Exhibit 1
---------
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of June
11, 1997, is entered into by and between Fox Kids Worldwide, Inc., a
Delaware corporation (the "Purchaser"), on the one hand, and M.G. "Xxx"
Xxxxxxxxx, individually and as trustee of each of the Xxxxxxxxx Charitable
Remainder Unitrust, u/t/a dated January 22, 1990 (the "PR Charitable Trust"),
the Xxxxxx X. Xxxxxxxxx Irrevocable Trust, u/t/a dated December 18, 1996, the
Xxxxxxxxx X. Xxxxxxxx Irrevocable Trust, u/t/a dated December 18, 1996, and
the Xxx X. Xxxxxxx Irrevocable Trust, u/t/a dated December 18, 1996 (the
Xxxxxx X. Xxxxxxxxx Irrevocable Trust, the Xxxxxxxxx X. Xxxxxxxx Irrevocable
Trust and the Xxx X. Xxxxxxx Irrevocable Trust, together, the "Irrevocable
Trusts"), Xxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxx ("Xxx Xxxxxxxxx"), as
joint tenants, and Xxx Xxxxxxxxx, individually, as trustee of each of the
Xxxxxxx and Xxxx Xxxxxxxxx Children's Trust, u/t/a dated September 18, 1995
(the "TR Family Trust") and the Xxxxxxx X. Xxxxxxxxx Charitable Trust, u/t/a
dated December 30, 1996 (the "TR Charitable Trust"), and as custodian to and
for each of Xxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxxxx X. Xxxxxxxxx,
Xxxxxx X. Xxxxxxxxx and Xxxxxxxx X. Xxxxxxxxx under the Virginia Uniform
Transfers to Minors Act (Xxx Xxxxxxxxx, the PR Charitable Trust, the
Irrevocable Trusts, Xxxx X. Xxxxxxxxx, Xxx Xxxxxxxxx, the TR Family Trust and
the TR Charitable Trust, collectively, the "Sellers", and each individually,
a "Seller") on the following terms and conditions:
R E C I T A L S
WHEREAS, as of the date hereof, the PR Charitable Trust beneficially
owns 3,125,000 shares of Class A Common Stock, par value $0.01 per share, of
International Family Entertainment, Inc. (the "Company") (the "Class A
Stock") (as used herein, the term "Control Stock" shall refer to the shares
of Class A Stock of the Company or the shares of Class B Common Stock, par
value $0.01 per share, of the Company (the "Class B Stock") into which the
Class A Stock shall have converted, if the conversion of the Class A Stock
into shares of Class B Stock shall have occurred prior to or upon the
Closing, it being understood that pursuant to the Company's Amended and
Restated Certificate of Incorporation (the "Charter") the Class A Stock will
so convert upon the Closing, and as used herein, the term "Company Stock"
shall refer to the total shares of Class A Stock and Class B Stock combined);
WHEREAS, as of the date hereof, Xxx Xxxxxxxxx beneficially owns
1,837,500 shares of Control Stock and the TR Family Trust beneficially owns
37,500 shares of Control Stock;
WHEREAS, as of the date hereof, the Sellers beneficially own an
aggregate of 1,231,981 shares of Class B Stock (excluding options to acquire
shares of Class B Stock and excluding shares ("401(k) Shares") held under the
Company's 401(k) plan) (the Control Stock and the Class B Stock owned by the
Sellers (other than the 401(k) Shares, which shall not be subject to this
Agreement), together, the "Shares");
WHEREAS, the Purchaser desires to purchase the Shares from the
Sellers and the Sellers desire to sell the Shares to the Purchaser, all on
the terms and subject to the conditions contained herein;
WHEREAS, concurrently herewith, the Purchaser, Fox Kids Merger
Corporation, a Delaware corporation ("FKW Sub"), and the Company are entering
into that certain Agreement and Plan of Merger (as the same may be amended
from time to time in accordance with its terms, the "Merger Agreement"),
providing for the merger of FKW Sub into the Company (the "Merger"), which
shall be the surviving corporation, pursuant to which each share of Company
Stock and Non Voting Class C Common Stock, par value $0.01 per share, of the
Company (the "Class C Stock", and together with all of the Class B Stock, the
Class C Stock and any other shares of any other class of common stock of the
Company, the "Common Stock") which is issued and outstanding immediately
prior to the effective time (the "Effective Time") of the Merger (other than
shares held by the Company, the Purchaser or FKW Sub, or any direct or
indirect subsidiary of the Company, the Purchaser or FKW Sub) shall be
canceled and extinguished and be converted into and become a right to receive
a cash payment equal to $35.00 per share (subject to adjustment), without
interest (except that any Dissenting Shares (as defined in the Merger
Agreement) shall be converted into and become a right to receive the payment
provided for under the Delaware General Corporation Law);
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Purchaser has required that the Sellers enter into this
Agreement and as a condition to their willingness to enter into this
Agreement, the Sellers have required that the Purchaser and FKW Sub enter
into the Merger Agreement;
WHEREAS, the Purchaser, Liberty Media Corporation, a Delaware
corporation ("Liberty"), and Liberty IFE, Inc., a Colorado corporation
("LIFE"), have entered into that certain Contribution and Exchange Agreement,
dated as of the date hereof (as the same may be amended from time to time in
accordance with its terms, the "Contribution Agreement"), pursuant to which
LIFE has agreed, on the terms and subject to the conditions therein, to
contribute its shares of Class C Stock and its $23 million principal amount
of 6% Convertible Secured Notes due 2004 of the Company (the "Convertible
Notes"), to the Purchaser in exchange for shares of a newly issued class of
preferred stock of the Purchaser;
WHEREAS, in connection with the execution of the Contribution
Agreement, LIFE has waived all rights of first refusal, co-sale and other
rights which it has with respect to the sale of Shares contemplated hereby
under that certain Amended and Restated Shareholder Agreement, dated as of
September 1, 1995, by and among the Company, Xxx Xxxxxxxxx, the PR Charitable
Trust, Xxx Xxxxxxxxx, the TR Family Trust, LIFE and The Christian
Broadcasting Network, Inc., a Virginia corporation ("CBN") (the "Shareholder
Agreement");
WHEREAS, in connection with sale of the Shares to the Purchaser
hereunder, the Company, Xxx Xxxxxxxxx, the PR Charitable Trust, Xxx
Xxxxxxxxx, the TR Family Trust, LIFE and CBN have entered into that certain
Termination Agreement, dated as of even date herewith (the "Termination
Agreement"), terminating the Shareholder Agreement, on the terms and
conditions set forth therein;
WHEREAS, in connection with the Contribution Agreement, Satellite
Services, Inc., a Delaware corporation and an affiliate of Liberty, has
entered into an amendment to its Affiliation Agreement with the Company (the
"Amended Affiliation Agreement");
WHEREAS, concurrently herewith, the Purchaser and CBN are entering
into that certain Stock Purchase Agreement with respect to the purchase by
the Purchaser of the shares of Class B Stock owned by CBN (as the same may be
amended from time to time in accordance with its terms, the "CBN Stock
Purchase Agreement");
WHEREAS, in connection with the execution of the CBN Purchase
Agreement, CBN is waiving all rights of co-sale and other rights which it has
with respect to the sale of Shares contemplated hereby under the Shareholder
Agreement;
WHEREAS, concurrently herewith, the Purchaser and Regent University,
a Virginia corporation ("Regent") are entering into that certain Stock
Purchase Agreement with respect to the purchase by the Purchaser of the
shares of Class B Stock owned by Regent (as the same may be amended from time
to time in accordance with its terms, the "Regent Stock Purchase Agreement");
WHEREAS, concurrently herewith, the Purchaser and Xxx Xxxxxxxxx have
entered into a letter agreement providing for certain services to be rendered
by Xxx Xxxxxxxxx to the Company (the "PR Agreement"); and
WHEREAS, as a condition to their willingness to enter into this
Agreement, the Sellers have required that, in connection with the
transactions to be effected pursuant to this Agreement, The News Corporation
Limited, a corporation organized and existing under the laws of South
Australia, Australia (the "Guarantor") guarantee the obligations of the
Purchaser to the Sellers hereunder and the Guarantor has given a guaranty
(the "Guaranty") in accordance with such determination.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration given to each party hereto, the receipt of which
is hereby acknowledged, the parties agree as follows.
1. Purchase and Sale of the Shares. On the terms and subject
to the conditions set forth in this Agreement, the Sellers agree to sell and
deliver the Shares to the Purchaser, free and clear of any mortgage, pledge,
lien, security interest or other encumbrance (each, a "Lien") or Restriction
created by or binding upon the Sellers or the Shares, and the Purchaser
agrees to purchase and acquire the Shares from the Sellers. For purposes of
this Agreement, "Restriction" means, when used with respect to any specified
security, any stockholders or other trust agreement, option, warrant, escrow,
proxy, buy-sell agreement, power of attorney or other contract, agreement or
arrangement which (i) grants to any Person the right to sell or otherwise
dispose of such specified security or any interest therein, or (ii) restricts
the transfer of, or the exercise of any rights or the enjoyment of any
benefits arising by reason of, the ownership of such specified security. For
purposes of this Agreement, "Person" means any individual, corporation,
general or limited partnership, limited liability company, trust, joint
venture, association or unincorporated entity of any kind.
2. Purchase Price. The Shares shall be purchased by the
Purchaser from the Sellers thereof for a purchase price (the "Purchase
Price") equal to $35.00 per share. Notwithstanding the foregoing, the
Purchase Price shall be increased to an amount which equals (if greater than
the Purchase Price provided for herein) the per share amount actually paid,
directly or indirectly, by the Purchaser or any of its Affiliates, with
respect to the purchase of, or agreement to purchase, Company Stock, or
securities convertible into Company Stock, which purchase is effected or
agreement is entered into after the date hereof and through the earlier to
occur of (a) the Effective Time (as defined in the Merger Agreement) or (b)
the termination of the Merger Agreement, (x) in the Merger, (y) from (i)
LIFE, (ii) CBN, (iii) Regent, (iv) any holder or "group" (within the meaning
of Rule 13d-5(b)(1) under the Exchange Act) that owns, or has the right to
dispose of, or to direct the disposition of, 2-1/2% or more of any class of
common stock of the Company, or (v) any of the Affiliates of the entities
referred to in clauses (i), (ii), (iii), or (iv) above, or (z) in any
transaction, or series of related or unrelated transactions (excluding for
purposes of this clause (z), any transaction referred to in clauses (y)(i),
(ii), (iii) or (v)), after the date hereof and through the Effective Time,
involving, in the aggregate, 5% or more of the outstanding shares of any
class of common stock of the Company. For these purposes, it is acknowledged
and agreed that (x) the $3.5 million to be paid to LIFE under the
Contribution Agreement with respect to forfeited interest income on the
Convertible Notes, and (y) amounts to be paid with respect to any "tax gross
up" with respect to the Exchange Rights under the Contribution Agreement,
shall not constitute an amount paid, directly or indirectly, with respect to
the purchase of Company Stock. Further, the Purchase Price shall not be
adjusted as a result of the provisions of the preceding sentence with respect
to any purchase effected under any of the Contribution Agreement, the Merger
Agreement, the CBN Agreement or the Regent Agreement unless the applicable
agreement has been amended after the date hereof so as to increase the
consideration to be paid by the Purchaser or any of its Affiliates, directly
or indirectly, with respect to the Company Stock or securities convertible
into Company Stock. The Purchaser shall promptly provide notice to the
Sellers of any agreement or amendment to an existing agreement entered into
by the Purchaser or any of its Affiliates with the Company, CBN or Regent, or
any amendment to an Other Transaction Agreement (as defined herein) to which
LIFE or any of its Affiliates is a party, from and after the date hereof and
through the Closing Date. If the Purchase Price is adjusted pursuant to the
foregoing, following the closing under such other agreement (or the Effective
Time, if applicable), the Purchaser shall promptly pay to the Sellers the
amount of any increase in the Purchase Price resulting from such agreement.
For purposes of this Agreement, "Affiliate" means, when used with reference
to a specified Person, any Person that directly or indirectly through one or
more intermediaries controls or is controlled by, or is under common control
with, such specified Person and, in the case of an individual, such Person's
spouse, parents, children, siblings, mothers- and fathers-in-law, sons- and
daughters-in-law, and brothers- and sisters-in-law. For the purposes of this
definition, "control" (including the terms controlled by and under common
control with), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise. For the purposes of this
Agreement, the Purchaser shall be deemed to be an Affiliate of Fox, Inc., a
Delaware corporation, and of Saban Entertainment, Inc., a Delaware
corporation, but shall not be deemed to be an Affiliate of any of the
Sellers, the Company, LIFE, CBN, Regent nor any of their respective
Affiliates.
3. The Closing. The closing (the "Closing") of the purchase
and sale of the Shares shall take place on the third business day following
satisfaction or waiver of each and every one of the conditions set forth in
Section 6 and 7 hereof, or such other date and time as the parties shall
otherwise agree to. The date of the Closing is referred to herein as the
"Closing Date." At the Closing, each Seller shall deliver to the Purchaser
certificates representing the Shares (accompanied by signature guarantees in
customary form) against delivery by the Purchaser of payment of the Purchase
Price therefor, allocated among the Sellers based on their respective
percentage ownerships of the Shares, by wire transfer or by immediately
available funds, to such accounts as Seller may specify.
4. Representations and Warranties. Each Seller, severally with
respect to itself and the Shares which it has agreed to sell pursuant to this
Agreement, makes the following representations and warranties as of the date
hereof. The representations and warranties contain exceptions set forth in a
written disclosure letter (the "Sellers Disclosure Letter") delivered to the
Purchaser concurrently with the execution hereof, which is numbered to
correspond to the various Sections of this Agreement and which also sets
forth certain other information called for by this Agreement.
4.1 Formation, Validity, Powers and Actions of Trusts.
If a trust, (i) such Seller is a trust duly and validly formed and validly
existing under the laws of the Commonwealth of Virginia, with adequate trust
power and authority to own its properties and carry on its actions as
currently conducted; (ii) Xxx Xxxxxxxxx, as trustee of each of the PR
Charitable Trust and the Irrevocable Trusts, has all requisite power and
authority to enter into, execute and deliver this Agreement on behalf of such
trusts and to consummate on behalf of such trusts the transactions
contemplated hereby; and (iii) Xxx Xxxxxxxxx, as trustee of each of the TR
Family Trust and the TR Charitable Trust, has all requisite power and
authority to enter into, execute and deliver this Agreement on behalf of such
trusts and to consummate on behalf of such trusts the transactions
contemplated hereby.
4.2 Execution, Delivery and Performance. This Agreement
constitutes the valid and binding obligations of such Seller, including the
trusts, and is enforceable in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally.
4.3 No Consents. Other than filings required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the filing of Forms 4 and Schedules 13D under the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(the "Exchange Act"), no consent, authorization, order or approval of, or
filing with or registration with, any governmental authority, commission,
board or other regulatory body of the United States or any state or political
subdivision thereof (each, a "Governmental Entity"), is required to be made
or obtained by the Sellers for or in connection with the sale by the Sellers
of the Shares to the Purchaser as contemplated hereby.
4.4 Title. Each Seller has, and at the Closing will
have, good and valid title to the Shares it is selling pursuant to this
Agreement, free and clear of any Liens or Restrictions (other than those
restrictions set forth in the Shareholder Agreement or in the Charter) and
(subject to such restrictions) it has the full legal right, power and
authority to sell, assign, transfer and deliver such Shares to the Purchaser
and to make the representations, warranties, covenants and agreements made by
such Seller herein; upon the delivery of and payment for such Shares as
contemplated hereby the Purchaser will acquire good and valid title thereto,
free and clear of all Liens or Restrictions created by or binding upon such
Seller. Each Seller has sole voting power, and sole power of disposition,
with respect to all of its respective Shares (other than those Restrictions
set forth in the Shareholder Agreement or in the Charter) subject to
applicable federal and state securities laws, on such Seller's rights of
disposition pertaining thereto. The Shares, in the amounts set forth in the
recitals to this Agreement, constitute all equity or debt securities issued
by the Company held by the Sellers (other than the 401(k) Shares) and none of
the Sellers has any right, title or interest in or to any other equity or
debt securities of the Company or any option or right to acquire such equity
or debt securities (other than the 401(k) Shares), other than those options
(the "Subject Options") to acquire shares of Class B Stock under the
International Family Entertainment, Inc. Stock Incentive Plan which are
described in the Sellers Disclosure Letter and other than under the
Shareholder Agreement.
4.5 No Conflicts. The execution, delivery and
performance by the Sellers of this Agreement will not violate any other
agreement to which any of the Sellers is a party, including, without
limitation, any voting agreement, stockholders agreement or voting trust, or
otherwise contravene, conflict with or result in a violation of, any federal,
state, local, municipal, foreign, international, multi-national or other
administrative order, constitution, law, ordinance, regulation, statute or
treaty, or give any individual, corporation, partnership, governmental
authority or regulatory body or any other person the right to prevent the
consummation of the sale of the Shares contemplated hereby.
4.6 No Broker. The Sellers have not employed any
investment banker, broker, finder, consultant or intermediary in connection
with the transactions contemplated by this Agreement which would be entitled
to any investment banking, brokerage, finder's or similar fee or commission
in connection with this Agreement or the transactions contemplated hereby.
5. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Sellers as follows:
5.1 Organization, Standing and Corporate Power of the
Purchaser. The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with adequate
corporate power and authority to own its properties and carry on its business
as presently conducted. The Purchaser has the corporate power and authority
to enter into, execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
5.2 Organization, Standing and Corporate Power of the
Guarantor. The Guarantor is a corporation organized and existing under the
laws of South Australia, Australia, with adequate corporate power and
authority to own its properties and carry on its business as presently
conducted. The Guarantor has the corporate power and authority to enter
into, execute and deliver the Guaranty and to guarantee the obligations of
the Purchaser hereunder pursuant to such Guaranty.
5.3 Execution, Delivery and Performance by the
Purchaser. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of the Purchaser, and the Purchaser has
taken all other actions required by law, its Certificate of Incorporation and
its Bylaws in order to consummate the transactions contemplated by this
Agreement. This Agreement constitutes the valid and binding obligations of
the Purchaser and is enforceable in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally.
5.4 Execution, Delivery and Performance by the
Guarantor. The execution, delivery and performance of the Guaranty and the
consummation of the transactions thereby have been duly authorized by the
Board of Directors of the Guarantor, and the Guarantor has taken all other
actions required by law and its organizational documents in order to
consummate the transactions contemplated by the Guaranty. The Guaranty
constitutes the valid and binding obligations of the Guarantor and is
enforceable in accordance with its terms, except as enforceability may be
subject to or limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights generally.
5.5 Consents. Other than filings required under the HSR
Act and the filing of a Form 4 and Schedule 13D under the Exchange Act, no
consent, authorization, order or approval of, or filing with or registration
with, any Governmental Entity is required to be made or obtained by the
Purchaser for the purchase by the Purchaser of the Shares from the Sellers as
contemplated hereby or by the Guarantor for the execution, delivery and
performance of the Guaranty..
5.6 No Conflicts. The execution, delivery and
performance by the Purchaser of this Agreement or by the Guarantor of the
Guaranty will not violate any other agreement to which the Purchaser or the
Guarantor is a party, or otherwise contravene, conflict with or result in a
violation of, any federal, state, local, municipal, foreign, international,
multi-national or other administrative order, constitution, law, ordinance,
regulation, statute or treaty, or give any individual, corporation,
partnership, governmental authority or regulatory body or any other person
the right to prevent the consummation of the sale of the Shares contemplated
hereby or the enforcement by any of the Sellers of the Guaranty.
5.7 Purchase For Investment. The Purchaser is acquiring
the Shares for its own account, for investment purposes only, and not with a
view to or for the resale or distribution thereof, in whole or in part. The
Purchaser acknowledges and represents: (i) that it is aware that the Shares
are not registered under the Securities Act and are subject to the
restrictions thereof, including pursuant to Rule 144 promulgated thereunder;
(ii) that no federal or state agency has passed upon the Shares or made any
finding or determination as to the fairness of the Purchaser's investment in
the Shares; (iii) that there are risks of loss associated with the
Purchaser's purchase of the Shares; (iv) that the investment in the Shares is
an illiquid investment and the Purchaser may bear the risk of its investment
for an indefinite period of time; and (v) that it is a sophisticated
investor, able to evaluate the risks and merits of its investment and to bear
such financial risk.
5.8 Nature of Control Stock. The Purchaser understands
that, at the time of transfer of the Control Stock to the Purchaser as
contemplated hereby, such Control Stock will consist (or, by operation of the
Charter, be automatically converted into and deemed to consist) solely of
Class B Stock of the Company.
5.9 No Broker. The Purchaser has not employed any
investment banker, broker, finder, consultant or intermediary in connection
with the transactions contemplated by this Agreement which would be entitled
to any investment banking, brokerage, finder's or similar fee or commission
in connection with this Agreement or the transactions contemplated hereby.
5.10 Transaction Agreements. This Agreement, the Merger
Agreement, the Other Transaction Agreements (as defined herein), and the
other agreements listed in the recitals above, are the only agreements
existing as of the date hereof between the Purchaser, on the one hand, and
the respective counterparties to such agreements and any Affiliates of such
parties, on the other hand, with respect to the acquisition of Class A Stock,
Class B Stock, Class C Stock or Convertible Notes of the Company.
6. Conditions to Obligations of the Purchaser. Unless waived
(it being agreed that no such waiver shall be given or effective prior to the
tender by the Purchaser of the Purchase Price and the consummation of the
Closing), in whole or in part, in writing by the Purchaser, the obligations
of the Purchaser to purchase the Shares and to perform any and all of its
post-closing obligations shall be subject to the satisfaction at or prior to
the Closing Date of each of the following conditions:
6.1 Accuracy of Representations and Warranties. All
representations and warranties of the Sellers contained herein shall be true
and correct in all material respects on and as of the Closing Date, with the
same force and effect as though made on and as of the Closing Date, except
for changes permitted or contemplated by this Agreement.
6.2 Performance of Agreements. The Sellers shall have
performed in all material respects all obligations and agreements contained
in this Agreement to be performed or complied with by them prior to or at the
Closing Date.
6.3 The Shares. The Sellers shall be prepared to
deliver certificates for all the Shares to the Purchaser upon the Closing.
6.4 Merger Agreement Conditions. All conditions set
forth in Sections 7.1, 7.2 and 7.3 of the Merger Agreement to the
consummation of the Merger (other than the preparation and mailing of the
Information Statement (as defined in the Merger Agreement) and the expiration
of the 20 calendar day waiting period with respect thereto) not waived by the
applicable party shall have been satisfied as of the Closing Date.
6.5 Company Certificate. The Purchaser shall have
received a certificate executed by the Company in the form of Exhibit A
attached to the Merger Agreement.
6.6 No Injunctions. None of the parties hereto shall be
subject to any order or injunction of a court of competent jurisdiction which
prohibits the consummation of the sale of the Shares to the Purchaser
contemplated by this Agreement. In the event any such order or injunction
shall have been issued, each party agrees to use its reasonable efforts to
have any such injunction lifted.
6.7 No Adverse Enactments. There shall not have been
any statute, rule, regulation or order promulgated, enacted or issued by any
Government Entity or court of competent jurisdiction which would make the
consummation of the sale of the Shares hereunder or the Merger illegal.
6.8 Banking Moratorium. There shall not have occurred
and be continuing any declaration of any banking moratorium or suspension of
payments by banks in the United States or any general limitation on the
extension of credit by lending institutions in the United States.
6.9 Consummation of Other Transactions. All conditions
to the consummation of the transactions (the "Other Transactions") to be
effected pursuant to the Contribution Agreement, the CBN Stock Purchase
Agreement and the Regent Stock Purchase Agreement (collectively, the "Other
Transaction Agreements") shall have been satisfied or waived by the
applicable party, and the parties to such Other Transaction Agreements shall
have consummated such Other Transactions simultaneously with or prior to the
sale of the Shares to the Purchaser as contemplated hereby.
6.10 Amended Affiliation Agreement. The Amended
Affiliation Agreement, in the form of Exhibit "A" hereto, shall be in full
force and effect.
6.11 Xxxx-Xxxxx-Xxxxxx Notification. The waiting period
(and any extension thereof) under the HSR Act applicable to (i) the purchase
of the Shares pursuant to this Agreement and the consummation of the Other
Transactions, (ii) the conversion by the Purchaser of the Class C Stock and
the Convertible Notes acquired pursuant to the Contribution Agreement into
shares of Class B Stock of the Company, and (iii) the Merger shall have
expired or have been terminated.
6.12 Opinion of Counsel. The Purchaser shall have
received an opinion of counsel to the Sellers from a counsel reasonably
acceptable to Purchaser covering the matters referred to in Section 4.1
hereof.
6.13 Acquisition Agreements. Immediately following the
consummation of this transaction and the Other Transactions (and after giving
effect to the conversion of the Class C Stock and the Convertible Notes into
Class B Stock), the Purchaser and its Subsidiaries will own a majority of the
voting common stock of the Company then entitled to vote in the election of
the Company's directors.
7. Conditions to Obligations of Sellers. Unless waived, in
whole or in part, in writing by the Sellers, the obligations of the Sellers
to sell the Shares as contemplated by this Agreement shall be subject to the
fulfillment prior to or on the Closing Date of each of the following condi-
tions:
7.1 Accuracy of Representations and Warranties. All
representations and warranties of the Purchaser contained herein shall be
true and correct in all material respects on and as of the Closing Date, with
the same effect as though made on and as of the Closing Date, except for
changes permitted or contemplated by this Agreement.
7.2 Performance of Agreements. The Purchaser shall have
performed in all material respects all obligations and agreements contained
in this Agreement to be performed or complied with by it prior to or at the
Closing Date.
7.3 No Adverse Enactments. There shall not have been
any statute, rule, regulation or order promulgated, enacted or issued by any
Government Entity or court of competent jurisdiction which would make the
consummation of the sale of the Shares hereunder or the Merger illegal.
7.4 No Injunctions. None of the parties hereto shall be
subject to any order or injunction of a court of competent jurisdiction which
prohibits the consummation of the sale of the Shares to the Purchaser
contemplated by this Agreement. In the event any such order or injunction
shall have been issued, each party agrees to use its reasonable efforts to
have any such injunction lifted.
7.5 Xxxx-Xxxxx-Xxxxxx Notification. The waiting period
(and any extension thereof) under the HSR Act applicable to the consummation
of the purchase of the Shares pursuant to this Agreement shall have expired
or have been terminated.
7.6 Purchase Price. The Purchaser shall be prepared to
deliver the aggregate Purchase Price for all the Shares to the Sellers in the
amounts and manner contemplated hereby upon the Closing.
7.7 The PR Agreement. The Purchaser shall have executed
the PR Agreement and shall have delivered the PR Agreement to Xxx Xxxxxxxxx.
7.8 Consummation of Other Transactions. All conditions
to the consummation of the Other Transactions to be effected pursuant to the
Other Transaction Agreements shall have been satisfied or waived by the
applicable party, and the parties to such Other Transaction Agreements shall
have consummated such Other Transactions simultaneously with or prior to the
sale of the Shares to the Purchaser as contemplated hereby.
8. Covenants of the Purchaser. The Purchaser hereby covenants
and agrees as follows:
8.1 Filings and Other Actions. As promptly as
practicable after the execution of this Agreement, but in any event within 5
business days, the Purchaser shall file notification reports under the HSR
Act and shall request early termination of the waiting period under the HSR
Act and use their commercially reasonable efforts to obtain clearance or
authorization under the HSR Act of the Merger and the purchase of the Shares
contemplated by this Agreement and the Other Transactions at the earliest
practicable time. The Purchaser agrees to cooperate fully with the Sellers
to promptly effectuate the filing of any notification required under the HSR
Act.
8.2 Reasonable Efforts. Subject to the terms and
conditions of this Agreement, the Other Transaction Agreements and the Merger
Agreement, the Purchaser agrees to use all reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement, the Other Transaction Agreements
and the Merger Agreement. The Purchaser hereby agrees, while this Agreement
is in effect, and except as contemplated hereby, not to intentionally and
knowingly take any action with the intention and knowledge that such action
would make any of its representations or warranties contained herein untrue
or incorrect in any material respect or have the effect of preventing or
disabling it from performing its obligations under this Agreement. The
Purchaser shall not enter into, permit or give any consent to any amendment,
supplement or other modification of, or give any consent or waiver or
otherwise take any action (including agreeing to a delayed closing date)
under, any of the Other Transaction Agreements (or any of the agreements
related thereto) (collectively, a "Modification") which could reasonably be
expected to delay the Closing hereunder, or terminate any of the Other
Transaction Agreements (or any of the agreements related thereto), without
the prior written consent of the Sellers of the Control Stock.
Notwithstanding the foregoing, the Purchaser may (without the consent of the
Sellers of the Control Stock) effect any Modification to the Other
Transaction Agreements (or any of the agreements related thereto) which it
determines in good faith to be reasonably necessary to effect the
transactions contemplated thereby, provided it uses its reasonable good faith
efforts to cause the closing thereunder to occur as soon as practicable and
provided further that such Modification will not delay the Closing hereunder
beyond November 30, 1997.
9. Covenants of the Sellers. The Sellers, jointly and
severally, hereby covenant and agree as follows:
9.1 Cooperation in Filing Notification under Xxxx-Xxxxx-
Xxxxxx. The Sellers agree to cooperate fully with the Purchaser to promptly
effectuate the filing of any notification required under the HSR Act.
9.2 Additional Shares. The Sellers agree that (other
than purchases under the Company's 401(k) plan), they will not purchase
additional shares of Common Stock of the Company whether in open market
purchases, privately negotiated purchases or by the exercise or conversion of
options or convertible securities held by them between the date of this
Agreement and the Closing Date. If ownership of any additional shares of
Common Stock of the Company is acquired or transferred to any Seller (other
than under the Company's 401(k) plan), such Seller hereby agrees, while this
Agreement is in effect, to promptly notify each other party to this Agreement
of the number of additional shares of Common Stock of the Company acquired by
it, if any, after the date hereof, and hereby agrees to sell any such
additional shares of Common Stock of the Company acquired by it after the
date hereof through the Closing Date to the Purchaser pursuant to the terms
of this Agreement, with a provision for additional payment for such shares by
the Purchaser to such Seller at the Purchase Price.
9.3 Reasonable Efforts. Subject to the terms and
conditions of this Agreement, the Sellers each agrees to use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make
effective the transactions provided for by this Agreement. The Sellers each
hereby agrees, while this Agreement is in effect, and except as contemplated
hereby, not to intentionally and knowingly take any action with the intention
and knowledge that such action would make any of its representations or
warranties contained herein untrue or incorrect in any material respect or
have the effect of preventing or disabling it from performing its obligations
under this Agreement. Notwithstanding anything to the contrary contained
herein, this Section 9.3 shall not obligate, and shall not be interpreted to
obligate, any of the holders of the Control Stock to take any action to the
extent such obligation would result in a change in beneficial ownership of
any of the Control Stock prior to the Closing.
10. Post-Closing Covenants; Termination.
10.1 Further Instruments, Termination. The Sellers and
the Purchaser agree to execute such further documents or instruments and to
take such other actions as are necessary to transfer the Shares to the
Purchaser and to otherwise carry out the transactions provided for by this
Agreement. If the Closing Date shall not have occurred on or prior to
November 30, 1997, other than as a result of a material breach of this
Agreement by any party hereto, any party may terminate this Agreement without
liability. If the Closing Date shall not have occurred on or prior to such
date as a result of material breach of any representation, warranty, covenant
or obligation by the Sellers (or any of them), on the one hand, or the
Purchaser on the other, the non-breaching party shall have the right to
terminate this Agreement without liability. In addition, this Agreement may
be terminated by the Sellers if, after the date hereof and before the Closing
Date, the Guarantor attempts or purports to revoke or withdraw the Guaranty
or a court of competent jurisdiction finally determines that the Guaranty is
unenforceable or invalid.
10.2 Subject Options. Immediately following the Closing,
and from time to time thereafter, the Purchaser will lend to each of Xxx
Xxxxxxxxx and Xxx Xxxxxxxxx sufficient funds to permit each of them to
exercise all Subject Options which are then vested and exercisable or
subsequently vest and become exercisable. Upon receiving such funds, each of
Xxx Xxxxxxxxx and Xxx Xxxxxxxxx will immediately exercise such Subject
Options, and concurrent with his receipt of the shares of Class B Stock
receivable thereunder will sell and deliver such shares to the Purchaser for
a cash purchase price per share equal to the Purchase Price, less the amount
of the loan referred to in the immediately preceding sentence, which shall be
deemed repaid in full.
11. Survival of Representations and Warranties; Indemnity. Only
the representations and warranties of the Sellers contained in Section 4.4
hereto (with respect to title) shall survive the Closing and the consummation
of the transactions contemplated hereby. No party hereto shall have any
monetary or other liability or obligation to any other party hereto for
breach of any of such first party's representations or warranties contained
herein or in any certificate or other document delivered pursuant hereto, and
the sole consequence of any such breach shall be limited to the failure to
satisfy a condition to the Closing pursuant to Article 6 or 7 and the
termination right provided in Section 10, in each case to the extent
applicable according to such Section's express terms. With respect to a
breach of its representations and warranties contained in Section 4.4 hereto,
each Seller hereby covenants and agrees with the Purchaser that it shall
indemnify the Purchaser and its directors, officers, shareholders and
Affiliates, and each of their successors and assigns and hold them harmless
from, against and in respect of any and all costs, losses, claims,
liabilities, fines, penalties (including interest which may be imposed in
connection therewith and court costs and reasonable fees and disbursements of
counsel) incurred by any of them arising out of any material breach of, or
any material inaccuracy in, such representations and warranties; provided,
however, that the liability of each Seller to all such indemnified persons
shall in no event exceed the proceeds received by such Seller for the sale of
its Shares hereunder.
12. Miscellaneous.
12.1 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Other than as set forth in the
immediately succeeding sentence, no party may assign any of its rights, or
delegate any of its duties or obligations, hereunder without the prior
written consent of the other party, and any such purported assignment or
delegation shall be void ab initio. Notwithstanding the foregoing, the
Purchaser, its Affiliates, and its successors and assigns, may assign their
rights and delegate their duties (i) to any successor entity resulting from
any liquidation, merger, consolidation, reorganization, or transfer of all or
substantially all of the assets or stock of the Purchaser, or (ii) to any
Affiliate of the Purchaser; provided, that in either case, any such assignee
shall expressly assume all of the obligations the Purchaser hereunder.
12.2 Notices. All notices, demands and other
communications (collectively, "Notices") given or made pursuant to this
Agreement shall be in writing and shall be deemed to have been duly given if
sent by registered or certified mail, return receipt requested, postage and
fees prepaid, by overnight service with a nationally recognized "next day"
delivery company such as Federal Express or United Parcel Service, by
facsimile transmission, or otherwise actually delivered to the following
addresses:
(a) If to the Purchaser:
Fox Kids Worldwide, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxx
Fax: 000-000-0000
with a copy to:
Fox, Inc.
00000 Xxxx Xxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: President
Fax: 000-000-0000
and a copy to:
The News Corporation Limited
c/o News America Publishing
Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
and a copy to:
Troop Xxxxxxxxx Xxxxxxx & Xxxxxx,
LLP
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: C.N. Xxxxxxxx Xxxxxxx, III,
Esq.
Fax: 000-000-0000
and a copy to:
Squadron, Ellenoff, Plesent &
Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax: 000-000-0000
(b) If to the Sellers:
c/o International Family
Entertainment, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxxx
Fax: 000-000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: 000-000-0000
Any Notice shall be deemed duly given when received by the addressee thereof.
Any of the parties to this Agreement may from time to time change its address
for receiving notices by giving written notice thereof in the manner set
forth above.
12.3 Amendment; Waiver. No provision of this Agreement
may be waived unless in writing signed by all of the parties to this
Agreement, and the waiver of any one provision of this Agreement shall not be
deemed to be a waiver of any other provision. This Agreement may be amended,
supplemented or otherwise modified only by a written agreement executed by
all of the parties to this Agreement.
12.4 Limitation on Liability. The liability of the
Sellers for any breach by the Sellers of this Agreement shall be limited to
the actual damages suffered by the Purchaser or any of its Affiliates under
this Agreement and the Sellers shall not be liable for any consequential or
other damages of the Purchaser or any of its Affiliates, including any
damages arising in connection with any Other Transaction Agreement or the
Merger Agreement.
12.5 Jurisdiction. The parties hereto irrevocably submit
to the non-exclusive jurisdiction of the state and federal courts located in
Delaware for the purposes of any suit, action or other proceeding arising out
of this Agreement (and agree not to commence any action, suit or proceeding
relating hereto except in such courts). Each party hereto hereby irrevocably
designates CT Corporation System (or, in the case of the Sellers, Young,
Conaway, Stargatt & Xxxxxx, at 0000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx XxXxxxx and Xxxxx Xxxxxxxxxxx)
as its designee, appointee and agent to receive, for and on behalf of it,
service of process in such respective jurisdictions in any legal action or
proceeding with respect to this Agreement or any document related thereto.
It is understood that a copy of such process serviced on such agent will be
promptly forwarded by mail to it at its address set forth in Section 12.2
hereof, but the failure to receive such copy shall not affect in any way the
service of such process. Each of the parties hereto further irrevocably
consents to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at its said address, such service to
become effective upon confirmed delivery. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the state or federal courts located in Delaware, and
hereby further irrevocably and unconditionally waive and agree not to plead
or claim in any such action, suit or proceeding brought in any such court
that such action, suit or proceeding has been brought in an inconvenient
forum.
12.6 Dispute Resolution. Any dispute or claim arising
hereunder shall be settled by arbitration. Any party may commence
arbitration by sending a written notice of arbitration to the other party.
The notice will state the dispute with particularity. The arbitration
hearing shall be commenced thirty (30) days following the date of delivery of
notice of arbitration by one party to the other, by the American Arbitration
Association ("AAA") as arbitrator. The arbitration shall be conducted in New
York City, New York in accordance with the commercial arbitration rules
promulgated by AAA, and the Sellers, on the one hand, and the Purchaser, on
the other, shall retain the right to cross-examine the opposing party's
witnesses, either through legal counsel, expert witnesses or both. The
decision of the arbitrator shall be final, binding and conclusive on all
parties (without any right of appeal therefrom) and shall not be subject to
judicial review. As part of his decision, the arbitrator may allocate the
cost of arbitration, including fees of attorneys and experts, as he or she
deems fair and equitable in light of all relevant circumstances. Judgment on
the award rendered by the arbitrator may be entered in any court of competent
jurisdiction.
12.7 Governing Law. This Agreement shall be governed by
and construed both as to validity and performance and enforced in accordance
with the laws of the State of Delaware without giving effect to the choice of
law principles thereof.
12.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
12.9 Remedies Cumulative. Each of the various rights,
powers and remedies shall be deemed to be cumulative with, and in addition
to, all the rights, powers and remedies which either party may have hereunder
or under applicable law relating hereto or to the subject matter hereof, and
the exercise or partial exercise of any such right, power or remedy shall
constitute neither an exclusive election thereof nor a waiver of any other
such right, power or remedy.
12.10 Headings. The section and subsection headings con-
tained in this Agreement are included for convenience only and form no part
of the agreement between the parties.
12.11 Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this Agreement shall be
or become prohibited or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
12.12 Expenses. Each party shall pay its own costs,
expenses, including without limitation, the fees and expenses of their
respective counsel and financial advisors.
12.13 Entire Agreement. This Agreement constitutes and
embodies the entire understanding and agreement of the parties hereto
relating to the subject matter hereof and there are no other agreements or
understandings, written or oral, in effect between the parties relating to
such subject matter except as expressly referred to herein.
12.14 Publicity. The initial press release relating to
this Agreement shall be a joint press release in the form attached hereto as
Exhibit "B", and the Purchaser and the Sellers shall use reasonable efforts
to agree upon the text of any other press release before issuing any such
press release or otherwise making public statements with respect to the
transactions contemplated hereby.
12.15 Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or
agreements contained in this Agreement will cause the other parties to
sustain damages for which they would not have an adequate remedy at law for
money damages, and therefore each of the parties hereto agrees that in the
event of any such breach the aggrieved party or parties shall be entitled to
the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief, without the posting of bond or other
security, in addition to any other remedy to which it or they may be
entitled, at law or in equity.
12.16 No Third Party Beneficiaries. This Agreement is not
intended to benefit, and shall not run to the benefit of or be enforceable
by, any other person or entity other than the parties hereto and their
permitted successors and assigns.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
FOX KIDS WORLDWIDE, INC.
By: /s/ Xxx Xxxxx
-------------------------------------
Its: President
-------------------------------------
M.G. "XXX" XXXXXXXXX
XXXXXXXXX CHARITABLE REMAINDER UNITRUST
XXXXXX X. XXXXXXXXX IRREVOCABLE TRUST
XXXXXXXXX X. XXXXXXXX IRREVOCABLE TRUST
XXX X. XXXXXXX IRREVOCABLE TRUST
By: /s/ M.G. "Xxx" Xxxxxxxxx
--------------------------------------
M.G. "Xxx" Xxxxxxxxx, individually and as
trustee
XXXXXXX X. XXXXXXXXX
THE XXXXXXX AND XXXX XXXXXXXXX CHILDREN'S
TRUST
THE XXXXXXX X. XXXXXXXXX CHARITABLE TRUST
XXXXXXX X. XXXXXXXXX UTMA
XXXXX X. XXXXXXXXX UTMA
XXXXXXXXX X. XXXXXXXXX UTMA
XXXXXX X. XXXXXXXXX UTMA
XXXXXXXX X. XXXXXXXXX UTMA
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxx, individually, as
joint tenant with Xxxx X. Xxxxxxxxx,
trustee and custodian
/s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxxxx, as joint tenant with
Xxxxxxx X. Xxxxxxxxx
