EXHIBIT 10.1
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as
of September 24, 1996, among Fox Television Stations,
Inc., a Delaware corporation ("Fox"), NWCG (Parent)
Holdings Corporation, a Delaware corporation ("NWCGP"),
and NWCG Holdings Corporation, a Delaware corporation and
a wholly owned subsidiary of NWCGP ("Holdings," and
together with NWCGP, each a "Stockholder" and
collectively, the "Stockholders").
WHEREAS, The News Corporation Limited, a South
Australia corporation that has an indirect interest in
Fox ("News Corp."), Fox, Fox Acquisition Co., Inc., a
Delaware corporation and a wholly owned subsidiary of
Fox, and New World Communications Group Incorporated, a
Delaware corporation (the "Company"), are parties to the
Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement").
WHEREAS, the Merger (as defined in the Merger
Agreement) is subject to certain conditions, including
the approval and adoption of the Merger Agreement and the
Company Charter Proposal (as defined in the Merger
Agreement) by the holders of a majority of the
outstanding shares of Class A Common Stock, par value
$.01 per share (the "Class A Common Stock"), of the
Company and the Class B Common Stock, par value $.01 per
share (the "Class B Common Stock"), of the Company voting
together as a single class.
WHEREAS, News Corp., Fox and NWCGP are parties
to the Stock Purchase Agreement, dated as of the date
hereof (the "Stock Purchase Agreement"), pursuant to
which Fox has agreed to purchase from NWCGP all of the
shares of capital stock of the Company owned by NWCGP and
all of the outstanding shares of capital stock of
Holdings.
WHEREAS, each Stockholder is the record and
beneficial owner of the shares of Class B Common Stock
set forth opposite such Stockholder's name on the
signature pages hereto (such shares, together with any
additional shares of capital stock of the Company
beneficially owned by such Stockholder after the date
hereof and prior to the Termination Date (as defined in
Section 5.4), being collectively referred to herein as
the "Stockholder Shares" of such Stockholder).
WHEREAS, as a condition to the willingness of
Fox to enter into the Stock Purchase Agreement and the
Merger Agreement, and as an inducement to it to do so,
each Stockholder has agreed for the benefit of Fox as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements
contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms
used but not defined herein shall have the meanings
assigned to such terms in the Merger Agreement.
For purposes of this Agreement, the following
terms shall have the following meanings:
"Affiliate" and "Associate", when used with
reference to any person, shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date of this
Agreement; provided that with respect to any Stockholder,
such terms shall not include the Company, any Subsidiary
of the Company or any other Stockholder party hereto.
A person shall be deemed the "beneficial owner"
of, and shall be deemed to "beneficially own," and shall
be deemed to have "beneficial ownership" of:
(i) any securities that such person or any of
such person's Affiliates or Associates is deemed to
"beneficially own" within the meaning of Rule 13d-3
under the Exchange Act (without regard to section
(d)(1)(i) thereof), as in effect on the date of this
Agreement; and
(ii) any securities (the "underlying
securities") that such person or any of such
person's Affiliates or Associates has the right to
acquire (whether such right is exercisable
immediately or only after the passage of time)
pursuant to any agreement, arrangement or
understanding (written or oral), or upon the
exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise (it being
understood that such person shall also be deemed to
be the beneficial owner of the securities
convertible into or exchangeable for the underlying
securities).
ARTICLE II
COVENANTS OF THE STOCKHOLDERS
Section 2.1 Agreement to Vote. At any meeting
of the stockholders of the Company held prior to the
Termination Date (as defined in Section 5.4), however
called, and at every adjournment or postponement thereof
prior to the Termination Date, or in connection with any
written consent of the stockholders of the Company given
prior to the Termination Date, each Stockholder shall
vote all of the Stockholder Shares beneficially owned by
such Stockholder (a) in favor of the Merger Agreement,
the Company Charter Proposal and each of the transactions
contemplated thereby and any actions required in
furtherance hereof and thereof; and (b) against any
action or agreement that would, directly or indirectly,
result in a breach in any material respect of any
covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger
Agreement. Notwithstanding the foregoing, each
Stockholder shall remain free to vote the Stockholder
Shares with respect to any matter not covered by the
preceding sentence in any manner it deems appropriate.
None of the Stockholders shall enter into any agreement
or understanding with any person prior to the Termination
Date, directly or indirectly, to vote, grant any proxy or
give instructions with respect to the voting of the
Stockholder Shares of such Stockholder in any manner
inconsistent with the first sentence of this Section 2.1.
Section 2.2 Proxies and Voting Agreements.
(a) Except as set forth in Section 2.2 of
the letter from the Stockholders, dated the date hereof,
addressed to Fox (the "Stockholder Disclosure Letter"),
each Stockholder hereby revokes any and all previous
proxies granted with respect to matters set forth in
Section 2.1 with respect to the Stockholder Shares of
such Stockholder.
(b) Prior to the Termination Date, none
of the Stockholders shall, directly or indirectly, except
as contemplated hereby, grant any proxies or powers of
attorney with respect to matters set forth in Section
2.1, deposit any of the Stockholder Shares owned by such
Stockholder into a voting trust or enter into a voting
agreement with respect to any of the Stockholder Shares,
in each case with respect to such matters.
Section 2.3 Transfer of Stockholder Shares by
the Stockholder. Prior to the Termination Date and
except as expressly provided by the Stock Purchase
Agreement, none of the Stockholders shall (a) place any
Lien (other than the Lien created by the Holdings
Indenture) on any Stockholder Shares of such Stockholder,
other than pursuant to this Agreement, or (b) sell,
transfer or otherwise dispose of any Stockholder Shares
owned by such Stockholder, other than a sale, transfer or
other disposition (w) pursuant to the Stock Purchase
Agreement, (x) to any other party hereto, or (y) to an
Affiliate of a Stockholder who becomes a party to this
Agreement.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Each Stockholder represents, warrants and covenants
to Fox, as to itself that:
Section 3.1 Ownership. Such Stockholder is as
of the date hereof the beneficial and record owner of the
Stockholder Shares set forth opposite the name of such
Stockholder on the signature pages hereto, such
Stockholder has the sole right to vote such Stockholder
Shares and, except as set forth in Section 3.1 of the
Stockholder Disclosure Letter, there are no restrictions
on rights of disposition or other Liens pertaining to
such Stockholder Shares. Except as set forth in Section
3.1 of the Stockholder Disclosure Letter, none of the
Stockholder Shares of such Stockholder is subject to any
voting trust or other agreement, arrangement or
restriction with respect to the voting of such
Stockholder Shares.
Section 3.2 Authority and Non-Contravention.
Such Stockholder has all requisite corporate power and
authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and
performance by such Stockholder and the consummation by
such Stockholder of the transactions contemplated hereby
have been duly authorized by all necessary corporate
action on the part of such Stockholder. Such actions by
such Stockholder (a) require no action by or in respect
of, or filing with, any Governmental Entity with respect
to such Stockholder, other than any required filings
under Section 13 of the Exchange Act, (b) except as set
forth in Section 3.2 of the Stockholder Disclosure
Letter, do not and will not violate or contravene any
provision of applicable law or regulation, judgment,
injunction, order or decree binding on such Stockholder
or result in the imposition of any Lien on any asset of
such Stockholder or any of its Affiliates (other than as
provided in this Agreement with respect to Stockholder
Shares) or (c) do not and will not conflict with or
result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would
become a default) under any Contract to which a
Stockholder is a party.
Section 3.3 Binding Effect. This Agreement
has been duly executed and delivered by such Stockholder
and is a legal, valid and binding agreement of such
Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally and
by equitable principles to which the remedies of specific
performance and injunctive and similar forms of relief
are subject.
Section 3.4 Total Shares. The Stockholder
Shares listed under the name of such Stockholder on the
signature pages hereto are the only shares of capital
stock of the Company owned beneficially or of record as
of the date hereof by such Stockholder and, except as
set forth in Section 3.4 of the Stockholder Disclosure
Letter, such Stockholder does not have any option to
purchase or right to subscribe for or otherwise acquire
any securities of the Company and has no other interest
in or voting rights with respect to any other securities
of the Company.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF FOX
Fox represents, warrants and covenants to each
Stockholder that:
Section 4.1 Corporate Power and Authority.
Fox has all requisite corporate power and authority to
enter into this Agreement and to perform its obligations
hereunder. The execution, delivery and performance by
Fox of this Agreement and the consummation by Fox of the
transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part
of Fox.
Section 4.2 Binding Effect. This Agreement
has been duly executed and delivered by Fox and is a
legal, valid and binding agreement of Fox, enforceable
against Fox in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors'
rights generally and by equitable principles to which the
remedies of specific performance and injunctive and
similar forms of relief are subject.
ARTICLE V
MISCELLANEOUS
Section 5.1 Expenses. All costs and expenses
incurred in connection with this Agreement shall be paid
by the party incurring such costs or expenses.
Section 5.2 Further Assurances. From time to
time, at the request of Fox, in the case of a
Stockholder, or at the request of a Stockholder, in the
case of Fox, and without further consideration, each
party shall execute and deliver or cause to be executed
and delivered such additional documents and instruments
and take all such further action as may be necessary or
desirable to consummate the transactions contemplated by
this Agreement.
Section 5.3 Specific Performance. Each
Stockholder agrees that Fox would be irreparably damaged
if for any reason such Stockholder fails to perform any
of such Stockholder's obligations under this Agreement,
and that Fox would not have an adequate remedy at law for
money damages in such event. Accordingly, Fox shall be
entitled to specific performance and injunctive and other
equitable relief to enforce the performance of this
Agreement by such Stockholder. This provision is without
prejudice to any other rights that Fox may have against
such Stockholder for any failure to perform its
obligations under this Agreement.
Section 5.4 Amendments; Termination. This
Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto. The
representations, warranties, covenants and agreements set
forth in Articles II, III and IV shall terminate, except
with respect to liability for prior breaches thereof,
upon the termination of the Merger Agreement in
accordance with its terms or, if earlier, the Effective
Time of the Merger (the "Termination Date").
Section 5.5 Successors and Assigns. The
provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their
respective estates, heirs, successors and permitted
assigns; provided, however, that a party may not assign,
delegate or otherwise transfer any of such party's rights
or obligations under this Agreement without the consent
of the other parties hereto and any purported assignment,
delegation or transfer without such consent shall be null
and void.
Section 5.6 Certain Events. Each Stockholder
agrees that this Agreement and the obligations hereunder
shall attach to the Stockholder Shares beneficially owned
by such Stockholder and shall be binding upon any person
to which legal or beneficial ownership of such shares
shall pass, whether by operation of law or otherwise.
Section 5.7 Entire Agreement. This Agreement,
together with the Stockholder Disclosure Letter,
constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written
and oral, among the parties with respect to the subject
matter hereof, including, without limitation, the
Memorandum.
Section 5.8 Notices. All notices, requests,
claims, demands and other communications hereunder shall
be in writing and shall be deemed given (i) on the first
Business Day following the date received, if delivered
personally or by facsimile (with telephonic confirmation
of receipt by the addressee), (ii) on the Business Day
following timely deposit with an overnight courier
service, if sent by overnight courier specifying next day
delivery and (iii) on the first Business Day that is at
least five days following deposit in the mails, if sent
by first class mail, to the parties at the following
addresses (or at such other address for a party as shall
be specified by like notice):
If to a Stockholder, to:
c/o MacAndrews & Forbes Holdings, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.
If to Fox, to:
Fox Television Stations, Inc
00000 Xxxx Xxxx Xxxxxxxxx
Building 88, Room 142
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxxx
with a copy (which shall not constitute notice) to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxxxx
Section 5.9 Governing Law. This Agreement
shall be governed by and construed in accordance with the
internal laws of the State of Delaware. Each of the
parties hereto acknowledges that the negotiation of this
Agreement occurred in New York, New York and irrevocably
agrees that any legal suit, action or proceeding brought
by another party hereto arising out of or based upon this
Agreement or the transactions contemplated hereby shall
be instituted in any United States Federal or New York
State court in the Borough of Manhattan, The City of New
York, New York (the "Courts"), waives any objection which
it may now or hereafter have to the laying of venue of
any such proceedings, submits to the exclusive
jurisdiction of such Courts in any such suit, action or
proceeding and agrees not to commence any such suit,
action or proceeding except in such Courts. Fox hereby
appoints News America Publishing Incorporated, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, as its authorized agent
(the "Authorized Agent") upon which process may be served
in any such action arising out of or based upon this
Agreement or the transactions contemplated hereby that
may be instituted in any Court by any party hereto and
expressly consents to the jurisdiction of any such Court,
but only in respect of any such action, and waives any
other requirements of or objections to personal
jurisdiction with respect thereto. Fox represents and
warrants that the Authorized Agent has agreed to act as
said agent for service of process, and Fox agrees to take
any and all action, including the filing of any and all
documents and instruments, that may be necessary to
continue such appointment in full force and effect as
aforesaid. If the Authorized Agent shall cease to act as
Fox's agent for service of process, Fox shall appoint
without delay another such agent and notify the
Stockholders of such appointment. With respect to any
such action in the Courts, service of process upon the
Authorized Agent and written notice of such service to
Fox shall be deemed, in every respect, effective service
of process upon Fox.
Section 5.10 Counterparts; Effectiveness.
This Agreement may be executed in two or more
counterparts, all of which shall be considered one and
the same agreement, and, as to a Stockholder, shall
become effective when two or more counterparts have been
signed by each of such Stockholder and Fox and delivered
to the other.
Section 5.11 Descriptive Headings. The
descriptive headings used herein are inserted for
convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of
this Agreement.
Section 5.12 Severability. Whenever possible,
each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be
effective and valid but if any provision or portion of
any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability will not affect any other
provision or portion of any provision, and this Agreement
will be reformed, construed and enforced as if such
invalid, illegal or unenforceable provision or portion of
any provision had never been contained herein. The
parties shall endeavor in good faith negotiations to
replace any invalid, illegal or unenforceable provision
with a valid provision the effects of which come as close
as possible to those of such invalid, illegal or
unenforceable provision.
Section 5.13 Attorneys' Fees. If any action
at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and
necessary disbursements, in addition to any other relief
to which such party may be entitled.
IN WITNESS WHEREOF, Fox and the Stockholders
have caused this Agreement to be duly executed as of the
day and year first above written.
FOX TELEVISION STATIONS, INC.
By: /s/ Xxx Xxxxxxxxx
Xxx Xxxxxxxxx
Senior Vice President
2,682,236 shares of NWCG (PARENT) HOLDINGS CORPORATION
Class B Common Stock
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Vice President
34,510,000 shares of NWCG HOLDINGS CORPORATION
Class B Common Stock
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Vice President
