EXHIBIT 10.2
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as
of September 24, 1996, among Fox Television Stations,
Inc., a Delaware corporation ("Fox"), The News
Corporation Limited (XXX 000 000 000), x Xxxxx Xxxxxxxxx
corporation that has an indirect interest in Fox ("News
Corp."), and Apollo Advisors, L.P., a Delaware limited
partnership (the "Stockholder").
WHEREAS, News Corp., Fox, Fox Acquisition Co.,
Inc., a Delaware corporation and a wholly owned
subsidiary of Fox, and New World Communications Group
Incorporated, a Delaware corporation (the "Company"), are
parties to the Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement").
WHEREAS, the Merger (as defined in the Merger
Agreement) is subject to certain conditions, including
the approval and adoption of the Merger Agreement by the
holders of a majority of the outstanding shares of Class
A Common Stock, par value $.01 per share (the "Class A
Common Stock"), of the Company and the Class B Common
Stock, par value $.01 per share (the "Class B Common
Stock"), of the Company voting together as a single
class.
WHEREAS, if the Merger Agreement is approved
(the "Series A Preferred Stock Approval") by a majority
of the issued and outstanding shares of the 6.735%
Cumulative Redeemable Convertible Preferred Stock, Series
A, par value $.01 per share, of the Company (the "Series
A Preferred Stock), each issued and outstanding share of
Series A Preferred Stock shall be converted into the
right to receive News Corp. Preferred ADRs as provided by
Section 2.1(d)(i) of the Merger Agreement.
WHEREAS, as of the date hereof, the Stockholder
is the record and beneficial owner of the securities of
the Company set forth opposite the Stockholder's name on
the signature pages hereto (such securities, together
with any other shares of capital stock of the Company
beneficially owned by such Stockholder after the date
hereof and prior to the Termination Date (as defined in
Section 5.4), whether through the acquisition or exercise
or conversion of any of such securities or otherwise,
being collectively referred to herein as the "Stockholder
Shares").
WHEREAS, Fox has requested that the Stockholder
enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements
contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms
used but not defined herein shall have the meanings
assigned to such terms in the Merger Agreement.
For purposes of this Agreement, the following
terms shall have the following meanings:
"Affiliate" and "Associate", when used with
reference to any person, shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date of this
Agreement; provided that with respect to any Stockholder,
such terms shall not include the Company, any Subsidiary
of the Company or any other Stockholder party hereto.
A person shall be deemed the "beneficial owner"
of, and shall be deemed to "beneficially own," and shall
be deemed to have "beneficial ownership" of:
(i) any securities that such person or any of
such person's Affiliates or Associates is deemed to
"beneficially own" within the meaning of Rule 13d-3
under the Exchange Act (without regard to section
(d)(1)(i) thereof), as in effect on the date of this
Agreement; and
(ii) any securities (the "underlying
securities") that such person or any of such
person's Affiliates or Associates has the right to
acquire (whether such right is exercisable
immediately or only after the passage of time)
pursuant to any agreement, arrangement or
understanding (written or oral), or upon the
exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise (it being
understood that such person shall also be deemed to
be the beneficial owner of the securities
convertible into or exchangeable for the underlying
securities).
ARTICLE II
COVENANTS OF THE STOCKHOLDERS
Section 2.1 Agreement to Vote. At any meeting
of the stockholders of the Company (including, without
limitation, the holders of Series A Preferred Stock
voting as a class) held prior to the Termination Date (as
defined in Section 6.4), however called, and at every
adjournment or postponement thereof prior to the
Termination Date, or in connection with any written
consent of the stockholders of the Company (including,
without limitation, the holders of Series A Preferred
Stock consenting as a class) given prior to the
Termination Date, the Stockholder shall vote all of the
Stockholder Shares beneficially owned by the Stockholder
as of the record date for such vote or consent that the
Stockholder is entitled to vote in accordance with the
terms of such security (a) in favor of the Merger
Agreement and each of the transactions contemplated
thereby and any actions required in furtherance hereof
and thereof, including, specifically and without
limitation, the Series A Preferred Stock Approval and the
Company Charter Proposal; and (b) against any action or
agreement that would, directly or indirectly, result in a
breach in any material respect of any covenant,
representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement.
Notwithstanding the foregoing, (i) the Stockholder shall
remain free to vote the Stockholder Shares with respect
to any matter not covered by the preceding sentence in
any manner it deems appropriate and (ii) except as
specifically provided above, the Stockholder shall not be
required to approve any affiliate transactions that are
required to be approved by the holders of Series A
Preferred Stock. The Stockholder shall not enter into
any agreement or understanding with any person prior to
the Termination Date, directly or indirectly, to vote,
grant any proxy or give instructions with respect to the
voting of the Stockholder Shares in any manner
inconsistent with the first sentence of this Section 2.1,
provided, that the foregoing shall not in any way
preclude the Stockholder from taking any action
contemplated by Section 2.3.
Section 2.2 Proxies and Voting Agreements.
(a) The Stockholder hereby revokes any
and all previous proxies granted with respect to matters
set forth in Section 2.1 for the Stockholder Shares of
such Stockholder).
(b) Prior to the Termination Date, the
Stockholder shall not, directly or indirectly, except as
contemplated hereby, grant any proxies or powers of
attorney with respect to matters set forth in Section
2.1, deposit any of the Stockholder Shares into a voting
trust or enter into a voting agreement with respect to
any of the Stockholder Shares, in each case with respect
to such matters, provided, that the foregoing shall not
in any way preclude the Stockholder from taking any
action contemplated by Section 2.3.
Section 2.3 Transfer of Stockholder Shares by
the Stockholder. Notwithstanding any other provision of
this Agreement, the Stockholder may sell, transfer or
otherwise dispose of, or place any Lien on, the
Stockholder Shares free and clear of any restrictions
hereunder on the voting of such shares.
ARTICLE III
ADDITIONAL COVENANTS
Section 3.1 Registration Rights Agreement.
Prior to the Closing Date, News Corp. and Fox shall enter
into a Registration Rights Agreement with the Stockholder
with respect to the News Corp. Preferred ADRs to be
received through the Merger or upon exercise or
conversion of the Stockholder Shares in the form of
Exhibit A to the Stock Purchase Agreement, dated as of
the date hereof, among New Corp., Fox and NWCG (Parent)
Holdings Corporation, a Delaware corporation (the
"Registration Rights Agreement").
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF THE STOCKHOLDER
The Stockholder represents, warrants and covenants
to Fox that:
Section 4.1 Ownership. The Stockholder is as
of the date hereof the beneficial owner of the
Stockholder Shares set forth opposite the name of the
Stockholder on the signature pages hereto, the
Stockholder has the sole right to vote the Stockholder
Shares on such matters as to which such Stockholder
Shares are entitled to vote and there are no restrictions
on the exercise of such voting rights. None of the
Stockholder Shares is subject to any voting trust or
other agreement, arrangement or restriction with respect
to the voting of the Stockholder Shares.
Section 4.2 Authority and Non-Contravention.
The Stockholder has all requisite partnership power and
authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and
performance by the Stockholder and the consummation by
the Stockholder of the transactions contemplated hereby
have been duly authorized by all necessary partnership
action on the part of the Stockholder. Such actions by
the Stockholder (a) require no action by or in respect
of, or filing with, any Governmental Entity with respect
to the Stockholder, other than any required filings under
Section 13 of the Exchange Act, (b) do not and will not
violate or contravene any provision of applicable law or
regulation, judgment, injunction, order or decree binding
on the Stockholder or result in the imposition of any
Lien on any asset of the Stockholder (other than as
provided in this Agreement with respect to Stockholder
Shares) or (c) do not and will not conflict with or
result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would
become a default) under any Contract to which the
Stockholder is a party.
Section 4.3 Binding Effect. This Agreement
has been duly executed and delivered by the Stockholder
and is a legal, valid and binding agreement of the
Stockholder, enforceable against the Stockholder in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally and
by equitable principles to which the remedies of specific
performance and injunctive and similar forms of relief
are subject.
Section 4.4 Total Shares. The Stockholder
Shares listed under the name of the Stockholder on the
signature pages hereto are the only securities of the
Company owned beneficially or of record as of the date
hereof by such Stockholder and such Stockholder does not
have any other option to purchase or right to subscribe
for or otherwise acquire any securities of the Company
and has no other interest in or voting rights with
respect to any other securities of the Company.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF NEWS CORP.
News Corp. represents, warrants and covenants to the
Stockholder that:
Section 5.1 Organization. Each of News Corp.
and Fox is a corporation duly incorporated or organized,
validly existing and, if applicable, in good standing
under the laws of the jurisdiction of its incorporation
or organization and has the requisite power and authority
and all governmental permits, approvals and other
authorizations necessary to own, lease and operate its
properties and to carry on its business as it is now
being conducted, except where the failure to be so
organized, existing or in good standing or to have such
power, authority and governmental permits, approvals and
other authorizations would not, individually or in the
aggregate, have a News Corp. Material Adverse Effect.
Section 5.2 Authority. Each of News Corp. and
Fox has all necessary corporate power and authority to
execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the Transactions
contemplated hereby. The execution and delivery of this
Agreement by each of News Corp. and Fox and the
consummation by each of News Corp. and Fox of the
Transactions have been duly and validly authorized by all
necessary corporate action and no other corporate
proceedings on the part of News Corp. or Fox are
necessary to authorize this Agreement or to consummate
the Transactions. This Agreement has been duly and
validly executed and delivered by each of News Corp. and
Fox and, assuming the due authorization, execution and
delivery thereof by the other parties hereto, constitutes
the legal, valid and binding obligation of each of News
Corp. and Fox enforceable against each of them in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally and
by equitable principles to which the remedies of specific
performance and injunctive and similar forms of relief
are subject and except that rights to indemnity hereunder
may be subject to Federal or state securities laws or the
policies underlying such laws.
Section 5.3 No Conflicts. (a) The execution
and delivery of this Agreement by each of News Corp. and
Fox do not, and the performance of their respective
obligations under this Agreement and the consummation of
the Transactions by News Corp. and Fox will not, (i)
conflict with or violate the certificate of incorporation
or bylaws or equivalent organizational documents of News
Corp. or Fox, (ii) subject to making the filings and
obtaining the approvals identified in Section 5.3(b),
conflict with or violate any Laws applicable to Fox or by
which any property or asset of Fox is bound or affected,
or (iii) subject to making the filings and obtaining the
approvals identified in Section 5.3(b), conflict with or
result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would
become a default) under, result in the loss or
modification in a manner materially adverse to News Corp.
or Fox of any material right or benefit under, or give to
others any right of termination, amendment, acceleration,
repurchase or repayment, increased payments or
cancellation of, or result in the creation of any Liens
on any property or asset of News Corp. or Fox pursuant
to, any Contracts, to which News Corp. or Fox is a party
or by which News Corp. or Fox or any property or asset of
News Corp. or Fox is bound or affected, except, in the
case of clauses (ii) and (iii), for any such conflicts,
violations, breaches, defaults or other occurrences which
would not prevent or delay in any material respect
consummation of the Transactions, or otherwise,
individually or in the aggregate, prevent News Corp. or
Fox from performing its obligations under this Agreement
in any material respect, and would not, individually or
in the aggregate, have a News Corp. Material Adverse
Effect.
(b) Except as set forth in Section 4.5 of the
disclosure letter from The News Corporation Limited,
dated the date hereof, addressed to New World
Communications Group Incorporated (the "Disclosure
Letter"), the execution and delivery of this Agreement by
News Corp. and Fox do not, and the performance of its
obligations under this Agreement and the consummation of
the Transactions by News Corp. and Fox will not, require
any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Entity,
except (i) for (A) applicable requirements, if any, of
the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and state securities or
"blue sky" laws, (B) the pre-merger notification
requirements of the HSR Act, and (C) the approval of the
Transactions by the Federal Communications Commission
(the "FCC") under the Communications Act of 1934, as
amended, and the rules and regulations of the FCC
promulgated thereunder and (ii) where the failure to
obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would
not, individually or in the aggregate, prevent or delay
in any material respect consummation of the Transactions,
or otherwise prevent Fox from performing its obligations
under this Agreement in any material respect, and would
not, individually or in the aggregate, have a News Corp.
Material Adverse Effect.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Expenses. All costs and expenses
incurred in connection with this Agreement shall be paid
by the party incurring such costs or expenses.
Section 6.2 Further Assurances. From time to
time, at the request of News Corp. or Fox, in the case of
the Stockholder, or at the request of the Stockholder, in
the case of News Corp. or Fox, and without further
consideration, each party shall execute and deliver or
cause to be executed and delivered such additional
documents and instruments and take all such further
action as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
Section 6.3 Specific Performance.
(a) The Stockholder agrees that News
Corp. and Fox would be irreparably damaged if for any
reason the Stockholder fails to perform any of the
Stockholder's obligations under this Agreement, and that
News Corp. and Fox would not have an adequate remedy at
law for money damages in such event. Accordingly, News
Corp. and Fox shall be entitled to specific performance
and injunctive and other equitable relief to enforce the
performance of this Agreement by the Stockholder. This
provision is without prejudice to any other rights that
News Corp. and Fox may have against the Stockholder for
any failure to perform its obligations under this
Agreement.
(b) Each of News Corp. and Fox agrees
that the Stockholder would be irreparably damaged if for
any reason News Corp. or Fox fails to perform any of its
obligations under this Agreement, and that the
Stockholder would not have an adequate remedy at law for
money damages in such event. Accordingly, the
Stockholder shall be entitled to specific performance and
injunctive and other equitable relief to enforce the
performance of this Agreement by News Corp. and Fox.
This provision is without prejudice to any other rights
that the Stockholder may have against News Corp. or Fox
for any failure to perform their obligations under this
Agreement.
Section 6.4 Amendments; Termination. This
Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto. The
representations, warranties, covenants and agreements set
forth in Articles II, III and IV shall terminate, except
with respect to liability for prior breaches thereof, on
the date (the "Termination Date") of the termination of
the Merger Agreement in accordance with its terms or, if
earlier, the Effective Time of the Merger, but in any
event not later than June 30, 1997.
Section 6.5 Successors and Assigns. The
provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their
respective estates, heirs, successors and permitted
assigns; provided, however, that a party may not assign,
delegate or otherwise transfer any of such party's rights
or obligations under this Agreement without the consent
of the other parties hereto and any purported assignment,
delegation or transfer without such consent shall be null
and void. Notwithstanding the foregoing, no purchaser or
transferee of Stockholder Shares (other than an Affiliate
of the Stockholder) shall be bound by the provisions of
this Agreement and any such purchaser or transferee shall
acquire such shares free of any restrictions pursuant to
this Agreement.
Section 6.6 Certain Events. The Stockholder
agrees that this Agreement and the obligations hereunder
shall attach to the Stockholder Shares beneficially owned
by the Stockholder and shall be binding upon any
Affiliate of the Stockholder to which legal or beneficial
ownership of such shares shall pass, whether by operation
of law or otherwise.
Section 6.7 Entire Agreement. This Agreement
constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written
and oral, among the parties with respect to the subject
matter hereof.
Section 6.8 Notices. All notices, requests,
claims, demands and other communications hereunder shall
be in writing and shall be deemed given (i) on the first
Business Day following the date received, if delivered
personally or by facsimile (with telephonic confirmation
of receipt by the addressee), (ii) on the Business Day
following timely deposit with an overnight courier
service, if sent by overnight courier specifying next day
delivery and (iii) on the first Business Day that is at
least five days following deposit in the mails, if sent
by first class mail, to the parties at the following
addresses (or at such other address for a party as shall
be specified by like notice):
If to the Stockholder, to:
Apollo Advisors, L.P.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
If to Fox, to:
Fox Television Stations, Inc
00000 Xxxx Xxxx Xxxxxxxxx
Building 88, Room 142
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxxx
with a copy (which shall not constitute notice) to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
If to News Corp., to:
The News Corporation Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy (which shall not constitute notice) to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
Section 6.9 Governing Law. This Agreement
shall be governed by and construed in accordance with the
internal laws of the State of Delaware. Each of the
parties hereto acknowledges that the negotiation of this
Agreement occurred in New York, New York and irrevocably
agrees that any legal suit, action or proceeding brought
by another party hereto arising out of or based upon this
Agreement or the transactions contemplated hereby shall
be instituted in any United States Federal or New York
State court in the Borough of Manhattan, The City of New
York, New York (the "Courts"), waives any objection which
it may now or hereafter have to the laying of venue of
any such proceedings, submits to the exclusive
jurisdiction of such Courts in any such suit, action or
proceeding and agrees not to commence any such suit,
action or proceeding except in such Courts. Each of News
Corp. and Fox hereby appoints News America Publishing
Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, as its
authorized agent (the "Authorized Agent") upon which
process may be served in any such action arising out of
or based upon this Agreement or the transactions
contemplated hereby that may be instituted in any Court
by any party hereto and expressly consents to the
jurisdiction of any such Court, but only in respect of
any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto.
Each of News Corp. and Fox represents and warrants that
the Authorized Agent has agreed to act as said agent for
service of process, and each of News Corp. and Fox agrees
to take any and all action, including the filing of any
and all documents and instruments, that may be necessary
to continue such appointment in full force and effect as
aforesaid. If the Authorized Agent shall cease to act as
the agent of each of News Corp. and Fox for service of
process, News Corp. or Fox, as the case may be, shall
appoint without delay another such agent and notify the
Stockholder of such appointment. With respect to any
such action in the Courts, service of process upon the
Authorized Agent and written notice of such service to
News Corp. or Fox, as the case may be, shall be deemed,
in every respect, effective service of process upon News
Corp. or Fox, as the case may be.
Section 6.10 Counterparts; Effectiveness.
This Agreement may be executed in two or more
counterparts, all of which shall be considered one and
the same agreement.
Section 6.11 Descriptive Headings. The
descriptive headings used herein are inserted for
convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of
this Agreement.
Section 6.12 Severability. Whenever possible,
each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be
effective and valid but if any provision or portion of
any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability will not affect any other
provision or portion of any provision, and this Agreement
will be reformed, construed and enforced as if such
invalid, illegal or unenforceable provision or portion of
any provision had never been contained herein. The
parties shall endeavor in good faith negotiations to
replace any invalid, illegal or unenforceable provision
with a valid provision the effects of which come as close
as possible to those of such invalid, illegal or
unenforceable provision.
Section 6.13 Attorneys' Fees. If any action
at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and
necessary disbursements, in addition to any other relief
to which such party may be entitled.
Section 6.14 Disclosure Letter. The
Stockholder shall be entitled to rely upon Section 4.5 of
the Disclosure Letter as fully as if such letter were
addressed to the Stockholder.
75233
IN WITNESS WHEREOF, Fox, News Corp. and the
Stockholder have caused this Agreement to be duly
executed as of the day and year first above written.
FOX TELEVISION STATIONS, INC.
By: /s/ Xxx Xxxxxxxxx
Xxx Xxxxxxxxx
Senior Vice President
THE NEWS CORPORATION LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Director
712,128 Series A Preferred
Stock APOLLO ADVISORS, L.P.
0 Class A Warrants
258,037 Class B Warrants
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
