EXHIBIT 10.1
January 31, 2001
Agreement Between Metro-Xxxxxxx-Xxxxx Inc. ("MGM") and Rainbow Media Holdings
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Inc. ("RMHI") to acquire Twenty-Percent Interest in the Rainbow Networks (AMC,
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Bravo, IFC, WE: Women's Entertainment and Digital Suites)
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This Agreement sets forth the mutual understanding of MGM and RMHI with
regard to a Transaction in which a subsidiary of MGM will make capital
contributions in AMCC (as hereinafter defined) of $495 million and Bravo (as
hereinafter defined) of $330 million and will become a 20% partner in each of
these Partnerships (the "Partnerships"). The subsidiaries of Rainbow which are
partners in AMC and Bravo would be proportionately diluted.
1. Existing Structure of Rainbow/Definitions.
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RMHI, through its indirect ownership of American Movie Classics Company
("AMCC") and Bravo Company ("Bravo Company"), each of which is a New York
general partnership, and other entities directly or indirectly owned by the
Partnerships (collectively, with the Partnerships, the "Business Entities"),
owns and operates the cable networks AMC, Bravo and IFC and WE: Women's
Entertainment (formerly known as Romance Classics), and is developing the AMC
Company and Bravo Company Digital Suites (collectively the "Networks").
American Movie Classics Holding Corporation ("AMC") and AMCII Holding
Corporation ("AMCII"), which are direct wholly owned subsidiaries of RMHI, each
owns a 50% general partnership interest in AMCC (AMC, AMCII, Bravo Corp. and
Bravo II, are hereafter collectively referred to as the "Rainbow Subs"). Bravo
Holding Corporation ("Bravo Corp.") and Bravo II Holding Corporation ("Bravo
II"), which are direct wholly owned subsidiaries of RMHI, each owns a 50%
general partnership interest in Bravo Company.
2. Contribution of MGM.
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MGM will form a wholly owned subsidiary known as MGM Networks, U.S., Inc.
("MGM Sub"). MGM Sub will contribute cash in the aggregate amount of $825
million (the "MGM Contributions") to the Partnerships in return for a twenty
(20) percent equity interest in each Partnership, with RMHI retaining an
indirect eighty (80) percent interest in each Partnership. The proceeds of the
MGM Contributions will be applied as follows: $365 million of the contribution
to AMCC will be used upon closing to repay the $365 million AMC bank debt;
$295.5 million of the contribution to Bravo will be used upon closing to
distribute to RMHI for the purpose of repaying intercompany loans from
Cablevision and its affiliates to RMHI; and the remaining $164.5 million will
remain in the Partnerships as working capital. In the event that the debt
referred to in the preceding sentence has been paid down with the proceeds of a
new Rainbow Media Group loan facility, then the $365 million and $295.5 million
will be used to pay down outstanding amounts under that facility with the
remaining $164.5 million remaining in the Partnerships as working capital. RMHI
will not increase the debt allocable to the Partnerships beyond that specified
above prior to the closing of this transaction, provided that after the closing
the Partnerships may incur such debt as the managing partners determine is
appropriate. Immediately following the MGM Contributions
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and the distribution to RMHI described above, the capital accounts of the
partners in each Partnership will be as follows:
AMCC:
AMC - $990 million
AMCII- $990 million
MGM Sub- $495 million
Bravo:
Bravo Corp.- $660 million
Bravo II- $660 million
MGM Sub- $330 million
3. Cablevision Carriage Agreements.
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The existing carriage agreements between Cablevision and the Networks will
continue in effect throughout their respective terms.
4. Management.
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AMC and Bravo Corporation will be managing partners of the respective
Partnerships (the "Managing Partners") and will have the exclusive right to make
all management decisions and to take all actions on behalf of the Partnerships
except that the following matters will require the approval of MGM: decisions to
declare bankruptcy or commence or consent to any reorganization under bankruptcy
laws or any assignment for the benefit of creditors; related party transactions
other than (i) pursuant to existing agreements or renewals, replacements or
extensions thereof on generally consistent terms, and (ii) transactions on arms-
length terms and except that the Partnerships can be charged with an allocation
of a portion of the indirect expenses of RMHI and its affiliates on a basis
substantially consistent with the current policy for allocating those expenses
to the businesses of the Partnerships; non-proportionate distributions (except
as described in paragraph 2 above); amendments of the governing documents of the
Partnerships in a manner that detracts from MGM's rights in the Partnerships
(other than the impact of the dilution of MGM's interest resulting from a
decision by the managing partner to admit new partners); or, any change in the
structure of the Partnerships that results in the Partnerships ceasing to be
treated as partnerships for tax purposes. MGM Sub shall not have any other
rights to exercise any management role in the Partnerships or to approve any
transactions of the Partnerships. MGM Sub shall be afforded access to the
Partnerships books and records during normal business hours. The Managing
Partners shall cause to be delivered to MGM Sub promptly when available annual
audited financial statements and quarterly financial statements of the
Partnerships prepared in accordance with GAAP. MGM Sub shall not act for or
bind the Partnership in any respect except with the prior written approval of
the Managing Partners and will hold the partners and the Partnerships harmless
from any damage they suffer as a result of MGM Sub purporting to act for or bind
the Partnership without such approval. Each Partnership will have a Partners
Committee comprised of four members, three appointed by the RMHI Subs and one
appointed by MGM Sub, which will meet as is necessary to consider the above
described matters for which MGM Sub's approval is required. Approval of the
Partner's Committee on such matters must be unanimous. All of the Partnerships'
cash flow from operations in excess of amounts reasonably anticipated by the
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Managing Partners to be needed for the operation, development and growth of the
current or future businesses of the Partnerships (including without limitation,
debt payments and reasonable reserves), will be distributed quarterly to the
partners in proportion to their Partnership interest. Partnership interest will
be based upon relative capital accounts.
5. Certain Rights of MGM.
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MGM will have the right to "tag-along" on any sale of the Partnerships or
any of them, and RMHI will have a right to "drag-along" MGM on any such
transaction, provided that RMHI will not have the right to "drag along" MGM in
any sale during the first twelve months from the date hereof unless MGM receives
payment at least equal to the amount paid by MGM hereunder with respect to such
Partnership(s), adjusted as appropriate to reflect any sales by MGM of any
portion of their interests in the Partnerships. RMHI will consult with MGM
prior to entering into any transaction for the sale of the Partnerships or any
of them to a third party. MGM will consult with RMHI prior to entering into any
transaction to sell or otherwise dispose of all or part of their interest in the
Partnerships. Any transfer of an interest in a Partnership must comply with all
securities and other laws and is expressly conditioned on the transferee signing
documentation acceptable to the other partner(s) in which it agrees to be bound
by all of the provisions of this agreement. A transfer of a Partnership
interest will not result in a termination of the Partnership unless the
remaining partner(s) so elects. No partner may withdraw from a Partnership
without the prior written consent of the remaining partner(s). If any partner
becomes bankrupt, the remaining partner(s) shall have the right to buy out that
partner's interest in the Partnership for its fair market value. None of the
partners shall have any obligation to make any further capital contributions in,
or advance any other amounts to, the Partnerships. The Rainbow Subs may, at
their election make additional capital contributions in or advance amounts to
AMCC or Bravo, as the case may be. Any such capital contributions made other
than in cash shall be valued at Fair Market Value, as defined below. If they do
so, MGM will have the right, but not the obligation, to invest a pro-rata
portion of such amount to maintain its equity percentage in such Partnership or
to advance amounts, as the case may be, on the same terms as those partners.
Any dilution of MGM Sub shall be calculated based on the Fair Market Value (as
defined below) of the Partnership(s) at the time of such dilution. In the event
that a third party invests funds in any Partnership, MGM Sub's interest and the
RMHI Sub's interest in such Partnership will be diluted proportionately. There
will be no restriction on the right of any party hereto to engage in any
businesses or ventures without the Partnership or to compete with a Partnership,
except that no Partnership assets may be utilized in such other business or
venture unless the Partnership is compensated for the use of such assets on
arms-length terms. Fair Market Value shall mean, for purposes of this
paragraph, the fair market value of (i) the property contributed by the Rainbow
Subs, or (ii) the Partnership, as may be applicable, as determined by the
Managing Partners in good faith, provided that if MGM disagrees with such
determination, then Fair Market Value shall be determined by an independent
investment bank or investment banks, selected in accordance with the mechanism
described in paragraph 6 hereof in connection with the determination of the Fair
Market Value of MGM Sub's interest. In the event that the Fair Market Value
determined by the investment banks(s) is not more than 10% higher (in the case
of an appraisal of the Partnership) or 10% lower (in the case of an appraisal of
contributed property) than that determined by the Managing Partners, then the
fees of the investment bank(s) shall be paid by MGM. If the Fair Market Value
determined by the investment bank(s) is more than 10% higher (in the case of an
appraisal of the Partnership), or lower, (in the case of an appraisal of
contributed property) than that determined by the Managing Partner, then the
fees of the investment banks shall be paid by RMHI.
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6. MGM Put Right.
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Projections for the AMC, Bravo, IFC and WE: Women's Entertainment twenty
four hours per day/seven days a week satellite delivered cable television
channels were contained within the Rainbow Management Presentation dated
December, 2000 (the "Business Plan"). In the event that the combined cumulative
EBITDA of the Business Entities for the activities reflected in the Business
Plan, and no other, for the fiscal years ending December 31, 2002, 2003, 2004
and 2005, (determined in accordance with GAAP, consistently applied) is less
than 76% of the combined cumulative EBITDA of the Business Entities as set forth
in the Business Plan for such period, then MGM will have the one-time right,
exercisable by written notice to RMHI during the ten business days commencing on
the 30th day following the delivery to MGM of the Business Entities financial
statements for the year ended December 31, 2005, to put its interest in the
Partnerships to RMHI at Fair Market Value of such interest determined as
follows: Each of RMHI and MGM shall select an independent investment bank to
prepare within 30 days a valuation of the Partnerships, taken as a whole. In
the event that these valuations are within 10% of each other, the average of
these two valuations shall be the "Partnership Value". For purposes of the 10%
computation, the numerator will be the lower valuation, the denominator the
higher valuation and if the fraction is less than 90% then the difference
between the two is deemed greater than 10%. If these valuations differ by more
than 10%, then the two investment banks shall select a third independent
investment bank to prepare within 30 days a valuation of the Partnerships taken
as a whole, and such valuation shall be the "Partnership Value". The Fair
Market Value of MGM's interest in the Partnerships shall be equal to the product
of the "Partnership Value" (as determined in accordance with the immediately
preceding sentences), multiplied by MGM Subs' percentage interest in the
Partnerships. The put price may be paid, at RMHI's option no later than 30 days
after the price is established pursuant to the foregoing procedure, in (a) cash,
(b) shares of Rainbow Media Group Class A Tracking Stock, (c) shares of
Cablevision Systems Corporation Class A Common Stock, or (d) a 30 day promissory
note of RMHI bearing interest at prime plus 2%, or in any combination of the
above. Shares of RMG or CSC stock used to pay the put price will be valued at
the average closing price on the NYSE of such stock over the 20 trading days
prior to issuance and will, if permitted by applicable SEC rules at that time,
be registered, unrestricted stock. If RMHI is not permitted under applicable
SEC rules to deliver registered, unrestricted shares, then such shares will be
delivered subject to immediately exercisable registration rights.
7. Representations and Warranties of CSC.
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CSC hereby makes the following representations and warranties to MGM, both
on the date hereof and on the closing date of the transactions contemplated
hereby:
a. Each of CSC, RMHI, each Partnership and other each Business Entity is a duly
incorporated corporation or a duly formed partnership or LLC, as the case
may be, and is validly existing and in good standing it its jurisdiction of
incorporation or formation, as the case may be, has the corporate
partnership or LLC (as the case may be) power and authority to conduct its
business as currently and as proposed to be conducted and is duly qualified
as a foreign corporation in each jurisdiction where the nature of its
business or activities or the presence of its properties require such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, condition (financial and other) and
results of
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operations of either Partnership and the Business Entities taken as a whole
(a "Partnership Material Adverse Effect").
b. This Agreement and the transactions contemplated hereby have been authorized
by all requisite corporate action on the part of CSC and RMHI and when
executed and delivered to MGM will constitute the legal, valid and binding
obligation of each CSC and RMHI, enforceable against CSC and RMHI in
accordance with its terms subject, in each case to the approval of CSC's and
RMHI's respective Boards of Directors.
c. No information in the definitive proxy statement filed by CSC with the
Securities and Exchange Commission under the Securities Exchange Act of 1934
and mailed to stockholders on or about October 10, 2000, relating, directly
or indirectly, to the Partnerships or the other Business Entities, contained
any misstatement of material fact omitted to state a material fact necessary
to make the statements therein not misleading, and all financial statements
contained therein or filed therewith that consolidate or reflect the results
or operations of the Partnerships and/or other Business Entities were
prepared in accordance with GAAP consistently applied and fairly presented
the financial position, results of operations and cash flows of such
entities.
8. Representations and Warranties of MGM.
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MGM hereby makes the following representations and warranties to CSC, and
RMHI both on the date hereof and on the closing date of the transactions
contemplated hereby:
a. MGM is a duly incorporated corporation and is validly existing and in good
standing in its jurisdiction of incorporation, has the corporate power and
authority to conduct its business as currently and as proposed to be
conducted and is duly qualified as a foreign corporation in each
jurisdiction where the nature of its business or activities or the presence
of its properties require such qualification, except where the failure to be
so qualified would not have a material adverse effect on the business,
condition (financial and other) and results of operations of the MGM and its
subsidiaries taken as a whole.
b. This Agreement and the transactions contemplated hereby have been authorized
by all requisite corporate action on the part of MGM and when executed and
delivered to CSC will constitute the legal, valid and binding obligation of
MGM, enforceable against MGM in accordance with its terms subject, in each
case, to the approval of MGM's Board of Directors.
9. Conditions to Closing.
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It shall be a condition to the obligation of each of CSC and MGM to close
the transactions contemplated hereby that the following shall have been
satisfied or waived by both of the parties hereto:
a. All waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976 shall, to the extent a filing under such Act is required, have
expired or terminated; and
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b. No court or other governmental body shall have issued any order, injunction
or decree which remains in effect that enjoins the execution of this
Agreement or the transactions contemplated hereby.
10. Miscellaneous.
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The Partnerships will indemnify and hold harmless each partner against any
damage or loss (including counsel fees and expenses) incurred by the partner and
arising out of or resulting from any act of omission of a Partnership. It is
intended that no partner (including any partner acting as managing partner or as
a member of a Partners Committee) shall be liable or bear responsibility for
more than its proportionate share (based on its relative Partnership interest)
of the liabilities and obligations of the Partnership, unless such liabilities
are caused by the gross negligence of such partner in which case such partner
shall be liable for such liabilities.
AMC and Bravo Corp. shall be the "tax matters partners" of the Partnerships.
Capital accounts will be established and maintained in accordance with Treasury
Reg. Sec. 1.704-1(b)(2)(iv). Items of income, gain, loss, deduction and credit
will be allocated in proportion to capital accounts. Notwithstanding anything
to the contrary herein, the transaction will be structured, if necessary (and/or
"reverse" IRC Section 704 (c) remedial allocations shall be used) so as to
provide MGM Sub with amortization deductions in respect of the existing assets
of the Partnerships of at least $412.5 million over not more than 15 years on a
straight line basis (i.e. Bravo Corp. and Bravo II may transfer to MGM Sub a
portion of their interests in Bravo such that MGM Sub owns a 20% interest in
Bravo, in lieu of Bravo issuing a 20% interest to MGM Sub as contemplated by
paragraph 2 hereof) provided that any restructuring, if necessary, shall not
change the pre-tax economics contemplated by this agreement or otherwise impact
any other provision in this Agreement.
The property of a Partnership shall be the exclusive property of that
Partnership. Each partner irrevocably waives any right that it may have to
maintain an action for partition of any of the Partnership's property (except as
otherwise provided by law) in connection with the winding-up, liquidation or
dissolution of the Partnership. Each partner shall maintain the confidentiality
of any confidential or proprietary information of a Partnership, except as
required by law and except for disclosure to each party's auditors, accountants
and attorneys. The obligations of the partners in the Partnerships shall be
solely corporate obligations of such entities and no recourse shall be had
against any member, incorporator, stockholder, director, officer or agent of any
partner.
RMHI agrees that it will cause to be delivered to MGM not later than the later
to occur of (i) April 9, 2001, and (ii) the tenth day following the date of the
Closing, audited financial statements of the Partnerships for the year ending
December 31, 2000.
Each of the Partnerships shall continue in existence unaffected by the
consummation of the transactions contemplated hereby. This agreement is
intended to be the Partnership agreement of each of the Partnerships effective
as of the closing and the existing partnership agreements of the Partnerships
shall be amended and superceded in their entirety to reflect the terms of this
agreement.
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This agreement and the Partnerships shall be governed by and construed in
accordance with the laws of the state of New York.
The form and content of the announcement and press release regarding this
transaction shall be mutually agreed by the parties.
This Agreement shall be binding upon the parties hereto subject to approvals of
the parties' respective Board of Directors, which approvals shall be obtained by
4:00 p.m., New York time on February 1, 2001. Closing will take place on a
mutually agreeable date not later than April 2, 2001. The parties shall use
their respective reasonable best efforts to obtain any necessary consents and
approvals including any required HSR approval (which, if required, shall be a
condition hereof).
ACCEPTED AND AGREED TO:
CABLEVISION SYSTEMS CORPORATION
(solely with respect to paragraphs 3 and 7 hereof)
By: /s/ Xxxxxxx X. Xxxx
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Title: Vice Chairman
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RAINBOW MEDIA HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxx
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Title: Chief Executive Officer
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METRO-XXXXXXX-XXXXX, INC.
By: /s/ Xxxxxxxxx Xxxxxxxxxxx
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Title: Chairman & Chief Executive Officer
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AMERICAN MOVIE CLASSICS HOLDING CORPORATION
By: /s/ Xxxx Xxxxxx
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Title: Chief Operating Officer
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AMC II HOLDING CORPORATION
By: /s/ Xxxx Xxxxxx
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Title: Chief Operating Officer
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BRAVO HOLDING CORPORATION
By: /s/ Xxxx Xxxxxx
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Title: Chief Operating Officer
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BRAVO II HOLDING CORPORATION
By: /s/ Xxxx Xxxxxx
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Title: Chief Operating Officer
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