EXHIBIT 10.45
EXCHANGE AGREEMENT
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EXCHANGE AGREEMENT, dated August 1, 1997 (this "Agreement"), among News
Publishing Australia Limited, a Delaware corporation ("NPAL"), Liberty Media
Corporation, a Delaware corporation ("Liberty"), and Liberty IFE, Inc., a
Colorado corporation and a wholly owned subsidiary of Liberty ("LIFE").
RECITALS
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1. Liberty, LIFE and Fox Kids Worldwide, Inc., a Delaware corporation
("Fox Kids"), are parties to a Contribution and Exchange Agreement, dated as of
June 11, 1997 and amended as of the date hereof (the "Contribution Agreement"),
pursuant to which LIFE has agreed, subject to the terms and conditions of the
Contribution Agreement, to contribute securities of International Family
Entertainment, Inc. owned by LIFE (the "IFE Securities") to Fox Kids in
exchange for shares of Fox Kids Series A Preferred Stock, par value $.001 per
share (the "Fox Kids Preferred Stock").
2. Liberty and LIFE have entered into the Contribution Agreement, and are
willing to accept the Fox Kids Preferred Stock in exchange for the IFE
Securities on the terms and subject to the conditions of the Contribution
Agreement, only if LIFE and any subsequent holder of shares of Fox Kids
Preferred Stock has the right to exchange its shares of Fox Kids Preferred Stock
for shares of NPAL Preferred Stock following the occurrence of (i) an Event of
Default under the Certificate of Designations for the Fox Kids Preferred Stock
or (ii) certain other events described herein.
3. This Agreement sets forth the terms and conditions on which LIFE and
any subsequent holder of shares of Fox Kids Preferred Stock shall have the right
to cause NPAL to exchange the shares of Fox Kids Preferred Stock owned by LIFE
or any such subsequent holder for shares of NPAL Preferred Stock, and
constitutes the "Exchange Agreement" referred to in Section 9.6 of the
Contribution Agreement.
AGREEMENT
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In consideration of the contribution by LIFE of the IFE Securities to
Fox Kids in exchange for Fox Kids Preferred Stock, which contribution NPAL
hereby agrees shall benefit NPAL, the parties hereto agree as follows:
1. Definitions.
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"Affiliate" means, when used with reference to a specified person, any
person that directly or indirectly through one or more intermediaries controls,
or is under common control with, such specified person.
"Exchange Date" has the meaning set forth in Section 3.2 hereof.
"Exchange Event" means either of the following:
(i) the receipt by the holders of shares of Fox Kids Preferred Stock
of written notice from Fox Kids of any Liquidation pursuant to Section 5 of
the Fox Kids Certificate of Designations; and
(ii) any receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt or other similar proceedings affecting Fox Kids or its
assets.
"Fox Kids Certificate of Designations" means the Certificate of
Designations for the Fox Kids Preferred Stock filed with the Delaware Secretary
of State on the date hereof, as amended from time to time in accordance with the
terms thereof.
"Fox Kids Event of Default" means an "Event of Default" as defined under
Section 8 of the Fox Kids Certificate of Designations.
"NPAL Certificate of Amendment" means the Certificate of Amendment to the
NPAL Certificate of Incorporation authorizing the NPAL Preferred Stock and filed
with the Delaware Secretary of State on the date hereof, as amended from time to
time in accordance with the terms thereof.
"NPAL Preferred Stock" means the Preferred Stock, par value $.001 per
share, of NPAL.
Capitalized terms not otherwise defined herein have the meanings assigned
thereto in the Fox Kids Certificate of Designations.
2. Representations and Warranties of NPAL. NPAL represents and warrants
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to Liberty, LIFE and each subsequent holder of shares of Fox Kids Preferred
Stock as follows:
2.1 Authorization. NPAL has the requisite corporate power and authority to
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enter into and carry out the terms of this Agreement. All necessary corporate
action on the part of NPAL to authorize and approve the due execution, delivery
and performance of this Agreement have been taken. This Agreement has been duly
executed and delivered by NPAL and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms.
2.2 The NPAL Preferred Stock. The NPAL Certificate of Amendment has been
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approved by the Board of Directors and the sole stockholder of NPAL, and the
NPAL Certificate of Amendment has been filed with the Delaware Secretary of
State. The authorized share capital of NPAL includes 500,000 shares of NPAL
Preferred Stock, and NPAL has no other authorized shares of preferred stock.
Each share of NPAL Preferred Stock, when received upon valid exercise of the
exchange right set forth in Section 3 of this Agreement by a holder of Fox Kids
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Preferred Stock, will have all of the preferences and relative participating,
optional and other special rights, qualifications, limitations and restrictions
set forth in the NPAL Certificate of Amendment and will be duly and validly
issued, fully paid and non-assessable. The NPAL Board of Directors has reserved
all 500,000 shares of NPAL Preferred Stock for issuance in exchange for up to an
equal number of shares of Fox Kids Preferred Stock.
3. Exchange Covenants of NPAL.
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3.1 Right to Exchange. At any time after the occurrence of a Fox Kids
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Event of Default or an Exchange Event and unless previously redeemed, each
holder of shares of Fox Kids Preferred Stock shall have the right, but not the
obligation, to cause NPAL to exchange all, but not less than all, of such
holder's shares of Fox Kids Preferred Stock for shares of NPAL Preferred Stock,
on a one-for-one basis. The right to exchange shares of Fox Kids Preferred Stock
called for redemption shall terminate immediately prior to the close of business
on the date the full redemption price is paid for such shares under the terms of
the Fox Kids Certificate of Designations.
3.2 Mechanics of Exchange (a) In order to exchange shares of Fox Kids
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Preferred Stock, the holder thereof shall surrender the certificates evidencing
the shares of Fox Kids Preferred Stock to be exchanged to NPAL at its principal
offices at c/o News America Publishing Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Office of the General Counsel (or
such other address as the record holders of shares of Fox Kids Preferred Stock
may be notified of in accordance with Section 15 hereof), duly endorsed to NPAL
or in blank (or accompanied by duly executed instruments of transfer to NPAL or
in blank), together with written notice of exchange (an "Exchange Notice")
specifying the number of shares of Fox Kids Preferred Stock being exchanged and
specifying the name or names (with addresses) in which the certificate or
certificates representing the NPAL Preferred Stock deliverable on such exchange
are to be registered. Each exchange shall be deemed to have been effected
immediately prior to the close of business on the date (the "Exchange Date") on
which all of the requirements for such exchange set forth in this Agreement
(including without limitation that set forth in Section 8 hereof) shall have
been satisfied. If any transfer is involved in the issuance or delivery of any
certificate or certificates for shares of NPAL Preferred Stock in a name other
than that of the registered holder of the shares of Fox Kids Preferred Stock
surrendered for exchange, such holder shall also deliver to NPAL a sum
sufficient to pay all taxes, if any, payable in respect of such transfer or
evidence satisfactory to NPAL that such taxes have been paid. Except as provided
in the immediately preceding sentence, NPAL shall pay any issue, stamp or other
similar tax in respect of such issuance or delivery. An Exchange Notice may be
revoked at any time prior to the close of business on the Exchange Date.
(b) As promptly as practicable (but in any event within two Business Days)
after the Exchange Date, NPAL, in accordance with the provisions of this Section
3, shall issue and deliver at the principal office of NPAL specified in Section
3.2(a), to the holder of the shares of Fox Kids Preferred Stock so surrendered
for exchange, or on his or her written order, a certificate
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or certificates for the number of full shares of NPAL Preferred Stock issuable
upon exchange of such shares in accordance with the provisions of this Section
3.
3.3 Effect of Exchange. The Person in whose name the certificate for
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shares of NPAL Preferred Stock is issued, upon exchange in accordance with this
Section 3, shall be treated for all purposes as the stockholder of record of
such shares of NPAL Preferred Stock as of the close of business on the Exchange
Date. Upon the valid and effective exchange of shares of Fox Kids Preferred
Stock for an equal number of shares of NPAL Preferred Stock, the rights of the
holder of such shares of Fox Kids Preferred Stock, as a holder thereof, shall
cease.
4. Reservation of Shares. NPAL covenants and agrees with Liberty, LIFE
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and each subsequent holder of shares of Fox Kids Preferred Stock, for so long as
any shares of Fox Kids Preferred Stock are outstanding, to reserve and keep
available at all times, free of preemptive rights and any liens or adverse
claims, out of the aggregate of its authorized but unissued shares of NPAL
Preferred Stock, sufficient shares of NPAL Preferred Stock for the purposes of
satisfying its obligation to exchange shares of NPAL Preferred Stock for shares
of Fox Kids Preferred Stock in accordance with the terms of this Agreement.
5. Issuance of NPAL Preferred Stock. NPAL shall not issue any shares of
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NPAL Preferred Stock other than in exchange for shares of Fox Kids Preferred
Stock in accordance with the terms of this Agreement.
6. No Amendments to NPAL Certificate of Incorporation. NPAL covenants and
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agrees, for so long as any shares of Fox Kids Preferred Stock are outstanding,
not to amend, alter or modify the certificate of incorporation of NPAL in a
manner that would adversely affect the powers, preferences, or rights of a
holder of NPAL Preferred Stock as set forth in the NPAL Certificate of Amendment
on the date hereof.
7. Third Party Beneficiaries. All of NPAL's obligations under this
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Agreement shall be directly enforceable by Liberty, LIFE and any subsequent
holder from time to time of the Fox Kids Preferred Stock. Each such subsequent
holder of Fox Kids Preferred Stock is an intended third-party beneficiary of
this Agreement.
8. H-S-R Approvals. It shall be a condition of any exchange of Fox Kids
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Preferred Stock for NPAL Preferred Stock pursuant hereto that the requirements
of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "H-
S-R Act"), be complied with. If a holder of Fox Kids Preferred Stock (or any
Affiliate thereof) is required to file a notification and report form under the
H-S-R Act before it may exchange such shares for shares of NPAL Preferred Stock
(an "H-S-R Holder"), then NPAL shall promptly provide to such H-S-R Holder, and
in any event within 5 Business Days after receipt of such H-S-R Holder's request
therefor, all information concerning NPAL and its Affiliates as may be required
for such H-S-R Holder (or such Affiliate) to complete its notification and
report form. NPAL shall, or cause its appropriate Affiliate to, file an
appropriate notification and report form under the H-S-R Act within 5
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Business Days after the date that such H-S-R Holder requests that such report be
filed, and NPAL shall, or shall cause such Affiliate to, supply promptly any
additional information and documentary material that may be requested pursuant
to the H-S-R Act. The Exchange Date with respect to any exchange of Fox Kids
Preferred Stock shall not occur prior to such time as the waiting period under
the H-S-R Act shall have expired or been terminated. A holder of Fox Kids
Preferred Stock shall not be required to make any filings under the H-S-R Act,
and expiration or termination of the waiting period under the H-S-R Act shall
not be a condition to an exchange by a holder of Fox Kids Preferred Stock
hereunder, if such holder delivers to NPAL an opinion of counsel, in form
reasonably acceptable to NPAL, that no filings are required under the H-S-R Act
before such holder may effect an exchange of all of its shares of Fox Kids
Preferred Stock for shares of NPAL Preferred Stock hereunder.
9. Successors and Assigns. All covenants and agreements contained in this
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Agreement shall bind the successors (whether by merger, share exchange, asset
purchase or otherwise), assigns, receivers, trustees and representatives of NPAL
and shall inure to the benefit of Liberty, LIFE and all subsequent holders of
the Fox Kids Preferred Stock. NPAL shall not assign its rights or delegate its
obligations hereunder without the prior approval of the holders of at least
66 2/3% of the shares of Fox Kids Preferred Stock then outstanding, and any
purported assignment or delegation without such approval shall be void
ab initio.
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10. Amendments; Waivers. (a) This Agreement may only be amended with the
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prior approval of the holders of at least 66 2/3% of the shares of Fox Kids
Preferred Stock then outstanding, and any purported amendment without such
approval shall be void ab initio.
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(b) Each of the provisions of this Agreement may be waived, in whole
or in part, or the application of all or any part of such provisions in any
particular circumstance or generally may be waived, in each case only with the
prior approval of the holders of at least 66 2/3% of the shares of Fox Kids
Preferred Stock then outstanding, and any purported waiver without such approval
shall be void ab initio.
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11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
12. Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement shall nonetheless
remain in full force and effect. Upon any such determination that a term or
other provision is invalid, illegal or incapable of being enforced, the parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
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13. Delivery of Agreement. NPAL shall deliver a copy of this Agreement,
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without charge, to each holder of shares of Fox Kids Preferred Stock that shall
request a copy of this Agreement.
14. Specific Performance. Without intending to limit the remedies
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available to Liberty, LIFE or any subsequent holder of shares of Fox Kids
Preferred Stock, NPAL acknowledges and agrees that a violation by NPAL of any
terms of this Agreement will cause such Persons irreparable injury for which an
adequate remedy at law is not available. Therefore, the parties agree that
Liberty, LIFE and any subsequent holder of shares of Fox Kids Preferred Stock
shall be entitled to an injunction, restraining order or other form of equitable
relief from any court of competent jurisdiction compelling NPAL, its successors
and assigns, to specifically perform, and restraining such party from committing
any breach of, or threatened breach of, any provisions of this Agreement.
15. Notices. Any notice, request or other communication required or
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permitted to be given hereunder to NPAL shall be given in writing by delivering
the same against receipt therefor by registered mail, hand delivery, facsimile
transmission (confirmed by registered mail) or telex, addressed to NPAL, as
follows (and if so given, shall be deemed given when mailed; upon receipt of
facsimile confirmation, if sent by facsimile transmission; or upon receipt of an
answer-back, if sent by telex):
c/o News America Publishing Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Office of the General Counsel
Telecopy: (000) 000-0000
or to such other address or telecopy number as the holders of Fox Kids Preferred
Stock may be notified of by NPAL.
Any notice, request or other communication required or permitted to be
given hereunder to the holders of shares of Fox Kids Preferred Stock shall be
given by NPAL in the same manner as notices are sent by Fox Kids to the holders
of shares of Fox Kids Preferred Stock under the Fox Kids Certificate of
Designations.
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16. Entire Agreement. This Agreement represents the entire understanding
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of the parties with reference to the matters set forth herein. This Agreement
supersedes all prior negotiations, discussions, correspondence, communications
and prior agreements among the parties relating to the subject matter hereof.
Dated: August 1, 1997
NEWS PUBLISHING AUSTRALIA LIMITED
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
LIBERTY MEDIA CORPORATION
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
LIBERTY IFE, INC.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
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