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EXHIBIT 8
EXCHANGE AGREEMENT
DATED AS OF NOVEMBER 27, 1995
BY AND BETWEEN
SILVER KING COMMUNICATIONS, INC.
AND
SILVER MANAGEMENT COMPANY
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TABLE OF CONTENTS
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ARTICLE I
SALE AND EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Exchange of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SILVER . . . . . . . . . . . . . . . . . . . 2
SECTION 2.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.2 Authorization and Validity of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 Validity of Silver Shares, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.4 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.5 No Approvals or Notices Required; No Conflict with Instruments . . . . . . . . . . . . . . . . . . 4
SECTION 2.6 DGCL Section 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.7 Opinion of Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.8 Brokers or Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SILVER CO. . . . . . . . . . . . . . . . . . . 6
SECTION 3.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.2 Authorization and Validity of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.3 Ownership and Validity of House Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.4 No Approvals or Notices Required; No Conflict with Instruments . . . . . . . . . . . . . . . . . . 8
SECTION 3.5 Brokers or Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV
COVENANTS AND OTHER AGREEMENTS . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.1 Silver Stockholders Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.2 Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.3 Reasonable Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.4 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.5 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.6 Merger Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.7 Notification of Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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ARTICLE V
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.1 Conditions Precedent to the Obligations of Silver and Silver Co. . . . . . . . . . . . . . . . . . 12
(a) Absence of Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) No Proceedings or Adverse Enactments . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) Stockholder Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Consummation of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(f) Receipt of Governmental Approvals and Consents . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.2 Conditions Precedent to the Obligations of Silver Co. . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Accuracy of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Performance of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(c) No Proceedings or Adverse Enactments Affecting Silver Shares . . . . . . . . . . . . . . . 13
(d) Control of Silver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(e) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(f) Other Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(g) ▇▇▇▇▇▇▇ Management Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.3 Conditions Precedent to the Obligations of Silver . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Accuracy of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Performance of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Officer's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Other Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(e) ▇▇▇▇▇▇▇ Management Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(f) No Adverse Change or Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(g) Audited Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.1 Termination and Abandonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7.1 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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SECTION 7.5 Assignment; Binding Effect; Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.6 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.7 Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.8 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.9 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.12 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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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"):
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(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 ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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, 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
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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,
(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").
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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
$.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, 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
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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-merger notification requirements
of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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,
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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, 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 Section 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.
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
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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 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 ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") from Rockies, dated
August 24, 1995, as amended by the letter to ▇▇▇▇▇▇▇, dated as of the date
hereof, pursuant to which Rockies and ▇▇▇▇▇▇▇ 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 "Section 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
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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;
(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 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
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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 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
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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, 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.
(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.
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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).
(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) ▇▇▇▇▇▇▇ Management Role. ▇▇▇▇▇▇▇ 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
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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, 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) ▇▇▇▇▇▇▇ Management Role. ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇ (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;
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(ii) any information obtained or reviewed by, or otherwise
delivered to, Silver or to ▇▇▇▇▇ ▇▇▇▇▇▇ or his representatives
("▇▇▇▇▇▇") as a result of or in connection with ▇▇▇▇▇▇'▇
service on the Board of Directors of House or the Executive
Committee thereof prior to the date of this Agreement, in
connection with any investigation, discussions, reviews or
analyses of the business and affairs of House conducted by
▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ 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.
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
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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 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
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(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.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Silver Co., to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the following:
Liberty Media Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person or address as any party shall specify by notice in
writing to the other party.
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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 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
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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 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
SILVER MANAGEMENT COMPANY
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
