Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of August 13, 2000 (this
"Agreement") among The News Corporation Limited, a South Australian
corporation ("Buyer"), News Publishing Australia Limited, a Delaware
corporation and a subsidiary of Buyer ("Acquisition Sub"), and Xxxxx-Craft
Industries, Inc., a Delaware corporation (the "Company").
WHEREAS, Buyer, Acquisition Sub and the Company have,
simultaneously with the execution of this Agreement, entered into an
Agreement and Plan of Merger, dated as of August 13, 2000 (the "Xxxxx-Craft
Merger Agreement") pursuant to which, among other things, the Company and
Acquisition Sub shall merge (the "Company Merger");
WHEREAS, simultaneously with the execution and delivery of
this Agreement and the Xxxxx-Craft Merger Agreement, Buyer and Acquisition
Sub are entering into an Agreement and Plan of Merger with BHC
Communications, Inc. ("BHC"), a Delaware corporation and a direct
subsidiary of the Company (the BHC Merger Agreement"; capitalized terms
used and not defined herein shall have the respective meanings assigned to
them in the BHC Merger Agreement), providing for the merger of BHC and
Acquisition Sub upon the terms and subject to the conditions set forth in
the BHC Merger Agreement (the "BHC Merger");
WHEREAS, simultaneously with the execution and delivery of
this Agreement, Buyer and Acquisition Sub are entering into an Agreement
and Plan of Merger with United Television, Inc. ("UTV"), a Delaware
corporation and an indirect subsidiary of the Company (the "UTV Merger
Agreement" and, together with the BHC Merger Agreement, the "Subsidiary
Merger Agreements"), providing for the merger of UTV and Acquisition Sub
upon the terms and subject to the conditions set forth in the UTV Merger
Agreement (the "UTV Merger" and, together with the BHC Merger, the
"Subsidiary Mergers");
WHEREAS, as a condition to the willingness of Buyer and
Acquisition Sub to enter into the Xxxxx-Craft Merger Agreement and the
Subsidiary Merger Agreements (collectively, the "Merger Agreements"), Buyer
has requested that the Company agree to and, in order to induce Buyer to
enter into the Merger Agreements, the Company is willing to agree to, vote
in favor of adopting the BHC Merger Agreement and approving the BHC Merger,
upon the terms and subject to the conditions set forth herein; and
WHEREAS, as of the date hereof, the Company owns of record
and beneficially, is the beneficial owner, or has the power to vote or
direct the voting, of 10,000 shares of Class A common stock, par value $.01
per share, of BHC (the "Class A Common Stock"), and 18,000,000 shares of
Class B common stock, par value $.01 per share, of BHC (the "Class B Common
Stock" and together with the Class A Common Stock, the "BHC Common Stock";
such shares, together with any shares of Class A Common Stock or Class B
Common Stock directly or indirectly acquired by the Company (whether by
acquisition or by other means, such as a stock split, stock dividend,
reorganization, recapitalization or other reclassification, merger,
exchange or distribution) or any shares to which the Company has or
hereinafter acquires voting power prior to the termination of this
Agreement, being referred to herein as the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein and in the Merger
Agreements, and intending to be legally bound hereby, the parties hereby
agree as follows:
ARTICLE I
VOTING OF SHARES
SECTION 1.01 Voting Agreement. (a) The Company hereby agrees
to appear, or cause the holder of record of the Shares on any applicable
record date (the "Record Holder") to appear, for the purpose of obtaining a
quorum at any annual or special meeting of stockholders of BHC and at any
adjournment thereof at which matters relating to the BHC Merger or the BHC
Merger Agreement are considered.
(b) The Company hereby further agrees to vote, or cause the
Record Holder to vote, in person or by proxy, all the Shares or other
equity securities of BHC with voting rights which are owned by the Company,
or with respect to which the Company has or shares voting power or control
(including all of the Shares or other equity securities of BHC which may,
or with respect to which voting power or control may, hereafter be acquired
by the Company) at any annual or special meeting of stockholders of BHC and
at any adjournment thereof, or pursuant to any action by written consent,
in which matters relating to the BHC Merger, the BHC Merger Agreement, any
Competing Transaction or any Superior Proposal are considered:
(i) in favor of the adoption of the BHC Merger
Agreement and the approval of the BHC Merger;
(ii) against any action, proposal or agreement that
could be reasonably expected to (a) result in a breach in any
material respect of any covenant, representation or warranty or any
other obligation of the Company under this Agreement or the BHC
Merger Agreement, (b) materially impede, interfere with, delay,
postpone or adversely affect the BHC Merger or (c) result in a
failure to fulfill any one of the conditions to the BHC Merger
Agreement; and
(iii) against any Competing Transaction or Superior
Proposal.
SECTION 1.02 No Ownership Interest. Nothing contained in
this Agreement will be deemed to vest in Buyer or Acquisition Sub any
direct or indirect ownership or incidence of ownership of or with respect
to, or any interest in, any Shares. All rights, ownership and economic
benefits of and relating to the Shares will remain and belong to the
Company, and neither Buyer nor Acquisition Sub will have any authority to
manage, direct, superintend, restrict, regulate, govern or administer any
of the policies or operations of BHC or exercise any power or authority to
direct the Company in the voting or control of any of its Shares, except as
otherwise provided herein or in the BHC Merger Agreement, or the
performance of the Company's duties or responsibilities as a stockholder of
BHC.
SECTION 1.03 Evaluation of Investment. The Company is
capable of evaluating the merits and risks of its investment in Buyer as a
result of the Merger Agreements and has the capacity to protect its own
interest in making its investment in Buyer. The Company (a) is acquiring
Buyer Shares to be issued to it pursuant to the Merger Agreements solely
for its own account for investment purposes and not with a view to the
distribution thereof, (b) is a sophisticated investor with knowledge and
experience in business and financial matters, (c) has received certain
information concerning Buyer and the BHC Merger, including, but not limited
to the BHC Merger Agreement, and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and the
risks inherent in holding the Buyer Shares, (d) is able to bear the
economic risk inherent in holding the Buyer Shares and (e) is an Accredited
Investor. As used herein "Securities Act" means the Securities Act of 1933,
as amended, and "Accredited Investor" has the meaning set forth in
Regulation D promulgated under the Securities Act.
SECTION 1.04 No Inconsistent Agreements. The Company hereby
represents, warrants and covenants that, other than in connection with the
Company Merger, the Subsidiary Mergers, this Agreement, the Merger
Agreements and the transactions contemplated hereby and thereby, the
Company (a) has not entered, and will not enter, into any agreement with
respect to the voting of the Shares and (b) has not granted, and will not
grant, any proxy or power of attorney which is inconsistent with this
Agreement.
ARTICLE II
COVENANTS OF THE COMPANY
SECTION 2.01 No Disposition or Encumbrance of Shares. (a)
The Company hereby covenants and agrees that, other than in connection with
the Company Merger, the Subsidiary Mergers, this Agreement, the Merger
Agreements and the transactions contemplated hereby and thereby, the
Company shall not, directly or indirectly, offer or otherwise agree to
sell, assign, transfer, exchange, or dispose of, or create or permit to
exist any security interest, lien, claim, pledge, option, right of first
refusal, agreement, proxy, limitation on the Company's voting rights,
charge or other encumbrance of any nature whatsoever with respect to the
Shares, to or for the benefit of or in favor of any other person
("Transferee") without the prior written consent of Buyer, unless the
Transferee unconditionally agrees in writing to be bound by the terms of
this Agreement with respect to such Shares.
(b) The Company hereby agrees and consents to the entry of
stop transfer instructions by BHC against the transfer of any Shares
inconsistent with the terms of Section 2.01(a) hereof.
SECTION 2.02 No Solicitation. From the date hereof until the
termination of this Agreement, the Company shall not, directly or
indirectly, through any officer, director, agent or otherwise, initiate,
solicit or knowingly encourage (including by way of furnishing non-public
information), or take any other action knowingly to facilitate, any
inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Competing Transaction, or enter into or
maintain or continue discussions or negotiate with any person or entity in
furtherance of such inquiries or to obtain a Competing Transaction, or
agree to or endorse any Competing Transaction, or authorize any of the
officers, directors or employees of the Company or any investment banker,
financial advisor, attorney, accountant or other agent or representative of
the Company to take any such action, and the Company shall notify Buyer as
promptly as practicable of all of the relevant material details relating to
all inquiries and proposals which the Company or any such officer,
director, employee, investment banker, financial advisor, attorney,
accountant or other agent or representative may receive relating to any of
such matters; provided, however, that nothing contained herein shall
restrict or limit in any way any officer or director of the Company from
acting in its capacity as such or preclude or restrict in any way such
officer or director from taking any such actions as are permitted by the
BHC Merger Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Buyer as follows:
SECTION 3.01 Authority Relative to This Agreement. The
Company has all necessary 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 the Company and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action and no other corporate proceedings on the
part of the Company are necessary to authorize the execution and delivery
of this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by the
Company, and this Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms.
SECTION 3.02 No Conflict. The execution and delivery of this
Agreement by the Company does not, and the performance of this Agreement by
the Company will not, (a) conflict with or violate the Restated Certificate
of Incorporation or By-laws (or equivalent organizational documents) of (i)
the Company or (ii) any of its subsidiaries, (b) assuming any consents,
approvals and authorizations necessary to enter into this Agreement have
been received, and any condition precedent to such consent, approval,
authorization or waiver has been satisfied, conflict with or violate any
Laws applicable to the Company or any of its subsidiaries or by which any
property or asset of the Company or any of its subsidiaries is bound or
affected or (c) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien or encumbrance on,
any of the Shares pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument
or obligation to which the Company or any of its subsidiaries is a party or
by which the Company or the Shares owned by it are bound or affected,
except for any such conflicts, violations, breaches, defaults or other
occurrences of the type referred to above which would not have an adverse
effect on the valid performance by the Company of its obligations hereunder
and would not prevent or materially delay the consummation of the
transactions contemplated hereby.
SECTION 3.03 Title to the Shares. As of the date hereof, the
Company owns of record and beneficially, is the beneficial owner and has
the sole power to vote or direct the voting, of 10,000 shares of Class A
Common Stock and 18,000,000 shares of Class B Common Stock. Except as
provided in the Certificate of Incorporation of BHC and other than in
connection with the Company Merger, the Subsidiary Mergers, this Agreement,
the Merger Agreement and the transactions contemplated hereby and thereby,
(i) the Shares held by the Company are owned free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on the Company's voting rights, charges and other
encumbrances of any nature whatsoever and (ii) the Company has not
appointed or granted any proxy, which appointment or grant remains
effective, with respect to any Shares.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Termination. This Agreement will terminate upon
the earlier to occur of (a) the termination of the BHC Merger Agreement in
accordance with its terms and (b) the Effective Time. Upon such
termination, no party will have any further obligations or liabilities
hereunder, provided that no such termination will relieve any party from
liability for any breach of this Agreement prior to such termination.
SECTION 4.02 Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such costs and expenses.
SECTION 4.03 Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given
or made (and shall be deemed to have been duly given or made upon receipt)
by delivery in person, by facsimile, by courier service or by registered or
certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for
a party as shall be specified in a notice given in accordance with this
Section 4.03):
(a) if to the Company:
Xxxxx-Craft Industries, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxx, Esq. and
Xxxxxx X. Xxxxx, Esq
(b) if to Buyer:
The News Corporation Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Senior Executive Vice President and Group General Counsel
with copies to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
SECTION 4.04 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms hereof,
in addition to any other remedy at law or equity.
SECTION 4.05 Headings. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not affect
in an way the meaning or interpretation of this Agreement.
SECTION 4.06 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any
rule of Law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby are not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
SECTION 4.07 Entire Agreement. This Agreement, the Merger
Agreements (including the exhibits and disclosure schedules thereto which
are hereby incorporated herein and made a part hereof for all purposes as
if fully set forth herein) and the Confidentiality Agreement constitute the
entire agreement among the parties with respect to the subject matter
hereof and supersede all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject
matter hereof.
SECTION 4.08 Assignment. This Agreement shall not be
assigned by the Company; provided, however, that the Company may assign
this Agreement to a Transferee in accordance with Section 2.01(a) hereof.
Buyer shall not assign this Agreement, other than to a subsidiary of Buyer;
provided that no such assignment shall relieve Buyer of any of its
obligations hereunder.
SECTION 4.09 No Third-Party Beneficiaries. This Agreement
shall be binding upon and inure solely to the benefit of the parties hereto
and their permitted assigns and nothing herein, express or implied, is
intended to or shall confer upon any other person or entity any legal or
equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 4.10 Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of,
each of the parties hereto.
SECTION 4.11 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware.
SECTION 4.12 Consent to Jurisdiction. (a) Each of Buyer and
the Company hereby irrevocably submits to the exclusive jurisdiction of the
courts of the State of Delaware and to the jurisdiction of the United
States District Court for the State of Delaware, for the purpose of any
action or proceeding arising out of or relating to this Agreement, and each
of Buyer and the Company hereby irrevocably agrees that all claims in
respect to such action or proceeding may be heard and determined
exclusively in any Delaware state or federal court. Each of Buyer and the
Company agrees that a final judgment in any action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Each of Buyer and the Company irrevocably consents to
the service of the summons and complaint and any other process in any other
action or proceeding relating to the transactions contemplated by this
Agreement, on behalf of itself or its property, by personal delivery of
copies of such process to such party. Nothing in this Section 4.12 shall
affect the right of any party to serve legal process in any other manner
permitted by law.
SECTION 4.13 Counterparts. This Agreement may be executed
and delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed and delivered shall be deemed to be an original
but all of which taken together shall constitute one and the same
agreement.
SECTION 4.14 Further Assurances. Buyer and the Company will
execute and deliver all such further documents and instruments and take all
such further action as may be necessary in order to consummate the
transactions contemplated hereby.
SECTION 4.15 WAIVER OF JURY TRIAL. EACH OF BUYER AND THE
COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF BUYER OR THE
COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
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IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be duly executed as of the date first above written.
THE NEWS
CORPORATION LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
NEWS PUBLISHING
AUSTRALIA LIMITED
By: /s/ Xxxxx Xxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
XXXXX-CRAFT INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chairman
