EXHIBIT 3
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of June 11,
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1997, is entered into by and between Fox Kids Worldwide, Inc., a Delaware
corporation (the "Purchaser"), on the one hand, and M.G. "Xxx" Xxxxxxxxx,
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individually and as trustee of each of the Xxxxxxxxx Charitable Remainder
Unitrust, u/t/a dated January 22, 1990 (the "PR Charitable Trust"), the Xxxxxx
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X. Xxxxxxxxx Irrevocable Trust, u/t/a dated December 18, 1996, the Xxxxxxxxx X.
Xxxxxxxx Irrevocable Trust, u/t/a dated December 18, 1996, and the Xxx X.
Xxxxxxx Irrevocable Trust, u/t/a dated December 18, 1996 (the Xxxxxx X.
Xxxxxxxxx Irrevocable Trust, the Xxxxxxxxx X. Xxxxxxxx Irrevocable Trust and the
Xxx X. Xxxxxxx Irrevocable Trust, together, the "Irrevocable Trusts"), Xxxx X.
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Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxx ("Xxx Xxxxxxxxx"), as joint tenants, and Xxx
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Xxxxxxxxx, individually, as trustee of each of the Xxxxxxx and Xxxx Xxxxxxxxx
Children's Trust, u/t/a dated September 18, 1995 (the "TR Family Trust") and the
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Xxxxxxx X. Xxxxxxxxx Charitable Trust, u/t/a dated December 30, 1996 (the "TR
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Charitable Trust"), and as custodian to and for each of Xxxxxxx X. Xxxxxxxxx,
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Xxxxx X. Xxxxxxxxx, Xxxxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx and Xxxxxxxx X.
Xxxxxxxxx under the Virginia Uniform Transfers to Minors Act (Xxx Xxxxxxxxx, the
PR Charitable Trust, the Irrevocable Trusts, Xxxx X. Xxxxxxxxx, Xxx Xxxxxxxxx,
the TR Family Trust and the TR Charitable Trust, collectively, the "Sellers",
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and each individually, a "Seller") on the following terms and conditions:
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R E C I T A L S
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WHEREAS, as of the date hereof, the PR Charitable Trust beneficially owns
3,125,000 shares of Class A Common Stock, par value $0.01 per share, of
International Family Entertainment, Inc. (the "Company") (the "Class A Stock")
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(as used herein, the term "Control Stock" shall refer to the shares of Class A
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Stock of the Company or the shares of Class B Common Stock, par value $0.01 per
share, of the Company (the "Class B Stock") into which the Class A Stock shall
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have converted, if the conversion of the Class A Stock into shares of Class B
Stock shall have occurred prior to or upon the Closing, it being understood that
pursuant to the Company's Amended and Restated Certificate of Incorporation (the
"Charter") the Class A Stock will so convert upon the Closing, and as used
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herein, the term "Company Stock" shall refer to the total shares of Class A
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Stock and Class B Stock combined);
WHEREAS, as of the date hereof, Xxx Xxxxxxxxx beneficially owns 1,837,500
shares of Control Stock and the TR Family Trust beneficially owns 37,500 shares
of Control Stock;
WHEREAS, as of the date hereof, the Sellers beneficially own an aggregate
of 1,231,981 shares of Class B Stock (excluding options to acquire shares of
Class B Stock and excluding shares ("401(k) Shares") held under the Company's
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401(k) plan) (the Control Stock and the
Class B Stock owned by the Sellers (other than the 401(k) Shares, which shall
not be subject to this Agreement), together, the "Shares");
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WHEREAS, the Purchaser desires to purchase the Shares from the Sellers and
the Sellers desire to sell the Shares to the Purchaser, all on the terms and
subject to the conditions contained herein;
WHEREAS, concurrently herewith, the Purchaser, Fox Kids Merger Corporation,
a Delaware corporation ("FKW Sub"), and the Company are entering into that
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certain Agreement and Plan of Merger (as the same may be amended from time to
time in accordance with its terms, the "Merger Agreement"), providing for the
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merger of FKW Sub into the Company (the "Merger"), which shall be the surviving
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corporation, pursuant to which each share of Company Stock and Non Voting Class
C Common Stock, par value $0.01 per share, of the Company (the "Class C Stock",
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and together with all of the Class B Stock, the Class C Stock and any other
shares of any other class of common stock of the Company, the "Common Stock")
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which is issued and outstanding immediately prior to the effective time (the
"Effective Time") of the Merger (other than shares held by the Company, the
Purchaser or FKW Sub, or any direct or indirect subsidiary of the Company, the
Purchaser or FKW Sub) shall be canceled and extinguished and be converted into
and become a right to receive a cash payment equal to $35.00 per share (subject
to adjustment), without interest (except that any Dissenting Shares (as defined
in the Merger Agreement) shall be converted into and become a right to receive
the payment provided for under the Delaware General Corporation Law);
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Purchaser has required that the Sellers enter into this Agreement
and as a condition to their willingness to enter into this Agreement, the
Sellers have required that the Purchaser and FKW Sub enter into the Merger
Agreement;
WHEREAS, the Purchaser, Liberty Media Corporation, a Delaware corporation
("Liberty"), and Liberty IFE, Inc., a Colorado corporation ("LIFE"), have
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entered into that certain Contribution and Exchange Agreement, dated as of the
date hereof (as the same may be amended from time to time in accordance with its
terms, the "Contribution Agreement"), pursuant to which LIFE has agreed, on the
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terms and subject to the conditions therein, to contribute its shares of Class C
Stock and its $23 million principal amount of 6% Convertible Secured Notes due
2004 of the Company (the "Convertible Notes"), to the Purchaser in exchange for
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shares of a newly issued class of preferred stock of the Purchaser;
WHEREAS, in connection with the execution of the Contribution Agreement,
LIFE has waived all rights of first refusal, co-sale and other rights which it
has with respect to the sale of Shares contemplated hereby under that certain
Amended and Restated Shareholder Agreement, dated as of September 1, 1995, by
and among the Company, Xxx Xxxxxxxxx, the PR Charitable
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Trust, Xxx Xxxxxxxxx, the TR Family Trust, LIFE and The Christian Broadcasting
Network, Inc., a Virginia corporation ("CBN") (the "Shareholder Agreement");
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WHEREAS, in connection with sale of the Shares to the Purchaser hereunder,
the Company, Xxx Xxxxxxxxx, the PR Charitable Trust, Xxx Xxxxxxxxx, the TR
Family Trust, LIFE and CBN have entered into that certain Termination Agreement,
dated as of even date herewith (the "Termination Agreement"), terminating the
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Shareholder Agreement, on the terms and conditions set forth therein;
WHEREAS, in connection with the Contribution Agreement, Satellite Services,
Inc., a Delaware corporation and an affiliate of Liberty, has entered into an
amendment to its Affiliation Agreement with the Company (the "Amended
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Affiliation Agreement");
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WHEREAS, concurrently herewith, the Purchaser and CBN are entering into
that certain Stock Purchase Agreement with respect to the purchase by the
Purchaser of the shares of Class B Stock owned by CBN (as the same may be
amended from time to time in accordance with its terms, the "CBN Stock Purchase
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Agreement");
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WHEREAS, in connection with the execution of the CBN Purchase Agreement,
CBN is waiving all rights of co-sale and other rights which it has with respect
to the sale of Shares contemplated hereby under the Shareholder Agreement;
WHEREAS, concurrently herewith, the Purchaser and Regent University, a
Virginia corporation ("Regent") are entering into that certain Stock Purchase
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Agreement with respect to the purchase by the Purchaser of the shares of Class B
Stock owned by Regent (as the same may be amended from time to time in
accordance with its terms, the "Regent Stock Purchase Agreement");
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WHEREAS, concurrently herewith, the Purchaser and Xxx Xxxxxxxxx have
entered into a letter agreement providing for certain services to be rendered by
Xxx Xxxxxxxxx to the Company (the "PR Agreement"); and
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WHEREAS, as a condition to their willingness to enter into this Agreement,
the Sellers have required that, in connection with the transactions to be
effected pursuant to this Agreement, The News Corporation Limited, a corporation
organized and existing under the laws of South Australia, Australia (the
"Guarantor") guarantee the obligations of the Purchaser to the Sellers hereunder
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and the Guarantor has given a guaranty (the "Guaranty") in accordance with such
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determination.
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.
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1. Purchase and Sale of the Shares. On the terms and subject to the
conditions set forth in this Agreement, the Sellers agree to sell and deliver
the Shares to the Purchaser, free and clear of any mortgage, pledge, lien,
security interest or other encumbrance (each, a "Lien") or Restriction created
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by or binding upon the Sellers or the Shares, and the Purchaser agrees to
purchase and acquire the Shares from the Sellers. For purposes of this
Agreement, "Restriction" means, when used with respect to any specified
security, any stockholders 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 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. For purposes of
this Agreement, "Person" means any individual, corporation, general or limited
partnership, limited liability company, trust, joint venture, association or
unincorporated entity of any kind.
2. Purchase Price. The Shares shall be purchased by the Purchaser from
the Sellers thereof for a purchase price (the "Purchase Price") equal to $35.00
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per share. Notwithstanding the foregoing, the Purchase Price shall be increased
to an amount which equals (if greater than the Purchase Price provided for
herein) the per share amount actually paid, directly or indirectly, by the
Purchaser 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 earlier to occur of (a) the Effective Time (as defined in
the Merger Agreement) or (b) the termination of the Merger Agreement, (x) in the
Merger, (y) from (i) LIFE, (ii) CBN, (iii) Regent, (iv) 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 of common stock of the Company, or (v) any of the Affiliates of the
entities referred to in clauses (i), (ii), (iii), or (iv) above, or (z) in any
transaction, or series of related or unrelated transactions (excluding for
purposes of this clause (z), any transaction referred to in clauses (y)(i),
(ii), (iii) or (v)), 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 Purchase Price 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 Merger Agreement, the CBN Agreement or
the Regent Agreement unless the applicable agreement has been amended after the
date hereof so as to increase the consideration to be paid by the Purchaser or
any of its Affiliates, directly or indirectly, with respect to the Company Stock
or securities convertible into Company Stock. The Purchaser shall promptly
provide notice to the Sellers of any agreement or amendment to an existing
agreement entered into by the Purchaser or any of its Affiliates with the
Company, CBN or Regent, or any
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amendment to an Other Transaction Agreement (as defined herein) to which LIFE or
any of its Affiliates is a party, from and after the date hereof and through the
Closing Date. If the Purchase Price is adjusted pursuant to the foregoing,
following the closing under such other agreement (or the Effective Time, if
applicable), the Purchaser shall promptly pay to the Sellers the amount of any
increase in the Purchase Price resulting from such agreement. For purposes of
this Agreement, "Affiliate" means, when used with reference to a specified
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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 an individual, such Person's spouse,
parents, children, siblings, mothers- and fathers-in-law, sons- and daughters-
in-law, and brothers- and sisters-in-law. For the purposes of this definition,
"control" (including the terms 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 the purposes of this Agreement, the Purchaser shall
be deemed to be an Affiliate of Fox, Inc., a Delaware corporation, and of Saban
Entertainment, Inc., a Delaware corporation, but shall not be deemed to be an
Affiliate of any of the Sellers, the Company, LIFE, CBN, Regent nor any of their
respective Affiliates.
3. The Closing. The closing (the "Closing") of the purchase and sale of
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the Shares shall take place on the third business day following satisfaction or
waiver of each and every one of the conditions set forth in Section 6 and 7
hereof, or such other date and time as the parties shall otherwise agree to.
The date of the Closing is referred to herein as the "Closing Date." At the
Closing, each Seller shall deliver to the Purchaser certificates representing
the Shares (accompanied by signature guarantees in customary form) against
delivery by the Purchaser of payment of the Purchase Price therefor, allocated
among the Sellers based on their respective percentage ownerships of the Shares,
by wire transfer or by immediately available funds, to such accounts as Seller
may specify.
4. Representations and Warranties. Each Seller, severally with respect
to itself and the Shares which it has agreed to sell pursuant to this Agreement,
makes the following representations and warranties as of the date hereof. The
representations and warranties contain exceptions set forth in a written
disclosure letter (the "Sellers Disclosure Letter") delivered to the Purchaser
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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 Formation, Validity, Powers and Actions of Trusts. If a trust,
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(i) such Seller is a trust duly and validly formed and validly existing under
the laws of the Commonw
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4.3 No Consents. Other than filings required under the
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Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the filing of Forms 4 and Schedules 13D under the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (the "Exchange
Act"), no consent, authorization, order or approval of, or filing with or
registration with, any governmental authority, commission, board or other
regulatory body of the United States or any state or political subdivision
thereof (each, a "Governmental Entity"), is required to be made or obtained by
the Sellers for or in connection with the sale by the Sellers of the Shares to
the Purchaser as contemplated hereby.
4.4 Title. Each Seller has, and at the Closing will have, good
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and valid title to the Shares it is selling pursuant to this Agreement, free and
clear of any Liens or Restrictions (other than those restrictions set forth in
the Shareholder Agreement or in the Charter) and (subject to such restrictions)
it has the full legal right, power and authority to sell, assign, transfer and
deliver such Shares to the Purchaser and to make the representations,
warranties, covenants and agreements made by such Seller herein; upon the
delivery of and payment for such Shares as contemplated hereby the Purchaser
will acquire good and valid title thereto, free and clear of all Liens or
Restrictions created by or binding upon such Seller. Each Seller has sole voting
power, and sole power of disposition, with respect to all of its respective
Shares (other than those Restrictions set forth in the Shareholder Agreement or
in the Charter) subject to applicable federal and state securities laws, on such
Seller's rights of disposition pertaining thereto. The Shares, in the amounts
set forth in the recitals to this Agreement, constitute all equity or debt
securities issued by the Company held by the Sellers (other than the 401(k)
Shares) and none of the Sellers has any right, title or interest in or to any
other equity or debt securities of the Company or any option or right to acquire
such equity or debt securities (other than the 401(k) Shares), other than those
options (the "Subject Options") to acquire shares of Class B Stock under the
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International Family Entertainment, Inc. Stock Incentive Plan which are
described in the Sellers Disclosure Letter and other than under the Shareholder
Agreement.
4.5 No Conflicts. The execution, delivery and performance by
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the Sellers of this Agreement will not violate any other agreement to which any
of the Sellers is a party, including, without limitation, any voting agreement,
stockholders agreement or voting trust, or otherwise contravene, conflict with
or result in a violation of, any federal, state, local, municipal, foreign,
international, multi-national or other administrative order, constitution, law,
ordinance, regulation, statute or treaty, or give any individual, corporation,
partnership, governmental authority or regulatory body or any other person the
right to prevent the consummation of the sale of the Shares contemplated hereby.
4.6 No Broker. The Sellers have not employed any investment
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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 in
connection with this Agreement or the transactions contemplated hereby.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Sellers as follows:
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5.1 Organization, Standing and Corporate Power of the
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Purchaser. The Purchaser is a corporation duly organized, validly existing and
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in good standing under the laws of the State of Delaware, with adequate
corporate power and authority to own its properties and carry on its business as
presently conducted. The Purchaser has the corporate power and authority to
enter into, execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
5.2 Organization, Standing and Corporate Power of the
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Guarantor. The Guarantor is a corporation organized and existing under the laws
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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 the Purchaser hereunder
pursuant to such Guaranty.
5.3 Execution, Delivery and Performance by the Purchaser. The
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execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of the Purchaser, and the Purchaser has taken all other actions
required by law, its Certificate of Incorporation and its Bylaws in order to
consummate the transactions contemplated by this Agreement. This Agreement
constitutes the valid and binding obligations of the Purchaser 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.
5.4 Execution, Delivery and Performance by the Guarantor. The
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execution, delivery and performance of the Guaranty and the consummation of the
transactions 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.
5.5 Consents. Other than filings required under the HSR Act
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and the filing of a Form 4 and Schedule 13D under the Exchange Act, no consent,
authorization, order or approval of, or filing with or registration with, any
Governmental Entity is required to be made or obtained by the Purchaser for the
purchase by the Purchaser of the Shares from the Sellers as contemplated hereby
or by the Guarantor for the execution, delivery and performance of the
Guaranty.
5.6 No Conflicts. The execution, delivery and performance by
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the Purchaser of this Agreement or by the Guarantor of the Guaranty will not
violate any other agreement to which the Purchaser or the Guarantor is a party,
or otherwise contravene, conflict with or result in a violation of, any federal,
state, local, municipal, foreign, international, multi-national or other
administrative order, constitution, law, ordinance, regulation, statute or
treaty, or give any individual, corporation, partnership, governmental authority
or regulatory body or any other person the right to
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prevent the consummation of the sale of the Shares contemplated hereby or the
enforcement by any of the Sellers of the Guaranty.
5.7 Purchase For Investment. The Purchaser is acquiring the
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Shares for its own account, for investment purposes only, and not with a view to
or for the resale or distribution thereof, in whole or in part. The Purchaser
acknowledges and represents: (i) that it is aware that the Shares are not
registered under the Securities Act and are subject to the restrictions thereof,
including pursuant to Rule 144 promulgated thereunder; (ii) that no federal or
state agency has passed upon the Shares or made any finding or determination as
to the fairness of the Purchaser's investment in the Shares; (iii) that there
are risks of loss associated with the Purchaser's purchase of the Shares; (iv)
that the investment in the Shares is an illiquid investment and the Purchaser
may bear the risk of its investment for an indefinite period of time; and (v)
that it is a sophisticated investor, able to evaluate the risks and merits of
its investment and to bear such financial risk.
5.8 Nature of Control Stock. The Purchaser understands that,
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at the time of transfer of the Control Stock to the Purchaser as contemplated
hereby, such Control Stock will consist (or, by operation of the Charter, be
automatically converted into and deemed to consist) solely of Class B Stock of
the Company.
5.9 No Broker. The Purchaser has not employed any investment
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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 in
connection with this Agreement or the transactions contemplated hereby.
5.10 Transaction Agreements. This Agreement, the Merger
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Agreement, the Other Transaction Agreements (as defined herein), and the other
agreements listed in the recitals above, are the only agreements existing as of
the date hereof between the Purchaser, 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 of the Company.
6. CONDITIONS TO OBLIGATIONS OF THE PURCHASER. Unless waived (it being
agreed that no such waiver shall be given or effective prior to the tender by
the Purchaser of the Purchase Price and the consummation of the Closing), in
whole or in part, in writing by the Purchaser, the obligations of the Purchaser
to purchase the Shares and to perform any and all of its post-closing
obligations shall be subject to the satisfaction at or prior to the Closing Date
of each of the following conditions:
6.1 Accuracy of Representations and Warranties. All
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representations and warranties of the Sellers contained herein shall be true and
correct in all material respects 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 permitted or contemplated by this Agreement.
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6.2 Performance of Agreements. The Sellers shall have
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performed in all material respects all obligations and agreements contained in
this Agreement to be performed or complied with by them prior to or at the
Closing Date.
6.3 The Shares. The Sellers shall be prepared to deliver
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certificates for all the Shares to the Purchaser upon the Closing.
6.4 Merger Agreement Conditions. All conditions set forth in
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Sections 7.1, 7.2 and 7.3 of the Merger Agreement to the consummation of the
Merger (other than the preparation and mailing of the Information Statement (as
defined in the Merger Agreement) and the expiration of the 20 calendar day
waiting period with respect thereto) not waived by the applicable party shall
have been satisfied as of the Closing Date.
6.5 Company Certificate. The Purchaser shall have received a
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certificate executed by the Company in the form of Exhibit A attached to the
Merger Agreement.
6.6 No Injunctions. None of the parties hereto shall be
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subject to any order or injunction of a court of competent jurisdiction which
prohibits the consummation of the sale of the Shares to the Purchaser
contemplated by this Agreement. In the event any such order or injunction shall
have been issued, each party agrees to use its reasonable efforts to have any
such injunction lifted.
6.7 No Adverse Enactments. There shall not have been any
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statute, rule, regulation or order promulgated, enacted or issued by any
Government Entity or court of competent jurisdiction which would make the
consummation of the sale of the Shares hereunder or the Merger illegal.
6.8 Banking Moratorium. There shall not have occurred and be
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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.
6.9 Consummation of Other Transactions. All conditions to the
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consummation of the transactions (the "Other Transactions") to be effected
pursuant to the Contribution Agreement, the CBN Stock Purchase Agreement and the
Regent Stock Purchase Agreement (collectively, the "Other Transaction
Agreements") shall have been satisfied or waived by the applicable party, and
the parties to such Other Transaction Agreements shall have consummated such
Other Transactions simultaneously with or prior to the sale of the Shares to the
Purchaser as contemplated hereby.
6.10 Amended Affiliation Agreement. The Amended Affiliation
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Agreement, in the form of Exhibit "A" hereto, shall be in full force and effect.
6.11 Xxxx-Xxxxx-Xxxxxx Notification. The waiting period (and
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any extension thereof) under the HSR Act applicable to (i) the purchase of the
Shares pursuant to this Agreement
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and the consummation of the Other Transactions, (ii) the conversion by the
Purchaser of the Class C Stock and the Convertible Notes acquired pursuant to
the Contribution Agreement into shares of Class B Stock of the Company, and
(iii) the Merger shall have expired or have been terminated.
6.12 Opinion of Counsel. The Purchaser shall have received an
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opinion of counsel to the Sellers from a counsel reasonably acceptable to
Purchaser covering the matters referred to in Section 4.1 hereof.
6.13 Acquisition Agreements. Immediately following the
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consummation of this transaction and the Other Transactions (and after giving
effect to the conversion of the Class C Stock and the Convertible Notes into
Class B Stock), the Purchaser and its Subsidiaries will own a majority of the
voting common stock of the Company then entitled to vote in the election of the
Company's directors.
7. CONDITIONS TO OBLIGATIONS OF SELLERS. Unless waived, in whole or in
part, in writing by the Sellers, the obligations of the Sellers to sell the
Shares as contemplated by this Agreement shall be subject to the fulfillment
prior to or on the Closing Date of each of the following conditions:
7.1 Accuracy of Representations and Warranties. All
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representations and warranties of the Purchaser contained herein shall be true
and correct in all material respects on and as of the Closing Date, with the
same effect as though made on and as of the Closing Date, except for changes
permitted or contemplated by this Agreement.
7.2 Performance of Agreements. The Purchaser shall have
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performed in all material respects all obligations and agreements contained in
this Agreement to be performed or complied with by it prior to or at the Closing
Date.
7.3 No Adverse Enactments. There shall not have been any
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statute, rule, regulation or order promulgated, enacted or issued by any
Government Entity or court of competent jurisdiction which would make the
consummation of the sale of the Shares hereunder or the Merger illegal.
7.4 No Injunctions. None of the parties hereto shall be
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subject to any order or injunction of a court of competent jurisdiction which
prohibits the consummation of the sale of the Shares to the Purchaser
contemplated by this Agreement. In the event any such order or injunction shall
have been issued, each party agrees to use its reasonable efforts to have any
such injunction lifted.
7.5 Xxxx-Xxxxx-Xxxxxx Notification. The waiting period (and
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any extension thereof) under the HSR Act applicable to the consummation of the
purchase of the Shares pursuant to this Agreement shall have expired or have
been terminated.
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7.6 Purchase Price. The Purchaser shall be prepared to deliver
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the aggregate Purchase Price for all the Shares to the Sellers in the amounts
and manner contemplated hereby upon the Closing.
7.7 The PR Agreement. The Purchaser shall have executed the PR
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Agreement and shall have delivered the PR Agreement to Xxx Xxxxxxxxx.
7.8 Consummation of Other Transactions. All conditions to the
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consummation of the Other Transactions to be effected pursuant to the Other
Transaction Agreements shall have been satisfied or waived by the applicable
party, and the parties to such Other Transaction Agreements shall have
consummated such Other Transactions simultaneously with or prior to the sale of
the Shares to the Purchaser as contemplated hereby.
8. COVENANTS OF THE PURCHASER. The Purchaser hereby covenants and
agrees as follows:
8.1 Filings and Other Actions. As promptly as practicable
-------------------------
after the execution of this Agreement, but in any event within 5 business days,
the Purchaser shall file notification reports under the HSR Act and shall
request early termination of the waiting period under the HSR Act and use their
commercially reasonable efforts to obtain clearance or authorization under the
HSR Act of the Merger and the purchase of the Shares contemplated by this
Agreement and the Other Transactions at the earliest practicable time. The
Purchaser agrees to cooperate fully with the Sellers to promptly effectuate the
filing of any notification required under the HSR Act.
8.2 Reasonable Efforts. Subject to the terms and conditions of
------------------
this Agreement, the Other Transaction Agreements and the Merger Agreement, the
Purchaser 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 this
Agreement, the Other Transaction Agreements and the Merger Agreement.
The Purchaser hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to intentionally and knowingly take any action with the
intention and knowledge that such action would make any of its representations
or warranties contained herein untrue or incorrect in any material respect or
have the effect of preventing or disabling it from performing its obligations
under this Agreement. The Purchaser 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 Closing hereunder, or terminate any of the
Other Transaction Agreements (or any of the agreements related thereto), without
the prior written consent of the Sellers of the Control Stock. Notwithstanding
the foregoing, the Purchaser may (without the consent of the Sellers of the
Control Stock) effect any Modification to the Other Transaction Agreements (or
any of the agreements related thereto) which it determines in good faith to be
reasonably necessary to effect the transactions contemplated thereby, provided
it uses its reasonable good faith efforts to cause the
11
closing thereunder to occur as soon as practicable and provided further that
such Modification will not delay the Closing hereunder beyond November 30, 1997.
9. COVENANTS OF THE SELLERS. The Sellers, jointly and severally, hereby
covenant and agree as follows:
9.1 Cooperation in Filing Notification under Xxxx-Xxxxx-
----------------------------------------------------
Xxxxxx. The Sellers agree to cooperate fully with the Purchaser to promptly
------
effectuate the filing of any notification required under the HSR Act.
9.2 Additional Shares. The Sellers agree that (other than
-----------------
purchases under the Company's 401(k) plan), they will not purchase additional
shares of Common Stock of the Company whether in open market purchases,
privately negotiated purchases or by the exercise or conversion of options or
convertible securities held by them between the date of this Agreement and the
Closing Date. If ownership of any additional shares of Common Stock of the
Company is acquired or transferred to any Seller (other than under the Company's
401(k) plan), such Seller hereby agrees, while this Agreement is in effect, to
promptly notify each other party to this Agreement of the number of additional
shares of Common Stock of the Company acquired by it, if any, after the date
hereof, and hereby agrees to sell any such additional shares of Common Stock of
the Company acquired by it after the date hereof through the Closing Date to the
Purchaser pursuant to the terms of this Agreement, with a provision for
additional payment for such shares by the Purchaser to such Seller at the
Purchase Price.
9.3 Reasonable Efforts. Subject to the terms and conditions
------------------
of this Agreement, the Sellers each 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 provided for by this Agreement. The Sellers each hereby agrees,
while this Agreement is in effect, and except as contemplated hereby, not to
intentionally and knowingly take any action with the intention and knowledge
that such action would make any of its representations or warranties contained
herein untrue or incorrect in any material respect or have the effect of
preventing or disabling it from performing its obligations under this Agreement.
Notwithstanding anything to the contrary contained herein, this Section 9.3
shall not obligate, and shall not be interpreted to obligate, any of the holders
of the Control Stock to take any action to the extent such obligation would
result in a change in beneficial ownership of any of the Control Stock prior to
the Closing.
10. POST-CLOSING COVENANTS; TERMINATION.
10.1 Further Instruments, Termination. The Sellers and the
--------------------------------
Purchaser agree to execute such further documents or instruments and to take
such other actions as are necessary to transfer the Shares to the Purchaser and
to otherwise carry out the transactions provided for by this Agreement. If the
Closing Date shall not have occurred on or prior to November 30, 1997, other
12
than as a result of a material breach of this Agreement by any party hereto, any
party may terminate this Agreement without liability. If the Closing Date shall
not have occurred on or prior to such date as a result of material breach of any
representation, warranty, covenant or obligation by the Sellers (or any of
them), on the one hand, or the Purchaser on the other, the non-breaching party
shall have the right to terminate this Agreement without liability. In addition,
this Agreement may be terminated by the Sellers if, after the date hereof and
before the Closing Date, 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.
10.2 Subject Options. Immediately following the Closing, and
---------------
from time to time thereafter, the Purchaser will lend to each of Xxx Xxxxxxxxx
and Xxx Xxxxxxxxx sufficient funds to permit each of them to exercise all
Subject Options which are then vested and exercisable or subsequently vest and
become exercisable. Upon receiving such funds, each of Xxx Xxxxxxxxx and Xxx
Xxxxxxxxx will immediately exercise such Subject Options, and concurrent with
his receipt of the shares of Class B Stock receivable thereunder will sell and
deliver such shares to the Purchaser for a cash purchase price per share equal
to the Purchase Price, less the amount of the loan referred to in the
immediately preceding sentence, which shall be deemed repaid in full.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITY. Only the
representations and warranties of the Sellers contained in Section 4.4 hereto
(with respect to title) shall survive the Closing and the consummation of the
transactions contemplated hereby. No party hereto shall have any monetary or
other liability or obligation to any other party hereto for breach of any of
such first party's representations or warranties contained herein or in 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 to the Closing pursuant to Article 6 or 7 and the termination right
provided in Section 10, in each case to the extent applicable according to such
Section's express terms. With respect to a breach of its representations and
warranties contained in Section 4.4 hereto, each Seller hereby covenants and
agrees with the Purchaser that it shall indemnify the Purchaser and its
directors, officers, shareholders and Affiliates, and each of their successors
and assigns and hold them harmless from, against and in respect of any and all
costs, losses, claims, liabilities, fines, penalties (including interest which
may be imposed in connection therewith and court costs and reasonable fees and
disbursements of counsel) incurred by any of them arising out of any material
breach of, or any material inaccuracy in, such representations and warranties;
provided, however, that the liability of each Seller to all such indemnified
persons shall in no event exceed the proceeds received by such Seller for the
sale of its Shares hereunder.
12. MISCELLANEOUS.
12.1 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 obligations, hereunder without the prior written consent of the other party,
and any such purported assignment or delegation shall be void ab initio.
Notwithstanding the foregoing, the
13
Purchaser, its Affiliates, and its successors and assigns, may assign their
rights and delegate their duties (i) to any successor entity resulting from any
liquidation, merger, consolidation, reorganization, or transfer of all or
substantially all of the assets or stock of the Purchaser, or (ii) to any
Affiliate of the Purchaser; provided, that in either case, any such assignee
shall expressly assume all of the obligations the Purchaser hereunder.
12.2 Notices. All notices, demands and other communications
-------
(collectively, "Notices") given or made pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given if sent by registered or
certified mail, return receipt requested, postage and fees prepaid, by overnight
service with a nationally recognized "next day" delivery company such as Federal
Express or United Parcel Service, by facsimile transmission, or otherwise
actually delivered to the following addresses:
(a) If to the Purchaser:
-------------------
Fox Kids Worldwide, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxx
Fax: 000-000-0000
with a copy to:
--------------
Fox, Inc.
00000 Xxxx Xxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: President
Fax: 000-000-0000
and a copy to:
-------------
The News Corporation Limited
c/o News America Publishing Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
14
and a copy to:
-------------
Troop Xxxxxxxxx Xxxxxxx & Xxxxxx, LLP
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: C.N. Xxxxxxxx Xxxxxxx, III, Esq.
Fax: 000-000-0000
and a copy to:
-------------
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax: 000-000-0000
(b) If to the Sellers:
-----------------
c/o International Family Entertainment, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxxx
Fax: 000-000-0000
with a copy to:
--------------
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: 000-000-0000
Any Notice shall be deemed duly given when received by the addressee thereof.
Any of the parties to this Agreement may from time to time change its address
for receiving notices by giving written notice thereof in the manner set forth
above.
12.3 Amendment; Waiver. No provision of this Agreement may be
-----------------
waived unless in writing signed by all of the parties to this Agreement, and the
waiver of any one provision of this Agreement shall not be deemed to be a waiver
of any other provision. This Agreement may be amended, supplemented or otherwise
modified only by a written agreement executed by all of the parties to this
Agreement.
15
12.4 Limitation on Liability. The liability of the Sellers for
-----------------------
any breach by the Sellers of this Agreement shall be limited to the actual
damages suffered by the Purchaser or any of its Affiliates under this Agreement
and the Sellers shall not be liable for any consequential or other damages of
the Purchaser or any of its Affiliates, including any damages arising in
connection with any Other Transaction Agreement or the Merger Agreement.
12.5 Jurisdiction. The parties hereto irrevocably submit 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 Agreement (and agree not to commence any action, suit or proceeding
relating hereto except in such courts). Each party hereto hereby irrevocably
designates CT Corporation System (or, in the case of the Sellers, Young,
Conaway, Stargatt & Xxxxxx, at 0000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx XxXxxxx and Xxxxx Xxxxxxxxxxx) 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 12.2 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. The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the state or federal courts located in
Delaware, and hereby further irrevocably and unconditionally waive and agree 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.
12.6 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 New York City, New York in
accordance with the commercial arbitration rules promulgated by AAA, and the
Sellers, on the one hand, and the Purchaser, on the other, 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.
12.7 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.
16
12.8 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.
12.9 Remedies Cumulative. Each of the various rights, powers
-------------------
and remedies shall be deemed to be cumulative with, and in addition to, all the
rights, powers and remedies which either party may have hereunder or under
applicable law relating hereto or to the subject matter hereof, and the exercise
or partial exercise of any such right, power or remedy shall constitute neither
an exclusive election thereof nor a waiver of any other such right, power or
remedy.
12.10 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.
12.11 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be or become
prohibited or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
12.12 Expenses. Each party shall pay its own costs, expenses,
--------
including without limitation, the fees and expenses of their respective counsel
and financial advisors.
12.13 Entire Agreement. This Agreement constitutes and
----------------
embodies the entire understanding and agreement of the parties hereto relating
to the subject matter hereof and there are no other agreements or
understandings, written or oral, in effect between the parties relating to such
subject matter except as expressly referred to herein .
12.14 Publicity. The initial press release relating to this
---------
Agreement shall be a joint press release in the form attached hereto as
Exhibit "B", and the Purchaser and the Sellers shall use reasonable 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.
12.15 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 be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief, without the posting of bond or other security, in addition to any other
remedy to which it or they may be entitled, at law or in equity.
12.16 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]
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
FOX KIDS WORLDWIDE, INC.
By: /s/ Xxx Xxxxx
-------------
Its: President
---------
M.G. "XXX" XXXXXXXXX
XXXXXXXXX CHARITABLE REMAINDER UNITRUST
XXXXXX X. XXXXXXXXX IRREVOCABLE TRUST
XXXXXXXXX X. XXXXXXXX IRREVOCABLE TRUST
XXX X. XXXXXXX IRREVOCABLE TRUST
By: /s/ M.G. "Xxx" Xxxxxxxxx
------------------------
M.G. "Xxx" Xxxxxxxxx, individually and as trustee
XXXXXXX X. XXXXXXXXX
THE XXXXXXX AND XXXX XXXXXXXXX CHILDREN'S
TRUST
THE XXXXXXX X. XXXXXXXXX CHARITABLE TRUST
XXXXXXX X. XXXXXXXXX UTMA
XXXXX X. XXXXXXXXX UTMA
XXXXXXXXX X. XXXXXXXXX UTMA
XXXXXX X. XXXXXXXXX UTMA
XXXXXXXX X. XXXXXXXXX UTMA
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx, individually, as joint tenant
with Xxxx X. Xxxxxxxxx, trustee and custodian
/s/ Xxxx X. Xxxxxxxxx
-------------------------
Xxxx X. Xxxxxxxxx, as joint tenant with Xxxxxxx X. Xxxxxxxxx
