes of this Agreement) or, if no Continuing Directors then remain, the
other directors shall designate two individuals to fill such
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vacancies who shall not be officers, directors, employees or Affiliates of FKWW
or any of its Affiliates and shall otherwise be "independent directors" under
the rules of the New York Stock Exchange (each designee to be deemed to be a
Continuing Director for purposes of this Agreement). To the fullest extent
permitted by applicable law, the Company shall take all actions requested by
FKWW which are reasonably necessary to effect the election of any such designee
or designees, including the inclusion in the Information Statement, or a
separate mailing, of the information required by Section 14(f) of the Exchange
Act and Rule 14f-1 promulgated thereunder, and the making of such mailing as
part of the Information Statement or otherwise, as requested by FKWW (provided
that FKWW shall have provided to the Company on a timely basis all information
required to be included with respect to FKWW designees). In connection with the
foregoing, the Company will promptly either increase the size of the Company's
Board of Directors and/or obtain the resignation of such number of its current
directors as is necessary to enable FKWW designees to be elected or appointed to
the Company's Board of Directors as provided above. Following the election or
appointment of FKWW's designees pursuant to this Section 6.8 and prior to the
Effective Time, any amendment, or waiver of any term or condition, of this
Agreement or the Amended and Restated Certificate of Incorporation or Restated
By-Laws of the Company, any termination of this Agreement by the Company, any
extension by the Company of the time for the performance of any of the
obligations or other acts of FKWW or FKW Sub or waiver or assertion of any of
the Company's rights hereunder, or any other consents or actions by the Board of
Directors with respect to this Agreement or the Guaranty, will require, and will
require only, the concurrence of a majority of the Continuing Directors, except
to the extent that applicable law requires that such action be acted upon by the
full Board of Directors, in which case such action will require the concurrence
of a majority of the Directors, which majority shall include each of the
Continuing Directors, and no other action by the Company shall be required for
purposes of this Agreement. After the date of this Agreement, until the earlier
of (i) the Effective Time, and (ii) the termination of this Agreement, FKWW will
not exercise any rights it may have as a stockholder of the Company to effect a
change in the composition of the Board of Directors of the Company, except as
provided for in this Section 6.8.
6.9 Indemnification and Insurance. FKWW shall cause all rights to
indemnification or exculpation now existing in favor of the past and present
directors or officers of the Company as provided in the Company's Amended and
Restated Certificate of Incorporation or Restated By-Laws with respect to claims
arising from service as officers or directors prior to the Effective Time to
survive the merger and continue in full force and effect for a period of not
less than six years from the Effective Time (or with respect to claims arising
from service as officers or directors prior to the Effective Time which have not
been resolved prior to such sixth anniversary, until the time such matters are
finally resolved). FKWW shall cause the Surviving Corporation to maintain in
effect for not less than six years from the Effective Time the current policies
of the directors' and officers' liability insurance maintained by the Company as
of the date hereof (provided that the Surviving Corporation may substitute
therefor policies of at least the same amount of coverage (covering known or
unknown claims as of the Effective Time) containing terms and conditions which
are not less advantageous), copies of which has been previously made available
to FKWW, with respect to matters occurring prior to the Effective Time, to the
extent available; provided, however, that the Surviving Corporation shall not be
required to maintain such insurance to the extent the annual premium
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<PAGE> 27
therefor exceeds 200% of the annual premiums currently paid by the Company in
respect of the current policy or policies (the "Maximum Amount") but in such
case shall purchase as much comparable coverage as available for the Maximum
Amount.
6.10 Officer's Certificate. The Company, at the request of FKWW,
shall deliver a certificate to FKWW executed by an executive officer of the
Company in the form and with respect to the matters referred to in the attached
Exhibit A, dated as of the date of the closing of the purchase of the Control
Stock (as defined in the Robertson Purchase Agreement) by FKWW pursuant to terms
of the Robertson Purchase Agreement, or, alternatively, inform FKWW that it is
unable to give such certificate because of the inaccuracy of any of the matters
referred to therein.
ARTICLE VII
CONDITION
7.1 Conditions to Obligation of Each Party to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment or waiver at or prior to the Effective Time of the following
conditions:
(a) no temporary or permanent order, injunction or decree
shall be entered or enforced by or before any court, arbitrator or Governmental
Entity that would prohibit the consummation of the Merger;
(b) there shall not have occurred and be continuing any
declaration of any banking moratorium or suspension of payments by banks in the
United States or any general limitation on the extension of credit by lending
institutions in the United States;
(c) all required waiting periods under the HSR Act applicable
to the transactions contemplated hereunder shall have expired or terminated;
(d) the Company shall have obtained all consents and approvals
of Governmental Entities which are legally required to be obtained by the
Company prior to consummation of the Merger, which if not obtained would have a
material adverse effect on the business, results of operations or financial
condition of the Company and its Subsidiaries taken as a whole; and
(e) there shall not have been any statute, rule, regulation or
order promulgated, enacted, issued or deemed applicable to the Merger by any
Governmental Entity or court of competent jurisdiction which would make the
consummation of the Merger illegal;
provided, however, that upon the closing of the purchase of the Control Stock
pursuant to the Robertson Purchase Agreement, the conditions in subparagraphs
(c) and (d) of this Section 7.1 above shall, to the extent then applicable, no
longer be applicable.
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7.2 Additional Conditions to the Company's Obligation to Effect the
Merger. The obligation of the Company to effect the Merger is also subject to
the satisfaction or waiver at or prior to the Effective Time of the following
conditions: (a) the representations and warranties of FKWW and FKW Sub contained
in this Agreement shall be true and correct in all material respects on and as
of the Effective Time as though made on and as of such time (except for those
made as of a specified date (including "as of the date hereof") which shall be
true and correct as of such date), and (b) FKWW and FKW Sub shall have performed
in all material respects their respective obligations hereunder required to be
performed on or before the Effective Time; provided, however, upon the closing
of the purchase of the Control Stock pursuant to the terms of the Robertson
Purchase Agreement, the conditions set forth in clause (a) of this Section 7.2
shall no longer be applicable.
7.3 Additional Conditions to FKW Sub's Obligation to Effect the
Merger. The obligation of FKW Sub to effect the Merger is also subject to the
satisfaction or waiver at or prior to the Effective Time of the following
conditions: (a) the representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects on and as of
the Effective Time as though made on and as of such time (except for those made
as of a specified date (including "as of the date hereof"), which shall be true
and correct as of such date), except (i) for changes in circumstances expressly
permitted or contemplated by this Agreement or (ii) where the failure would not
be reasonably expected to have a material adverse effect on the business,
results of operations or financial condition of the Company and its Subsidiaries
taken as a whole, the Company shall have performed in all material respects
its obligations hereunder required to be performed on or before the Effective
Time, and (c) except as set forth in the Company Disclosure Letter or as
expressly provided for herein, (x) immediately prior to the Effective Time, the
representation and warranty contained in Section 4.5 (a) hereof shall be true
and correct (other than such changes resulting from the exercise of Options or
the conversions of convertible securities which are outstanding as of the date
hereof and disclosed in the Company Disclosure Letter), and (y) immediately
following the Effective Time, other than as provided for in the Company
Disclosure Letter, neither the Company nor any of its Subsidiaries is or will be
bound by any options, warrants, rights or agreements which would entitle any
Person, other than FKWW or its Subsidiaries, to own any capital stock of the
Surviving Corporation or to receive any payment in respect thereof; provided,
however, upon the closing of the purchase of the Control Stock pursuant to the
provisions of the Robertson Purchase Agreement, the conditions set forth in
clauses (a) and (b) of this Section 7.3 shall no longer be applicable.
ARTICLE VIII
TERMINATION, AMENDMENT, WAIVER AND LIABILITY
8.1 Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether prior to or after approval of the Merger by the
stockholders of the Company:
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<PAGE> 29
(a) by mutual written consent of FKW Sub, FKWW and the
Company, or
(b) by FKW Sub or FKWW, if the Effective Time shall not have
occurred on or prior to November 30, 1997, due to a failure of any of the
conditions to the obligations of FKW Sub to effect the Merger, to the extent
then applicable, set forth in Sections 7.1 or 7.3, or
(c) by the Company, if the Effective Time shall not have
occurred on or prior to November 30, 1997, due to a failure of any of the
conditions to the obligations of the Company to effect the Merger, to the extent
then applicable, set forth in Sections 7.1 or 7.2, or
(d) by the Company, if after the date hereof and before the
Effective Time, the Guarantor attempts or purports to revoke or withdraw the
Guaranty or a court of competent jurisdiction finally determines that the
Guaranty is unenforceable or invalid;
provided that any action by the Company shall be subject to Section 6.8 if then
applicable; and provided, further, that the November 30, 1997 date shall be
extended for (i) any period that a party is subject to a non-final order,
injunction or decree prohibiting consummation of the Merger and (ii) the
continuation of any event set forth in Section 7.1(b).
8.2 Effect of Termination. In the event of the termination of this
Agreement as provided in Section 8.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of the Company or FKW
Sub or FKWW or any of their Affiliates except as Set forth in Sections 6.3 and
9.11 (with respect to fees and expenses) or Section 6.6 (with respect to
confidentiality). In the event of a termination of this Agreement as provided in
Section 8.1, the parties will not be excused for any liability owing the others
for a prior breach of this Agreement, subject to the provisions of Sections 8.5
and 9.3.
8.3 Amendment. This Agreement may not be amended except by action of
the Board of Directors of each of the parties hereto (and subject, in the case
of the Company, to Section 6.8), which Amendment is set forth in an instrument
in writing signed on behalf of each of the parties hereto. No amendment
following approval of the stockholders shall require the approval of the
stockholders unless specifically required by the DGCL.
8.4 Waiver. At any time prior to the Effective Time, whether before
or after the stockholder approval, any party hereto, by action taken by its
Board of Directors (and subject, in the case of the Company, to Section 6.8),
may (i) extend the time for the performance of any of the obligations or other
acts of any other party hereto or (ii) subject to the second sentence of Section
8.3, waive compliance with any of the agreements of any other party or with any
conditions to its own obligations. Any agreement on the part of a party hereto
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party by a duly authorized
officer.
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<PAGE> 30
8.5 Limitation on Liability. The liability of the Company for any
breach by the Company of this Agreement shall be limited to the actual damages
suffered by FKWW and FKW Sub under this Agreement and the Company shall not be
liable for any consequential or other damages of FKWW or FKW Sub, including any
damages arising in connection with any Other Transaction Agreement.
ARTICLE IX
GENERAL PROVISIONS
9.1 Publicity. The initial press release relating to this Agreement
shall be a joint press release in the form attached hereto as Exhibit B, and
FKWW and the Company shall, subject to their respective legal obligations of
public companies, use reasonable good faith efforts to agree upon the text of
any other press release before issuing any such press release or otherwise
making public statements with respect to the transactions contemplated hereby
and in making any filings with any federal or state governmental or regulatory
agency or with any national securities exchange with respect thereto.
9.2 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally,
mailed by certified or registered mail, return receipt requested and postage
prepaid, or transmitted by facsimile to the parties at the following addresses
or at such other addresses as shall be specified by the parties by like notice:
(a) If to FKWW or FKW Sub:
Fox Kids Worldwide, Inc. or
Fox Kids Merger Corporation
10960 Wilshire Boulevard
Los Angeles, California 90024
Attn: Mel Woods
Fax: 310-235-5552
with a copy to:
Fox, Inc.
10201 West Pico Boulevard
Los Angeles, California 90035
Attn: President
Fax: 310-369-1203
30
<PAGE> 31
and a copy to:
The News Corporation Limited
c/o News America Publishing Incorporated
1211 Avenue of the Americas
New York, New York 10036
Attn: Arthur M. Siskind, Esq.
Fax: 212-768-2029
and a copy to:
Troop Meisinger Steuber & Pasich, LLP
10940 Wilshire Boulevard
Los Angeles, California 90024
Attn: C.N. Franklin Reddick, III, Esq.
Fax: 310-443-8512
and a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Attn: Jeffrey W. Rubin, Esq.
Fax: 212-697-6686
(b) If to the Company:
International Family Entertainment, Inc.
2877 Guardian Lane
Virginia Beach, Virginia 23450
Attn: Tim Robertson
Fax: 757-459-6422
with a copy to:
International Family Entertainment, Inc.
2877 Guardian Lane
Virginia Beach, Virginia 23450
Attn: Louis A. Isakoff, Esq.
Fax: 757-459-6422
31
<PAGE> 32
and a copy to:
Latham & Watkins
53rd at Third, Suite 1000
885 Third Avenue
New York, New York 10022-4802
Attn: Erica H. Steinberger, Esq.
Fax: 212-751-4864
and a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attn: James M. Dubin, Esq.
Fax: 212-757-3990
and shall for all purposes of this Agreement be treated as being effective or
having been given when delivered if delivered personally, or, if sent by mail or
facsimile, upon receipt.
9.3 Representations and Warranties. The respective representations
and warranties of the Company, FKWW and FKW Sub contained herein shall expire
with, and be terminated and extinguished at the Effective Time. Neither the
Company, FKWW nor FKW Sub shall be under any monetary or other liability
whatsoever with respect to any breach of a representation or warranty contained
herein or in or with respect to any certificate or other document delivered
pursuant hereto, and the sole consequence of any such breach shall be limited to
the failure to satisfy a condition set forth in Section 7.2 or 7.3 hereof, as
applicable, and the termination right provided for in Section 8.1 hereof, in
each case to the extent applicable according to such Section's express terms.
9.4 Titles and Gender. The titles of the Sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement. Whenever used herein, the singular
member includes the plural, the plural includes the singular, and the use of
either gender shall include both genders.
9.5 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that no party hereto shall
assign any of its rights, interests or obligations hereunder without the prior
written consent of the other parties.
9.6 Third Party Beneficiaries. Nothing in this Agreement, expressed
or implied, is intended to confer on any Person other than the parties hereto or
their respective successors and permitted assigns, and other than as expressly
provided for in Section 6.8 and 6.9 hereof, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
32
<PAGE> 33
9.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
9.8 Severability. Should any Section or any part of a Section of
this Agreement be rendered void, invalid or unenforceable by any court of law
for any reason, such invalidity or unenforceability shall not void or render
invalid or unenforceable any other Section or part of a Section of this
Agreement.
9.9 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
BOTH AS TO VALIDITY AND PERFORMANCE AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES
THEREOF.
9.10 No Adverse Construction. The rule that a contract is to be
construed against the party drafting the contract is hereby waived, and shall
have no applicability in construing this Agreement or any provisions hereof.
9.11 Costs and Attorneys' Fees. In the event that any action, suit,
or other proceeding is brought or instituted, to enforce or to seek damages for
breach of this Agreement, the prevailing party shall recover all of such party's
costs, and reasonable attorneys' fees incurred in each and every such action,
suit, or other proceeding, including any and all appeals or petitions therefrom.
9.12 Entire Agreement. This Agreement, the attached Exhibits and
Company Disclosure Letter, the Confidentiality Agreements and the Guaranty
contain the entire understanding of the parties and there are no further or
other agreements or understandings, written or oral, in effect between the
parties relating to the subject matter hereof unless expressly referred to
herein.
9.13 Jurisdiction: Consent to Service of Process: No Jury Trial. (a)
Except as provided in the next paragraph, the parties hereto agree that any
dispute between or among them arising out of, connected with, related to, or
incidental to the relationship established among them pursuant to this
Agreement, and whether arising in contract, tort, equity, or otherwise, may be
resolved by state or federal courts located in Delaware. Each of the parties
hereto waives in any such dispute any objection that it may have to such
Delaware courts considering the dispute including, without limitation, any
objection to the laying of venue or based on the ground of forum non conveniens.
(b) Each of the parties hereto agrees that the other parties
to this Agreement shall have the right, to the extent permitted by applicable
law, to proceed against it or its property in a court in any location reasonably
selected in good faith to enable such other parties to realize on such property,
or to enforce a judgment or other court order entered in favor of any such other
party. Each of the parties hereto waives any objection that it may have to the
location of the court in which any other party to this Agreement has commenced a
proceeding described in this paragraph including, without limitation, any
objection to the laying of venue or based on the ground of forum non conveniens.
33
<PAGE> 34
(c) The parties hereto each waives any right to have a jury
participate in resolving any dispute whether sounding in contract, tort, or
otherwise arising out of, connected with, related to or incidental to the
relationship established between them pursuant to this Agreement. Instead, any
disputes resolved in court will be resolved in a bench trial without a jury.
(d) Each party hereto hereby irrevocably designates CT
Corporation System as its designee, appointee and agent to receive, for and on
behalf of it, service of process in such respective jurisdictions in any legal
action or proceeding with respect to this Agreement or any document related
thereto. It is understood that a copy of such process serviced on such agent
will be promptly forwarded by mail to it at its address set forth in Section 9.2
hereof, but the failure to receive such copy shall not affect in any way the
service of such process. Each of the parties hereto further irrevocably consents
to the service of process of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at its said address, such service to become effective
upon confirmed delivery.
(e) Nothing herein shall affect the right of any party to this
Agreement to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against any other party in any other
jurisdiction.
9.14 Affiliate: Control, Controlled By and Under Common Control
With: Person: Actual Knowledge. For purposes of this Agreement:
(a) "Affiliate" shall mean, when used with reference to a
specified Person, any Person that directly or indirectly through one or more
intermediaries controls or is controlled by, or is under common control with,
such specified Person and, in the case of individuals, a Person's spouse,
parents, children, siblings, mothers and fathers in law, sons and daughters in
law, and brothers and sisters in law. For purposes of this definition, control
(including controlled by and under common control with), as used with respect to
any Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
For purposes of this Agreement, (i) neither the Company nor any of its
Subsidiaries shall be deemed to be an Affiliate of FKWW, FKW Sub or any of their
respective Affiliates, (ii) each of the holders of the Class A Stock, Liberty,
CBN, Regent and their respective Affiliates shall be deemed to be an Affiliate
of the Company, and (iii) the Guarantor, Fox, Inc. and Saban Entertainment,
Inc., and their respective Affiliates, shall each be deemed to be an Affiliate
of FKWW and FKW Sub.
(b) "Person" means any individual, corporation, general or
limited partnership, limited liability company, limited liability partnership,
trust, joint venture, association or unincorporated entity of any kind.
(c) "Actual Knowledge" of a specified Person means the actual
knowledge of such Person without independent investigation or inquiry.
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<PAGE> 35
9.15 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other parties to sustain damages for which they
would not have an adequate remedy at law for money damages, and therefore each
of the parties hereto agrees that in the event of any such breach the aggrieved
party or parties shall, without the posting of bond or other security, be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief, in addition to any other remedy to
which it or they may be entitled, at law or in equity.
9.16 Definitions. The following terms are defined on the page
numbers indicated below:
Definition Section
- ---------- -------
Acquisition Proposal ............................................. 6.7
Actual Knowledge ................................................. 9.14
Affiliate ........................................................ 9.14
Affiliation Agreements ........................................... 4.13
Agreement ........................................................ Preamble
Blue Sky Laws .................................................... 2.3
Cash Payment ..................................................... 1.8
CBN .............................................................. Recitals
CBN Purchase Agreement ........................................... Recitals
Certificates ..................................................... 1.9
Class A Stock .................................................... Recitals
Class B Stock .................................................... Recitals
Class C Stock .................................................... Recitals
Company .......................................................... Recitals
Company Disclosure Letter ........................................ Article IV
Company SEC Reports .............................................. 4.7
Company Stock .................................................... Recitals
Confidentiality Agreements ....................................... 6.6
Consent .......................................................... Recitals
Constituent Corporations ......................................... 1.1
Continuing Directors ............................................. 6.8
Contribution Agreement ........................................... Recitals
Convertible Notes ................................................ Recitals
DGCL ............................................................. Recitals
Dissenting Shares ................................................ 1.7
Effective Time ................................................... 1.3
Exchange Act ..................................................... 1.8
Exchange Agent ................................................... 1.9
FKW Sub .......................................................... Recitals
FKWW ............................................................. Recitals
GAAP ............................................................. 4.7
Governmental Entity .............................................. 2.1
35
<PAGE> 36
Guarantor ......................................................... Recitals
Guaranty .......................................................... Recitals
Highly Compensated Persons ........................................ 4.8
HSR ACT ........................................................... 2.3
Information Statement ............................................. 4.15
Irrevocable Trusts ................................................ Recitals
Lien .............................................................. 2.5
LIFE .............................................................. Recitals
Maximum Amount .................................................... 6.9
Merger ............................................................ Recitals
Merger Consideration .............................................. 1.6
Merger Filing ..................................................... 1.3
Modification ...................................................... 6.4
MTM ............................................................... 1.8
Options ........................................................... 1.8
Other Transaction Agreements ...................................... Recitals
Person ............................................................ 9.14
PR Charitable Trust ............................................... Recitals
Regent ............................................................ Recitals
Regent Purchase Agreement ......................................... Recitals
Related Parties ................................................... 4.12
Related Party Agreements .......................................... 4.12
Responsible Officers .............................................. 4.11
Restriction ....................................................... 4.2
Robertson Purchase Agreement ...................................... Recitals
The Robertson Sellers ............................................. Recitals
SEC ............................................................... 4.7
Securities Act .................................................... 2.3
Share ............................................................. 1.6
Stock Plans ....................................................... 1.8
Stock Purchase Agreements ......................................... Recitals
Subsidiary ........................................................ 2.1
Surviving Corporation ............................................. 1.11
The Family Channel ................................................ 4.9
Tim Robertson ..................................................... Recitals
TR Charitable Trust ............................................... Recitals
TR Family Trust ................................................... Recitals
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
36
<PAGE> 37
IN WITNESS WHEREOF, FKWW, FKW Sub and the Company have caused this
Agreement to be executed as of the date first written above by their duly
authorized respective officers.
FOX KIDS WORLDWIDE, INC.
By /s/ Mel Woods
---------------------------------
Name: Mel Woods
Title: President
FOX KIDS MERGER CORPORATION
By /s/ Mel Woods
---------------------------------
Name: Mel Woods
Title: President
INTERNATIONAL FAMILY ENTERTAINMENT, INC.
By: /s/ M. G. Robertson
---------------------------------
Name: M. G. Robertson
Title: Chairman of the Board
<PAGE> 38
EXHIBITS
Exhibit A --- Officer's Certificates
Exhibit B --- Press Release
<PAGE> 39
CERTIFICATE
This Certificate is issued to Fox Kids Worldwide, Inc., a Delaware
corporation ("FKWW") pursuant to Section 6.10 of that certain Agreement and Plan
of Merger (the "Merger Agreement"), dated as of _______, 1997, by and among
FKWW, Fox Kids Merger Corporation, a Delaware corporation and a wholly owned
subsidiary of FKWW, and International Family Entertainment, a Delaware
corporation, (the "Company"). Capitalized terms, unless otherwise defined
herein, shall have the meanings ascribed to them in the Merger Agreement.
In connection therewith, the Company hereby certifies, to the Actual
Knowledge of the Responsible Officers, as of the date hereof:
1. No temporary or permanent order, injunction, or decree has been entered or
enforced by or before any court, arbitrator or Governmental Entity against the
Company that would prohibit the consummation of the Merger by the Company; and
2. The Company has obtained all consents and approvals of any Governmental
Entity which are legally required to be obtained by the Company prior to the
consummation of the Merger, and which if not obtained would have a material
adverse effect on the business, results of operations or financial condition of
the Company and its Subsidiaries taken as a whole.
This certificate is being delivered by the undersigned in his capacity as
an officer of the Company and the undersigned shall have no personal liability
with respect to the matters set forth above. This certificate is for
informational purposes only and the accuracy of the information included herein
is not, and shall not be deemed to be, a condition to the Merger. Sections 7.1,
7.2 and 7.3 of the Merger Agreement include a complete list of the conditions to
the Merger. Further, this Certificate shall not form the basis of any claim or
assertion of liability on the part of the Company or any other Person
irrespective of whether the Merger occurs.
IN WITNESS WHEREOF, the undersigned has executed this certificate and
caused it to be delivered this __________, day of __________, 1997.
International Family Entertainment, Inc.
By: ___________________________________________
Its: __________________________________________
<PAGE> 40
Acknowledged and (as to
the penultimate paragraph) agreed,
Fox Kids Worldwide, Inc.
By: ______________________________________
Its: ______________________________________
Fox Kids Merger Corporation
By: ______________________________________
Its: ______________________________________
<PAGE> 41
[LOGO]
INTERNATIONAL FAMILY ENTERTAINMENT
FOR IMMEDIATE RELEASE
Contacts:
Fox Kids Worldwide, Inc.
Mel Woods, 310/235-5555
The News Corporation Limited
Press Inquiries: Jim Platt, 212/852-7083
Investors: Reed Nolte, 212/852-7092
International Family Entertainment, Inc.
Press Inquiries: Diane Linen Powell
757/459-6155
Investors: Dave Humphrey
757/459-6110
INTERNATIONAL FAMILY ENTERTAINMENT TO BE ACQUIRED
BY FOX KIDS WORLDWIDE IN CASH MERGER
VALUED AT APPROXIMATELY $1.9 BILLION
$35 PER SHARE TRANSACTION APPROVED BY IFE STOCKHOLDERS
HOLDING A MAJORITY OF THE VOTING POWER
Virginia Beach, VA and Los Angeles, CA (June 11,1997) -- International Family
Entertainment, Inc. ("IFE") (NYSE:FAM) and Fox Kids Worldwide, Inc. ("FKW")
today announced the execution of an Agreement and Plan of Merger in which a
subsidiary of FKW will merge with and into IFE, with IFE as the surviving
corporation, in a transaction valued at approximately $1.9 billion, including
outstanding debt. Holders of IFE Common Stock will receive $35 per share in
cash. IFE's Board of Directors has determined that the merger is fair to, and in
the best interests of, the Company and its stockholders. Stockholders holding a
majority of the outstanding voting power of IFE's Common Stock have executed
written consents approving the merger. Consummation of the merger is subject to
the satisfaction of certain conditions and, in any event, will not occur until
the expiration of 20 days from the date a definitive information statement is
sent to IFE's stockholders.
Pat Robertson, IFE's Chairman, Tim Robertson, IFE's President and Chief
Executive Officer, and trusts controlled by them have agreed to sell all shares
of IFE's Class A Common Stock (in the form of Class B Common Stock into which
such shares are convertible) and Class B Common Stock held by them, and each of
The Christian Broadcasting Network, Inc. and Regent University have agreed to
sell all their shares of Class B Common Stock, to FKW for $35 per share in cash,
pursuant to separate Stock Purchase Agreements, and each of such stockholders
has executed a consent approving the merger.
-MORE-
2877 Guardian Lane o P.O. Box 2050 o Virginia Beach, VA 23450-2050
(757) 459-6000 o FAX (757) 459-6425
<PAGE> 42
FAM To Be Acquired By Fox Kids Worldwide
Page 2
June 11, 1997
Liberty IFE, Inc., a subsidiary of Liberty Media Corporation
(Nasdaq/NM:LBTYA), which holds non-voting Class C Common Stock of IFE and $23
million of 6% Convertible Secured Notes due 2004, convertible into Class C
Common Stock, has agreed to contribute its Class C Common Stock and Convertible
Notes to FKW, in a transaction intended to be a tax-free exchange, in exchange
for a new series of nonconvertible 8.5% preferred stock of FKW. The FKW
preferred stock will have a liquidation preference equivalent to $35 per Class C
share, plus an amount designed to compensate Liberty for foregoing interest on
the Convertible Notes and for certain tax consequences.
The merger and each of the stock purchase agreements and the Liberty IFE
contribution agreement are subject to the satisfaction of certain conditions,
including expiration or termination of all applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976. It is anticipated that the
transactions contemplated by the contribution agreement and the stock purchase
agreements will be consummated upon such termination or expiration and prior to
the merger. However, consummation of such transactions is not a condition to the
merger.
Fox Kids Worldwide is a fully integrated global children's television
entertainment company which develops, produces, broadcasts and distributes
quality animated and live-action children's television programming through its
operating entities Fox Children's Network ("FCN") and Saban Entertainment. FCN
is the top-rated children's (ages 2-11) oriented broadcast television network in
the United States, providing 19 hours per week and reaching 97% of U.S.
television households. The Fox Kids brand is expanding globally, with networks
in the United Kingdom, Australia and Latin America.
Pat Robertson, IFE's Chairman, said, "We are very enthusiastic about the
merger of IFE with Fox Kids Worldwide. This transaction soundly demonstrates the
stockholder value created by our efforts to provide exciting, meaningful
entertainment that can be enjoyed by the whole family. In addition, the
transaction clearly validates the multi-year strategy we have consistently
implemented. We expect to continue to benefit from The Family Channel's
established position as a destination channel in an increasingly crowded cable
environment and from its growing family entertainment franchise."
Rupert Murdoch, Chairman and Chief Executive of News Corporation,
commented, "We are delighted that Fox Kids Worldwide is acquiring The Family
Channel, one of the premiere brands in family entertainment. We expect the
future combination of high quality programming from the Fox Kids Network and The
Family Channel will create a new force in worldwide family entertainment."
-MORE-
<PAGE> 43
FAM To Be Acquired By Fox Kids Worldwide
Page 3
June 11,1997
Haim Saban, Chief Executive Officer of Fox Kids Worldwide, added, "The
Robertsons have built a tremendous business with IFE and we look forward to
working with them to strengthen and expand it. FKW and our partners at Fox and
News Corporation plan to bring our collective assets together to build IFE to
the next level - our franchises and libraries in kids, film and television at
Saban and Fox, together with the worldwide distribution system of News
Corporation. Our goal will be to make IFE into a world class, worldwide
entertainment channel."
It is anticipated that Pat Robertson will be Co-Chairman of IFE and Tim
Robertson will continue as President and Chief Executive Officer. Corporate
headquarters will remain in Virginia Beach, Virginia.
Bear, Stearns & Co, Inc. and Goldman, Sachs & Co. acted as advisors to IFE
on this transaction.
Fox Kids Worldwide, Inc. is owned equally by The News Corporation Limited
(NYSE:NWS) and Saban Entertainment. The News Corporation Limited is one of the
world's largest media companies with total assets as of March 31, 1997 of $30.9
billion and total annual revenues of $10 billion.
International Family Entertainment, Inc. owns and operates an array of
entertainment assets. IFE's cable television networks provide high-quality
entertainment and information programming that emphasizes traditional values and
can be enjoyed by the entire family. The Family Channel is one of the nation's
largest advertiser-supported basic cable television networks, currently reaching
over 69 million television households. FiT TV is the only 24-hour cable network
dedicated to health and fitness. MTM Entertainment, Inc. is engaged in the
development, production and distribution of television series and other programs
throughout the world.
-END-
<PAGE> 1
GUARANTY
This GUARANTY is made as of June 11, 1997, by THE NEWS CORPORATION
LIMITED, a corporation organized and existing under the laws of South Australia,
Australia (the "Guarantor"), in favor of INTERNATIONAL FAMILY ENTERTAINMENT,
INC., a Delaware corporation (the "Company").
WHEREAS, as of the date hereof, FOX KIDS WORLDWIDE, INC., a Delaware
corporation and an affiliate of the Guarantor ("FKWW"), and Fox Kids Merger
Corporation, a Delaware corporation and an affiliate of the Guarantor ("FKW
Sub") have agreed, subject to the execution and delivery of this Guaranty, to
enter into that certain Agreement and Plan of Merger, dated of even date
herewith, with the Company, relating to the merger of FKW Sub with and into the
Company, with the Company being the surviving corporation, attached hereto as
Exhibit A (the "Guaranteed Agreement");
WHEREAS, M.G. "Pat" Robertson, individually and as trustee of each of the
Robertson Charitable Remainder Unitrust, u/t/a dated January 22, 1990 (the "PR
Charitable Trust"), the Gordon P. Robertson Irrevocable Trust, u/t/a dated
December 18, 1996, the Elizabeth F. Robinson Irrevocable Trust, u/t/a dated
December 18, 1996, and the Ann R. Lablanc Irrevocable Trust, u/t/a dated
December 18, 1996 (the Gordon P. Robertson Irrevocable Trust, the Elizabeth F.
Robinson Irrevocable Trust and the Ann R. Lablanc Irrevocable Trust, together,
the "Irrevocable Trusts"), Lisa N. Robertson and Timothy B. Robertson ("Tim
Robertson") as joint tenants, and Tim Robertson, individually, as trustee of
each of the Timothy and Lisa Robertson Children's Trust, u/t/a dated September
18, 1995 (the "TR Family Trust") and the Timothy B. Robertson Charitable Trust,
u/t/a dated December 30, 1996 (the "TR Charitable Trust"), and as custodian to
and for each of Abigail H. Robertson, Laura N. Robertson, Elizabeth C.
Robertson, Willis H. Robertson and Caroline S. Robertson under the Virginia
Uniform Transfers to Minors Act, have agreed to sell to FKWW all of the
outstanding shares of Class A Common Stock, par value $0.01 per share, of the
Company, in the form of shares of Class B Common Stock, par value $0.01 per
share, of the Company (the "Class B Stock") issuable upon conversion thereof,
and shares of Class B Stock owned by them or issuable to them upon exercise of
outstanding stock options, pursuant to that certain Stock Purchase Agreement,
dated of even date herewith, by and among FKWW, on the one hand, and Pat
Robertson, the PR Charitable Trust, the Irrevocable Trusts, Lisa N. Robertson,
Tim Robertson, the TR Family Trust, and the TR Charitable Trust, on the other
hand (the "Robertson Purchase Agreement");
WHEREAS, The Christian Broadcasting Network, Inc., a Virginia corporation
("CBN"), has agreed to sell to FKWW, all of the Class B Stock owned by it,
pursuant to the terms of that certain Stock Purchase Agreement, dated of even
date herewith, by and between FKWW and CBN (the "CBN Purchase Agreement");
1
<PAGE> 2
WHEREAS, Regent University, a Virginia corporation ("Regent"), has agreed
to sell to FKWW all of the Class B Stock owned by it, pursuant to the terms of
that certain Stock Purchase Agreement, dated of even date herewith, by and
between FKWW and Regent (the "Regent Purchase Agreement");
WHEREAS, Liberty IFE, Inc., a Colorado corporation ("LIFE"), has agreed to
contribute to FKWW all of the shares of Class C Common Stock, par value $0.01
per share, of the Company, and $23 million principal amount of 6% Convertible
Secured Notes due 2004 of the Company, in exchange for shares of Series A
Preferred Stock, of FKWW pursuant to that certain Contribution and Exchange
Agreement, dated of even date herewith, by and between LIFE and FKWW (the
"Contribution Agreement", and, collectively with the Robertson Purchase
Agreement, the CBN Purchase Agreement, the Regent Purchase Agreement, and any
other agreements referred to in any of the foregoing to which Guarantor or any
affiliate or associate of Guarantor is a party, the "Other Transaction
Agreements");
WHEREAS, the Board of Directors of Guarantor has determined that it is the
best interest of Guarantor to guarantee the payment and performance of the
obligations of FKWW and FKW Sub in the Guaranteed Agreement; and
WHEREAS, this Guaranty is being furnished by Guarantor to guarantee the
payment and performance by FKWW and FKW Sub of FKWW's and FKW Sub's obligations
under the Guaranteed Agreement.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as
follows:
1. Guaranty. Guarantor hereby unconditionally and irrevocably guarantees
to the Company (a) the due and punctual observance, performance and discharge by
FKWW of each item, provision, duty, obligation, covenant and agreement contained
in the Guaranteed Agreement, and (b) the due and punctual payment, when and as
the same may become due and payable, of any amount which FKWW or FKW Sub may
become obligated to pay under or pursuant to the Guaranteed Agreement. The
obligations of FKWW and FKW Sub guaranteed in this Section 1 are hereinafter
referred to as the "Obligations." Guarantor agrees that if FKWW or FKW Sub shall
fail to pay any Obligation when and as the same shall be due and payable, or
shall fail to observe, perform or discharge any Obligation, in accordance with
the terms of the Guaranteed Agreement, Guarantor shall forthwith pay, observe,
perform or discharge such Obligation, as the case may be, and shall pay any and
all damages that may be incurred or suffered by the Company in consequence
thereof, and any and all costs and expenses, including attorneys' and
arbitrators' fees and expenses, that may be incurred by the Company in
collecting or enforcing such Obligations or in preserving or enforcing any
rights under this Guaranty or under the Guaranteed Agreement or both.
2. Absolute Guaranty. The liability of Guarantor under this Guaranty with
respect to each and all of the Obligations shall be absolute and unconditional,
irrespective of any matter
2
<PAGE> 3
or circumstances, including, without limitation, any waiver of, amendment to,
modification of, or consent to departure from, the Guaranteed Agreement,
including, without limitation, any waiver or consent involving a change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations.
3. Continuing Guaranty. This Guaranty is a guaranty of payment,
performance and compliance. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until all of the Obligations, including, without
limitation, all amounts payable under this Guaranty, have been paid, observed,
performed or discharged in full, (b) be binding upon Guarantor and its
successors and assigns, (c) inure to the benefit of and be enforceable by the
Company and any of its successors, (d) be binding upon and against Guarantor
without regard to the insolvency, bankruptcy or reorganization of Guarantor or
FKWW or FKW Sub or otherwise and (e) continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Obligations is
rescinded or must otherwise be returned by the Company upon the insolvency,
bankruptcy or reorganization of FKWW or otherwise, all as though such payment
had not been made.
4. Waiver by Guarantor. Guarantor hereby waives promptness, diligence,
presentment, demand, protest and notice of any kind as to the Obligations and
acceptance of or reliance on this Guaranty.
5. Miscellaneous
5.1 Governing Law. This Guaranty shall be governed by construed in
accordance with laws of the State of Delaware applicable to agreements made and
to be completely performed within such State.
5.2 Reasonable Efforts. Subject to the terms and conditions of this
Guaranty, Guarantor agrees to use all reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective the transactions contemplated by
the Guaranteed Agreement and each of the Other Transaction Agreements. Guarantor
hereby agrees, while this Guaranty is in effect, not to take, or cause or permit
to be taken, any action with the intention and knowledge that such action would
reasonably be expected to have the effect of preventing or disabling (i) it from
performing its obligations under this Guaranty, or (ii) it or any of its
affiliates or associates from performing their respective obligations under the
Other Transaction Agreements.
5.3 Specific Performance. Guarantor recognizes and acknowledges that
a breach by it of any of the provisions of this Guaranty will cause the Company
to sustain damages for which it would not have an adequate remedy at law for
money damages, and therefore Guarantor hereto agrees that in the event of any
such breach the Company shall, without the posting of bond or other security, be
entitled to the remedy of specific performance
3
<PAGE> 4
of such provision and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
5.4 Jurisdiction. Guarantor irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts located in Delaware for the
purposes of any suit, action or other proceeding arising out of this Guaranty
(and agrees not to commence any action, suit or proceeding relating hereto
except in such courts). Guarantor hereby irrevocably designates CT Corporation
System as its designee, appointee and agent to receive, for and on behalf of it,
service of process in Delaware in any legal action or proceeding with respect to
this Guaranty or any document related thereto. It is understood that a copy of
such process serviced on such agent will be promptly forwarded by mail to it at
its address set forth under its signature below, but the failure to receive such
copy shall not affect in any way the service of such process. Guarantor hereto
further irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at its said
address, such service to become effective upon confirmed delivery. Guarantor
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Guaranty or the transactions
contemplated hereby in any state or federal court located in Delaware, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such action, suit or proceeding brought in any such court that such
action, suit or proceeding has been brought in an inconvenient forum.
5.5 Severability. If any provision or any portion of any provision
of this Guaranty shall be held to be void or unenforceable, the remaining
provisions of this Guaranty and the remaining portion of any provision held void
or unenforceable in part shall continue in full force and effect.
5.6 Modifications, Amendment, Waivers. No modifications or amendment
of this Guaranty and no waiver of any of the terms or conditions hereof, shall
be valid or binding unless made in writing and signed by a duly authorized
officer of Guarantor, or in the case of a waiver, by the Company, subject to
Section 6.8 of the Guaranteed Agreement, as applicable. No delay on the part of
the Company in exercising any right, power, privilege hereunder shall operate as
a waiver thereof. No waiver by the Company of any breach hereof or of any
default hereunder, shall constitute a continuing waiver of such provision or any
other provision of this Guaranty.
4
<PAGE> 5
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
date first above written.
GUARANTOR:
THE NEWS CORPORATION LIMITED
By: /s/ Arthur Siskind
------------------------
Name: Arthur Siskind
Title: Senior Executive VP
1211 Avenue of the Americas
New York, NY 10036
<PAGE> 1
TERMINATION TO SHAREHOLDER AGREEMENT
This TERMINATION TO SHAREHOLDER AGREEMENT (this "Agreement"), dated as of
June 11, 1997, is made and entered into by and among M.G. "Pat" Robertson ("Pat
Robertson"), individually and as trustee of the Robertson Charitable Remainder
Unitrust, u/t/a/ dated January 22, 1990 (the "PR Charitable Trust"), Timothy B.
Robertson ("Tim Robertson"), individually and as trustee of the Timothy and Lisa
Robertson Children's Trust, u/t/a/ dated September 18, 1995 (the "TR Family
Trust"), The Christian Broadcasting Network, Inc., a Virginia corporation
("CBN"), Liberty IFE, Inc., a Colorado corporation ("LIFE"), and International
Family Entertainment, a Delaware corporation (the "Company")
RECITALS
WHEREAS, the parties have entered into that certain Amended and Restated
Shareholder Agreement, dated as of September 1, 1995, which provides, inter
alia, for the grant to LIFE of certain rights of first refusal with respect to
sales of Class A Common Stock, par value $0.01 per share, of the Company (the
"Class A Stock"), the grant to LIFE and CBN of certain go along rights, the
grant to LIFE of a put option, the grant to LIFE and CBN of certain registration
rights, the covenant by the Company to issue no additional shares of Class A
Stock, and the grant to Pat Robertson, Tim Robertson, the PR Charitable Trust,
LIFE and CBN of certain preemptive rights (the "Shareholder Agreement");
WHEREAS, it is intended that Pat Robertson, individually and as trustee of
the PR Charitable Trust, and as trustee of the Gordon P. Robertson Irrevocable
Trust, u/t/a dated December 18, 1996, the Elizabeth F. Robinson Irrevocable
Trust, u/t/a dated December 18, 1996, and the Ann R. Lablanc Irrevocable Trust,
u/t/a/ dated December 18, 1996 (the Gordon P. Robertson Irrevocable Trust, the
Elizabeth F. Robinson Irrevocable Trust and the Ann R. Lablanc Irrevocable
Trust, together, the "Irrevocable Trusts"), Lisa N. Robertson and Tim Robertson,
as joint tenants, Tim Robertson, individually, and as trustee of each of the TR
Family Trust and the Timothy B. Robertson Charitable Trust, u/t/a/ dated
December 30, 1996 (the "TR Charitable Trust"), and as custodian to and for
each of Abigail H. Robertson, Laura N. Robertson, Elizabeth C. Robertson, Willis
H. Robertson and Caroline S. Robertson under the Virginia Uniform Transfers to
Minors Act (Pat Robertson, the PR Charitable Trust, the Irrevocable Trusts, Lisa
N. Robertson, Tim Robertson, the TR Family Trust and the TR Charitable Trust,
collectively, the "Robertsons"), and Fox Kids Worldwide, Inc., a Delaware
corporation ("FKWW") enter into that certain Stock Purchase Agreement, pursuant
to which FKWW will agree, on the terms and subject to the conditions therein, to
purchase from the Robertsons those shares of Class A Stock, in the form of Class
B Common Stock, par value $0.01 per share, of the Company (the "Class B Stock")
issuable upon the conversion thereof,
<PAGE> 2
and shares of Class B Stock owned by the Robertsons (as amended from time to
time in accordance with its terms, the "Robertson Purchase Agreement");
WHEREAS, it is intended that CBN and FKWW enter into that certain Stock
Purchase Agreement, pursuant to which FKWW will agree, on the terms and subject
to the conditions therein, to purchase from CBN those shares of Class B Stock
owned by CBN (as amended from time to time in accordance with its terms, the
"CBN Purchase Agreement");
WHEREAS, it is intended that Regent University, a Virginia corporation
("Regent") and FKWW enter into that certain Stock Purchase Agreement, pursuant
to which FKWW will agree, on the terms and subject to the conditions therein, to
purchase from Regent those shares of Class B Stock owned by Regent (as amended
from time to time in accordance with its terms, the "Regent Purchase
Agreement");
WHEREAS, it is intended that FKWW, Liberty Media Corporation, a Delaware
corporation, and LIFE enter into that certain Contribution and Exchange
Agreement (as amended from time to time in accordance with its terms, the
"Contribution Agreement"), pursuant to which LIFE will agree, on the terms and
subject to the conditions therein, to contribute its shares of Class C Common
Stock, par value $0.01 per share, of the Company and its $23 million principal
amount of 6% Convertible Secured Notes due 2004 of the Company (the "Notes"), to
FKWW (the "Contribution") in exchange for shares of Series A Preferred Stock of
FKWW;
WHEREAS, in connection with the execution of the Contribution Agreement,
LIFE and CBN have executed that certain Waiver, dated as of the date hereof (the
"Waiver"), which, subject to its terms and conditions, waives certain rights
under the Shareholder Agreement;
WHEREAS, as a condition to its willingness to enter into the Agreement and
Plan of Merger, dated as of the date hereof, by and among FKWW, Fox Kids Merger
Corporation, a Delaware corporation and wholly-owned subsidiary of FKWW, and the
Company (the "Merger Agreement"), the Robertson Purchase Agreement, the CBN
Purchase Agreement, the Regent Purchase Agreement and the Contribution
Agreement, FKWW has required that the parties agree to terminate the Shareholder
Agreement by entering into this Agreement; and
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows.
1. Termination. Effective upon (but not prior to) the earlier of (i) the
closing of the Contribution under the Contribution Agreement and (ii) the
Effective Time of the Merger (as defined in the Merger Agreement), each and
every provision of the Shareholder Agreement shall be terminated in full and
from and after such date the Shareholder Agreement shall be void and of no
further force and effect, and the rights and obligations of the parties
thereunder shall
2
<PAGE> 3
terminate. If both the Robertson Purchase Agreement and the Merger Agreement
shall be terminated, this Agreement shall thereupon terminate and be of no
effect, unless the termination pursuant to this provision has already become
effective.
2. Miscellaneous.
2.1 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. Other than as set forth in the immediately succeeding sentence, no
party may assign any of its rights, or delegate any of its duties or obligation
hereunder, under this Agreement without the prior written consent of the other
parties, and any such purported assignment or delegation shall be void ab
initio.
2.2 Dispute Resolution. Any dispute or claim arising hereunder shall
be settled by arbitration. Any party may commence arbitration by sending a
written notice of arbitration to the other party. The notice will state the
dispute with particularity. The arbitration hearing shall be commenced thirty
(30) days following the date of delivery of notice of arbitration by one party
to the other, by the American Arbitration Association ("AAA") as arbitrator. The
arbitration shall be conducted in Alexandria, Virginia in accordance with the
commercial arbitration rules promulgated by AAA, and each party shall retain the
right to cross-examine the opposing party's witnesses, either through legal
counsel, expert witnesses or both. The decision of the arbitrator shall be
final, binding and conclusive on all parties (without any right of appeal
therefrom) and shall not be subject to judicial review. As part of his decision,
the arbitrator may allocate the cost of arbitration, including fees of attorneys
and experts, as he or she deems fair and equitable in light of all relevant
circumstances. Judgment on the award rendered by the arbitrator may be entered
in any court of competent jurisdiction.
2.3 Governing Law. This Agreement shall be governed by and construed
both as to validity and performance and enforced in accordance with the laws of
the Commonwealth of Virginia without giving effect to the choice of law
principles thereof.
2.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
2.5 Headings. The section and subsection headings contained in this
Agreement are included for convenience only and form no part of the agreement
between the parties.
2.6 Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
3
<PAGE> 4
2.7 No Third Party Beneficiaries. This Agreement is not intended to
benefit, and shall not run to the benefit of or be enforceable by, any other
person or entity other than the Parties hereto and their permitted successors
and assigns.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
4
<PAGE> 5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ M.G. Robertson
-----------------------------------
M.G. "Pat" Robertson
THE ROBERTSON CHARITABLE REMAINDER
UNITRUST
/s/ M.G. Robertson
-----------------------------------
By: M.G. "Pat" Robertson, as Trustee
/s/ Timothy Robertson
-----------------------------------
Timothy B. Robertson
THE TIMOTHY AND LISA ROBERTSON
CHILDREN'S TRUST
/s/ Timothy Robertson
-----------------------------------
By: Timothy Robertson, as Trustee
THE CHRISTIAN BROADCASTING
NETWORK, INC.
By: /s/ Michael D. Little
-----------------------------------
Its: President
-----------------------------------
LIBERTY IFE, INC.
By: /s/ David Koff
-----------------------------------
Its:
-----------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE)
<PAGE> 6
INTERNATIONAL FAMILY
ENTERTAINMENT, INC.
By: /s/ M. G. Robertson
-----------------------------------
Its: Chairman of the Board
-----------------------------------
<PAGE> 1
Amendment No. 1
to
Program Time Agreement
THIS AMENDMENT NO.1 to Program Time Agreement ("the Amendment") is entered into
this 11 day of June, 1997, by and between The Christian Broadcasting Network,
Inc. ("CBN") and International Family Entertainment, Inc. ("IFE").
WHEREAS, CBN and IFE entered into a certain Program Time Agreement dated as of
January 5, 1990 with respect to the carriage by The Family Channel of certain
programming produced by or on behalf of CBN (the "Program Time Agreement"); and
WHEREAS, certain ambiguities have arisen with respect to the interpretation of
the Program Time Agreement which CBN and IFE desire to clarify; and
WHEREAS, CBN and IFE desire to amend certain provisions of the Program Time
Agreement in the event that Fox Kids Worldwide, Inc. or one of its affiliates
("FKW") acquires a certain percentage of the voting securities of IFE; and
WHEREAS, terms not defined in this Amendment shall have the meanings given to
them in the Program Time Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein contained and for
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties hereto agree as follows:
1. Commitment to Deliver Programming. Paragraph 1 to the Program Time Agreement
is amended by the addition of the following language at the end of the
Paragraph:
"Notwithstanding any other provision herein to the contrary, for a period
of five (5) years from the Effective Date, CBN will deliver to IFE for telecast
on The Family Channel episodes of the television programming currently entitled
The 700 Club with Pat Robertson or a similar content program hosted by Pat
Robertson ("The 700 Club"), subject to Pat Robertson's availability and
agreement, provided that if Pat Robertson is not available a suitable
replacement host will be provide. The 700 Club shall be the same program as
otherwise generally distributed by CBN to broadcast stations in the United
States. The 700 Club shall be of substantially the same general content and
quality as currently delivered, and shall be at least one hour in duration (with
CBN retaining the right to program the Morning Block with either an additional
half hour of The 700 Club or another program complying with the program
standards set forth in Paragraph 1 to the Agreement), and which program shall
have a repeat schedule no more frequently than the second highest number of
repeats during the period 1990 through 1996.
<PAGE> 2
In addition, during this five (5) year period, CBN shall not authorize or permit
the telecast of The 700 Club, or a program with similar general content, on any
cable channel in the United States other than: (i) Trinity Broadcasting Network
("TBN"), KWGN, WPCB ("Cornerstone Network"), FAMNET and World Harvest Television
("LeSea") (herein the "Other Outlets"); (ii) any other Religious Channel
delivered to less than 20 million homes; and (iii) The Family Channel; provided
that The Family Channel is delivered at least to 55 million homes according to
A.C. Nielsen. For purposes hereof, a Religious Channel shall be defined as a
cable channel that has a program content that is at least seventy-five percent
(75%) religious in nature on average across all dayparts in which it telecasts.
Nothing in this Paragraph shall preclude CBN from distributing The 700 Club
through free-to-air broadcast syndication (regardless of whether such stations
are carried on cable systems as local or distant signals), to satellite only
channels (i.e., a channel that is not simultaneously delivered to cable
subscribers), through the Other Outlets, to a Religious Channel delivered to
less than 20 million homes, or by any non-cable distribution arrangements, or
shall preclude CBN from distributing programming similar to The 700 Club on a
one airing per week basis.
2. CBN's Right to Renew. Paragraph 5(a) is amended by the deletion thereof, and
the substitution therefor of the following:
"(a) Unless sooner terminated pursuant to Section 5(b) or 5(c) hereof,
the term of this Agreement shall be fifteen (15) years, commencing on the date
hereof, and, at the end of the initial fifteen (15) year term and each
subsequent term thereafter, this Agreement shall be renewed automatically for
additional terms of five (5) years each upon the same terms and conditions,
unless CBN gives to IFE written notice of its intent not to renew this Agreement
at least thirty (30) days immediately prior to the expiration of the then
existing term of this Agreement, whereupon this Agreement shall expire and not
be renewed at the end of the term in which such notice is given. Notwithstanding
any other provisions of this Agreement to the contrary, or any provision of law,
rule or equity, this Agreement shall not be terminable or non-renewable by IFE,
and the Agreement, as such may be amended from time to time, shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns and all successors in interest however
occurring, whether by sale, merger, reorganization or otherwise."
3. Coordination of Telethon Schedule. Paragraph 6 to the Program Time Agreement
is amended by the addition of the following language at the end of the
Paragraph:
"CBN shall confer in good faith with IFE to schedule the January Telethon,
with CBN's decision to be final."
4. Preemption. Paragraph 8 to the Program Time Agreement is amended by the
deletion of the following language beginning in line 10 on page 8:
2
<PAGE> 3
", and (b) for preemptions by third parties, not more than ten (10) times
per year in prime time provided that in either such case the replacement
programming shall be consistent with the CBN Programming and the Family
Channel's other programming."
and in lieu thereof, the following language shall be substituted:
", and (b) IFE shall have the right to preempt the telecasts of the CBN
Programming during the Prime Block up to five (5) times per year in its sole
discretion, provided that (i) IFE gives CBN at least 30 days prior notice of the
preemptions when and where practicable, (ii) no preemptions may occur during the
two weeks of the January Telethon, one week of the May Telethon, one week of the
Telethon in September or October, nor on Good Friday, Easter Day, Fourth of
July, Thanksgiving Day, Christmas Eve, or Christmas Day, (iii) CBN shall receive
a credit for a pro rata portion of the Monthly Fee based on the ratio that the
preempted time bears to all the Program Time during the month of the preemption,
(iv) no preemption shall be used for programming involving lobbying, political
parties or candidates for office, or for paid political broadcasts or
announcements, and (v) IFE shall be entitled to retain all revenue generated
during the preempted time. The programming telecast by any successor or
permitted assignee of CBN as provided in part (a), above, shall be consistent
with the CBN Programming and The Family Channel programming and the programming
telecast by IFE during preemptions as provided in part (b), above, shall be
consistent with The Family Channel's other programming."
5. Preemption During Daytime. A new Paragraph 19 is added to the Program Time
Agreement, and shall read as follows:
"19. Additional Time During January Telethon. CBN shall have the right to
preempt The Family Channel programming in the 11:30 am to 12 noon time slot for
two weeks, Monday through Friday, during CBN's January Telethon, and for one
week Monday through Friday during CBN's May Telethon, solely for the purpose of
extending the telecasts of The 700 Club. CBN shall not be required to pay for
such preemptions, and shall be entitled to retain all revenue generated thereby,
provided that IFE may at its discretion preempt the CBN Programming for fifteen
(15) half hours (which may be in any increments of one to three contiguous half
hours) each year during the Morning Block, so long as such preemptions do not
occur during the two week January, one week May or one week fall Telethon, nor
on Easter Day, Good Friday, Fourth of July, Thanksgiving Day, Christmas Eve or
Christmas Day, and provided IFE gives CBN thirty (30) days advance notice of
such preemption. IFE preemptions shall not be used for programming involving
lobbying, political parties or candidates for office, or for paid political
broadcasts or announcements, nor shall more than three preemptions take place
per week. IFE shall be entitled to retain all revenue generated during its
preemption of the CBN Programming."
6. Effective Date. This Amendment shall become effective on the first to occur
of (x) Closing under that certain Stock Purchase Agreement dated of even date
herewith between Fox Kids Worldwide, Inc., a Delaware corporation ("FKW") and
CBN, (y) the purchase by FKW of all shares of IFE Class B stock owned by CBN,
and (z) the closing of that certain Agreement and
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Agreement and Plan of Merger dated of even date herewith among FKW, IFE and Fox
Kids Merger Corporation. If not effective prior to the expiration or termination
of the Merger Agreement according to its terms, this Amendment shall terminate.
7. Representations and Warranties. Each Party represents and warrants to the
other that the Program Time Agreement is in full force and effect and that such
party has no knowledge of any breach by the parties thereto. Each party further
represents and warrants to the other party that it has obtained all consents and
approvals necessary to enter into this Amendment, including all necessary Board
of Director's approvals, that this Amendment is the binding obligation of the
parties and that it is enforceable according to its terms.
8. Ratification and Miscellaneous. Except as expressly amended hereby, the
Program Time Agreement shall remain in full force and effect according to
its terms, and as amended hereby, shall inure to the benefit of CBN and be
binding upon CBN and its successors and permitted assigns, and binding
upon IFE and all its successors in interest, however occurring, whether by
sale, merger, reorganization or otherwise. The term "Agreement" as used
herein and in the Program Time Agreement shall henceforth mean the Program
Time Agreement, as amended hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
The Christian Broadcasting International Family
Network, Inc. Entertainment, Inc.
by:/s/ Michael D. Little by: /s/ Timothy Robertson
-------------------------- --------------------------
title: President title: CEO
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