EXHIBIT 5
AGREEMENT AND PLAN OF MERGER
DATED AS OF NOVEMBER 27, 1995
BY AND AMONG
SILVER MANAGEMENT COMPANY,
LIBERTY PROGRAM INVESTMENTS, INC.
AND LIBERTY HSN, INC.
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER AND RELATED MATTERS............. 2
SECTION 1.1 The Merger................................. 2
SECTION 1.2 Conversion of Stock........................ 3
SECTION 1.3 Exchange of Certificates................... 3
SECTION 1.4 Certificate of Incorporation of the
Surviving Corporation.................... 4
SECTION 1.5 Bylaws of the Surviving Corporation........ 4
SECTION 1.6 Directors and Officers of the Surviving
Corporation.............................. 4
SECTION 1.7 Closing.................................... 4
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SILVER CO....... 4
SECTION 2.1 Organization and Qualification............. 4
SECTION 2.2 Authorization and Validity of Agreement.... 5
SECTION 2.3 Validity of Merger Consideration Shares.... 5
SECTION 2.4 Capitalization............................. 6
SECTION 2.5 No Approvals or Notices Required; No
Conflict with Instruments................ 7
SECTION 2.6 Brokers or Finders......................... 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ROCKIES SUB
AND ROCKIES HOUSE SUB.................. 9
SECTION 3.1 Organization and Qualification............. 9
SECTION 3.2 Authorization and Validity of Agreement.... 9
SECTION 3.3 Capitalization; Validity of Stock.......... 10
SECTION 3.4 Assets of Rockies House Sub................ 10
SECTION 3.5 Liabilities of Rockies House Sub........... 11
SECTION 3.6 No Approvals or Notices Required; No
Conflict with Instruments................ 11
SECTION 3.7 Brokers or Finders......................... 12
-i-
Page
ARTICLE IV
COVENANTS AND OTHER AGREEMENTS.............. 12
SECTION 4.1 Reasonable Efforts......................... 12
SECTION 4.2 Public Announcements....................... 13
SECTION 4.2 Confidentiality............................ 14
SECTION 4.3 House Shares............................... 14
SECTION 4.4 Notification of Certain Matters............ 14
SECTION 4.5 No Amendment of Exchange Agreement......... 15
ARTICLE V
CONDITIONS..................... 15
SECTION 5.1 Conditions Precedent to the Obligations
of Silver Co., Rockies Sub and Rockies
House Sub................................ 15
(a) Absence of Injunctions................ 15
(b) No Proceedings or Adverse Enactments.. 15
(c) HSR Act............................... 16
(d) Receipt of Governmental Approvals
and Consents........................ 16
(e) Satisfaction of Conditions to the
Exchange............................ 16
SECTION 5.2 Conditions Precedent to the Obligations
of Rockies Sub and Rockies House Sub..... 16
(a) Accuracy of Representations and
Warranties.......................... 16
(b) Performance of Agreements............. 17
(c) Silver Co. Capital Contribution....... 17
(d) Capitalization of Silver Co. and
Validity of Stock Prior to Closing.. 17
(e) No Impediments to the Exchange........ 17
(f) No Proceedings or Adverse Enactments
Affecting Merger Consideration
Shares.............................. 17
(g) Xxxxxxx Management Role............... 17
(h) Officer's Certificates................ 18
(i) Other Deliveries...................... 18
(j) No Adverse Change or Development...... 18
(k) Audited Financial Statements.......... 19
(l) Consummation of SP Merger............. 19
SECTION 5.3 Conditions Precedent to the Obligations of
Silver Co................................ 19
(a) Accuracy of Representations and
Warranties.......................... 19
(b) Performance of Agreements............. 20
-ii-
Page
(c) Officer's Certificates................ 20
(d) Other Deliveries...................... 20
ARTICLE VI
TERMINATION..................... 20
SECTION 6.1 Termination and Abandonment................ 20
SECTION 6.2 Effect of Termination...................... 21
ARTICLE VII
MISCELLANEOUS.................... 21
SECTION 7.1 Failure to Consummate the Exchange......... 21
SECTION 7.2 Further Assurances......................... 21
SECTION 7.3 Expenses................................... 22
SECTION 7.4 Notices.................................... 22
SECTION 7.5 Entire Agreement........................... 23
SECTION 7.6 Assignment; Binding Effect; Benefit........ 23
SECTION 7.7 Amendment.................................. 23
SECTION 7.8 Extension; Waiver.......................... 23
SECTION 7.9 Survival................................... 24
SECTION 7.10 Interpretation............................. 24
SECTION 7.11 Severability............................... 25
SECTION 7.12 Counterparts............................... 25
SECTION 7.13 Applicable Law............................. 25
-iii-
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November
27, 1995, by and among Silver Management Company, a Delaware
corporation ("Silver Co."), Liberty Program Investments, Inc.,
a Wyoming corporation ("Rockies Sub") and an indirect wholly-
owned subsidiary of Liberty Media Corporation, a Delaware
corporation ("Rockies"), and Liberty HSN, Inc., a Colorado
corporation and a wholly-owned subsidiary of Rockies Sub
("Rockies House Sub").
RECITALS:
WHEREAS, Rockies House Sub owns 17,566,702 shares of
the Common Stock, par value $.01 per share (the "House Common
Stock"), of Home Shopping Network, Inc., a Delaware corporation
("House"), and 20,000,000 shares of the Class B Common Stock,
par value $.01 per share (the "House Class B Stock"), of House
(collectively, the "House Shares");
WHEREAS, the House Board of Directors has approved
the transactions contemplated hereby and the Exchange Agreement
(as hereinafter defined) being entered into simultaneously
herewith (including for purposes of Section 203 of the Delaware
General Corporation Law (the "DGCL"));
WHEREAS, immediately following the consummation of
the merger contemplated hereby, Silver Co. desires to exchange
(the "Exchange") with Silver King Communications, Inc., a
Delaware corporation ("Silver"), all of the shares of House
Common Stock which it will acquire as a result of such merger
for newly issued shares of Common Stock, par value $.01 per
share (the "Silver Common Stock"), of Silver and all of the
shares of House Class B Stock which it will acquire as a result
of such merger for newly issued shares of Class B Common Stock,
par value $.01 per share (the "Silver Class B Stock"), of
Silver, all pursuant to that certain Exchange Agreement, dated
as of the date hereof, by and between Silver Co. and Silver
(the "Exchange Agreement");
WHEREAS, Rockies Sub, Rockies House Sub and Silver
Co. wish to set forth their agreement as to the terms and
conditions upon which Rockies House Sub will be merged with and
into Silver Co., as a result of which merger Silver Co. will be
the surviving corporation.
NOW, THEREFORE, in consideration of the premises and
of the respective covenants, representations, warranties and
agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
THE MERGER AND RELATED MATTERS
SECTION 1.1 The Merger. (a) Upon the terms and subject
to the conditions of this Agreement, at the Effective Time (as
such term is defined in Section 1.1(b) hereof), Rockies House
Sub shall be merged with and into Silver Co. (the "Merger") in
accordance with the provisions of the DGCL and the Colorado
Business Corporation Act (the "Colorado Code"), the separate
corporate existence of Rockies House Sub shall cease, and
Silver Co. shall continue as the surviving corporation under
the laws of the State of Delaware (the "Surviving
Corporation").
(b) The Merger shall become effective at the time
(the "Effective Time") of the later to occur of (i) the filing
with the Delaware Secretary of State of a certificate of merger
(the "Certificate of Merger") in such form as is required by,
and executed in accordance with, the applicable provisions of
the DGCL and (ii) the filing of appropriate articles of merger
(the "Articles of Merger") with the Colorado Secretary of State
in accordance with the provisions of Section 0-000-000 of the
Colorado Code, or at such later time as may be agreed to by
Rockies Sub and Silver Co. and specified in the Certificate of
Merger and the Articles of Merger. Provided that this
Agreement has not been terminated pursuant to Article VI, the
parties will cause the Certificate of Merger to be filed with
the Delaware Secretary of State and the Articles of Merger to
be filed with the Colorado Secretary of State as soon as
practicable after the Closing (as defined in Section 1.7).
(c) The Merger shall have the effects set forth in
Sections 259, 260 and 261 of the DGCL and in Section 0-000-000
of the Colorado Code. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the
properties, rights, privileges, powers and franchises of
Rockies House Sub and Silver Co. shall vest in the Surviving
Corporation, and all debts, liabilities and duties of Rockies
House Sub and Silver Co. shall become the debts, liabilities
and duties of the Surviving Corporation. If, at any time after
the Effective Time, the Surviving Corporation considers or is
advised that any deeds, bills of sale, assignments, assurances
or any other actions or things are necessary or desirable to
vest, perfect or confirm of record or otherwise in the
Surviving Corporation its right, title or interest in, to or
under any of the rights, properties or assets of either Rockies
House Sub or Silver Co., or otherwise to carry out the intent
and purposes of this Agreement, the officers and directors of
the Surviving Corporation will be authorized to execute and
-2-
deliver, in the name and on behalf of each of Rockies House Sub
and Silver Co., all such deeds, bills of sale, assignments and
assurances and to take and do, in the name and on behalf of
each of Rockies House Sub and Silver Co., all such other
actions and things as may be necessary or desirable to vest,
perfect or confirm any and all right, title and interest in, to
and under such rights, properties or assets in the Surviving
Corporation or otherwise carry out the intent and purposes of
this Agreement.
SECTION 1.2 Conversion of Stock. At the Effective Time:
(a) By virtue of the Merger and without any action
on the part of the holder thereof, the outstanding shares of
common stock of Rockies House Sub, par value $1.00 per share,
shall be converted into and represent the right to receive, and
shall be exchangeable for, as provided in Section 1.3 hereof,
an aggregate of 3,363,262 newly issued, fully paid and
nonassessable shares of the Class B Common Stock, par value
$.01 per share of Silver Co. (the "Silver Co. Class B Common
Stock"). The shares of Silver Co. Class B Common Stock to be
issued as consideration in the Merger are collectively referred
to herein as the "Merger Consideration Shares." At the
Effective Time, all such shares of common stock of Rockies
House Sub shall automatically be cancelled and retired and
cease to exist. Following the Effective Time, such shares
shall no longer be deemed to be outstanding, and each holder of
a certificate representing any such shares shall cease to have
any rights with respect thereto, except the right to receive
the shares of Silver Co. Class B Common Stock to be issued in
consideration therefor upon the surrender of such certificate
in accordance with Section 1.3 hereof, without interest.
(b) Each share of Class A Common Stock, par value
$.01 per share of Silver Co. (the "Silver Co. Class A Common
Stock") then issued and outstanding shall remain issued and
outstanding and unchanged by the Merger.
(c) Each share of Class B Common Stock, par value
$.01 per share, of Silver Co. (the "Silver Co. Class B Common
Stock") then issued and outstanding shall remain issued and
outstanding and unchanged by the Merger.
SECTION 1.3 Exchange of Certificates. At the Closing (as
defined below), upon surrender to Silver Co. of the
certificates which immediately prior to the Effective Time
represented the outstanding shares of common stock of Rockies
House Sub, Silver Co. shall deliver to Rockies Sub the Merger
Consideration Shares payable in respect of such shares. The
stock certificate or certificates representing the Merger
-3-
Consideration Shares delivered to Rockies Sub pursuant to this
Agreement shall be dated the Closing Date (as defined below)
and shall be issued to and registered in the name of Rockies
Sub, or a designee of Rockies Sub, if Rockies Sub so directs.
SECTION 1.4 Certificate of Incorporation of the Surviving
Corporation. The certificate of incorporation of Silver Co. as
in effect immediately prior to the Effective Time shall be the
certificate of incorporation of the Surviving Corporation after
the Merger until thereafter amended as provided by law.
SECTION 1.5 Bylaws of the Surviving Corporation. The
bylaws of Silver Co. as in effect immediately prior to the
Effective Time, shall be the bylaws of the Surviving
Corporation after the Merger until thereafter amended as
provided by law.
SECTION 1.6 Directors and Officers of the Surviving
Corporation. The directors and officers of Silver Co.
immediately prior to the Effective Time shall be (until their
respective successors are elected and qualified) the directors
and officers of the Surviving Corporation after the Merger.
SECTION 1.7 Closing. The Closing of the transactions
contemplated by this Agreement (the "Closing") shall take place
(i) at the offices of Xxxxx & Xxxxx, L.L.P., 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., local time, on the
second business day following the day on which the last of the
conditions set forth in Sections 5.1(c), 5.1(d), 5.1(e), 5.2(b)
(other than any actions to be taken at the Closing), 5.2(c),
5.2(e), 5.2(l) and 5.3(b) (other than any actions to be taken
at the Closing) hereof is fulfilled or waived (subject to
applicable law) or (ii) at such other time and place and on
such other date as Silver Co. and Rockies Sub shall agree (the
"Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SILVER CO.
Silver Co. hereby makes the following representations and
warranties to Rockies Sub and Rockies House Sub:
SECTION 2.1 Organization and Qualification. Silver
Co. (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation; (ii) has all requisite corporate power and
authority to carry on its business as it is now conducted and
to own, lease and operate the properties it now owns, leases or
-4-
operates at the places currently located and in the manner
currently used and operated and (iii) is duly qualified or
licensed and in good standing to do business in each
jurisdiction in which the properties owned, leased or operated
by it or the nature of the business conducted by it makes such
qualification or license necessary. Silver Co. has delivered
or made available to Rockies Sub true and complete copies of
its certificate of incorporation and bylaws, each as amended to
date and currently in effect (respectively, the "Silver Co.
Charter" and the "Silver Co. Bylaws").
SECTION 2.2 Authorization and Validity of Agreement.
The execution, delivery and performance of this Agreement by
Silver Co. and the consummation of the transactions
contemplated hereby have been duly and validly authorized by
the board of directors of Silver Co. and by the requisite vote
of the stockholders of Silver Co. entitled to vote thereon.
Silver Co. has full corporate power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder and to consummate the Merger and the other
transactions contemplated hereby. No other corporate
proceedings on the part of Silver Co. or any of its
subsidiaries are necessary to authorize the execution and
delivery of this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Silver Co. and, assuming
the due authorization, execution and delivery of this Agreement
by Rockies Sub and Rockies House Sub, constitutes a legal,
valid and binding obligation of Silver Co. enforceable against
it in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors'
rights generally or by principles governing the availability of
equitable remedies.
SECTION 2.3 Validity of Merger Consideration Shares.
The shares of Silver Co. Class B Common Stock to be issued to
Rockies Sub pursuant to the Merger, upon issuance and delivery
in accordance with the terms and conditions of this Agreement,
will be duly authorized, validly issued, fully paid and non-
assessable, and except as contemplated by this Agreement or the
definitive term sheet attached to the letter to Xxxxx Xxxxxx
("Xxxxxxx") from Rockies, dated August 24, 1995, as amended by
the letter to Xxxxxxx, dated as of the date hereof, pursuant to
which Rockies and Xxxxxxx have entered into certain agreements
with respect to the equity securities of Silver, all as
described therein (as amended, the "Term Sheet"), will be free
of any liens, claims, charges, security interests, pledges,
voting or stockholder agreements, encumbrances or equities of
any kind whatsoever, will not be issued in violation of any
-5-
preemptive rights and will vest in Rockies Sub full rights with
respect thereto, including the right to vote such Merger
Consideration Shares on all matters properly presented to the
stockholders of Silver Co. or to consent to the taking of
certain actions, all to the extent set forth in the Silver Co.
Charter. The shares of Silver Co. Class B Common Stock to be
issued in the Merger will have identical rights, powers,
privileges and preferences as the Silver Co. Class B Common
Stock outstanding immediately prior to the Closing Date.
SECTION 2.4 Capitalization. As of the Closing Date,
the authorized capital stock of Silver Co. shall consist of (i)
1 share of Silver Co. Class A Common Stock, of which 1 share
shall be issued and outstanding and held beneficially and of
record by Arrow Holdings, LLC, a California limited liability
company ("Arrow") and (ii) 3,978,262 shares of Silver Co. Class
B Common Stock, of which 615,000 shares shall be issued and
outstanding and held beneficially and of record by Rockies Sub
(assuming the contribution of the Silver Option and cash equal
to the exercise price thereof pursuant to (and as defined in)
the Term Sheet); as of the Closing Date, no other shares of
capital stock of Silver Co. shall be issued and outstanding or
held by Silver Co. in its treasury. The respective rights,
preferences, privileges, limitations and restrictions of the
Silver Co. Class A Common Stock and the Silver Co. Class B
Common Stock shall be as set forth in the Silver Co. Charter.
Except pursuant to this Agreement and the transactions
contemplated by the Term Sheet, as of the Closing Date, there
shall be no outstanding or authorized subscriptions, options,
warrants, calls, rights, commitments or any other agreements of
any character to or by which Silver Co. will be a party or by
which it shall be bound which, directly or indirectly, will
obligate Silver Co. to issue, deliver or sell or cause to be
issued, delivered or sold any shares of capital stock or other
equity interests of Silver Co. or any securities convertible
into, or exercisable or exchangeable for, or evidencing the
right to subscribe for any such shares of capital stock or
other equity interests of Silver Co. or obligating Silver Co.
to grant, extend or enter into any such subscription, option,
warrant, call or right. All shares of Silver Co. Class A
Common Stock and Silver Co. Class B Common Stock subject to
issuance as aforesaid, upon issuance on the terms and
conditions specified in the instruments pursuant to which they
are issuable, shall be duly authorized, validly issued, fully
paid and non-assessable and not subject to preemptive rights.
Other than as contemplated by the Term Sheet or the Silver Co.
Charter, as of the Closing Date, there shall be no obligations,
contingent or otherwise, of Silver Co. or any of its
subsidiaries to repurchase, redeem or otherwise acquire any
shares of Silver Co. Class A Common Stock or Silver Co. Class B
-6-
Common Stock or the capital stock of any subsidiary or to
provide funds to make any material investment (in the form of a
loan, capital contribution or otherwise) in any such subsidiary
or any other entity other than guarantees of obligations of
subsidiaries entered into in the ordinary course of business.
SECTION 2.5 No Approvals or Notices Required; No
Conflict with Instruments. The execution and delivery by
Silver Co. of this Agreement do not, and the performance by
Silver Co. of its obligations hereunder and the consummation of
the transactions contemplated hereby, including the issuance of
the Merger Consideration Shares, will not:
(i) conflict with or violate the Silver Co.
Charter or the Silver Co. Bylaws or the charter or
bylaws of any subsidiary of Silver Co., in each case
as amended to date;
(ii) require any consent, approval, order or
authorization of or other action by any court,
administrative agency or commission or other
governmental authority or instrumentality, foreign,
United States federal, state or local (each such
entity a "Governmental Entity" and each such action a
"Governmental Consent") or any registration,
qualification, declaration or filing with or notice
to any Governmental Entity (a "Governmental Filing"),
in each case on the part of or with respect to Silver
Co., the absence or omission of which would, either
individually or in the aggregate, have a material
adverse effect on the transactions contemplated
hereby or on the business, assets, results of
operations or financial condition of Silver Co.,
except for (A) the filing of the Certificate of
Merger with the Delaware Secretary of State, (B) the
filing of the Articles of Merger with the Colorado
Secretary of State, and (C) the Governmental Filings
required pursuant to the pre-merger notification
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules
and regulations thereunder (the "HSR Act") and the
expiration or termination of any applicable waiting
period with respect to the Merger under the HSR Act;
(iii) require, on the part of Silver Co., any
consent by or approval of (a "Contract Consent") or
notice to (a "Contract Notice") any other person or
entity (other than a Governmental Entity), the
absence or omission of which would, either
individually or in the aggregate, have a material
-7-
adverse effect on the transactions contemplated
hereby or on the business, assets, results of
operations or financial condition of Silver Co.;
(iv) conflict with, result in any violation or
breach of or default (with or without notice or lapse
of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any
obligation or the loss of any material benefit under
or the creation of any lien, security interest,
pledge, charge, claim, option, right to acquire,
restriction on transfer, voting restriction or
agreement, or any other restriction or encumbrance of
any nature whatsoever on any assets pursuant to (any
such conflict, violation, breach, default, right of
termination, cancellation or acceleration, loss or
creation, a "Violation") any "Contract" (which term
shall mean and include any note, bond, indenture,
mortgage, deed of trust, lease, franchise, permit,
authorization, license, contract, instrument,
employee benefit plan or practice, or other
agreement, obligation, commitment or concession of
any nature) to which Silver Co. is a party, by which
Silver Co. or any of its assets or properties is
bound or pursuant to which Silver Co. is entitled to
any rights or benefits, except for such Violations
which would not, either individually or in the
aggregate, have a material adverse effect on the
transactions contemplated hereby or on the business,
assets, results of operations or financial condition
of Silver Co.; or
(v) assuming that the Governmental Consents and
Governmental Filings specified in clause (ii) of this
Section 2.5 are obtained, made and given (and any
related waiting period is terminated or otherwise
expires), result in a Violation of, under or pursuant
to any law, rule, regulation, order, judgment or
decree applicable to Silver Co. or by which any of
its properties or assets are bound.
SECTION 2.6 Brokers or Finders. No agent, broker,
investment banker, financial advisor or other person or entity
is or will be entitled, by reason of any agreement, act or
statement by Silver Co. or any of its directors, officers,
employees or affiliates, to any financial advisory, broker's,
finder's or similar fee or commission, to reimbursement of
expenses or to indemnification or contribution in connection
with any of the transactions contemplated by this Agreement,
except as set forth in Schedule 2.6 hereto.
-8-
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ROCKIES SUB
AND ROCKIES HOUSE SUB
Each of Rockies Sub and Rockies House Sub hereby
makes the following representations and warranties to Silver
Co.:
SECTION 3.1 Organization and Qualification. Each of
Rockies Sub and Rockies House Sub (i) is a corporation duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation; (ii) has all
requisite corporate power and authority to carry on its
business as it is now conducted and to own, lease and operate
the properties it now owns, leases or operates at the places
currently located and in the manner currently used and operated
and (iii) is duly qualified or licensed and in good standing to
do business in each jurisdiction in which the properties owned,
leased or operated by it or the nature of the business
conducted by it makes such qualification or license necessary.
Each of Rockies Sub and Rockies House Sub has delivered or made
available to Silver Co. true and complete copies of its
certificate of incorporation and bylaws, each as amended to
date and currently in effect (respectively, the "Rockies Sub
Charter," the "Rockies House Sub Charter," the "Rockies Sub
Bylaws" and the "Rockies House Sub Bylaws.")
SECTION 3.2 Authorization and Validity of Agreement.
The execution, delivery and performance of this Agreement by
each of Rockies Sub and Rockies House Sub and the consummation
of the transactions contemplated hereby have been duly and
validly authorized by the board of directors of each of Rockies
Sub and Rockies House Sub and by the stockholder(s) of Rockies
House Sub. Each of Rockies Sub and Rockies House Sub has full
corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to
consummate the Merger and the other transactions contemplated
hereby. No other corporate proceedings on the part of either
Rockies Sub or Rockies House Sub or any of their respective
subsidiaries are necessary to authorize the execution and
delivery of this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by each of Rockies Sub and
Rockies House Sub and, assuming the due authorization,
execution and delivery of this Agreement by Silver Co.,
constitutes a legal, valid and binding obligation of each of
Rockies Sub and Rockies House Sub, enforceable against it in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or
-9-
other similar laws affecting creditors' rights generally or by
principles governing the availability of equitable remedies.
SECTION 3.3 Capitalization; Validity of Stock. The
authorized capital stock of Rockies House Sub consists solely
of 5000 shares of common stock, par value $1.00 per share (the
"Rockies House Sub Common Stock"), of which 1000 shares of
Rockies House Sub Common Stock are issued and outstanding, all
of which are held of record and owned beneficially by Rockies
Sub. No shares are reserved for issuance upon exercise of
outstanding stock options, no shares are held by Rockies House
Sub in its treasury, and no shares are held by any subsidiary
of Rockies House Sub. The shares of Rockies House Sub Common
Stock held by Rockies Sub are duly authorized, validly issued,
fully paid and non-assessable, and are held by Rockies Sub free
of any liens, claims, charges, security interests, pledges,
voting or stockholder agreements, encumbrances or equities of
any kind whatsoever. Such shares were not issued in violation
of any preemptive rights.
SECTION 3.4 Assets of Rockies House Sub. Rockies
House Sub's assets consist solely of the House Shares. Rockies
House Sub is the record and beneficial owner of the House
Shares, and such shares are held by Rockies House Sub free of
any liens, claims, charges, security interests, pledges, voting
or stockholder agreements, encumbrances or equities, other than
pursuant to this Agreement, the Term Sheet and certain voting
restrictions contained in the Stipulation and Agreement of
Compromise, Settlement and Release entered into in the action
entitled 7547 Corp. v. Liberty Media Corp., et al. in the
Delaware Chancery Court and approved by such court on January
27, 1995 (the "Sec. 203 Settlement Agreement"). Except for
this Agreement, the Term Sheet, certain voting restrictions
contained in the Sec. 203 Settlement Agreement and the
transactions contemplated hereby and thereby, there are no
agreements, arrangements, warrants, options, puts, calls,
rights or other commitments or understandings of any character
to which Rockies House Sub, Rockies Sub or Rockies is a party
or by which any of them is bound and relating to the sale,
purchase, redemption, conversion, exchange, registration,
voting or transfer of any of the House Shares. Following the
Effective Time, the Surviving Corporation will hold the House
Shares, free and clear of any liens, claims, charges, security
interests, pledges, voting or stockholder agreements,
encumbrances or options (other than any of the foregoing
created by Silver Co. or the Surviving Corporation), and will
have full rights of ownership with respect to the House Shares,
including the right to vote the House Shares on all matters
properly presented to the stockholders of House to the extent
-10-
and in the manner set forth in the certificate of incorporation
of House as in effect on the date hereof.
SECTION 3.5 Liabilities of Rockies House Sub. At
the Closing, Rockies House Sub will have no liabilities,
whether contingent or fixed or otherwise (other than as may
arise pursuant to this Agreement or the transactions
contemplated hereby). Since its formation, Rockies House Sub
has conducted no business other than the holding of the House
Shares.
SECTION 3.6 No Approvals or Notices Required; No
Conflict with Instruments. The execution and delivery by each
of Rockies Sub and Rockies House Sub of this Agreement do not,
and the performance by each of Rockies Sub and Rockies House
Sub of their respective obligations hereunder and the
consummation of the transactions contemplated hereby will not:
(i) conflict with or violate the Rockies Sub
Charter, the Rockies House Sub Charter, the Rockies
Sub Bylaws or the Rockies House Sub Bylaws;
(ii) require any Governmental Consent or
Governmental Filing, in each case on the part of or
with respect to each of Rockies Sub and any
subsidiary of Rockies Sub, the absence or omission of
which would, either individually or in the aggregate,
have a material adverse effect on the transactions
contemplated hereby, except for (A) the filing of the
Articles of Merger with the Colorado Secretary of
State and (B) the Governmental Filings required
pursuant to the pre-merger notification requirements
of the HSR Act and the expiration or termination of
any applicable waiting period with respect to the
Merger under the HSR Act;
(iii) require, on the part of Rockies Sub,
Rockies House Sub or House any stockholder approval
that has not been obtained;
(iv) except for any required consent or waiver
under the Second Amended and Restated Credit
Agreement, dated as of August 30, 1994 (as amended by
the First Amendment thereto, dated as of March 29,
1995, and as further amended by the Second Amendment
thereto, dated as of June 28, 1995 and by the Third
Amendment thereto, dated as of September 28, 1995)
among House and certain of its subsidiaries, LTCB
Trust Company as Agent, and the banks that are
signatories thereto (the "House Credit Agreement"),
-11-
require, on the part of Rockies Sub or any subsidiary
of Rockies Sub any Contract Consent or Contract
Notice, the absence or omission of which would,
either individually or in the aggregate, have a
material adverse effect on the transactions
contemplated hereby;
(v) except for any required consent or waiver
under the House Credit Agreement, conflict with or
result in any Violation of any Contract to which
Rockies Sub or any subsidiary of Rockies Sub is a
party, or by which Rockies Sub or any subsidiary of
Rockies Sub, or any of their respective assets or
properties is bound, except for such Violations which
would not, either individually or in the aggregate,
have a material adverse effect on the transactions
contemplated hereby; or
(vi) assuming that the Governmental Filings
specified in clause (ii) of this Section 3.6 are
obtained, made and given, result in a Violation of,
under or pursuant to any law, rule, regulation,
order, judgment or decree applicable to Rockies Sub
or any subsidiary of Rockies Sub or by which any of
their respective properties or assets are bound,
except for such Violations which would not, either
individually or in the aggregate, have a material
adverse effect on the transactions contemplated
hereby.
SECTION 3.7 Brokers or Finders. No agent, broker,
investment banker, financial advisor or other person or entity
is or will be entitled, by reason of any agreement, act or
statement by Rockies Sub or Rockies House Sub, any of their
respective subsidiaries, directors, officers, employees or
affiliates, to any financial advisory, broker's, finder's or
similar fee or commission, to reimbursement of expenses or to
indemnification or contribution in connection with any of the
transactions contemplated by this Agreement.
ARTICLE IV
COVENANTS AND OTHER AGREEMENTS
SECTION 4.1 Reasonable Efforts. Subject to the
terms and conditions of this Agreement and applicable law, each
of the parties shall use its reasonable efforts to take, or
cause to be taken, all actions, and do, or cause to be done,
all things reasonably necessary, proper or advisable to
-12-
consummate and make effective the transactions contemplated by
this Agreement as soon as reasonably practicable, including
such actions or things as either party hereto may reasonably
request in order to cause any of the conditions to such other
party's obligation to consummate such transactions specified in
Article V to be fully satisfied. Without limiting the
generality of the foregoing, the parties shall (and shall cause
their respective subsidiaries, and use their reasonable efforts
to cause their respective affiliates, directors, officers,
employees, agents, attorneys, accountants and representatives,
to) consult and fully cooperate with and provide reasonable
assistance to each other in (1) obtaining all necessary
Contract Consents and Governmental Consents, and giving all
necessary Contract Notices to and making all necessary
Governmental Filings and all other necessary filings with and
applications and submissions to any Governmental Entity or
other person or entity; (2) filing all applicable Pre-Merger
Notification and Report Forms required under the HSR Act as a
result of the transactions contemplated by this Agreement and
promptly complying with any requests for additional information
and documentary material that may be requested pursuant to the
HSR Act; (3) lifting any permanent or preliminary injunction or
restraining order or other similar order issued or entered by
any court or Governmental Entity (an "Injunction") of any type
referred to in Section 5.1; (4) providing all such information
about such party, its subsidiaries and its officers, directors,
partners and affiliates and making all applications and filings
as may be necessary or reasonably requested in connection with
any of the foregoing; and (5) in general, consummating and
making effective the transactions contemplated hereby;
provided, however, that in order to obtain any consent,
approval, waiver, license, permit, authorization, registration,
qualification or other permission or action or the lifting of
any Injunction referred to in clauses (i) and (iii) of this
sentence, no party shall be required to (x) pay any
consideration, to divest itself of any of, or otherwise
rearrange the composition of, its assets or to agree to any
conditions or requirements which are materially adverse or
burdensome or (y) amend, or agree to amend, in any material
respect any Contract. Prior to making any application to or
filing with any Governmental Entity or other person or entity
in connection with this Agreement, each of Silver Co. and
Rockies Sub shall provide the other party with drafts thereof
and afford the other party a reasonable opportunity to comment
on such drafts.
SECTION 4.2 Public Announcements. Each party agrees
that it shall not, and shall use its reasonable efforts to
cause its affiliates, directors, officers, employees and
authorized representatives not to, issue any press release,
-13-
make any public announcement or furnish any written statement
to its employees or stockholders generally concerning the
transactions contemplated by this Agreement without the consent
of the other party (which consent shall not be unreasonably
withheld), except to the extent required by applicable law or
any listing agreement with or other applicable requirements of
a national securities exchange or the applicable requirements
of the NASD (and in such case such party shall, to the extent
consistent with timely compliance with such requirement,
consult with the other party prior to making the required
release, announcement or statement).
SECTION 4.3 Confidentiality. Each party shall, and
shall use its reasonable efforts to cause its officers,
employees and authorized representatives to, (i) hold in
confidence all confidential information obtained by it from the
other party or such other party's officers, employees or
authorized representatives pursuant to this Agreement (unless
such information is or becomes publicly available or readily
ascertainable from public or published information or trade
sources through no wrongful act of such first party) and
(ii) use all such data and information solely for the purpose
of consummating the transactions contemplated hereby, except,
in either case, as may be otherwise required by law or legal
process or as may be necessary or appropriate in connection
with the enforcement of, or any litigation concerning, this
Agreement. In the event a party is required by applicable law
or legal process to disclose any confidential information of
the other party, such first party will provide the other party
with prompt notice thereof to enable such other party to seek
an appropriate protective order. In the event this Agreement
is terminated, each party shall promptly return, if so
requested by the other party, all nonpublic documents obtained
from such other party in connection with the transactions
contemplated hereby and any copies thereof which may have been
made by such first party and shall use its reasonable efforts
to cause its officers, employees and authorized representatives
to whom such documents were furnished promptly to return such
documents and any copies thereof any of them may have made.
SECTION 4.4 House Shares. Silver Co. shall not,
directly or indirectly, transfer, assign, sell, pledge or
otherwise encumber or authorize or propose the transfer,
assignment, sale, pledge or encumbrance of any of the House
Shares acquired or to be acquired by it pursuant to the Merger
except in connection with the consummation of the Exchange.
SECTION 4.5 Notification of Certain Matters.
Rockies Sub and/or Rockies House Sub shall give prompt notice
to Silver Co., and Silver Co. shall give prompt notice to
-14-
Rockies Sub, of the occurrence, or failure to occur, of any
event, which occurrence or failure to occur would be likely to
cause (a) any representation or warranty contained in this
Agreement to be untrue or inaccurate in any material respect,
(b) any material failure of Silver Co. or Rockies Sub and
Rockies House Sub, as the case may be, or of any officer,
director, employee or agent thereof, to comply with or satisfy
any covenant or agreement to be complied with or satisfied by
it under this Agreement or (c) the failure to be satisfied of
any condition to the parties' respective obligations to
consummate the transactions contemplated hereby and by the
Exchange Agreement. Notwithstanding the foregoing, the
delivery of any notice pursuant to this Section shall not limit
or otherwise affect the remedies available hereunder to the
party receiving such notice.
SECTION 4.6 No Amendment of Exchange Agreement.
Silver Co. shall not amend or otherwise alter or waive any of
its rights or obligations (including any conditions on its
obligations to consummate the transactions contemplated thereby
or any amendment to Silver's obligations to consummate the
transactions contemplated thereby) under the Exchange Agreement
in any material respect without the prior written consent of
Rockies Sub.
ARTICLE V
CONDITIONS
SECTION 5.1 Conditions Precedent to the Obligations
of Silver Co., Rockies Sub and Rockies House Sub. The
obligations of each of Silver Co., Rockies Sub and Rockies
House Sub to consummate the transactions contemplated by this
Agreement are subject to the satisfaction at or prior to the
Closing Date of each of the following conditions, any or all of
which may be waived in whole or in part by the parties, to the
extent permitted by applicable law:
(a) Absence of Injunctions. No Injunction or other
legal restraint or prohibition preventing consummation of the
transactions contemplated hereby as provided herein shall be in
effect.
(b) No Proceedings or Adverse Enactments. There
shall not have been any action taken, or any statute, rule,
regulation, order, judgment or decree enacted, promulgated,
entered, issued or enforced by any Governmental Entity, and
there shall be no action, suit, proceeding or investigation
pending or threatened which makes the transactions contemplated
-15-
by this Agreement illegal or imposes, or is reasonably likely
to result in the imposition of, material damages or penalties
in connection therewith.
(c) HSR Act. All applicable waiting periods under
the HSR Act shall have expired or been terminated without
commencement of litigation by the appropriate governmental
enforcement agency to restrain the transactions contemplated
hereby.
(d) Receipt of Governmental Approvals and Consents.
All Governmental Consents as are required in connection with
the consummation of the transactions contemplated hereby shall
have been obtained and shall be in full force and effect and
all Governmental Filings as are required in connection with the
consummation of such transactions shall have been made, and all
waiting periods, if any, applicable to the consummation of such
transactions imposed by any Governmental Entity shall have
expired, other than those which, if not obtained, in force or
effect, made or expired (as the case may be) would not, either
individually or in the aggregate, have a material adverse
effect on the transactions contemplated hereby.
(e) Satisfaction of Conditions to the Exchange. All
of the conditions to the respective parties' obligations to
consummate the Exchange as set forth in Article V of the
Exchange Agreement shall have been satisfied without regard to
any waiver thereof, except for those conditions which by their
nature may only be satisfied as of the closing of the Exchange
and any waivers permitted by Section 4.6 hereof.
SECTION 5.2 Conditions Precedent to the Obligations
of Rockies Sub and Rockies House Sub. The obligation of each
of Rockies Sub and Rockies House Sub to consummate the
transactions contemplated by this Agreement is also subject to
the satisfaction, at or prior to the Closing Date, of each of
the following conditions, any or all of which may be waived in
whole or in part by Rockies Sub or Rockies House Sub, to the
extent permitted by applicable law:
(a) Accuracy of Representations and Warranties. All
representations and warranties of Silver Co. contained in this
Agreement shall, if specifically qualified by materiality, be
true and correct and, if not so qualified, be true and correct
in all material respects in each case as of the Closing Date
(except to the extent such representations and warranties speak
as of a specified earlier date), except for changes expressly
permitted or contemplated by this Agreement.
-16-
(b) Performance of Agreements. Silver Co. shall
have performed in all material respects all obligations and
agreements, and complied in all material respects with all
covenants and conditions, contained in this Agreement to be
performed or complied with by it at or prior to the Closing
Date.
(c) Silver Co. Capital Contribution. The capital
contributions to Silver Co. contemplated by the first two
paragraphs of the section entitled "Formation of Silver
Company" of the Term Sheet shall have been consummated.
(d) Capitalization of Silver Co. and Validity of
Stock Prior to Closing. Immediately prior to the Closing, (i)
one share of Silver Co. Class A Common Stock shall be issued
and outstanding and held beneficially and of record by Arrow
and 615,000 shares shall be reserved for issuance upon
conversion of outstanding shares of Silver Co. Class B Common
Stock and (ii) 615,000 shares of Silver Co. Class B Common
Stock shall be issued and outstanding and held beneficially and
of record by Rockies Sub; no other shares of capital stock of
Silver Co. shall be authorized for issuance and no other shares
of capital stock of Silver Co. shall be outstanding or reserved
for issuance, and no shares shall be held by Silver Co. in its
treasury, except as specifically contemplated by this
Agreement.
(e) No Impediments to the Exchange. There shall be
no circumstance or condition as of the Closing, in the good
faith judgment of Rockies Sub, that will prevent or impede the
consummation of the Exchange immediately following the Closing.
(f) No Proceedings or Adverse Enactments Affecting
Merger Consideration Shares. There shall not have been any
action taken, or any statute, rule, regulation, order, judgment
or decree enacted, promulgated, entered, issued or enforced by
any Governmental Entity, and there shall be no action, suit or
proceeding pending or threatened which would, as of or after
the Closing, impose material limitations on the ability of
Rockies Sub effectively to exercise full rights of ownership of
the Merger Consideration Shares (including, to the extent such
Merger Consideration Shares have voting rights, the right to
vote such shares on all matters properly presented to the
stockholders of Silver Co.).
(g) Xxxxxxx Management Role. Xxxxxxx shall be the
Chief Executive Officer and/or Chairman of the Board and/or
President of Silver and shall be the Chairman of the Board of
House.
-17-
(h) Officer's Certificates. Rockies Sub shall have
received a certificate of Silver Co. dated the Closing Date,
signed by an executive officer of Silver Co. certifying that
the conditions set forth in Sections 5.1(e), 5.2 (a) and 5.2(b)
have been satisfied, which certification shall have been given
by such officers after due inquiry.
(i) Other Deliveries. All other documents and
instruments required under this Agreement to have been
delivered by Silver Co. to Rockies Sub or Rockies House Sub at
or prior to the Closing or as Rockies Sub or Rockies House Sub
shall have reasonably requested, shall have been delivered by
Silver Co.
(j) No Adverse Change or Development. Except with
respect to the Reserved Matters (as defined below), subsequent
to August 31, 1995, there shall not have occurred any change or
development in or affecting the assets, liabilities, business,
operations, or financial condition of Silver which in any case
or in the aggregate would, in the reasonable judgment of the
Board of Directors of Rockies, represent a material adverse
effect upon Silver and its subsidiaries, taken as a whole. For
purposes of this paragraph (j), the term "Reserved Matters"
shall mean any information relating to the assets, liabilities,
business operations or financial condition of Silver which is
contained in, is reasonably discernable from, results from, or
which is or has become known to, as applicable, any of the
following:
(i) any reports or statements filed by Silver
with the SEC with respect to periods subsequent
to August 31, 1995 and prior to the date of this
Agreement;
(ii) any information delivered to Rockies or
its representatives prior to the date of this
Agreement, in connection with any investigation,
discussions, reviews or analyses of the business
and affairs of Silver conducted by Rockies or
its representatives, or otherwise; and
(iii) with respect to any current or recurring
negative financial or operating trend,
information with respect to Silver, any
continuance (including any continued or
accelerated deterioration) thereof, beyond the
date hereof, which information is contained in
the Reserved Matters referred to in clauses (i)
and (ii) above.
-18-
(k) Audited Financial Statements. Except to the
extent contained in the matters referred to in clauses (i) and
(ii) of the Reserved Matters, the audited financial statements
of Silver, as of and for the fiscal year ended August 31, 1995,
contained in the Annual Report on Form 10-K of Silver for the
fiscal year ended August 31, 1995, as amended, shall have been
prepared in accordance with generally accepted accounting
principles, applied on a consistent basis throughout the fiscal
year ended August 31, 1995 (except as may be indicated in the
notes thereto), and shall have fairly presented the
consolidated financial position of Silver and its consolidated
subsidiaries as of August 31, 1995 and the consolidated results
of its operations and cash flows for the fiscal year ended
August 31, 1995, except for such failures to have been prepared
and/or to have fairly presented the foregoing as do not,
individually or in the aggregate, represent a material adverse
effect on the assets, liabilities, business, operations or
financial condition of Silver and its subsidiaries, taken as a
whole.
(l) Consummation of SP Merger. The merger between
Savoy Pictures Entertainment, Inc. ("Savoy") and a wholly-owned
subsidiary of Silver (the "SP Merger") shall have been
consummated in accordance with that certain Agreement and Plan
of Merger, dated as of the date hereof, between Silver and
Savoy (the "SP Merger Agreement") or, in the event the SP
Merger Agreement has previously been terminated, the failure to
obtain a Governmental Consent of the FCC required in connection
with the consummation of the SP Merger shall not have been a
material factor in the failure of the SP Merger to have been
consummated.
SECTION 5.3 Conditions Precedent to the Obligations
of Silver Co. The obligation of Silver Co. to consummate the
transactions contemplated by this Agreement is also subject to
the satisfaction, at or prior to the Closing Date, of each of
the following conditions, any or all of which may be waived in
whole or in part by Silver Co., to the extent permitted by
applicable law:
(a) Accuracy of Representations and Warranties. All
representations and warranties of Rockies Sub and Rockies House
Sub contained in this Agreement shall, if specifically
qualified by materiality, be true and correct and, if not so
qualified, be true and correct in all material respects in each
case as of the date of this Agreement and (except to the extent
such representations and warranties speak as of a specified
earlier date) on and as of the Closing Date, with the same
force and effect as though made on and as of the Closing Date,
-19-
except for changes expressly permitted or contemplated by this
Agreement.
(b) Performance of Agreements. Each of Rockies Sub
and Rockies House Sub shall have performed in all material
respects all obligations and agreements, and complied in all
material respects with all covenants and conditions, contained
in this Agreement to be performed or complied with by them at
or prior to the Closing Date.
(c) Officer's Certificates. Silver Co. shall have
received a certificate of each of Rockies Sub and Rockies House
Sub dated the Closing Date, signed by an executive officer of
Rockies Sub or Rockies House Sub, as the case may be,
certifying that the conditions set forth in Sections 5.3 (a) or
(b) have been satisfied, which certification shall have been
given by such officers after due inquiry.
(d) Other Deliveries. All other documents and
instruments required under this Agreement to have been
delivered by Rockies Sub or Rockies House Sub to Silver Co. at
or prior to the Closing, or as Silver Co. shall reasonably
request, shall have been delivered by Rockies Sub or Rockies
House Sub.
ARTICLE VI
TERMINATION
SECTION 6.1 Termination and Abandonment. This
Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Closing,
(i) by mutual written consent of Rockies Sub and Silver Co.; or
(ii) by either Rockies Sub or Silver Co.: (A) if the Closing
shall not have occurred before May 30, 1996 (provided, that if
the Merger shall not have been consummated as of such date as a
result of the failure to have been satisfied of the condition
contained in Section 5.2(l) and such condition, in the
reasonable opinion of the parties, is likely to have been
satisfied on or prior to August 30, 1996, then such date shall
be extended to August 30, 1996); provided that the right to
terminate this Agreement pursuant to this clause (ii)(A) shall
not be available to any party whose failure to perform any of
its obligations under this Agreement required to be performed
by it at or prior to the Closing has resulted in the failure of
the Closing to occur before such date, (B) if there has been a
material breach by the other party of any of its
representations, warranties, covenants or agreements contained
in this Agreement and such breach shall not have been cured
-20-
within five business days after written notice thereof shall
have been received by the party alleged to be in breach or
(C) if any court of competent jurisdiction or other competent
Governmental Entity shall have issued an order, decree or
ruling or taken any other action permanently restraining,
enjoining or otherwise prohibiting any of the transactions
contemplated by this Agreement and such order, decree, ruling
or other action shall have become final and nonappealable.
SECTION 6.2 Effect of Termination. In the event of
any termination of this Agreement by Rockies Sub, Rockies House
Sub or Silver Co. pursuant to Section 6.1, this Agreement
forthwith shall become void, and there shall be no liability or
obligation on the part of any party hereto, except that
Sections 4.3 and 7.3 shall survive the termination of this
Agreement and except that nothing herein will relieve a party
from liability for any breach of this Agreement occurring prior
to such termination.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Failure to Consummate the Exchange. In
the event that the Merger is consummated, but, for any reason
whatsoever, the Exchange is not consummated immediately
thereafter and on the same date in a manner reasonably
satisfactory (and in accordance with the Exchange Agreement) to
Rockies Sub and its counsel, then, notwithstanding any
provision of this Agreement apparently to the contrary, (i)
Rockies Sub and Rockies House Sub shall have no further
obligations under this Agreement (except as provided in Section
6.2) and (ii) in addition to any other rights or remedies which
Rockies Sub and Rockies House Sub may have pursuant hereto or
at law or in equity, Rockies Sub, for itself and on behalf of
Rockies House Sub, shall have the unconditional right to
rescind the transactions consummated pursuant to this
Agreement, in which event Silver Co. shall take all such
actions as may be necessary to make such rescission fully
effective, including, but not limited to, upon the request of
Rockies Sub, transferring the House Shares held by the
Surviving Corporation to Rockies Sub upon delivery by Rockies
Sub of the Merger Consideration Shares.
SECTION 7.2 Further Assurances. From and after the
Closing Date, each of Silver Co., Rockies Sub and Rockies House
Sub shall, at any time and from time to time, make, execute and
deliver, or cause to be made, executed and delivered, such
instruments, agreements, consents and assurances and take or
-21-
cause to be taken all such actions as may reasonably be
requested by any other party hereto to effect the purposes and
intent of this Agreement.
SECTION 7.3 Expenses. Except as otherwise provided
herein, 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, whether or not the Closing
shall occur.
SECTION 7.4 Notices. All notices, requests,
demands, waivers and other communications required or permitted
to be given under this Agreement shall be in writing and shall
be deemed to have been duly given on (i) the day on which
delivered personally or by telecopy (with prompt confirmation
by mail) during a business day to the appropriate location
listed as the address below, (ii) three business days after the
posting thereof by United States registered or certified first
class mail, return receipt requested, with postage and fees
prepaid or (iii) one business day after deposit thereof for
overnight delivery. Such notices, requests, demands, waivers
or other communications shall be addressed as follows:
(a) if to Silver Co. to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier No.: 212-403-2000
(b) if to Rockies Sub or Rockies House Sub, to such
party, care of:
Liberty Media Corporation
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, President
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxx Xxx.
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxxx XxXxxxx, Esq.
Telecopier: (000) 000-0000
-22-
or to such other person or address as any party shall specify
by notice in writing to the other party.
SECTION 7.5 Entire Agreement. This Agreement
(including the documents referred to herein) constitutes the
entire agreement with respect to the subject matter hereof
between the parties and supersedes all prior agreements and
understandings, oral and written, between the parties with
respect to the subject matter hereof.
SECTINO 7.6 Assignment; Binding Effect; Benefit.
Neither this Agreement nor any of the rights, benefits or
obligations hereunder may be assigned by any party without the
prior written consent of the other parties hereto. Subject to
the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any
person other than the parties or their respective successors
and assigns, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
SECTION 7.7 Amendment. This Agreement may be
amended prior to the Effective Time by Silver Co. and Rockies
Sub, by action taken by their respective Boards of Directors at
any time before or after approval of the Merger by the
stockholders of Silver Co. and Rockies House Sub, but after any
such approval, no amendment shall be made which by law requires
further approval by such stockholders without such further
approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of Silver Co.
and Rockies Sub.
SECTION 7.8 Extension; Waiver. Rockies Sub or
Silver Co. may, to the extent legally allowed, (i) extend the
time specified herein for the performance of any of the
obligations of the other party, (ii) waive any inaccuracies in
the representations and warranties of the other party contained
herein or in any document delivered pursuant hereto,
(iii) waive compliance by the other party with any of the
agreements or covenants of such other party contained herein or
(iv) waive any condition to such waiving party's obligation to
consummate the transactions contemplated hereby or to any of
such waiving party's other obligations hereunder. Any
agreement on the part of a party hereto to any such extension
or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party. Any such extension
or waiver by any party shall be binding on such party but not
on the other party entitled to the benefits of the provision of
this Agreement affected unless such other party also has agreed
to
-23-
such extension or waiver. No such waiver shall constitute a
waiver of, or estoppel with respect to, any subsequent or other
breach or failure to comply strictly with the provisions of
this Agreement. The failure of any party to insist on strict
compliance with this Agreement or to assert any of its rights
or remedies hereunder or with respect hereto shall not
constitute a waiver of such rights or remedies. Whenever this
Agreement requires or permits consent or approval by any party,
such consent or approval shall be effective if given in writing
in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 7.8.
SECTION 7.9 Survival. The representations and
warranties made by Silver Co. in Sections 2.1, 2.2, 2.4, 2.5
and 2.6 shall survive the Closing until the expiration of the
statute of limitations period applicable to claims that may be
asserted against Silver Co. in respect of the matters covered
thereby; the representations and warranties made by each of
Rockies Sub and Rockies House Sub in Sections 3.1, 3.2, 3.4,
3.5, 3.6 and 3.7 shall survive the Closing until the expiration
of the statute of limitations period applicable to claims that
may be asserted against each of Rockies Sub and Rockies House
Sub in respect of the matters covered thereby; the
representations and warranties of Silver Co. in Section 2.3 and
of each of Rockies Sub and Rockies House Sub in Section 3.3
shall survive indefinitely. No other representations or
warranties of the parties contained in this Agreement shall
survive the Closing. In addition, the covenants and agreements
in Sections 4.3, 4.4, and 4.6 and Article VII shall also
survive the Closing until the expiration of the statute of
limitations period applicable to claims that may be asserted in
respect of the matters covered thereby.
SECTION 7.10 Interpretation. When a reference is
made in this Agreement to Sections, Articles or Schedules, such
reference shall be to a Section, Article or Schedule (as the
case may be) of this Agreement unless otherwise indicated.
When a reference is made in this Agreement to a "party" or
"parties", such reference shall be to a party or parties to
this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the
words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words
"without limitation". The use of any gender herein shall be
deemed to be or include the other genders and the use of the
singular herein shall be deemed to be or include the plural
(and vice versa), wherever appropriate. The use of the words
"hereof", "herein", "hereunder" and words of similar import
-24-
shall refer to this entire Agreement, and not to any particular
article, section, subsection, clause, paragraph or other
subdivision of this Agreement, unless the context clearly
indicates otherwise.
SECTION 7.11 Severability. If any provision of this
Agreement or the application thereof to any person or
circumstance is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated
thereby, provided that, if any provision hereof or the
application thereof shall be so held to be invalid, void or
unenforceable by a court of competent jurisdiction, then such
court may substitute therefor a suitable and equitable
provision in order to carry out, so far as may be valid and
enforceable, the intent and purpose of the invalid, void or
unenforceable provision. To the extent that any provision
shall be judicially unenforceable in any one or more states,
such provision shall not be affected with respect to any other
state, each provision with respect to each state being
construed as several and independent.
SECTION 7.12 Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed to be
an original, and all of which together shall be deemed to be
one and the same instrument.
SECTION 7.13 Applicable Law. This Agreement and the
legal relations between the parties shall be governed by and
construed in accordance with the laws of the State of Delaware,
without regard to the conflict of laws rules thereof.
-25-
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement and Plan of Merger as of the date first above
written.
SILVER MANAGEMENT COMPANY
/s/ Xxxxx Xxxxxx
By: Xxxxx Xxxxxx
Title: President
LIBERTY PROGRAM INVESTMENTS, INC.
/s/ Xxxxxx X. Xxxxxxx
By: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
LIBERTY HSN, INC.
/s/ Xxxxxx X. Xxxxxxx
By: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
-26-
