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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
wholly owned subsidiary of Buyer ("Acquisition Sub"), and BHC Communications,
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 "BHC Merger Agreement";
capitalized terms used and not defined herein shall have the respective meanings
assigned to them in the BHC Merger Agreement) pursuant to which, among other
things, the Company and Acquisition Sub shall merge;
WHEREAS, simultaneously with the execution and delivery of
this Agreement and the BHC Merger Agreement, Buyer and Acquisition Sub are
entering into an Agreement and Plan of Merger with United Television, Inc.
("UTV"), a Delaware corporation and a direct subsidiary of the Company (the "UTV
Merger Agreement" and, together with the BHC Merger Agreement, the "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 "Mergers");
WHEREAS, as a condition to the willingness of Buyer and
Acquisition Sub to enter into 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
UTV Merger Agreement and approving the UTV 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 5,509,027 shares of common stock, par value $.10 per share, of UTV
(the "Common Stock"); such shares, together with any shares of 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 hereafter 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:
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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 UTV and at any adjournment
thereof at which matters relating to the UTV Merger or the UTV 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 UTV 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 UTV 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 UTV and at any adjournment
thereof, or pursuant to any action by written consent, in which matters relating
to the UTV Merger, the UTV Merger Agreement, any Competing Transaction or any
Superior Proposal are considered:
(i) in favor of the adoption of the UTV Merger
Agreement and the approval of the UTV 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 UTV Merger
Agreement, (b) materially impede, interfere with, delay, postpone or
adversely affect the UTV Merger or (c) result in a failure to fulfill
any one of the conditions to the UTV 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
UTV 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 UTV
Merger Agreement, or the performance of the Company's duties or responsibilities
as a stockholder of UTV.
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
UTV Merger Agreement and has the capacity to protect its own interest in making
its investment in Buyer.
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The Company (a) is acquiring Buyer Shares to be issued to it pursuant to the UTV
Merger Agreement 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 UTV Merger, including, but not
limited to the UTV 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
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
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 UTV 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
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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 Merger Agreements.
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
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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 5,509,027 shares of Common Stock.
Except as provided in the Restated Certificate of Incorporation of UTV, and
other than in connection with the Mergers, this Agreement, the Merger Agreements
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 UTV 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):
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(a) if to the Company:
BHC Communications, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
with copies to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxx Xxxxxx, Esq.
and
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(b) if to Buyer:
The News Corporation Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (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
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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 any
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
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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.
[Remainder of Page Intentionally Left Blank]
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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
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Name: Xxxxxx X. Xxxxxxx
Title: Director
NEWS PUBLISHING AUSTRALIA LIMITED
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
BHC COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
