EXHIBIT 6
EXCHANGE AGREEMENT
DATED AS OF NOVEMBER 27, 1995
BY AND BETWEEN
SILVER KING COMMUNICATIONS, INC.
AND
SILVER MANAGEMENT COMPANY
TABLE OF CONTENTS
Page
ARTICLE I
SALE AND EXCHANGE OF SHARES................ 2
SECTION 1.1 Exchange of Shares......................... 2
SECTION 1.2 Closing.................................... 2
ARTICLE II
REPRESENTATION AND WARRANTIES OF SILVER....... 3
SECTION 2.1 Organization and Qualification............. 3
SECTION 2.2 Authorization and Validity of
Agreement................................ 3
SECTION 2.3 Validity of Silver Shares, etc............. 4
SECTION 2.4 Capitalization............................. 4
SECTION 2.5 No Approvals of Notices Required; No
Conflict with Instruments................ 6
SECTION 2.6 DGCL Sec. 203.............................. 8
SECTION 2.7 Opinion of Advisor......................... 8
SECTION 2.8 Broker or Finders.......................... 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SILVER CO..... 9
SECTION 3.1 Organization and Qualification............. 9
SECTION 3.2 Authorization and Validity
of Agreement............................. 10
SECTION 3.3 Ownership and Validity of House
Shares................................... 10
SECTION 3.4 No Approvals or Notices Required; No Conflict
with Instruments......................... 10
SECTION 3.5 Brokers or Finders......................... 11
ARTICLE IV
COVENANTS AND OTHER AGREEMENTS............ 12
SECTION 4.1 Silver Stockholders Meeting................ 12
SECTION 4.2 Proxy Statement............................ 12
SECTION 4.3 Reasonable Efforts......................... 13
SECTION 4.4 Public Announcements....................... 14
SECTION 4.5 Confidentiality............................ 14
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Page
SECTION 4.6 Merger Agreement........................... 15
SECTION 4.7 Notification of Certain Matters............ 15
ARTICLE V
CONDITIONS PRECEDENT............... 16
SECTION 5.1 Conditions Precedent to the Obligations of
Silver and Silver Co..................... 16
(a) Absence of Injunctions................ 16
(b) No Proceedings or Adverse Enactments.. 16
(c) Stockholder Approvals................. 16
(d) Consummation of the Merger............ 16
(e) HSR Act............................... 16
(f) Receipt of Governmental Approvals
and Consents........................ 17
SECTION 5.2 Conditions of Precedent to the
Obligations of Silver Co................. 17
(a) Accuracy of Representations and
Warranties.......................... 17
(b) Performance of Agreements............. 17
(c) No Proceedings or Adverse Enactments
Affecting Silver Shares............. 17
(d) Control of Silver..................... 18
(e) Officer's Certificates................ 18
(f) Other Deliveries...................... 18
(g) Xxxxxxx Management Role............... 18
SECTION 5.3 Conditions Precedent to the Obligations
of Silver................................ 18
(a) Accuracy of Representations and
Warranties.......................... 18
(b) Performance of Agreements............. 18
(c) Officer's Certificates................ 18
(d) Other Deliveries...................... 19
(e) Xxxxxxx Management Role............... 19
(f) No Adverse Change or Development...... 19
(g) Audited Financial Statements.......... 20
ARTICLE VI
TERMINATION................... 21
SECTION 6.1 Termination and Abandonment................ 21
SECTION 6.2 Effect of Termination...................... 21
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Page
ARTICLE VII
MISCELLANEOUS.................. 21
SECTION 7.1 Further Assurances......................... 21
SECTION 7.2 Expenses................................... 22
SECTION 7.3 Notices.................................... 22
SECTION 7.4 Entire Agreement........................... 23
SECTION 7.5 Assignment; Binding Effect; Benefit........ 23
SECTION 7.6 Amendment.................................. 23
SECTION 7.7 Extension; Waiver.......................... 23
SECTION 7.8 Survival................................... 24
SECTION 7.9 Interpretation............................. 24
SECTION 7.10 Severability............................... 25
SECTION 7.11 Counterparts............................... 25
SECTION 7.12 Applicable Law............................. 25
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EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of November 27, 1995, by
and between SILVER KING COMMUNICATIONS, INC., a Delaware
corporation ("Silver"), and SILVER MANAGEMENT COMPANY, a
Delaware corporation ("Silver Co.").
RECITALS:
WHEREAS, upon consummation of the transactions
contemplated by the Agreement and Plan of Merger (the "Merger
Agreement"), dated the date hereof by and among Silver Co.,
Liberty Program Investments, Inc., a Wyoming corporation, and
Liberty HSN, Inc., a Colorado corporation ("Rockies House
Sub"), pursuant to which Rockies House Sub will be merged with
and into Silver Co. (the "Merger"), Silver Co. will own
17,566,702 shares of the Common Stock, par value $.01 per share
(the "House Common Stock"), of Home Shopping Network, Inc., a
Delaware corporation ("House"), and 20,000,000 shares of the
Class B Common Stock, par value $.01 per share (the "House
Class B Stock"), of House (such shares of House Common Stock
and House Class B Stock held by Silver Co. are collectively
referred to herein as the "House Shares");
WHEREAS, the House Board of Directors has approved
the transactions contemplated hereby and the Merger Agreement
being entered into simultaneously herewith (including for
purposes of Section 203 of the Delaware General Corporation Law
(the "DGCL"));
WHEREAS, Silver desires to acquire, and Silver Co.
desires to transfer to Silver, the House Shares;
WHEREAS, in exchange for the House Shares, Silver Co.
desires to acquire, and Silver desires to issue to Silver Co.,
the number of shares of Silver's Common Stock, par value $.01
per share (the "Silver Common Stock"), and the number of shares
of Silver's Class B Common Stock, par value $.01 per share (the
"Silver Class B Stock") described in Section 1.1 below;
NOW, THEREFORE, in consideration of the premises and
the respective representations, warranties, covenants and
agreements set forth herein, the parties hereto agree as
follows:
ARTICLE I
SALE AND EXCHANGE OF SHARES
SECTION 1.1 Exchange of Shares. In reliance on the
representations and warranties and other agreements of the
other party contained herein and upon the terms and subject to
the conditions set forth herein, on the Closing Date (as
defined in Section 1.2) the parties will make the following
exchange (the "Exchange"):
(i) Silver Co. will transfer, assign and convey
to Silver, and Silver will acquire and accept from
Silver Co., all shares of House Common Stock and all
shares of House Class B Stock held by Silver Co.
immediately following the Merger, and
(ii) Silver will issue, convey and deliver to
Silver Co., and Silver Co. will acquire and accept
from Silver, 4,855,436 shares of Silver Common Stock
in exchange for the 17,566,702 shares of House Common
Stock and 6,082,000 shares of Silver Class B Stock in
exchange for the 20,000,000 shares of House Class B
Stock (such shares of Silver Common Stock and Silver
Class B Stock are collectively referred to herein as
the "Silver Shares").
SECTION 1.2 Closing. The Exchange shall take place
at a Closing (the "Closing") which shall be (i) at the offices
of Xxxxx & Xxxxx, L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 10:00 a.m., local time, on the second business day
following the day on which the last of the conditions set forth
in Sections 5.1(c), 5.1(d), 5.1(e), 5.1(f), 5.2(b) (other than
any actions to be taken at the Closing), 5.2(c) and 5.3(b)
(other than any actions to be taken at the Closing) hereof is
fulfilled or, if legally permissible, waived or (ii) at such
other time and place and on such other date as Silver and
Silver Co. shall agree (the "Closing Date"). At the Closing,
simultaneously with the delivery by Silver Co. of certificates
representing the House Shares, with appropriate stock powers
attached, duly endorsed, and with any necessary documentary or
transfer tax stamps duly affixed and cancelled, Silver will
deliver to Silver Co. a certificate or certificates
representing the Silver Common Stock and Silver Class B Stock
to be issued, conveyed and delivered to Silver Co. pursuant to
Section 1.1, with any necessary documentary or transfer tax
stamps duly affixed and cancelled, dated the Closing Date, and
such certificates shall be issued to and registered in the name
of Silver Co. The House Shares and the Silver Shares shall be
so delivered, in each case, free and clear of all liens,
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claims, charges, preemptive rights and other encumbrances other
than pursuant to the Merger Agreement and this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SILVER
Silver hereby makes the following representations and
warranties to Silver Co.:
SECTION 2.1 Organization and Qualification. Silver
(i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation; (ii) has all requisite corporate power and
authority to carry on its business as it is now conducted and
to own, lease and operate the properties it now owns, leases or
operates at the places currently located and in the manner
currently used and operated and (iii) is duly qualified or
licensed and in good standing to do business in each
jurisdiction in which the properties owned, leased or operated
by it or the nature of the business conducted by it makes such
qualification or license necessary, except, in the case of
clause (iii) where the failure to be so qualified or licensed,
or in good standing would not have a material adverse effect on
the business, assets or condition (financial or otherwise) of
Silver and its subsidiaries, taken as a whole. Silver has
delivered or made available to Silver Co. true and complete
copies of its Amended and Restated Certificate of Incorporation
and Amended and Restated By-Laws, each as amended to date and
currently in effect (respectively, the "Silver Charter" and the
"Silver Bylaws").
SECTION 2.2 Authorization and Validity of Agreement.
(a) The execution, delivery and performance of this Agreement
by Silver and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the board of
directors of Silver.
(b) Except for the approval of (x) this Agreement,
(y) the issuance of the Silver Shares and (z) the Silver
Charter Amendment (as defined below) by the stockholders of
Silver:
(i) Silver has full corporate power and
authority to execute and deliver this Agreement and
to perform its obligations hereunder and to
consummate the Exchange and the other transactions
contemplated hereby,
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(ii) no other corporate proceedings on the part
of Silver or any of its subsidiaries are necessary to
authorize the execution and delivery of this
Agreement or the consummation of the transactions
contemplated hereby,
(iii) this Agreement has been duly and validly
executed and delivered by Silver and, assuming the
due authorization, execution and delivery of this
Agreement by Silver Co., constitutes a legal, valid
and binding obligation of Silver, enforceable against
it in accordance with its terms, except as such
enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally or
by principles governing the availability of equitable
remedies.
SECTION 2.3 Validity of Silver Shares, etc. Subject
to the filing and effectiveness of the Silver Charter Amendment
as contemplated in Section 4.1, the shares of Silver Common
Stock and Silver Class B Stock to be issued by Silver to Silver
Co. pursuant to the Exchange, upon issuance and delivery in
accordance with the terms and conditions of this Agreement,
will be duly authorized, validly issued, fully paid and non-
assessable, and, except as set forth on Schedule 2.3, will be
free of any liens, claims, charges, security interests,
preemptive rights, pledges, voting or stockholder agreements,
encumbrances or equities of any kind whatsoever, will not be
issued in violation of any preemptive rights and will vest in
Silver Co. full rights with respect thereto, including the
right to vote the Silver Shares on all matters properly
presented to the stockholders of Silver to the extent set forth
in the Silver Charter. The Silver Charter, upon amendment as
contemplated by Section 4.1, will provide that the Silver Class
B Stock to be authorized for issuance pursuant to this
agreement will have identical rights, powers, privileges and
preferences as the outstanding Silver Class B Stock. In
addition, the issuance of the Silver Shares will not violate
the stockholder voting rights, policies and requirements of the
National Association of Securities Dealers, Inc. ("NASD"),
assuming such issuance is approved by the stockholders of
Silver pursuant to the DGCL and in accordance with Section 6(i)
of Part III of Schedule D of the NASD By-Laws (the "NASD
Shareholder Approval Policy").
SECTION 2.4 Capitalization. (a) The authorized
capital stock of Silver consists of (i) 30,000,000 shares of
Silver Common Stock, (ii) 2,415,945 shares of Silver Class B
Stock, and (iii) 50,000 shares of Preferred Stock, par value
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$.01 per share (the "Silver Preferred Stock"), of which, as of
November 20, 1995, (x) 6,975,882 shares of Silver Common Stock
are issued and outstanding, 2,295,347 shares are reserved for
issuance upon exercise of outstanding stock options and
2,415,945 shares are reserved for issuance upon conversion of
existing Silver Class B Stock, no shares are held by Silver in
its treasury and no shares are held by any subsidiary of
Silver; (y) 2,415,945 shares of Silver Class B Stock are issued
and outstanding, no shares are reserved for issuance upon
exercise of outstanding stock options, no shares are held by
Silver in its treasury and no shares are held by any subsidiary
of Silver; and (z) no shares of Silver Preferred Stock are
issued or outstanding, reserved for issuance upon exercise of
outstanding stock options, or held by Silver in its treasury or
by any subsidiary of Silver, and no series of Silver Preferred
Stock has been designated or authorized.
(b) All issued and outstanding shares of Silver
Common Stock and Silver Class B Stock have been validly issued
and are fully paid and nonassessable, are not subject to and
have not been issued in violation of any preemptive rights and
have not been issued in violation of any federal or state
securities laws. The respective rights, preferences,
privileges, limitations and restrictions of the Silver Common
Stock, the Silver Class B Stock and Silver Preferred Stock are
as set forth in the Silver Charter. Except as set forth on
Schedule 2.4 or as disclosed on the reports, forms, schedules,
registration statements and proxy statements originally filed
with the SEC (as defined below) by Silver with respect to
periods or events after January 1, 1994 and prior to the date
hereof (the "Silver SEC Reports") pursuant to the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder
(respectively the "Securities Act" and the "Exchange Act"),
there are no outstanding or authorized subscriptions, options,
warrants, calls, rights, commitments or any other agreements of
any character to or by which Silver or any of its subsidiaries
is a party or is bound which, directly or indirectly, obligate
Silver or any of its subsidiaries to issue, deliver or sell or
cause to be issued, delivered or sold any shares of capital
stock or other equity interests of Silver or any securities
convertible into, or exercisable or exchangeable for, or
evidencing the right to subscribe for any such shares of
capital stock or other equity interests or obligating Silver or
any of its subsidiaries to grant, extend or enter into any such
subscription, option, warrant, call or right. All shares of
Silver Common Stock, Silver Class B Stock and/or Silver
Preferred Stock subject to issuance as aforesaid, upon issuance
on the terms and conditions specified in the instruments
pursuant to which they are issuable, shall be duly authorized,
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validly issued, fully paid and non-assessable and not subject
to preemptive rights. Except as is disclosed in the Silver SEC
Reports or as set forth in Schedule 2.4, there are no
obligations, contingent or otherwise, of Silver or any of its
subsidiaries to repurchase, redeem or otherwise acquire any
shares of Silver Common Stock, Silver Class B Stock or Silver
Preferred Stock or the capital stock of any subsidiary or to
provide funds to make any material investment (in the form of a
loan, capital contribution or otherwise) in any such subsidiary
or any other entity other than guarantees of obligations of
subsidiaries entered into in the ordinary course of business.
SECTION 2.5 No Approvals or Notices Required; No
Conflict with Instruments. The execution and delivery by
Silver of this Agreement do not, and the performance by Silver
of its obligations hereunder and the consummation of the
transactions contemplated hereby including the issuance of the
Silver Shares will not:
(i) assuming the Silver Charter Amendment is
approved and is filed and becomes effective as
contemplated in Section 4.1, conflict with or violate
the Silver Charter, as so amended, or the Silver
Bylaws or the charter or bylaws of any subsidiary of
Silver, in each case as amended to date;
(ii) require any consent, approval, order or
authorization of or other action by any court,
administrative agency or commission or other
governmental authority or instrumentality, foreign,
United States federal, state or local (each such
entity a "Governmental Entity" and each such action a
"Governmental Consent") or any registration,
qualification, declaration or filing with or notice
to any Governmental Entity (a "Governmental Filing"),
in each case on the part of or with respect to Silver
or any subsidiary of Silver, the absence or omission
of which would, either individually or in the
aggregate, have a material adverse effect on the
transactions contemplated hereby or on the business,
assets, results of operations or financial condition
of Silver and its subsidiaries, taken as a whole,
except for (A) the filing of the Silver Charter
Amendment with the Delaware Secretary of State (as
contemplated by Section 4.1), (B) the filing with the
Securities and Exchange Commission (the "SEC") of the
Proxy Statement (as defined in Section 4.2) required
in connection with this Agreement and the
transactions contemplated hereby and (C) the
Governmental Filings required pursuant to the pre
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merger notification requirements of the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder
(the "HSR Act") and the expiration or termination of
any applicable waiting period with respect to the
Exchange under the HSR Act;
(iii) require, on the part of Silver or any
subsidiary of Silver, any consent by or approval of
(a "Contract Consent") or notice to (a "Contract
Notice") any other person or entity (other than a
Governmental Entity), the absence or omission of
which would, either individually or in the aggregate,
have a material adverse effect on the transactions
contemplated hereby or on the business, assets,
results of operations or financial condition of
Silver and its subsidiaries, taken as a whole, other
than the approval by the Silver stockholders of the
Silver Charter Amendment pursuant to the DGCL and the
issuance of the Silver Shares in accordance with the
NASD Shareholder Approval Policy;
(iv) except as set forth on Schedule 2.5,
conflict with, result in any violation or breach of
or default (with or without notice or lapse of time,
or both) under, or give rise to a right of
termination, cancellation or acceleration of any
obligation or the loss of any material benefit under
or the creation of any lien, security interest,
pledge, charge, claim, option, right to acquire,
restriction on transfer, voting restriction or
agreement, or any other restriction or encumbrance of
any nature whatsoever on any assets pursuant to (any
such conflict, violation, breach, default, right of
termination, cancellation or acceleration, loss or
creation, a "Violation") any "Contract" (which term
shall mean and include any note, bond, indenture,
mortgage, deed of trust, lease, franchise, permit,
authorization, license, contract, instrument,
employee benefit plan or practice, or other
agreement, obligation, commitment or concession of
any nature) to which Silver or any subsidiary of
Silver is a party, by which Silver, any subsidiary of
Silver or any of their respective assets or
properties is bound or pursuant to which Silver or
any subsidiary of Silver is entitled to any rights or
benefits, except for such Violations which would not,
either individually or in the aggregate, have a
material adverse effect on the transactions
contemplated hereby or on the business, assets,
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results of operations or financial condition of
Silver and its subsidiaries, taken as a whole; or
(v) assuming that the Silver Charter Amendment
has been approved and filed and become effective
pursuant to the DGCL as contemplated in Section 4.1,
that the Silver stockholders have approved the
issuance of the Silver Shares in accordance with the
NASD Shareholder Approval Policy, and that the
Governmental Consents and Governmental Filings
specified in clause (ii) of this Section 2.5 are
obtained, made and given, result in a Violation of,
under or pursuant to any law, rule, regulation,
order, judgment or decree applicable to Silver or any
subsidiary of Silver or by which any of their
respective properties or assets are bound.
SECTION 2.6 DGCL Sec. 203. The Exchange and the
related transactions contemplated hereby have been approved in
all respects by the Board of Directors of House, including for
purposes of Section 203 of the DGCL, and following the
Exchange, Silver shall not be subject to the restrictions on
"business combinations" with "interested stockholders"
contained therein.
SECTION 2.7 Opinion of Advisor. Silver's Board of
Directors has received the written opinion of CS First Boston
(the "CS First Boston Opinion") (a copy of which opinion has
been delivered to Silver Co.) that, as of the date of this
Agreement, the terms of the Exchange are fair to Silver's
stockholders from a financial point of view.
SECTION 2.8 Brokers or Finders. Other than pursuant
to a written agreement with CS First Boston (a copy of which
has been previously furnished to Silver Co.) and as disclosed
in Schedule 2.8, no agent, broker, investment banker, financial
advisor or other person or entity is or will be entitled, by
reason of any agreement, act or statement by Silver or any of
its subsidiaries, directors, officers, employees or affiliates,
to any financial advisory, broker's, finder's or similar fee or
commission, to reimbursement of expenses or to indemnification
or contribution in connection with any of the transactions
contemplated by this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SILVER CO.
Silver Co. hereby makes the following representations and
warranties to Silver:
SECTION 3.1 Organization and Qualification. Silver
Co. (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation; (ii) has all requisite corporate power and
authority to carry on its business as it is now conducted and
to own, lease and operate the properties it now owns, leases or
operates at the places currently located and in the manner
currently used and operated and (iii) is duly qualified or
licensed and in good standing to do business in each
jurisdiction in which the properties owned, leased or operated
by it or the nature of the business conducted by it makes such
qualification or license necessary. As of the date hereof,
Silver Co. has no subsidiaries. As of the Closing, Silver Co.
will have no subsidiaries other than Silver, and by its
execution and delivery of this Agreement, Silver Co. shall not
be deemed to have made any representations, warranties,
covenants or other agreements with respect to or on behalf of
Silver (it being understood that any breach by Silver of any of
its representations, warranties, covenants or other agreements
made herein shall not be considered in determining the truth,
accuracy, completeness or performance of, or compliance with,
any representation, warranty, covenant or agreement made by
Silver Co. herein). Silver Co. has delivered or made available
to Silver true and complete copies of its certificate of
incorporation and bylaws, each as amended to date and currently
in effect (respectively, the "Silver Co. Charter" and the
"Silver Co. Bylaws").
SECTION 3.2 Authorization and Validity of Agreement.
The execution, delivery and performance of this Agreement by
Silver Co. and the consummation of the transactions
contemplated hereby have been duly and validly authorized by
the board of directors and by the requisite vote of the
stockholders of Silver Co. entitled to vote thereon. Silver
Co. has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder
and to consummate the Exchange and the other transactions
contemplated hereby. No other corporate proceedings on the
part of Silver Co. are necessary to authorize the execution and
delivery of this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Silver Co. and, assuming
the due authorization, execution and delivery of this Agreement
by
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Silver, constitutes a legal, valid and binding obligation of
Silver Co., enforceable against it in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally or by
principles governing the availability of equitable remedies.
SECTION 3.3 Ownership and Validity of House Shares.
Upon consummation of the Merger and immediately prior to the
Exchange, Silver Co. will own beneficially and of record the
House Shares, free of any liens, claims, charges, security
interests, pledges, voting or stockholder agreements,
encumbrances or equities. Except for this Agreement, the
Merger Agreement, the definitive term sheet, attached to the
letter to Xxxxx Xxxxxx ("Xxxxxxx") from Rockies, dated August
24, 1995, as amended by the letter to Xxxxxxx, dated as of the
date hereof, pursuant to which Rockies and Xxxxxxx have entered
into certain agreements with respect to the equity securities
of Silver, all as described therein (the "Term Sheet"), and the
transactions contemplated hereby and thereby and except for
certain voting restrictions contained in the Stipulation and
Agreement of Compromise, Settlement and Release entered into in
the action entitled 7547 Corp. v. Liberty Media Corp., et al.
in the Delaware Chancery Court and approved by such court on
January 27, 1995 (the "Sec. 203 Settlement Agreement"), there
are no agreements, arrangements, warrants, options, puts,
calls, rights or other commitments or understandings of any
character to which Silver Co. is a party or by which it is
bound and relating to the issuance, sale, purchase, redemption,
conversion, exchange, registration, voting or transfer of any
of the House Shares. Upon consummation of the Exchange, Silver
will hold the House Shares free and clear of any liens, claims,
charges, security interests, pledges, voting or stockholder
agreements, encumbrances or options (other than any of the
foregoing created by Silver), and will have full rights of
ownership with respect to the House Shares, including the right
to vote the House Shares on all matters properly presented to
the stockholders of House to the extent set forth in the
certificate of incorporation of House as in effect on the date
hereof.
SECTION 3.4 No Approvals or Notices Required; No
Conflict with Instruments. The execution and delivery by
Silver Co. of this Agreement do not, and the performance by
Silver Co. of its obligations hereunder and the consummation of
the transactions contemplated hereby will not:
(i) conflict with or violate the Silver Co.
Charter or the Silver Co. Bylaws;
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(ii) require any Governmental Consent or
Governmental Filing, in each case on the part of or
with respect to each of Silver Co., the absence or
omission of which would, either individually or in
the aggregate, have a material adverse effect on the
transactions contemplated hereby, except for the
Governmental Filings required pursuant to the pre-
merger notification requirements of the HSR Act, and
the expiration or termination of any applicable
waiting period with respect to the Exchange under the
HSR Act;
(iii) require, on the part of Silver Co. any
Contract Consent or Contract Notice, the absence or
omission of which would, either individually or in
the aggregate, have a material adverse effect on the
transactions contemplated hereby;
(iv) conflict with or result in any Violation of
any Contract to which Silver Co. is a party, or by
which Silver Co., or any of its assets or properties
is bound, except for such Violations which would not,
either individually or in the aggregate, have a
material adverse effect on the transactions
contemplated hereby; or
(v) assuming that the Governmental Consents and
Governmental Filings specified in clause (ii) of this
Section 3.4 are obtained, made and given, result in a
Violation of, under or pursuant to any law, rule,
regulation, order, judgment or decree applicable to
Silver Co. or by which any of its properties or
assets are bound, except for such Violations which
would not, either individually or in the aggregate,
have a material adverse effect on the transactions
contemplated hereby.
SECTION 3.5 Brokers or Finders. No agent, broker,
investment banker, financial advisor or other person or entity
is or will be entitled, by reason of any agreement, act or
statement by Silver Co., any of its directors, officers,
employees or affiliates (other than Silver), to any financial
advisory, broker's, finder's or similar fee or commission, to
reimbursement of expenses or to indemnification or contribution
in connection with any of the transactions contemplated by this
Agreement.
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ARTICLE IV
COVENANTS AND OTHER AGREEMENTS
SECTION 4.1 Silver Stockholders Meeting. Silver
will take all action necessary in accordance with Delaware law,
the Silver Charter, the Silver Bylaws and the requirements of
the NASD and the SEC to convene a meeting of its stockholders
(the "Silver Stockholders Meeting") as promptly as practicable
to consider and vote upon (a) an amendment to the Silver
Charter (the "Silver Charter Amendment") (i) increasing the
authorized number of shares of Silver Class B Stock by the
amount necessary to permit the issuance and delivery of the
Silver Shares to Silver Co. in accordance with Section 1.1 and
the transactions contemplated hereby (together with amendments
to such other provisions as may be reasonably necessary to
reflect such increase in the authorized capital stock of
Silver) and (ii) deleting all provisions in the Silver Charter
which require that the holders of the Silver Common Stock and
the Silver Class B Stock vote as separate classes on certain
specified matters so long as at least 2,280,000 shares of
Silver Class B Stock are outstanding and (b) approval of the
issuance of the Silver Shares in accordance with the NASD
Shareholder Approval Policy (the "NASD Vote"). The Board of
Directors of Silver shall recommend that the stockholders of
Silver vote in favor of the Silver Charter Amendment and the
transactions contemplated hereby (including the NASD Vote).
Silver shall use its best efforts to solicit from its
stockholders proxies in favor of such approvals.
SECTION 4.2 Proxy Statement. (a) Silver shall
prepare and file with the SEC, as soon as reasonably
practicable, a preliminary proxy statement and a form of proxy
for use at the Silver Stockholders Meeting relating to the vote
of Silver's stockholders with respect to the Silver Charter
Amendment, the NASD Vote and the transactions contemplated
hereby (together with any amendments or supplements thereto, in
each case in the form or forms mailed to Silver's stockholders,
the "Proxy Statement"). Silver will use all reasonable efforts
to have, or cause, the Proxy Statement to be cleared by the SEC
as promptly as practicable and to cause the Proxy Statement to
be mailed to stockholders of Silver at the earliest possible
date. Silver Co. shall promptly furnish to Silver such
information regarding Silver Co. and its officers and directors
as may be reasonably requested by Silver for inclusion in the
Proxy Statement.
(b) Silver covenants that none of the information
concerning Silver, its subsidiaries, or any of its affiliates,
directors, officers, employees, agents or representatives which
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is included or incorporated by reference in the Proxy Statement
will, at the time the Proxy Statement or any amendment or
supplement thereto is filed with the SEC, at the time of
mailing of the Proxy Statement or any amendment or supplement
thereto to Silver's stockholders or at the time of the Silver
Stockholders Meeting, be false or misleading with respect to
any material fact, or omit to state any material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Silver covenants that the Proxy Statement shall comply as to
form in all material respects with the applicable provisions of
the Exchange Act and the rules and regulations thereunder.
(c) Silver Co. covenants that none of the
information supplied or to be supplied by Silver Co. or any of
its affiliates (other than Silver), directors, officers,
employees, agents or representatives in writing specifically
for inclusion in the Proxy Statement will, at the time the
Proxy Statement or any amendment or supplement thereto is filed
with the SEC, at the time of mailing of the Proxy Statement or
any amendment or supplement thereto to Silver's stockholders or
at the time of the Silver Stockholders Meeting, be false or
misleading with respect to any material fact, or omit to state
any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
SECTION 4.3 Reasonable Efforts. Subject to the
terms and conditions of this Agreement and applicable law, each
of the parties shall use its reasonable efforts to take, or
cause to be taken, all actions, and do, or cause to be done,
all things reasonably necessary, proper or advisable to
consummate and make effective the transactions contemplated by
this Agreement as soon as reasonably practicable, including
such actions or things as either party hereto may reasonably
request in order to cause any of the conditions to such other
party's obligation to consummate such transactions specified in
Article V to be fully satisfied. Without limiting the
generality of the foregoing, the parties shall (and shall cause
their respective subsidiaries, and use their reasonable efforts
to cause their respective affiliates, directors, officers,
employees, agents, attorneys, accountants and representatives,
to) consult and fully cooperate with and provide reasonable
assistance to each other in (i) the preparation and filing with
the SEC of the Proxy Statement and any necessary amendments of
or supplements thereto; (ii) seeking to have the Proxy
Statement cleared by the SEC as soon as reasonably practicable
after filing with the SEC; (iii) obtaining all necessary
Governmental Consents and Contract Consents, and giving all
necessary Contract Notices to and making all necessary
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Governmental Filings and other necessary filings with and
applications and submissions to, any Governmental Entity or
other person or entity; (iv) filing all applicable Pre-Merger
Notification and Report Forms required under the HSR Act as a
result of the transactions contemplated by this Agreement and
promptly complying with any requests for additional information
and documentary material that may be requested pursuant to the
HSR Act; (v) lifting any permanent or preliminary injunction or
restraining order or other similar order issued or entered by
any court or Governmental Entity (an "Injunction") of any type
referred to in Section 5.1; (vi) providing all such information
about such party, its subsidiaries and its officers, directors,
partners and affiliates and making all applications and filings
as may be necessary or reasonably requested in connection with
any of the foregoing; and (vii) in general, consummating and
making effective the transactions contemplated hereby;
provided, however, that in order to obtain any consent,
approval, waiver, license, permit, authorization, registration,
qualification or other permission or action or the lifting of
any Injunction referred to in clauses (iii) and (v) of this
sentence, no party shall be required to (x) pay any
consideration, to divest itself of any of, or otherwise
rearrange the composition of, its assets or to agree to any
conditions or requirements which are materially adverse or
burdensome or (y) amend, or agree to amend, in any material
respect any Contract. Prior to making any application to or
filing with any Governmental Entity or other person or entity
in connection with this Agreement, each of Silver and Silver
Co. shall provide the other party with drafts thereof and
afford the other party a reasonable opportunity to comment on
such drafts.
SECTION 4.4 Public Announcements. Each party agrees
that it shall not, and shall use its reasonable efforts to
cause its affiliates, directors, officers, employees and
authorized representatives not to, issue any press release,
make any public announcement or furnish any written statement
to its employees or stockholders generally concerning the
transactions contemplated by this Agreement without the consent
of the other party (which consent shall not be unreasonably
withheld), except to the extent required by applicable law or
any listing agreement with or other applicable requirements of
a national securities exchange or the applicable requirements
of the NASD (and in such case such party shall, to the extent
consistent with timely compliance with such requirement,
consult with the other party prior to making the required
release, announcement or statement).
SECTION 4.5 Confidentiality. Each party shall, and
shall use its reasonable efforts to cause its officers,
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employees and authorized representatives to (i) hold in
confidence all confidential information obtained by it from the
other party or such other party's officers, employees or
authorized representatives pursuant to this Agreement (unless
such information is or becomes publicly available or readily
ascertainable from public or published information or trade
sources through no wrongful act of such first party) and
(ii) use all such data and information solely for the purpose
of consummating the transactions contemplated hereby, except,
in either case, as may be otherwise required by law or legal
process or as may be necessary or appropriate in connection
with the enforcement of, or any litigation concerning, this
Agreement. In the event a party is required by applicable law
or legal process to disclose any confidential information of
the other party, such first party will provide the other party
with prompt notice thereof to enable such other party to seek
an appropriate protective order. In the event this Agreement
is terminated, each party shall promptly return, if so
requested by the other party, all nonpublic documents obtained
from such other party in connection with the transactions
contemplated hereby and any copies thereof which may have been
made by such first party and shall use its reasonable efforts
to cause its officers, employees and authorized representatives
to whom such documents were furnished promptly to return such
documents and any copies thereof any of them may have made.
SECTION 4.6 Merger Agreement. Silver Co. shall not
amend or otherwise alter or waive any of its rights or
obligations (including any conditions on its obligations to
consummate the transactions contemplated thereby) under the
Merger Agreement in any material respect without the prior
written consent of Silver.
SECTION 4.7 Notification of Certain Matters. Silver
shall give prompt notice to Silver Co., and Silver Co. shall
give prompt notice to Silver, of the occurrence, or failure to
occur, of any event, which occurrence or failure to occur would
be likely to cause (a) any representation or warranty contained
in this Agreement to be untrue or inaccurate in any material
respect, (b) any material failure of Silver or Silver Co., as
the case may be, or of any officer, director, employee or agent
thereof, to comply with or satisfy any covenant or agreement to
be complied with or satisfied by it under this Agreement or (c)
the failure to be satisfied of any condition to the parties'
respective obligations to consummate the transactions
contemplated hereby and by the Merger Agreement.
Notwithstanding the foregoing, the delivery of any notice
pursuant to this Section shall not limit or otherwise affect
the remedies available hereunder to the party receiving such
notice.
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ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent to the Obligations
of Silver and Silver Co. The obligations of each of Silver and
Silver Co. to consummate the transactions contemplated by this
Agreement are subject to the satisfaction at or prior to the
Closing Date of each of the following conditions, any or all of
which may be waived in whole or in part by the parties, to the
extent permitted by applicable law:
(a) Absence of Injunctions. No Injunction or other
legal restraint or prohibition preventing consummation of the
transactions contemplated hereby as provided herein shall be in
effect.
(b) No Proceedings or Adverse Enactments. There
shall not have been any action taken, or any statute, rule,
regulation, order, judgment or decree enacted, promulgated,
entered, issued or enforced by any Governmental Entity, and
there shall be no action, suit, proceeding or investigation
pending or threatened which makes the transactions contemplated
by this Agreement illegal or imposes, or is reasonably likely
to result in the imposition of, material damages or penalties
in connection therewith.
(c) Stockholder Approvals. The Silver Charter
Amendment and the transactions contemplated hereby shall have
been approved by the requisite vote of the stockholders of
Silver under Delaware law, the Silver Charter, the Silver
Bylaws, and the Silver Charter Amendment shall have been filed
with the Delaware Secretary of State in accordance with the
DGCL and become effective under the DGCL. The issuance of the
Silver Shares shall have been approved by the requisite vote of
the stockholders of Silver in accordance with the NASD
Shareholder Approval Policy.
(d) Consummation of the Merger. Immediately prior
in time to the Closing, the Merger and the transactions
contemplated thereby shall have been consummated in accordance
with the Merger Agreement.
(e) HSR Act. All applicable waiting periods under
the HSR Act shall have expired or been terminated without
commencement of litigation by the appropriate governmental
enforcement agency to restrain the transactions contemplated
hereby.
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(f) Receipt of Governmental Approvals and Consents.
All Governmental Consents as are required in connection with
the consummation of the transactions contemplated hereby shall
have been obtained and shall be in full force and effect and
all Governmental Filings as are required in connection with the
consummation of such transactions shall have been made, and all
waiting periods, if any, applicable to the consummation of such
transactions imposed by any Governmental Entity shall have
expired, other than those which, if not obtained, in force or
effect, made or expired (as the case may be) would not, either
individually or in the aggregate, have a material adverse
effect on the transactions contemplated hereby.
SECTION 5.2 Conditions Precedent to the Obligations
of Silver Co. The obligation of Silver Co. to consummate the
transactions contemplated by this Agreement is also subject to
the satisfaction, at or prior to the Closing Date, of each of
the following conditions, any or all of which may be waived in
whole or in part by Silver Co., to the extent permitted by
applicable law:
(a) Accuracy of Representations and Warranties. All
representations and warranties of Silver contained in this
Agreement shall, if specifically qualified by materiality, be
true and correct and, if not so qualified, be true and correct
in all material respects in each case as of the date of this
Agreement and (except to the extent such representations or
warranties speak as of a specified earlier date) on and as of
the Closing Date, with the same force and effect as though made
on and as of the Closing Date, except for changes expressly
permitted or contemplated by this Agreement.
(b) Performance of Agreements. Silver shall have
performed in all material respects all obligations and
agreements, and complied in all material respects with all
covenants and conditions, contained in this Agreement to be
performed or complied with by it at or prior to the Closing
Date.
(c) No Proceedings or Adverse Enactments Affecting
Silver Shares. There shall not have been any action taken, or
any statute, rule, regulation, order, judgment or decree
enacted, promulgated, entered, issued or enforced by any
Governmental Entity, and there shall be no action, suit or
proceeding pending or threatened which would, as of or after
the Closing, impose material limitations on the ability of
Silver Co. effectively to exercise full rights of ownership of
the Silver Shares (including, to the extent such Silver Shares
have voting rights, the right to vote such shares on all
matters properly presented to the stockholders of Silver).
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(d) Control of Silver. Immediately after the
Exchange, Silver Co. shall have "control" (as defined in
Section 368(c) of the Internal Revenue Code of 1986, as
amended) of Silver, and Silver Co. shall own a majority of the
voting power of the outstanding equity securities of Silver.
(e) Officer's Certificates. Silver Co. shall have
received a certificate of Silver, dated the Closing Date,
signed by an executive officer of Silver Co. certifying that
the conditions set forth in Sections 5.2 (a) and (b) have been
satisfied, which certification shall have been given by such
officer after due inquiry.
(f) Other Deliveries. All other documents and
instruments required under this Agreement to have been
delivered by Silver to Silver Co. at or prior to the Closing or
as Silver Co. shall have reasonably requested, shall have been
delivered by Silver.
(g) Xxxxxxx Management Role. Xxxxxxx shall be
Chairman of the Board and/or Chief Executive Officer and/or
President of Silver and shall be Chairman of the Board of
House.
SECTION 5.3 Conditions Precedent to the Obligations
of Silver. The obligation of Silver to consummate the
transactions contemplated by this Agreement is also subject to
the satisfaction, at or prior to the Closing Date, of each of
the following conditions, any or all of which may be waived in
whole or in part by Silver, to the extent permitted by
applicable law:
(a) Accuracy of Representations and Warranties. All
representations and warranties of Silver Co. contained in this
Agreement shall, if specifically qualified by materiality, be
true and correct and, if not so qualified, be true and correct
in all material respects, in each case as of the Closing Date
(except to the extent such representations and warranties speak
as of a specified earlier date), except for changes expressly
permitted or contemplated by this Agreement.
(b) Performance of Agreements. Silver Co. shall
have performed in all material respects all obligations and
agreements, and complied in all material respects with all
covenants and conditions, contained in this Agreement to be
performed or complied with by them at or prior to the Closing
Date.
(c) Officer's Certificates. Silver shall have
received a certificate of Silver Co. dated the Closing Date,
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signed by an executive officer of Silver Co. certifying that
the conditions set forth in Sections 5.3 (a) and (b) have been
satisfied, which certification shall have been given by such
officer after due inquiry.
(d) Other Deliveries. All other documents and
instruments required under this Agreement to have been
delivered by Silver Co. to Silver at or prior to the Closing,
or as Silver shall reasonably request, shall have been
delivered by Silver Co.
(e) Xxxxxxx Management Role. Xxxxxxx shall be
Chairman of the Board and/or Chief Executive Officer and/or
President of Silver and the Chairman of the Board of House;
provided, however, that to the extent the failure of the
foregoing condition to be satisfied is primarily the result of
any action by Xxxxxxx (including his resignation, his
termination or removal for Cause (as defined in the Silver Term
Sheet), or his failure to cause himself to be elected or
appointed to such positions at Silver at any time following the
Control Date (as defined in the Term Sheet)), then the
condition set forth in this Section 5.3(e) shall nevertheless
be deemed satisfied.
(f) No Adverse Change or Development. Except with
respect to the Reserved Matters (as defined below), subsequent
to December 31, 1994, there shall not have occurred any change
or development in or affecting the assets, liabilities,
business, operations, or financial condition of House which in
any case or in the aggregate would, in the reasonable judgment
of the Board of Directors of Silver, represent a material
adverse effect upon House and its subsidiaries, taken as a
whole. For purposes of this paragraph (f), the term "Reserved
Matters" shall mean any information relating to the assets,
liabilities, business, operations or financial condition of
House which is contained in, is reasonably discernable from,
results from, or which is or has become known to, as
applicable, any of the following:
(i) any reports or statements filed by House
with the SEC with respect to periods subsequent to
December 31, 1994 and prior to the date of this
Agreement;
(ii) any information obtained or reviewed by, or
otherwise delivered to, Silver or to Xxxxx Xxxxxx or
his representatives ("Xxxxxx") as a result of or in
connection with Xxxxxx'x service on the Board of
Directors of House or the Executive Committee thereof
prior to the date of this Agreement, in connection
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with any investigation, discussions, reviews or
analyses of the business and affairs of House
conducted by Xxxxxx, or otherwise;
(iii) with respect to any current or recurring
negative financial or operating trend, information
with respect to House (which trends may include, but
are not limited to, sales, cost of goods sold,
inventories, liquidity, commission payments to cable
operators and the rate of returned goods), any
continuance (including any continued or accelerated
deterioration) thereof, beyond the date hereof, which
information is contained in the Reserved Matters
referred to in clauses (i) and (ii) above; and
(iv) any adverse changes or developments which
are directly or indirectly caused by Xxxxxx and/or
senior management of House (including, but not
limited to, its Chairman of the Board) hired or
appointed subsequent to November 22, 1995, including
but not limited to, the adoption, implementation,
expansion or change in any Board of Directors or
managerial directives or accounting and financial
reporting policies and/or any other changes in the
nature or manner of operation of House's business.
(g) Audited Financial Statements. Except to the
extent contained in the matters referred to in clauses (i) and
(ii) of the Reserved Matters, the audited financial statements
of House, as of and for the fiscal year ended December 31,
1994, contained in the Annual Report on Form 10-K of House for
the fiscal year ended December 31, 1994, as amended, shall have
been prepared in accordance with generally accepted accounting
principles, applied on a consistent basis throughout the fiscal
year ended December 31, 1994 (except as may be indicated in the
notes thereto), and shall have fairly presented the
consolidated financial position of House and its consolidated
subsidiaries as of December 31, 1994 and the consolidated
results of its operations and cash flows for the fiscal year
ended December 31, 1994, except for such failures to have been
prepared and/or to have fairly presented the foregoing as do
not, individually or in the aggregate, represent a material
adverse effect on the assets, liabilities, business, operations
or financial condition of House and its subsidiaries, taken as
a whole.
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ARTICLE VI
TERMINATION
SECTION 6.1 Termination and Abandonment. This
Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Closing,
(i) by mutual written consent of Silver Co. and Silver; (ii) by
either Silver Co. or Silver: (A) if the Closing shall not have
occurred before August 30, 1996 (or, if earlier, the
termination of the Merger Agreement pursuant to Section
6.1(ii)(A)), provided, that the right to terminate this
Agreement pursuant to this clause (ii)(A) shall not be
available to any party whose failure to perform any of its
obligations under this Agreement required to be performed by it
at or prior to the Closing has resulted in the failure of the
Closing to occur before such date, (B) if there has been a
material breach by the other party of any of its
representations, warranties, covenants or agreements contained
in this Agreement and such breach shall not have been cured
within five business days after written notice thereof shall
have been received by the party alleged to be in breach or
(C) if any court of competent jurisdiction or other competent
Governmental Entity shall have issued an order, decree or
ruling or taken any other action permanently restraining,
enjoining or otherwise prohibiting any of the transactions
contemplated by this Agreement and such order, decree, ruling
or other action shall have become final and nonappealable or
(iii) by Silver or Silver Co., if the required approvals of the
stockholders of Silver contemplated by this Agreement shall not
have been obtained by reason of the failure to obtain the
required vote upon a vote taken at a meeting of stockholders
duly convened therefor or at any adjournment thereof.
SECTION 6.2 Effect of Termination. In the event of
any termination of this Agreement by Silver Co. or Silver
pursuant to Section 6.1, this Agreement forthwith shall become
void, and there shall be no liability or obligation on the part
of any party hereto, except that Sections 4.5 and 7.2 shall
survive the termination of this Agreement and except that
nothing herein will relieve a party from liability for any
breach of this Agreement occurring prior to such termination.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Further Assurances. From and after the
Closing Date, each of Silver and Silver Co. shall, at any time
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and from time to time, make, execute and deliver, or cause to
be made, executed and delivered, such instruments, agreements,
consents and assurances and take or cause to be taken all such
actions as may reasonably be requested by any other party
hereto to effect the purposes and intent of this Agreement.
SECTION 7.2 Expenses. Except as otherwise provided
herein, all costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing
shall occur.
SECTION 7.3 Notices. All notices, requests,
demands, waivers and other communications required or permitted
to be given under this Agreement shall be in writing and shall
be deemed to have been duly given on (i) the day on which
delivered personally or by telecopy (with prompt confirmation
by mail) during a business day to the appropriate location
listed as the address below, (ii) three business days after the
posting thereof by United States registered or certified first
class mail, return receipt requested, with postage and fees
prepaid or (iii) one business day after deposit thereof for
overnight delivery. Such notices, requests, demands, waivers
or other communications shall be addressed as follows:
(a) if to Silver to:
Silver King Communications, Inc.
00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopier: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
(b) if to Silver Co., to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
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Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
with a copy to the following:
Liberty Media Corporation
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, President
Telecopier No.: (000) 000-0000
Xxxxx & Xxxxx, L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx XxXxxxx, Esq.
Telecopier No.: (000) 000-0000
or to such other person or address as any party shall specify
by notice in writing to the other party.
SECTION 7.4 Entire Agreement. This Agreement
(including the documents referred to herein) constitutes the
entire agreement between the parties and supersedes all prior
agreements and understandings, oral and written, between the
parties with respect to the subject matter hereof.
SECTION 7.5 Assignment; Binding Effect; Benefit.
Neither this Agreement nor any of the rights, benefits or
obligations hereunder may be assigned by any party without the
prior written consent of the other parties hereto. Subject to
the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any
person other than the parties or their respective successors
and assigns, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
SECTION 7.6 Amendment. This Agreement may be
amended, superseded or cancelled, only by a written instrument
specifically stating that it amends, supersedes or cancels this
Agreement, executed by all parties hereto.
SECTION 7.7 Extension; Waiver. Silver Co. or Silver
may, to the extent legally allowed, (i) extend the time
specified herein for the performance of any of the obligations
of the other party, (ii) waive any inaccuracies in the
representations and warranties of the other party contained
herein or in any document delivered pursuant hereto,
(iii) waive compliance by the other party with any of the
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agreements or covenants of such other party contained herein or
(iv) waive any condition to such waiving party's obligation to
consummate the transactions contemplated hereby or to any of
such waiving party's other obligations hereunder. Any
agreement on the part of a party hereto to any such extension
or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party. Any such extension
or waiver by any party shall be binding on such party but not
on the other party entitled to the benefits of the provision of
this Agreement affected unless such other party also has agreed
to such extension or waiver. No such waiver shall constitute a
waiver of, or estoppel with respect to, any subsequent or other
breach or failure to comply strictly with the provisions of
this Agreement. The failure of any party to insist on strict
compliance with this Agreement or to assert any of its rights
or remedies hereunder or with respect hereto shall not
constitute a waiver of such rights or remedies. Whenever this
Agreement requires or permits consent or approval by any party,
such consent or approval shall be effective if given in writing
in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 7.7.
SECTION 7.8 Survival. The representations and
warranties made by Silver in Sections 2.1, 2.2, 2.4, 2.5, 2.6,
2.7 and 2.8 shall survive the Closing until the expiration of
the statute of limitations period applicable to claims that may
be asserted against Silver in respect of the matters covered
thereby; the representations and warranties made by Silver Co.
in Sections 3.1, 3.2 and 3.5 shall survive the Closing until
the expiration of the statute of limitations period applicable
to claims that may be asserted against Silver Co. in respect of
the matters covered thereby; the representations and warranties
of Silver in Section 2.3, and of Silver Co. in Section 3.3,
shall survive indefinitely; no other representations and
warranties of the parties contained in this Agreement shall
survive the Closing. In addition, the covenants and agreements
in Section 4.5 and Article VII shall also survive the Closing
until the expiration of the statute of limitations period
applicable to claims that may be asserted in respect of the
matters covered thereby.
SECTION 7.9 Interpretation. When a reference is
made in this Agreement to Sections, Articles or Schedules, such
reference shall be to a Section, Article or Schedule (as the
case may be) of this Agreement unless otherwise indicated.
When a reference is made in this Agreement to a "party" or
"parties", such reference shall be to a party or parties to
this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
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meaning or interpretation of this Agreement. Whenever the
words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words
"without limitation". The use of any gender herein shall be
deemed to be or include the other genders and the use of the
singular herein shall be deemed to be or include the plural
(and vice versa), wherever appropriate. The use of the words
"hereof", "herein", "hereunder" and words of similar import
shall refer to this entire Agreement, and not to any particular
article, section, subsection, clause, paragraph or other
subdivision of this Agreement, unless the context clearly
indicates otherwise. Notwithstanding anything herein to the
contrary, for purposes of this Agreement Silver shall not be
deemed to be a subsidiary or an affiliate of Silver Co., and
the subsidiaries, directors, officers, employees and affiliates
of Silver shall not be deemed to be subsidiaries, directors,
officers, employees or affiliates of Silver Co.
SECTION 7.10 Severability. If any provision of this
Agreement or the application thereof to any person or
circumstance is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated
thereby, provided that, if any provision hereof or the
application thereof shall be so held to be invalid, void or
unenforceable by a court of competent jurisdiction, then such
court may substitute therefor a suitable and equitable
provision in order to carry out, so far as may be valid and
enforceable, the intent and purpose of the invalid, void or
unenforceable provision. To the extent that any provision
shall be judicially unenforceable in any one or more states,
such provision shall not be affected with respect to any other
state, each provision with respect to each state being
construed as several and independent.
SECTION 7.11 Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed to be
an original, and all of which together shall be deemed to be
one and the same instrument.
SECTION 7.12 Applicable Law. This Agreement and the
legal relations between the parties shall be governed by and
construed in accordance with the laws of the State of Delaware,
without regard to the conflict of laws rules thereof.
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IN WITNESS WHEREOF, the parties hereto have executed
this Exchange Agreement as of the date first above written.
SILVER KING COMMUNICATIONS, INC.
/s/ Xxxxxx X. Xxxxx
By: Xxxxxx X. Xxxxx
Title: Executive Vice President
SILVER MANAGEMENT COMPANY
/s/ Xxxxx Xxxxxx
By: Xxxxx Xxxxxx
Title: President
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