VOTING AND SUPPORT AGREEMENT BY AND AMONG NEWS CORPORATION AND THE SIGNATORY STOCKHOLDERS Dated as of July 31, 2007
Exhibit
10.1
BY
AND
AMONG
NEWS CORPORATION
AND
THE
SIGNATORY STOCKHOLDERS
Dated
as
of July 31, 2007
This
VOTING AND SUPPORT AGREEMENT (this "Agreement") is entered into as of
July 31, 2007 by and among News Corporation, a Delaware corporation
("Parent") and the persons executing this Agreement as "Stockholders" on
the signature page hereto (collectively, the "Stockholders" and each
individually, a "Stockholder").
W
I T N E
S S E T H:
WHEREAS,
as of the date of this Agreement, each Stockholder "beneficially owns" (as
such
term is defined in Rule 13d-3 promulgated under the Securities Exchange Act
of
1934, as amended) and is entitled to dispose of (or to direct the disposition
of) and/or to vote (or to direct the voting of) the number of shares of common
stock, par value $1.00 per share (the "Common Stock"), of Dow Xxxxx &
Company, Inc., a Delaware corporation (the "Company") and the number of
shares of Class B common stock, par value $1.00 per share (the "Class B
Common Stock," and together with the Common Stock, the "Company
Shares") of the Company set forth opposite such Stockholder's name on
Schedule I hereto (such Company Shares, together with any other Company Shares
the voting power over which is acquired by any Stockholder in the capacity
in
which the Stockholder is executing this Agreement during the period from and
including the date of this Agreement up to the termination of this Agreement
in
accordance with its terms (such period, the "Voting Period"), are
collectively referred to herein as the "Subject Shares");
WHEREAS,
it is intended that the combination of Parent and the Company pursuant to the
terms of that certain Agreement and Plan of Merger, dated July 31, 2007, between
the Company, Parent, Ruby Newco LLC, a Delaware limited liability company
(“Ruby Newco”), and Diamond Merger Sub Corporation, a Delaware
corporation (as the same may be amended, the "Merger Agreement") shall be
effected through the merger of Ruby Merger Sub with and into the Company (the
"Merger"), at which time the separate existence of Diamond Merger Sub
Corporation shall cease, and the Company shall be the surviving entity of the
Merger (the "Surviving Corporation"); and
WHEREAS,
as a condition to the willingness of Parent, Ruby Newco, Diamond Merger Sub
Corporation and the Company to enter into the Merger Agreement, and as an
inducement and in consideration therefor, each Stockholder is executing this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1
ARTICLE
I
DEFINITIONS
Section
1.1 Capitalized
Terms. For
purposes of this Agreement, capitalized terms used and not defined herein shall
have the respective meanings ascribed to them in the Merger
Agreement.
ARTICLE
II
VOTING
AGREEMENT
Section
2.1 Agreement
to Vote the Subject Shares. Each
Stockholder hereby agrees that, during the Voting Period, at any duly called
meeting of the stockholders of the Company (or any adjournment or postponement
thereof), and in any action by written consent of the stockholders of the
Company, such Stockholder shall, if a meeting is held, appear at the meeting,
in
person or by proxy, or otherwise cause its Subject Shares to be counted as
present thereat for purposes of establishing a quorum, and it shall vote or
consent (or cause to be voted or consented), in person or by proxy, all its
Subject Shares (x) in favor of the adoption of the Merger Agreement, the Merger
and the other transactions contemplated by the Merger Agreement (and any actions
required in furtherance thereof), (y) against any action, proposal, transaction
or agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
contained in the Merger Agreement or of any Stockholder contained in this
Agreement, and (z) except with the written consent of Parent, against the
following actions or proposals (other than the transactions contemplated by
the
Merger Agreement): (i) any Diamond Acquisition Proposal (other than a
Diamond Acquisition Proposal by Parent or its Affiliates); or (ii) any other
action or proposal, involving the Company or any Diamond Subsidiary that would
reasonably be expected to prevent or materially impede, interfere with, delay,
postpone or adversely affect the transactions contemplated by the Merger
Agreement, including the Merger. Each Stockholder agrees, during
the Voting Period, not to enter into any agreement or commitment with any Person
to vote, grant a proxy or grant a power of attorney, or participate, directly
or
indirectly, in the “solicitation” of any “proxies” or consents (as such terms
are used in the rules of the Securities and Exchange Commission) from any Person
to vote in a manner which would be inconsistent with or violative of the
provisions and agreements contained in this Article II.
Section
2.2 Effect
of Company Breach. For
the avoidance of doubt, each Stockholder agrees that, during the Voting Period,
the obligations of each Stockholder specified in Section 2.1 shall not be
affected by (i) any Recommendation Withdrawal (other than a public announcement
by the Company board of directors expressly withdrawing its recommendation
that
the stockholders of the Company adopt the Merger Agreement (a “Qualifying
Recommendation Change”)); it being understood that the delivery by the
Company of a Superior Proposal Notice pursuant to Section 5.3(c) of the Merger
Agreement shall not, in and of itself, constitute a Recommendation Withdrawal;
or (ii) any breach by the Company of any of its representations, warranties,
agreements or covenants set forth in the Merger Agreement.
ARTICLE
III
COVENANTS
Section
3.1 Generally.
(a) Each
Stockholder agrees that during the Voting Period, except as contemplated by
the
terms of this Agreement and except as set forth on Schedule I, it shall not,
without the Parent's prior written consent, offer for sale, sell (including
short sales), transfer, tender, pledge, encumber, assign or otherwise dispose
of
(including by gift) (collectively, a
2
| "Transfer"), or enter into any contract, option, derivative, hedging or other agreement (including any profit-sharing arrangement) with respect to, or consent to, a Transfer of, any or all of the Subject Shares. |
(b) In
the
event of a stock dividend or distribution, or any change in the Company Shares
by reason of any stock dividend or distribution, split-up, recapitalization,
combination, conversion, exchange of shares or the like, the term "Subject
Shares" shall be deemed to refer to and include the Subject Shares as well
as
all such stock dividends and distributions and any securities into which or
for
which any or all of the Subject Shares may be changed or exchanged or which
are
received in such transaction.
(c) Each
Stockholder agrees that it shall authorize and request the Company to notify
its
transfer agent that there is a stop transfer order with respect to all of the
Subject Shares (subject to any exceptions set forth herein) and that this
Agreement place limits on the voting of the Subject Shares.
(d) If
so
requested by the Parent or Company, each Stockholder agrees that the
certificates representing the Subject Shares shall bear a legend stating that
the Subject Shares are subject to this Agreement.
Section
3.2 Standstill
Obligations of the Stockholders. Each
Stockholder, severally and not jointly, covenants and agrees with Parent that,
during the Voting Period:
(a) Such
Stockholder shall not, nor shall such Stockholder act in concert with any Person
to, deposit any of the Subject Shares in a voting trust or subject any of the
Subject Shares to any agreement with any Person with respect to the voting
of
the Subject Shares, except as provided by Article II of this
Agreement.
(b) Such
Stockholder shall not, nor shall such Stockholder act in concert with any Person
to, directly or indirectly, initiate or solicit (including, in each case, by
way
of furnishing non-public information) the submission of any inquiries or the
making of any proposal or offer that constitutes, or would reasonably be
expected to lead to, a Diamond Acquisition Proposal, or engage in any
discussions or negotiations with a Person or Persons who have made, or, to
the
Stockholder's knowledge, are actively considering making a Diamond Acquisition
Proposal, or their respective Representatives with respect to any Diamond
Acquisition
Proposal or otherwise knowingly cooperate with or knowingly assist or
participate in any such inquiries, proposals, discussions or
negotiations.
(c) Without
limitation to the foregoing and subject to Section 3.2(e), promptly after
receipt by such Stockholder of any Diamond Acquisition Proposal or proposal
that
would reasonably be expected to lead to a Diamond Acquisition Proposal from
a
Person or a group of related Persons, such Stockholder shall promptly (or shall
promptly request the Company board of directors to) provide Parent with written
notice of the identity of the Person or Persons making such Diamond Acquisition
Proposal or any proposal that would reasonably be expected to lead to a Diamond
Acquisition Proposal and the material terms and conditions thereof.
3
(d) Such
Stockholder shall cease immediately and cause to be terminated any and all
existing discussions, conversations, negotiations and other communications
with
any Persons conducted heretofore with respect to, or that would reasonably
be
expected to lead to, a Diamond Acquisition Proposal.
(e) Notwithstanding
the foregoing, in the event that the Company board of directors exercises its
right (i) to enter into discussions or negotiations with a Third Party in
compliance with Section 5.3(b) of the Merger Agreement and/or (ii) to provide
information to a Third Party in compliance with Section 5.3(b) of the Merger
Agreement, then each Stockholder (including with representatives) may
participate in discussions or negotiations with such Third Party and/or provide
information to such Third Party; provided, that any action taken by any
such Stockholder shall be taken only in coordination with the Company board
of
directors.
(f) Parent
acknowledges that each Stockholder is signing this Agreement solely in such
Stockholder's capacity as a stockholder of the Company and is not making any
agreement herein in his, her or its capacity as a director of the Company and
nothing contained herein shall limit or affect any actions taken by any
Stockholder, in his, her or its capacity as a director of the
Company.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF EACH STOCKHOLDER
Each
Stockholder hereby represents and warrants, severally and not jointly, to Parent
as follows:
Section
4.1 Due
Organization. The
Stockholder that is a corporation, limited liability company, partnership,
trust
or other entity (other than a natural person) is duly organized and validly
existing under the laws of the jurisdiction of its organization. The
Stockholder has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by the Stockholder have been duly authorized
by
all necessary action on the part of such Stockholder. This Agreement,
assuming due authorization, execution and delivery hereof by Parent and the
other Stockholders, constitutes a legal, valid and binding obligation of such
Stockholder enforceable against such Stockholder in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other similar
Laws of general applicability relating to or affecting creditors' rights, and
to
general equitable principles.
Section
4.2 Ownership
of Shares. Schedule
I sets forth opposite the Stockholder's name, the number of Company Shares
over
which such Stockholder has record and beneficial ownership as of the date of
this Agreement. As of the date of this Agreement, the Stockholder is
the lawful owner of the Company Shares denoted as being owned by such
Stockholder on Schedule I and has the sole power to vote or cause to be voted
such shares or shares power to vote or cause to be voted such shares solely
with
one or more other Stockholders with respect to the Company Shares denoted on
Schedule I. The Stockholder does not own or hold any right to acquire
any additional shares of any class of capital stock of the Company or
4
| other securities of the Company or any interest therein or any voting rights with respect to any securities of the Company other than the Subject Shares (other than the conversion feature of Class B Common Stock). The Stockholder has good and valid title to the Company Shares denoted as being owned by such Stockholder on Schedule I , free and clear of any and all pledges, mortgages, Liens, charges, proxies, voting agreements, encumbrances, adverse claims, options, security interests and demands of any nature or kind whatsoever, other than those created by this Agreement and except for transfer restrictions of general applicability under the Securities Act of 1933, as amended, and under “blue sky” laws. |
Section
4.3 No
Conflicts. (i)
Except for Schedule 13D and 13G filings, Forms 4 or 5 filings or other similar
filings with the SEC and those filing, consents or approvals as may be required
by reason of the business or identity of Parent or any of its Affiliates, no
filing with any Governmental Entity, and no authorization, consent or approval
of any other Person is necessary for the execution of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby (other than approval of this Agreement by the
Company for purposes of Section 203 of the DGCL and for purposes of rendering
Article Fourth of the Company's Restated Certificate of Incorporation
inapplicable to this Agreement) and (ii) none of the execution and delivery
of
this Agreement by the Stockholder, the consummation by the Stockholder of the
transactions contemplated hereby or compliance by the Stockholder with any
of
the provisions hereof shall (A) conflict with or result in any breach of the
organizational documents of the Stockholder (if not a natural person), or (B)
violate any applicable Order, rule or Law, except for any of the foregoing
as
would not reasonably be expected to impair the Stockholder's ability to perform
its obligations under this Agreement.
Section
4.4 Revocation
of Proxies. The
Stockholder represents that any proxies heretofore given in respect of such
Company Shares are not irrevocable, and that any such proxies are hereby revoked
and that the Stockholder shall take any additional action necessary to
effectuate the foregoing.
Section
4.5 Reliance
by Parent. The
Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the execution and delivery of this Agreement by
such
Stockholder.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES AND COVENANTS OF PARENT
Parent
hereby represents and warrants to, and covenants with, the Stockholders as
follows:
Section
5.1 Due
Organization, etc. Parent
is a Delaware corporation duly organized and validly existing under the laws
of
the jurisdiction of its organization. Parent has all necessary
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by Parent have been duly authorized by all necessary action on the part
of Parent. This Agreement, assuming due authorization, execution and
delivery hereof by each of the Stockholders, constitutes a legal, valid and
binding obligation of Parent enforceable against Parent in accordance with
its
terms,
5
| except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditors' rights, and to general equitable principles. |
Section
5.2 Conflicts.
(i)
No filing with any Governmental Entity, and no authorization, consent or
approval of any other Person is necessary for the execution of this Agreement
by
Parent and the consummation by Parent of the transactions contemplated hereby
(other than approval of this Agreement by the Company for purposes of Section
203 of the DGCL and for purposes of rendering Article Fourth of the Company's
Restated Certificate of Incorporation inapplicable to this Agreement) and (ii)
none of the execution and delivery of this Agreement by Parent, the consummation
by Parent of the transactions contemplated hereby shall (A) conflict with or
result in any breach of the organizational documents of Parent or (B) violate
any Order or Law, except for any of the foregoing as could not reasonably be
expected to impair Parent's ability to perform its obligations under this
Agreement.
Section
5.3 Reliance
by the Stockholders. Parent
understands and acknowledges that the Stockholders are entering into this
Agreement in reliance upon the execution and delivery of the Merger Agreement
by
Parent.
Section
5.4 Obligations
of Parent. Parent shall take all actions necessary to
comply with Section 1.5(a) of the Merger Agreement. From and after
the Effective Time and through the tenth (10th) anniversary
of
the Closing Date (the “Board Representation Period”), in the event that the seat
on the Board of Directors of Parent occupied by the individual appointed to
the
Board of Directors of Parent pursuant to Section 1.5(a) of the Merger Agreement
(the “Initial Xxxxxxxx Director”) shall become vacant, or in the event that the
Nominating and Corporate Governance Committee of the Board of Directors of
Parent (the “Nominating Committee”) shall fail to nominate the Initial Xxxxxxxx
Director for re-election at any applicable Annual Meeting of Parent
Stockholders, then within thirty (30) Business Days thereafter, the Chairman
of
the Board of Directors of Parent (the “Parent Chairman”) shall propose to the
Nominating Committee another individual, who is (i) a lineal descendant of
Xxxx
Xxxxxxxx or a spouse of such a lineal descendant and (ii) “independent” of
Parent as such term is defined under the
Listing Rules of the New York Stock Exchange, Inc., the Listing Rules of the
Australian Securities Exchange, the rules promulgated by the SEC under the
Exchange Act and any applicable rules or policies of the Board of Directors
of
Parent (or any committee thereof), for nomination for appointment or election,
as the case may be, to the seat on the Board of Directors of Parent previously
held by the Initial Xxxxxxxx Director. In the event that any such
individual shall have been approved for nomination for appointment or election
to the Board of Directors of Parent by the Nominating Committee, then Parent
shall promptly send written notice of such approval to the Special Committee
for
its consent (by majority vote) to such individual’s nomination for appointment
or election to the Board of Directors of Parent, which consent shall not be
unreasonably withheld or delayed (provided that, in any event, the Special
Committee shall inform the Parent Chairman of its consent or refusal to consent
to any such individual’s nomination within ten (10) Business Days following the
date upon which written notice of such individual's approval for nomination
was
sent to the Special Committee) (any individual with respect to which the Special
Committee has given its consent, a “Qualifying Nominee”); provided that, once an
individual has become a Qualifying Nominee, such individual will retain
6
| such status throughout the Board Representation Period and need not be re-submitted to the Special Committee for nomination for appointment or election to the Board of Directors of Parent pursuant to this Section 5.4. Upon designation of an individual as a Qualifying Nominee, the Nominating Committee shall nominate such individual for appointment or election to the Board of Directors of Parent (any individual so appointed or elected to the Board of Directors of Parent, the “Successor Xxxxxxxx Director”). In the event that the Nominating Committee shall fail to nominate any individual proposed by the Parent Chairman within ten (10) Business Days following the Parent Chairman's proposal or the Special Committee shall fail to provide its consent with respect to such individual’s nomination within ten (10) Business Days following the date upon which written notice of such individual's nomination was sent to the Special Committee, then the Parent Chairman shall propose another individual to be nominated to be the Successor Xxxxxxxx Director in accordance with the procedures set forth in this Section 5.4, with such process continuing until a Qualifying Nominee shall be so nominated to be the Successor Xxxxxxxx Director. In the event that any Qualifying Nominee nominated for election to the Board of Directors of Parent (x) shall not be presented to the Parent stockholders for a vote upon such Qualifying Nominee’s election to the Board of Directors of Parent at any annual or special meeting of the Parent stockholders under circumstances in which this Section 5.4 would otherwise provide that such Qualifying Nominee be so presented, or (y) shall fail to receive sufficient votes to elect such Qualifying Nominee to the Board of Directors of Parent at any annual or special meeting of the Parent stockholders, then the Parent Chairman shall, within ten (10) Business Days following the date of such meeting, propose to the Nominating Committee another individual for nomination for appointment to the Board of Directors of Parent in compliance with the second sentence of this Section 5.4 and shall otherwise comply with the foregoing provisions with the respect to the appointment of such individual to the Board of Directors of Parent, with such process continuing until a Qualifying Nominee shall be nominated to be appointed to be the Successor Xxxxxxxx Director, with such Qualifying Nominee being appointed to the Board of Directors of Parent within ten (10) Business Days following such nomination. In the event that during the Board Representation Period any Successor Xxxxxxxx Director shall have been appointed or elected to the Board of Directors of Parent, and thereafter the seat on the Board of Directors of Parent occupied by any such Successor Xxxxxxxx Director shall become vacant, or in the event that the Nominating Committee shall fail to nominate any such Successor Xxxxxxxx Director for re-election at any applicable Annual Meeting of Parent Stockholders, the Parent Chairman shall comply with the foregoing provisions to the same extent as applicable with respect to the Initial Xxxxxxxx Director. It is expressly acknowledged and agreed that nothing contained in this Agreement shall in any way limit the ability of the Nominating Committee to exercise its fiduciary duties to the stockholders of Parent in determining whom to nominate to the Board of Directors of Parent or limit the ability of the stockholders of Parent to vote on the election of any Person to the Board of Directors of Parent, including without limitation the Initial Xxxxxxxx Director or any individual nominated to be the Successor Xxxxxxxx Director. The foregoing shall apply to the acquiring or |
7
| successor entity of Parent in the event of an acquisition of or other extraordinary transaction involving Parent in which directors of Parent immediately before such acquisition or transaction continue to constitute a majority of the board of the acquiring or successor entity immediately following such acquisition or transaction or the shareholders of Parent immediately before such acquisition or transaction continue to own or control a majority of the voting power of the acquiring or successor entity immediately following such acquisition or transaction. Parent shall not take any actions which would reasonably be expected to have the effect of depriving the Stockholders of the right to such representation on the Board of Directors. Notwithstanding anything to the contrary contained in this Agreement, all obligations of Parent and the Parent Chairman set forth in this Section 5.4 shall immediately terminate and shall be of no further force and effect upon the termination of this Agreement (other than pursuant to Section 6.1(ii)). |
ARTICLE
VI
TERMINATION
Section
6.1 Termination.
This
Agreement shall automatically terminate, and none of Parent or any Stockholder
shall have any rights or obligations hereunder and this Agreement shall become
null and void and have no effect upon the earliest to occur of (i) the mutual
consent of Parent and all of the Stockholders, (ii) the Effective Time, (iii)
the termination of the Merger Agreement in accordance with its terms (including,
without limitation, a termination by Diamond pursuant to Section 7.1(h) of
the
Merger Agreement), (iv) the vote of a majority (in terms of aggregate voting
power) of the Subject Shares in favor of the termination of this Agreement
by
the Stockholders entitled to vote such Subject Shares for such purpose (such
Stockholders, the “Majority Stockholders”); providedthat any such
termination pursuant to this clause (iv) shall be effective if, and only if,
the
Stockholders shall have complied in all material respects with Section 6.2(b);
and (v) a Qualifying Recommendation Change. The termination of this
Agreement shall not prevent any party hereunder from seeking any remedies (at
law or in equity) against another party hereto or relieve such party from
liability for such party's willful or intentional breach of any terms of this
Agreement. Notwithstanding anything to the contrary herein, the
provisions of the preceding sentence of this Section 6.1 shall survive the
termination of this Agreement and, in the event that the Effective Time occurs,
the provisions of Article V and, to the extent they relate to Article V, the
provisions of Article VII shall survive and remain in effect until the 10th anniversary
of the
Effective Time.
Section
6.2 (a) In
the event that any Stockholder receives a Diamond Acquisition Proposal, such
Stockholder shall, with respect to such Diamond Acquisition Proposal,
provide notices and other information to Parent and the Company board of
directors to the same extent as would be required under Section 5.3(b) of the
Merger Agreement if all references to “Diamond” as the provider of notices and
other information in such Section 5.3(b) were deemed to be references to such
Stockholder, all references to “Ruby” as the receiver of notices and other
information in such Section 5.3(b) were deemed to be references to each of
Parent and the Company board of directors and all references to "one (1)
Business Day" in such Section 5.3(b) were deemed to be references to three
(3)
Business Days.
(b) If,
at any time prior to receipt of the Diamond Stockholder Approval, any
Stockholder shall have received a Diamond Acquisition Proposal which the
Majority Stockholders shall have concluded in good faith constitutes a Superior
Acquisition Proposal, the Majority Stockholders may terminate this Agreement
pursuant to Section 6.1(iv) by written notice to Parent, if, and only if, prior
to any such termination (i) each Stockholder shall have complied with its
obligations under Section 3.2 and Section 6.2(a), (ii) the Majority Stockholders
shall have provided prior written notice (“Superior Proposal Notice”) to each of
Parent and the
8
| Company board of directors, at least three (3) Business Days in advance of such termination, of their intention to terminate this Agreement pursuant to Section 6.1(iv), which such notice shall specify the material terms and conditions of the Superior Acquisition Proposal (including the terms of the consideration that the holders of shares of Diamond Common Stock will receive per share of Diamond Common Stock and including any written agreement providing for a Superior Acquisition Proposal and the identity of the Person making such Superior Acquisition Proposal); (iii) the Majority Stockholders shall have (x) in the event of any material change to the material terms of a Superior Acquisition Proposal (it being understood that a change in price shall be deemed to be a material change to a material term) delivered to Parent a written notice specifying the material terms and conditions of such modified Superior Acquisition Proposal (including the terms of the consideration that the holders of shares of Diamond Common Stock will receive and including any written agreement providing for a Superior Acquisition Proposal and the identity of the Person making such Superior Acquisition Proposal), and (y) regardless of whether clause (x) above is applicable, to the extent that Parent proposes changes to the terms of the Merger Agreement during the three (3) Business Day period referred to above (as the same be extended in accordance with clause (iv) of this paragraph), negotiated in good faith with Parent with respect to such changes during such period; and (iv) in the event that the Company shall have delivered a Superior Proposal Notice pursuant to Section 5.3(c) of the Merger Agreement, the 3 Business Day Period (including any extension thereof as set forth in Sections 5.3(c) and 7.1(g)(v) of the Merger Agreement) referenced in such Section 5.3(c) shall have expired. |
For
purposes of this Agreement:
“Superior
Acquisition Proposal” means a bona fide written Diamond Acquisition Proposal,
which proposal was not the result of a breach of Section 3.2 of this Agreement,
made by a Third Party on terms that the Majority Stockholders determine in
their
good faith judgment (after consultation with outside counsel and its financial
advisor) (x) would, if consummated, be more favorable to the majority of the
beneficiaries of the Stockholders, taken as a whole, from a financial point
of
view than the transactions contemplated by the Merger Agreement (taking into
account any changes proposed by Parent to the terms of the Merger Agreement
in
response to a Diamond Acquisition Proposal) and (y) and is reasonably likely
to
be completed; provided that, for
the
purposes of this definition of “Superior Acquisition Proposal”, the term Diamond
Acquisition Proposal shall have the meaning assigned to such term in Section
5.3(d)(i) of the Merger Agreement, except that the reference to “20% or more” in
the definition of “Diamond Acquisition Proposal” shall be deemed to be a
reference to “60% or more.”
Section
6.3 In addition, notwithstanding anything
to the contrary contained herein, any Stockholder may terminate this Agreement
as to such Stockholder in the event the Merger Agreement is amended in a manner
that results in any decrease in the Merger Consideration (such amendment, a
"Decreased Consideration Amendment"), unless a Stockholder agrees in writing
to
continue to be bound by the terms and conditions of this Agreement with respect
to its Subject Shares from and after the date of such amendment, in which case
this Agreement shall continue in full force and effect only with respect to
the
Subject Shares of such Stockholders who so agree; provided, that, any change
or
amendment to the Merger Consideration made pursuant to Section 6.4 of the Merger
Agreement shall not constitute a Decreased Consideration Amendment.
9
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Appraisal
Rights. Each
Stockholder agrees not to seek appraisal or assert any rights of dissent from
the Merger that it may have under Section 262 of the DGCL and, to the extent
permitted by applicable Law, each Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have under Section
262 of the DGCL.
Section
7.2 Publication.
Each
Stockholder hereby permits the Company and Parent to publish and disclose in
the
Registration Statement and the Proxy Statement (including all documents and
schedules filed with the United States Securities and Exchange Commission)
such
Stockholder's identity and ownership of the Company Shares and the nature of
its
commitments, arrangements and understandings pursuant to this Agreement;
provided, that the Stockholders’ representatives shall be given a reasonable
opportunity to review and comment (and such reasonable comments shall be
accepted) on any such proposed disclosure.
Section
7.3 Capacity.
It
is
understood and agreed that any person executing this Agreement in the capacity
as a trustee of a trust is executing this Agreement only in the capacity of
a
trustee of that particular trust and as to the Subject Shares of that trust
as
set forth opposite the Stockholder’s name on Schedule I and in no other
capacity. In addition, no person executing this Agreement in the
capacity of a trustee of a trust shall be responsible or liable for the actions
or omissions of such person’s co-trustees of such trust.
Section
7.4 Further
Actions. Each
of
the parties hereto agrees to take any further actions necessary to effectuate
this Agreement.
Section
7.5 Fees
and Expenses. Each
of
the parties shall be responsible for its own fees and expenses (including,
without limitation, the fees and expenses of investment bankers,
accountants and counsel) in connection with the entering into of this Agreement
and the consummation of the transactions contemplated hereby and by the Merger
Agreement; provided that the foregoing shall not be construed so as to limit
any
agreement by the Company to bear any fees or expenses of Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated in respect of its services in connection with
the entering into of this Agreement and the consummation of the transactions
contemplated hereby and by the Merger Agreement and except as set forth in
Section 3.19 of the Merger Agreement and Section 3.19 of the Diamond Disclosure
Letter.
Section
7.6 Amendments,
Waivers, etc. This
Agreement may not be amended, changed, supplemented, waived or otherwise
modified, except upon the execution and delivery of a written agreement executed
by each of the parties hereto. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance
by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof shall not constitute
a
waiver by such party of its right to exercise any such or other right, power
or
remedy or to demand such compliance.
10
Section
7.7 Notices.
All
notices, requests, demands, waivers and other communications required or
permitted to be given under this Agreement to any party hereunder shall be
in
writing and deemed given if addressed as provided below (or at such other
address as the addressee shall have specified by notice actually received by
the
addressor) and if either (i) actually delivered , to such address, (ii) in
the
case of any nationally recognized express mail service, one (1) Business Day
shall have elapsed after the same shall have been deposited with such service
or
(iii) if by fax (receipt confirmed), on the day on which such fax was
sent.
If
to
Parent:
|
News
Corporation
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention: General
Counsel
Facsimile: (000)
000-0000
|
with
an additional copy (which shall not constitute notice) to:
|
Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxx
Xxxxxx X. Xxxxx
Facsimile:
000-000-0000
|
If
to any
Stockholder, then to the address or facsimile number for such Stockholder set
forth on Schedule I attached hereto.
Section
7.8 Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
Section
7.9 Severability.
If
any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as
possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
Section
7.10 Entire
Agreement; Assignment. This
Agreement (together with the Merger Agreement, to the extent referred to herein)
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject
11
| matter hereof. Except as provided herein, this Agreement shall not be assigned by operation of law or otherwise without the prior written consent of each of the other parties, except that Parent may assign all or any of its rights and obligations hereunder (other than those under Article V and, to the extent related thereto, Articles VI and VII) to any direct or indirect wholly-owned Subsidiary of Parent. |
Section
7.11 Parties
in Interest. This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other Person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement.
Section
7.12 Interpretation.
When
reference is made in this Agreement to a Section, such reference shall be to
a
Section of this Agreement unless otherwise indicated. 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
words "hereof," "herein," "hereby" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not
to
any particular provision of this Agreement. The word "or" shall not
be exclusive. Whenever used in this Agreement, any noun or pronoun
shall be deemed to include the plural as well as the singular and to cover
all
genders. This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
Section
7.13 Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
Section
7.14 Specific
Performance; Jurisdiction. The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties may be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the Court of Chancery of the State of Delaware or, if
under
applicable law exclusive jurisdiction over such matter is vested in the federal
courts, any court of the United States located in the State of Delaware, this
being in addition to any other remedy to which such party is entitled at law
or
in equity. In addition, each of the parties hereto (i) consents to
submit itself to the personal jurisdiction of the Court of Chancery of the
State
of Delaware or any court of the United States located in the State of Delaware
in the event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to deny
or
defeat such personal jurisdiction by motion or other request for leave from
any
such court, (iii) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any
court
other than the Court of Chancery of the State of Delaware or, if under
applicable law exclusive jurisdiction over such matter is vested in the federal
courts, any court of the United States located in the State of Delaware and
(iv)
consents to service being made through the notice procedures set forth in
Section 7.7. Each of Parent and the Stockholders hereby agrees that
service of any process, summons, notice or
12
| document by U.S. registered mail to the respective addresses set forth in Section 7.7 shall be effective service of process for any Proceeding in connection with this Agreement or the transactions contemplated hereby. |
Section
7.15 Enforcement. The
Xxxx Xxxxxxxx 1934 Xxxx f/b/o Xxxxxx X. Robes, the Xxxx Xxxxxxxx 1934 Trust
f/b/o Xxxxxxxxx Xxxxxx and the Xxxxxx Xxx 1935 Trust f/b/o Xxxxxxx X. Xxx shall
have the right, jointly or separately, to enforce the rights of the Stockholders
and the obligations of Parent and the Parent Chairman under Section 5.4 hereof
(and the provisions of Articles VI and VII to the extent related to Section
5.4
hereof), on behalf of themselves and/or on behalf of other
Stockholders. It is intended and agreed that the Xxxx Xxxxxxxx
1934 Trust f/b/o Xxxxxx X. Robes, the Xxxx Xxxxxxxx 1934 Trust f/b/o Xxxxxxxxx
Xxxxxx and the Xxxxxx Xxx 1935 Trust f/b/o Xxxxxxx X. Xxx be the only
Stockholders with the right to seek enforcement of the rights and obligations
referred to in the preceding sentence.
Section
7.16 Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be
deemed an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.
13
IN
WITNESS WHEREOF, Parent and each Stockholder have caused this Agreement to
be
duly executed as of the day and year first above written.
|
NEWS
CORPORATION
|
|||
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |
| Name: Xxxxxxxx X. Xxxxxx | |||
| Title: Senior Executive Vice President | |||
| Group General Counsel | |||
IN
WITNESS WHEREOF, Parent and each Stockholder have caused this Agreement
to be
duly executed as of the day and year first above written.
| [STOCKHOLDER] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
