1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of August 13, 2000 (this "Agreement")
among The News Corporation Limited, a South Australian corporation ("Buyer"),
News Publishing Australia Limited, a Delaware corporation and a 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:
2
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.
2
3
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
3
4
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
4
5
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):
5
6
(a) if to the Company:
BHC Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with copies to:
▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP
The Chrysler Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(b) if to Buyer:
The News Corporation Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Senior Executive Vice President and Group General Counsel
with copies to:
Squadron, Ellenoff, Plesent & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
SECTION 4.04 Specific Performance. The parties hereto agree that
irreparable
6
7
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
SECTION 4.05 Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in an way
the meaning or interpretation of this Agreement.
SECTION 4.06 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
SECTION 4.07 Entire Agreement. This Agreement, the Merger Agreements
(including the exhibits and disclosure schedules thereto which are hereby
incorporated herein and made a part hereof for all purposes as if fully set
forth herein) and the Confidentiality Agreement constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof.
SECTION 4.08 Assignment. This Agreement shall not be assigned by the
Company; provided, however, that the Company may assign this Agreement to a
Transferee in accordance with Section 2.01(a) hereof. Buyer shall not assign
this Agreement, other than to a subsidiary of Buyer; provided that no such
assignment shall relieve Buyer of any of its obligations hereunder.
SECTION 4.09 No Third-Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 4.10 Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each of
the parties hereto.
SECTION 4.11 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
SECTION 4.12 Consent to Jurisdiction. (a) Each of Buyer and the
Company hereby irrevocably submits to the exclusive jurisdiction of the courts
of the State of Delaware and to the jurisdiction of the United States District
Court for the State of Delaware, for the purpose of any
7
8
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]
8
9
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
NEWS PUBLISHING AUSTRALIA LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BHC COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
