Exhibit 2
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"), and Regent University, a Virginia corporation
(the "Seller"), on the following terms and conditions:
R E C I T A L S
WHEREAS, as of the date hereof, the Seller beneficially owns 4,214,325
shares of Class B Common Stock, par value $0.01 per share, of International
Family Entertainment, Inc. (the "Company") (the "Class B Stock");
WHEREAS, the Purchaser desires to purchase the Class B Stock from the
Seller, and the Seller desires to sell the Class B Stock 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") 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 requested that the Seller enter into this Agreement
and as a condition to its willingness to enter into this Agreement, the Seller
has 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 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, in connection with sale of the Class B Stock to the Purchaser
hereunder, the Company, M.G. "Xxx" Xxxxxxxxx ("Xxx Xxxxxxxxx"), individually and
as trustee of the Xxxxxxxxx Charitable Remainder Unitrust, u/t/a dated January
22, 1990 (the "PR Charitable Trust"), Xxxxxxx X. Xxxxxxxxx ("Xxx Xxxxxxxxx"),
individually and as trustee of the Xxxxxxx and Xxxx Xxxxxxxxx Children's Trust,
u/t/a dated September 18, 1995 (the "TR Family Trust"), LIFE and The Christian
Broadcasting Network, Inc., a Virginia corporation ("CBN") have entered into
that certain Termination to Amended and Restated Shareholder Agreement, dated as
of even date herewith (the "Termination Agreement"), terminating the Shareholder
Agreement dated September 1, 1995, by and among the Company, Xxx Xxxxxxxxx, the
PR Charitable Trust, Xxx Xxxxxxxxx, the TR Family Trust, LIFE and CBN;
WHEREAS, in connection with the sale of the Class B Stock to the
Purchaser hereunder, CBN and Regent have entered into that certain Termination
to Assignment and Assumption Agreement, dated as of even date herewith (the
"Assignment Termination Agreement") terminating the Assignment and Assumption
Agreement, dated June 30, 1992, by and between CBN and Regent (the "Assignment
and Assumption 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 Purchase
Agreement");
WHEREAS, concurrently herewith, the Purchaser has entered into a Stock
Purchase Agreement with Xxx Xxxxxxxxx, individually and as trustee of each of
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 Xxx Xxxxxxxxx as joint tenants,
and Xxx Xxxxxxxxx, individually, as trustee of each of the TR Family Trust and
the Xxxxxxx X. Xxxxxxxxx Charitable Trust, u/t/a dated December 30, 1996 (the
"TR Charitable Trust"), and 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
"Robertsons"), as of even date herewith, which provides, inter alia, for the
purchase of all of the shares of Class A Common Stock, par value $0.01 per
share, of the Company (the "Class A 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") in the form of Class B Stock issuable upon
the conversion thereof, by the Purchaser from the Xxx Charitable Trust, Xxx
Xxxxxxxxx and the Xxx Family Trust, and the purchase by the Purchaser of all of
the shares of Class B Stock of the Company owned by the Robertsons (as the same
may be amended from time to time in accordance with its terms, the "Xxxxxxxxx
Purchase Agreement"); and
WHEREAS, as a condition to its willingness to enter into this
Agreement, the Seller has 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 Seller
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 Class B Stock. On the terms and
subject to the conditions set forth in this Agreement, the Seller agrees to sell
and deliver the Class B Stock 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 Seller or the Class B Stock, and the
Purchaser agrees to purchase and acquire the Class B Stock from the Seller. 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 Class B Stock shall be purchased by the
Purchaser from the Seller 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 FKWW 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) the Robertsons, (iii) CBN, (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 Xxxxxxxxx Agreement
or the CBN 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 Seller of any agreement or amendment to an existing
agreement entered into by the Purchaser or any of its Affiliates with the
Company, the Robertsons or CBN, 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 Seller 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 Seller, the Company,
LIFE, CBN, the the Robertsons nor any of their respective Affiliates.
3. The Closing. The closing (the "Closing") of the purchase
and sale of the Class B Stock shall take place on the third business day
following satisfaction or waiver of each and every one of the conditions set
forth in Sections 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, the Seller shall deliver to the Purchaser
certificates representing the Class B Stock (accompanied by signature guarantees
in customary form) against delivery by the Purchaser of payment of the Purchase
Price therefor, by wire transfer or by immediately available funds, to such
accounts as Seller may specify.
4. Representations and Warranties. The Seller hereby makes the
following representations and warranties. The representations and warranties
contain exceptions set forth in a written disclosure letter (the "Seller
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 Organization, Standing and Corporate
Power. The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation, with adequate
corporate power and authority to own its properties and carry on its business
as presently conducted. The Seller has the corporate power to enter into,
execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
4.2 Execution, Delivery and Performance. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by its Board of
Trustees, and the Seller has taken all other actions required by law, its
charter and its bylaws in order to consummate the transactions contemplated by
this Agreement. This Agreement constitutes the valid and binding obligations of
the Seller 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 Seller for or in connection with the sale by
the Seller of the Class B Stock to the Purchaser as contemplated
hereby.
4.4 Title. The Seller has, and at the Closing
will have, good and valid title to the Class B Stock it is selling pursuant to
this Agreement, free and clear of any Liens or Restrictions (other than
those Restrictions set forth in the Assignment and Assumption Agreement) and
(subject to such Restriction) it has the full legal right, power and authority
to sell, assign, transfer and deliver the Class B Stock to the Purchaser and to
make the representations, warranties, covenants and agreements made by it
herein; upon the delivery of and payment for such Class B Stock 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 the Seller. The
Seller has sole voting power, and sole power of disposition, with respect to
all of its Class B Stock, with no Restrictions (other than those
Restrictions set forth in the Assignment and Assumption Agreement), subject
to applicable federal and state securities laws, on the Seller's rights of
disposition pertaining thereto. The Class B Stock constitutes all equity or debt
securities issued by the Company held by the Seller and the Seller has no
right, title or interest in or to any other equity or debt securities of
the Company or any option or right to acquire any such equity or debt
securities.
4.5 No Conflicts. The execution, delivery and
performance by the Seller of this Agreement will not violate any other
agreement to which the Seller 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 Class B Stock contemplated hereby.
4.6 No Broker. The Seller 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. Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants to the Seller 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 Amended and
Restated 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 of the Class B Stock from the Seller 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 Class B Stock
contemplated hereby or the enforcement by the Seller of the Guaranty.
5.7 Purchase For Investment. The Purchaser
is acquiring the Class B Stock 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 Class B Stock is not registered under the Securities Act of 1933,
as amended, 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 Class B Stock or made any finding or determination
as to the fairness of the Purchaser's investment in the Class B Stock; (iii)
that there are risks of loss associated with the Purchaser's purchase of the
Class B Stock; (iv) that the investment in the Class B Stock 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 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.
5.9 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 Purchaser. Unless waived, in
whole or in part, in writing by the Purchaser, the obligations of the Purchaser
to purchase the Class B Stock 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 Seller 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 Seller
shall have performed in all material respects all obligations and agreements
contained in this Agreement to be performed or complied with by the Seller on
or prior to or at the Closing Date.
6.3 Certificates. The Sellers shall be
prepared to deliver certificates for all the Class B Stock to the Purchaser
upon the Closing.
6.4 Purchase of Control Stock. The Purchaser
has acquired the Control Stock (as defined in the Xxxxxxxxx Purchase Agreement)
from the Robertsons pursuant to the Xxxxxxxxx Purchase Agreement.
6.5 No Injunctions. Neither 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 Class B
Stock 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.
6.6 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 Class B Stock hereunder or the
Merger illegal.
6.7 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.
6.8 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 Purchase Agreement and the Xxxxxxxxx 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 Class B Stock to the Purchaser as contemplated hereby.
6.9 Xxxx-Xxxxx-Xxxxxx Notification. The
waiting period (and any extension thereof) under the HSR Act applicable to
(i) the purchase of the Class B Stock 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.
6.10 Opinion of Counsel. The Purchaser shall
have received an opinion of counsel to the Seller in a form reasonably
acceptable to Purchaser covering the matters referred to in Section 4.1 hereof.
6.11 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 Affiliates 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 Seller. Unless waived, in
whole or in part, in writing by the Seller, the obligations of the Seller to
sell the Class B Stock as contemplated by this Agreement shall be subject to the
fulfillment prior to or on the Closing Date of each of the following conditions:
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 the
Purchaser on or 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 Class B Stock hereunder or the
Merger illegal.
7.4 No Injunctions. Neither 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 Class B
Stock 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 Class B Stock 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 Class B Stock to
the Seller in the amounts and manner contemplated hereby upon the Closing.
7.7 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 Class B Stock 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 its commercially reasonable efforts to obtain clearance or
authorization under the HSR Act of the Merger and the purchase of the Class B
Stock contemplated by this Agreement and the Other Transactions at the
earliest practicable time. The Purchaser agrees to cooperate fully with the
Seller 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 or have the effect of preventing or disabling it from performing its
obligations under this Agreement.
9. Covenants of the Seller. The Seller hereby
covenants and agrees as follows:
9.1 Cooperation in Filing Notification
under Xxxx-Xxxxx-Xxxxxx. The Seller agrees to cooperate fully with the
Purchaser to promptly effectuate the filing of any notification required under
the HSR Act.
9.2 Additional Shares. The Seller agrees
that it will not purchase additional shares of Common Stock of the Company
whether in open market purchases or privately negotiated purchases 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
the Seller, the Seller hereby agrees, while this Agreement is in effect, to
promptly notify the Purchaser 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 the Seller at the Purchase Price.
9.3 Written Consent. Concurrently with the
execution hereof, the Seller has delivered to the Company its irrevocable
written consent approving the Merger Agreement and the Merger.
9.4 Reasonable Efforts. Subject to the terms
and conditions of this Agreement, the Seller 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 Seller 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.
10. Post-Closing Covenants; Termination. The Seller and the
Purchaser agree to execute such further documents or instruments and to take
such other actions as are necessary to transfer the Class B Stock 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
either party hereto, either 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 either party, the non-breaching party shall have the right to
terminate this Agreement without liability. In addition, this Agreement may be
terminated by the Seller, 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.
11. Survival of Representations and Warranties; Indemnity.
Only the representations and warranties of the Seller hereto 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, the 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.
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 obligation hereunder, under this Agreement 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 its
rights and delegate its 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
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
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 Seller:
Regent University
0000 Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: 000-000-0000
with a copy to:
Office of the General Counsel
Regent University
0000 Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: _________________
Fax: __________________
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 Seller for any breach by the Seller of this Agreement shall be limited to
the actual damages suffered by the Purchaser or any of its Affiliates under
this Agreement and the Seller 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 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 Seller, 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 contained 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 "A", and the Purchaser and the Seller 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. Both of the parties
hereto recognize and acknowledge that a breach by it of any covenants or
agreements contained in this Agreement will cause the other party to sustain
damages for which it 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 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 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
--------------------
REGENT UNIVERSITY
By: s/Xxxxxxxx X. Xxxxxxxx
--------------------
Its: President
--------------------
