EXHIBIT 4.5
LIQUIDATED DAMAGES AGREEMENT
THIS LIQUIDATED DAMAGES AGREEMENT (the "Agreement") is made and
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entered into as of October 28, 1997, among FOX KIDS WORLDWIDE, INC., a Delaware
corporation (the "Company") and XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE,
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XXXXXX & XXXXX INCORPORATED, CITICORP SECURITIES, INC., BEAR, XXXXXXX & CO.
INC., XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION AND XXXXXX XXXXXXX &
CO. (each an "Initial Purchaser" and, collectively, the "Initial Purchasers").
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WHEREAS, as an inducement to the Initial Purchasers to enter into the
Purchase Agreement, dated October 22, 1997 (the "Purchase Agreement"), among the
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Company and the Initial Purchasers (providing for, among other things, the sale
by the Company to the Initial Purchasers of $475,000,000 of the Company's 9 1/4%
Senior Notes due 2007 (the "Senior Notes")), and as a condition to the several
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obligations of the Initial Purchasers thereunder, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees
certain registration and related rights pursuant to and in accordance with the
terms of the Registration Rights Agreement, of even date herewith (the
"Registration Rights Agreement"), among the Company and the Initial Purchasers;
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WHEREAS, notwithstanding the fact that the Company has consummated or
will consummate an Exchange Offer, pursuant to Section 2(a) of the Registration
Rights Agreement, the Initial Purchasers may, under certain circumstances,
require the Company to file a Shelf Registration Statement for the resale of the
Private Exchange Securities held by them;
WHEREAS, the Registration Rights Agreement contains certain provisions
concerning the time within which the Company must file the Shelf Registration
Statement and the period for which such Shelf Registration Statement must remain
effective and usable for resales; and
WHEREAS, the Company and the Initial Purchasers have agreed to provide
for the payment of liquidated damages by the Company directly to the Initial
Purchasers in the event that the Company fails to comply with such contractual
provisions with respect to the filing of a Shelf Registration Statement for the
Private Exchange Securities, as more fully set forth herein.
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NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. Capitalized terms used herein (including in the
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foregoing recitals) but not defined shall have the meanings given to such terms
in the Registration Rights Agreement, except that (a) the term "Shelf
Registration Statement" shall refer only to a Shelf Registration Statement filed
by the Company pursuant to Section 2(b) of the Registration Rights Agreement,
and (b) the term "Registrable Securities" shall refer only to those Private
Exchange Securities which are Registrable Securities held at such time by an
Initial Purchaser.
2. Payment of Liguidated Damages. (a) If: (i) the Shelf
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Registration Statement is not filed with the SEC on or prior to the 30th day
after such obligation arises pursuant to Section 2(b) of the Registration Rights
Agreement; or (ii) the Shelf Registration Statement is not declared effective by
the SEC on or prior to the later of the 45th day after the date such Shelf
Registration Statement was required to be filed pursuant to the terms of the
Registration Rights Agreement and the 210th day after the Issue Date; or (iii)
the Shelf Registration Statement has been declared effective and such Shelf
Registration Statement ceases at any time to be effective and available to an
Initial Purchaser for use in connection with the resale of Registrable
Securities held by that Initial Purchaser (whether or not that cessation is a
result of an event contemplated by Section 3(e) of the Registration Rights
Agreement), and such cessation continues for more than either (A) 30 consecutive
days, or (B) an aggregate of 90 days (whether or not consecutive), in the case
of (A) or (B), during the 210-day period (and any extensions of such period
pursuant to the last paragraph of Section 3 of the Registration Rights
Agreement) immediately following the date on which the Shelf Registration
Statement is first declared effective (other than after such time as all
Registrable Securities have been disposed of thereunder or otherwise cease to be
Registrable Securities pursuant to the terms of the Registration Rights
Agreement), then in each case the Company shall pay liquidated damages to each
Initial Purchaser, at a rate of 0.25% per annum in respect of the aggregate
principal amount of the Senior Notes which constitute Registerable Securities
(as defined herein) held by that Initial Purchaser, in respect of the period:
(x) in the case of clause (i) above, commencing on the 46th day after such
request for the filing of a Shelf Registration Statement is made by the
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Initial Purchaser and terminating upon the filing of the Shelf Registration
Statement; (y) in the case of clause (ii) above, commencing on the later of the
60th day after the date the Shelf Registration Statement was required to be
filed and the 46th day after the Issue Date and terminating upon the
effectiveness of the Shelf Registration Statement; or (z) in the case of clause
(iii) above, commencing on either (A) the 31st consecutive day, or (B) the 91st
day, after the day the Shelf Registration Statement ceases to be effective or
available for use and terminating on the day that the Shelf Registration
Statement again becomes effective and available for use.
(b) Any amounts of liquidated damages payable by the Company pursuant
to this Section 2 shall be paid in cash directly to each Initial Purchaser on
the next succeeding February 15 or August 15, as the case may be, following the
period in respect of which such Liquidated Damages have become due and payable
hereunder.
3. General.
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(a) Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(b) Amendments. This Agreement may be amended by the parties hereto
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by a written instrument duly executed on behalf of each of the parties hereto.
(c) Entire Agreement. This Agreement and the Registration Rights
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Agreement constitute the entire agreement, and supersede all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
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IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY
DEFENSE OF LACK OF PERSONAL JURISDICTION
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AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH ISSUER, ON BEHALF
OF ITSELF AND ITS SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(e) Notices. All notices and other communications hereunder shall be
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in writing and shall be deemed given if delivered to the parties at the
addresses set forth in, and in a manner contemplated by, the Registration Rights
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOX KIDS WORLDWIDE, INC.
By: /s/ Xxx Xxxxx
__________________________________
Name: Xxx Xxxxx
Title: President
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
CITICORP SECURITIES, INC.
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO.
By: XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX
INCORPORATED
By: /s/ X. Xxxx
__________________________________
Authorized Signatory
