Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment # 1 to Form S-1 233 1.44M
2: EX-1.1 Purchase Agreement Dated October 22, 1997 42 183K
3: EX-2.1 Share Transfer Agreement Dated April 15, 1996 12 51K
4: EX-2.2 Agreement for the Purchase of Film Assets 9 45K
5: EX-2.3 Agreement and Plan of Merger 40 198K
6: EX-2.4 Stock Purchase Agreement Dated as of June 11, 1997 20 90K
7: EX-2.5 Stock Purchase Agreement Dated as of June 11, 1997 17 80K
8: EX-2.6 Stock Purchase Agreement 17 80K
9: EX-2.7 Amended and Restated Agreement 16 68K
10: EX-3.1 Corrected and Restated Certificate 21 104K
11: EX-3.2 Amended and Restated Bylaws 22 95K
12: EX-4.1 Senior Notes Indenture 167 574K
13: EX-4.2 Senior Discount Notes Indenture 169 585K
14: EX-4.3 Senior Notes Registration Rights Agreement 37 135K
15: EX-4.4 Senior Discount Notes Registration Rights 38 142K
Agreement
16: EX-4.5 Senior Notes Liquidated Damages Agreement 5 28K
17: EX-4.6 Senior Discount Notes Liquidated Damages Agreement 5 28K
18: EX-10.1 Amended & Restated Strategic Stockholders 38 149K
Agreement
25: EX-10.12 Operating Agreement 34 146K
26: EX-10.14 Amendment No. 2 to Operating Agreement 10 45K
27: EX-10.17 Stock Ownership Agreement 11 46K
28: EX-10.18 Amendment No. 1 to Stock Ownership Agreement 5 26K
19: EX-10.2 Employment Assumption Agreement 2 22K
29: EX-10.20 Form of Fox Broadcasting Co. Station Affiliate 11 55K
Agreement
30: EX-10.21 Merchandising Rights Acquisition Agreement 12 55K
31: EX-10.22 Indemnification Agreement 6 30K
32: EX-10.23 Distribution Rights Acquisition Agreement 27 95K
33: EX-10.24 Administration Agreement 2 19K
34: EX-10.25 Registration Agreement 20 74K
35: EX-10.26 Amendment No. 1 to Registration Agreement 4 25K
36: EX-10.27 Contribution and Exchange Agreement 30 144K
37: EX-10.28 Guarantee Dated as of December 22, 1995 9 35K
38: EX-10.29 First Amendment to Lease 6 33K
20: EX-10.3 Employment Assumption Agreement 2 22K
39: EX-10.30 Guaranty of Lease 7 40K
40: EX-10.33 Funding Agreement 10 48K
41: EX-10.34 Guaranty Dated as of June 11, 1997 5 34K
42: EX-10.35 Distribution Agreement Dated August 21, 1992 20 68K
43: EX-10.36 Memorandum of Agreement 10 40K
44: EX-10.38 10960 Wilshire Boulevard Office Lease 93 410K
45: EX-10.39 Production Facility Agreement 14 57K
46: EX-10.40 Letter Agreement Dated as of January 1, 1995 3 26K
47: EX-10.41 Barter Syndication Agreement 2 19K
48: EX-10.42 Letter Agreement Dated as of September 26, 1996 22 84K
49: EX-10.43 First Amendment to the Contribution and Exchange 2 18K
Agreement
50: EX-10.44 Agreement Re Registration Rights 5 23K
51: EX-10.46 Agreement Re Transfer of LLC Interests 3 23K
52: EX-10.48 Subordinated Promissory Note 36 146K
21: EX-10.5 Form of Indemnification Agreement 10 54K
53: EX-10.54 Registration Rights Agreement 18 90K
22: EX-10.6 Employment Agreement 6 38K
23: EX-10.8 Employment Agreement 31 101K
24: EX-10.9 Employment Agreement 25 89K
54: EX-12.1 Ratio of Earnings to Fixed Charges 1 19K
55: EX-21.1 Subsidiaries of the Registrant 3 21K
56: EX-23.2 Consent of Independent Auditors 1 17K
57: EX-23.3 Consent of Independent Auditors 1 15K
58: EX-24.2 Power of Attorney 1 18K
59: EX-25.1 Statement of Eligibility - Bank of New York 10 46K
60: EX-27.1 Article 5 FDS 2 19K
EXHIBIT 1.1
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FOX KIDS WORLDWIDE, INC.
9 1/4% Senior Notes due 2007
10 1/4% Senior Discount Notes due 2007
PURCHASE AGREEMENT
Dated: October 22, 1997
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TABLE OF CONTENTS
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PURCHASE AGREEMENT.................................................................. 1
SECTION 1. Representations and Warranties...................................... 3
(a) Representations and Warranties by the Company....................... 3
(i) Similar Offerings.......................................... 3
(ii) Offering Memorandum........................................ 3
(iii) Independent Accountants.................................... 3
(iv) Financial Statements....................................... 3
(v) No Material Adverse Change in Business..................... 4
(vi) Good Standing of the Company............................... 4
(vii) Good Standing of Subsidiaries.............................. 4
(viii) Authorization of Agreement................................. 5
(ix) Authorization of the Indentures............................ 5
(x) Authorization of the Securities............................ 5
(xi) Authorization of the Registration Rights Agreements........ 6
(xii) Description of the Securities, the Indentures and the
Registration Rights Agreements............................. 6
(xiii) Absence of Defaults and Conflicts.......................... 6
(xiv) Absence of Proceedings..................................... 7
(xv) Possession of Intellectual Property........................ 7
(xvi) Possession of Licenses and Permits......................... 7
(xvii) Title to Property.......................................... 8
(xviii) Tax Returns................................................ 8
(xix) Environmental Laws......................................... 8
(xx) Investment Company Act..................................... 9
(xxi) No General Solicitation.................................... 9
(xxii) No Registration Required................................... 9
(xxiii) No Directed Selling Efforts................................10
(xxiv) No Stabilization or Manipulation...........................10
(xxv) Solvency...................................................10
(xxvi) Compliance with Cuba Act...................................10
(b) Officer's Certificates..............................................10
SECTION 2. Sale and Delivery to Initial Purchasers, Closing....................11
(a) Securities..........................................................11
(b) Payment.............................................................11
(c) Qualified Institutional Buyer.......................................11
(d) Denominations, Registration.........................................11
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SECTION 3. Covenants of the Company............................................12
(a) Offering Memorandum.................................................12
(b) Notice and Effect of Material Events................................12
(c) Amendment to Offering Memorandum and Supplements....................12
(d) Qualification of Securities for Offer and Sale......................12
(e) Rating of Securities................................................13
(f) DTC.................................................................13
(g) Use of Proceeds.....................................................13
(h) Restriction on Sale of Securities...................................13
(i) Termination of Obligations..........................................13
SECTION 4. Payment of Expenses.................................................14
(a) Expenses............................................................14
(b) Termination of Agreement............................................14
SECTION 5. Conditions of Initial Purchasers' Obligations.......................14
(a) Opinion of Counsel for the Company..................................14
(b) Opinion of Special Counsel for the Company..........................15
(c) Opinion of Regulatory Counsel for the Company.......................15
(d) Opinion of Counsel for Initial Purchasers...........................15
(e) Officers' Certificate...............................................16
(f) Accountants' Comfort Letter.........................................16
(g) Bring-down Comfort Letter...........................................16
(h) Maintenance of Rating...............................................16
(i) PORTAL..............................................................17
(j) Registration Rights Agreements......................................17
(k) Subordination of Notes..............................................17
(l) Credit Facility.....................................................17
(m) Additional Documents................................................17
(n) Termination of Agreement............................................17
SECTION 6. Subsequent Offers and Resales of the Securities.....................18
(a) Offer and Sale Procedures...........................................18
(i) Offers and Sales only to Qualified Institutional Buyers......18
(ii) No General Solicitation......................................18
(iii) Purchases by Non-Bank Fiduciaries............................18
(iv) Subsequent Purchaser Notification............................18
(v) Restrictions on Transfer.....................................18
(vi) Delivery of Offering Memorandum..............................19
(b) Covenants of the Company............................................19
(i) Due Diligence................................................19
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(ii) Rule 144A Information......................................19
(iii) Restriction on Repurchases.................................19
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A..........19
SECTION 7. Indemnification...................................................20
(a) Indemnification of Initial Purchasers.............................20
(b) Indemnification of Company, Directors and Officers................21
(c) Actions against Parties; Notification.............................22
(d) Settlement without Consent if Failure to Reimburse................23
SECTION 8. Contribution......................................................23
SECTION 9. Representations, Warranties and Agreements to Survive Delivery....24
SECTION 10. Termination of Agreement..........................................25
(a) Termination; General..............................................25
(b) Liabilities.......................................................25
SECTION 11. Default by One or More of the Initial Purchasers..................25
SECTION 12. Notices...........................................................26
SECTION 13. Parties...........................................................26
SECTION 14. GOVERNING LAW AND TIME............................................27
SECTION 15. Effect of Headings................................................27
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FOX KIDS WORLDWIDE, INC.
$475,000,000 9 1/4% SENIOR NOTES DUE 2007
$618,670,000 10 1/4% SENIOR DISCOUNT NOTES DUE 2007
PURCHASE AGREEMENT
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October 22, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
CITICORP SECURITIES, INC.
BEAR, STEARNS & CO. INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION
MORGAN STANLEY & CO. INCORPORATED
as Initial Purchasers
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
FOX KIDS WORLDWIDE, INC., a Delaware corporation (the "Company"),
confirms its agreement with MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED, CITICORP SECURITIES, INC., BEAR, STEARNS & CO. INC.,
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION AND MORGAN STANLEY & CO.
INCORPORATED (collectively, the "Initial Purchasers", which term shall also
include any initial purchaser substituted as hereinafter provided in Section 11
hereof), with respect to the issue and sale by the Company and the purchase by
the Initial Purchasers, acting severally and not jointly, of the respective
principal amounts set forth in said Schedule A of $475,000,000 aggregate
principal amount of the Company's Senior Notes due 2007 (the "Senior Notes") and
$618,670,000 aggregate principal amount at maturity of the Company's Senior
Discount Notes due 2007 (the "Senior Discount Notes" and, together with the
Senior Notes, the "Securities"). The Senior Notes are to be issued
pursuant to an indenture dated as of October 28, 1997 (the "Senior Notes
Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). The Senior Discount Notes are to be issued pursuant to an indenture
dated as of October 28, 1997 (the "Senior Discount Notes Indenture" and,
together with the Senior Notes Indenture, the "Indentures") between the Company
and the Trustee. Securities issued in book-entry form will be issued to Cede &
Co. as nominee of The Depository Trust Company ("DTC.") pursuant to a letter
agreement, to be dated as of the Closing Time (as defined in Section 2(b)) (the
"DTC Agreement"), among the Company, the Trustee and DTC.
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth in the
Offering Memorandum (as defined hereafter) and herein and agrees that the
Initial Purchasers may resell, subject to the conditions set forth herein, all
or a portion of the Securities to purchasers ("Subsequent Purchasers") at any
time after the date of this Agreement. The Securities are to be offered and
sold through the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the " 1933 Act"), in reliance upon
exemptions therefrom. Investors that acquire Securities may only resell or
otherwise transfer such Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the registration requirements of the
1933 Act is available (including the exemption afforded by Rule 144A ("Rule
144A") or Regulation S ("Regulation S") of the rules and regulations promulgated
under the 1933 Act by the Securities and Exchange Commission (the "Commission").
The Company has prepared and delivered to each Initial Purchaser
copies of a preliminary offering memorandum dated October 9, 1997 (the
"Preliminary Offering Memorandum") and has prepared and will deliver to each
Initial Purchaser, on the date hereof or the next succeeding day, copies of a
final offering memorandum dated October 22, 1997 (the "Final Offering
Memorandum"), each for use by such Initial Purchaser in connection with the
offer or resale of the Securities. "Offering Memorandum" means, with respect to
any date or time referred to in this Agreement, the most recent offering
memorandum (whether the Preliminary Offering Memorandum or the Final Offering
Memorandum, or any amendment or supplement to either such document), including
exhibits thereto and any documents incorporated therein by reference, that has
been prepared and delivered by the Company to the Initial Purchasers in
connection with their solicitation of purchases of, or offering of, the
Securities.
All references in this Agreement to financial statements and schedules
and other information that is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
that are incorporated by reference in the Offering Memorandum.
The Initial Purchasers and other holders of the Senior Notes and
Senior Discount Notes will be entitled to the benefits of Registration Rights
Agreements, dated
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October 28, 1997, between the Company and the Initial Purchasers (the
"Registration Rights Agreements"). Pursuant to the Registration Rights
Agreements, the Company will agree to file with the Commission under the
circumstances set forth therein, (i) a registration statement under the 1933 Act
(the "Exchange Offer Registration Statement") registering an issue of debt
securities identical in all material respects to the Securities (the "Exchange
Securities") to be offered in exchange for the Securities (the "Exchange Offer")
and (ii) under certain circumstances, a registration statement pursuant to Rule
415 under the 1933 Act (the "Shelf Registration Statement").
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Initial Purchaser as of the date hereof and as
of the Closing Time referred to in Section 2(b) hereof and agrees with each
Initial Purchaser as follows:
(i) Similar Offerings. The Company has not, directly or indirectly,
-----------------
solicited any offer to buy or offered to sell, and will not, directly or
indirectly, solicit any offer to buy or offer to sell, in the United States
or to any United States citizen or resident, any security that is or would
be integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the 1933 Act.
(ii) Offering Memorandum. The Offering Memorandum as of its date did
-------------------
not, as of the date hereof does not, and at the Closing Time will not,
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
this representation, warranty and agreement shall not apply to statements
in or omissions from the Offering Memorandum made in reliance upon and in
conformity with information furnished to the Company in writing by any
Initial Purchaser expressly for use in the Offering Memorandum.
(iii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included in the Offering
Memorandum are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of Regulation S-X under the
1933 Act.
(iv) Financial Statements. The financial statements, together with
--------------------
the related schedules and notes, included in the Offering Memorandum
present fairly the financial position of the Company, its consolidated
subsidiaries and the predecessor entities to the Company at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of the Company, its consolidated subsidiaries and the predecessor
entities to the Company for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP")
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applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Offering Memorandum present
fairly in accordance with GAAP the information required to be stated
therein. The pro forma financial statements of the Company and its
subsidiaries and the related notes thereto included in the Offering
Memorandum have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(v) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Offering Memorandum, except
as otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings or business
affairs of the Company and its subsidiaries (each a "Subsidiary" and,
collectively, the "Subsidiaries") considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company,
any of its Subsidiaries or any of its affiliates which are material with
respect to the Company and its Subsidiaries considered as one enterprise
and (C) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has the corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Offering Memorandum and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; all of the issued and outstanding
capital stock of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; none of the outstanding shares of
capital stock of the Company was issued in violation of any preemptive or
similar right arising by operation of law, or under the charter or by-laws
of the Company or under any agreement to which the Company is a party.
(vii) Good Standing of Subsidiaries. Each of the Subsidiaries has
-----------------------------
been duly organized and is validly existing as a limited liability company,
corporation, limited partnership or general partnership in good standing
under the laws of the jurisdiction of its organization, has the requisite
power and authority to own, lease and operate its properties and to conduct
its business as described in the Offering Memorandum and
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is duly qualified as a foreign limited liability company, corporation,
limited partnership or general partnership to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; except as otherwise
disclosed in the Offering Memorandum, all of the issued and outstanding
capital stock of each Subsidiary that is a corporation has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through Subsidiaries; none of the
outstanding shares of capital stock, limited liability company interests or
partnership interests of any of the Subsidiaries was issued in violation of
any preemptive or similar rights arising by operation of law, or under the
charter, by-laws, certificate of formation, limited liability company
agreement, partnership agreement, or other organizational documents of any
Subsidiary or under any agreement to which the Company or any Subsidiary is
a party.
(viii) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company.
(ix) Authorization of the Indentures. The Indentures have been duly
-------------------------------
authorized by the Company and, at the Closing Time, will have been duly
executed and delivered by the Company and will constitute valid and binding
agreements of the Company (assuming due execution and delivery of the
Indentures by the Trustee), enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights generally, or by
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(x) Authorization of the Securities. The Securities and the Exchange
-------------------------------
Securities have been duly authorized by the Company and, at the Closing
Time, the Securities will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indentures and delivered
against payment of the purchase price therefor will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers) reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and will be
in the form contemplated by, and entitled to the benefits of, the
Indentures.
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(xi) Authorization of the Registration Rights Agreements. The
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Registration Rights Agreements have been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and will constitute valid and binding agreements of the Company
(assuming due execution and delivery by the Initial Purchasers),
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by (i) bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) or (ii) as to any indemnification or contribution
provision thereof, by any applicable state or federal securities laws,
rules or regulations or by public policy.
(xii) Description of the Securities, the Indentures and the
-----------------------------------------------------
Registration Rights Agreements. The Securities, the Indentures and the
------------------------------
Registration Rights Agreements conform in all material respects to the
respective statements relating thereto contained in the Offering Memorandum
and are in substantially the respective forms previously delivered to the
Initial Purchasers.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor
---------------------------------
any of the Subsidiaries is in violation of its certificate of formation,
limited liability company agreement, charter, by-laws, partnership
agreement or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any of the Subsidiaries is subject (collectively, "Agreements
and Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement, the Indentures, the Registration Rights Agreements and the
Securities and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Offering Memorandum
and the consummation of the transactions contemplated herein, therein or in
the Offering Memorandum (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in
the Offering Memorandum under the caption "Use of Proceeds") and compliance
by the Company with its obligations hereunder do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or a Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to, the Agreements
-6-
and Instruments except for such conflicts, breaches or defaults or liens,
charges or encumbrances that, singly or in the aggregate, would not result
in a Material Adverse Effect, nor will such action result in any violation
of the provisions of the certificate of formation, limited liability
company agreement, charter, by-laws, partnership agreement, or other
organizational documents of the Company or any of the Subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of the Subsidiaries or
any of their assets or properties, except for such violations that would
not result in a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition that gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of
the Subsidiaries.
(xiv) Absence of Proceedings. Except as disclosed in the Offering
----------------------
Memorandum, there is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, foreign or domestic
(including, but not limited to the Federal Communications Commission), now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any Subsidiary that would reasonably be expected
to result in a Material Adverse Effect, or that would reasonably be
expected to materially and adversely affect the consummation of this
Agreement or the performance by the Company of its obligations hereunder.
(xv) Possession of Intellectual Property. The Company and the
-----------------------------------
Subsidiaries own or possess adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary to
carry on the business now operated by them, and, to the Company's best
knowledge, neither the Company nor any of the Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances that would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of the
Subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xvi) Possession of Licenses and Permits. The Company and its
----------------------------------
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now
-7-
operated by them; the Company and its Subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the
Company nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xvii) Title to Property. The Company and its Subsidiaries have good
-----------------
and marketable title to all real property owned by the Company and its
Subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Offering Memorandum or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its Subsidiaries; and all of the leases and subleases
material to the business of the Company and its Subsidiaries, considered as
one enterprise, and under which the Company or any of its Subsidiaries
holds properties described in the Offering Memorandum, are in full force
and effect, and neither the Company nor any of its Subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any of its Subsidiaries under any
of the leases or subleases mentioned above, or affecting or questioning the
rights of such the Company or any Subsidiary thereof to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xviii) Tax Returns. The Company has filed all federal, state, local
-----------
and foreign tax returns and its Subsidiaries have filed all material
federal, state, local and foreign tax returns, in each case, that are
required to be filed or have duly requested extensions thereof and have
paid all material taxes required to be paid by any of them and any related
assessments, fines or penalties, except for any such tax, assessment, fine
or penalty that is being contested in good faith and by appropriate
proceedings; or as to which adequate charges, accruals and reserves have
been provided for in the financial statements referred to in Section
1(a)(iv) above.
(xix) Environmental Laws. Except as described in the Offering
------------------
Memorandum and except such matters as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company nor
any of its Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code,
-8-
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the Company's best
knowledge, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its Subsidiaries and (D) to the Company's
best knowledge, there are no events or circumstances that would reasonably
be expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its Subsidiaries
relating to Hazardous Materials or Environmental Laws.
(xx) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum will not be, an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxi) No General Solicitation. None of the Company, its affiliates,
-----------------------
as such term is defined in Rule 501(b) under the 1933 Act ("Affiliates"),
or any person acting on any of their behalf (other than the Initial
Purchasers or any person acting on their behalf, as to whom the Company
makes no representation) has engaged or will engage, in connection with the
offering of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xxii) No Registration Required. Subject to compliance by the
------------------------
Initial Purchasers with the representations and warranties set forth in
Section 2 and the procedures set forth in Section 6 hereof, except in
connection with the filing of a registration statement to effect the
Exchange Offer or the filing of the Shelf Registration Statement as
contemplated by the Registration Rights Agreement, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the
-9-
Offering Memorandum to register the Securities under the 1933 Act or to
qualify the Indentures under the Trust Indenture Act of 1939, as amended
(the "1939 Act").
(xxiii) No Directed Selling Efforts. With respect to those
---------------------------
Securities, if any, sold in reliance on Regulation S, (A) none of the
Company, their Affiliates or any person acting on their behalf (other than
the Initial Purchasers or any person acting on their behalf, as to whom the
Company makes no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (B) the Company and
its Affiliates and any person acting on their behalf (other than the
Initial Purchasers or any person acting on their behalf, as to whom the
Company makes no representation) have complied and will comply with the
offering restrictions requirement of Regulation S.
(xxiv) No Stabilization or Manipulation. The Company has not taken
--------------------------------
and will not take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities or the Exchange Securities.
(xxv) Solvency. The Company does not intend to, nor does it believe
--------
that it will, incur debts beyond its ability to pay such debts as they
mature. After giving effect to the transactions contemplated by the
Offering Memorandum, the fair saleable value of the assets of the Company
on a consolidated basis will exceed the amount that will be required to be
paid on or in respect of the existing debts and other liabilities
(including contingent liabilities) of the Company on a consolidated basis
as they become absolute and mature. The assets of the Company on a
consolidated basis do not constitute unreasonably small capital to carry
out the business of the Company and its Subsidiaries, taken as a whole, as
conducted or as proposed to be conducted.
(xxvi) Compliance with Cuba Act. The Company and the Subsidiaries
------------------------
have complied with, and are and will be in compliance with, the provisions
of that certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the rules
and regulations thereunder (collectively, the "Cuba Act") or are exempt
therefrom.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of the Subsidiaries delivered to the Initial Purchasers or to
counsel for the Initial Purchasers shall be deemed a representation and warranty
by the Company to each Initial Purchaser as to the matters covered thereby;
provided, however, that any such officer shall not be liable with respect
-------- -------
thereto in any respect.
-10-
SECTION 2. Sale and Delivery to Initial Purchasers, Closing.
------------------------------------------------
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Initial Purchaser, severally and not jointly, and
each Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, for the aggregate price set forth in Schedule B, the aggregate
principal amount at maturity of Securities set forth in Schedule A opposite the
name of such Initial Purchaser, plus any additional principal amount of
Securities which such Initial Purchaser may become obligated to purchase
pursuant to the provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the office of Cahill Gordon &
Reindel, 80 Pine Street, New York, New York, or at such other place as shall be
agreed upon by the Initial Purchasers and the Company, at 10:00 A.M. on the
third business day after the date hereof (unless postponed in accordance with
the provisions of Section 11), or such other time not later than ten business
days after such date as shall be agreed upon by the Initial Purchasers and the
Company (such time and date of payment and delivery being herein called the
"Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Initial Purchasers for the respective accounts of the Initial Purchasers of
certificates for the Securities to be purchased by them. Merrill Lynch,
individually and not as representative of the Initial Purchasers, may (but shall
not be obligated to) make payment of the purchase price for the Securities to be
purchased by any Initial Purchaser whose funds have not been received by the
Closing Time, but such payment shall not relieve such Initial Purchaser from its
obligations hereunder. The certificates representing the Securities shall be
registered in the name of Cede & Co. pursuant to the DTC Agreement and shall be
made available for examination and packaging by the Initial Purchasers in The
City of New York not later than 10:00 A.M. on the last business day prior to the
Closing Time.
(c) Qualified Institutional Buyer. Each Initial Purchaser severally
and not jointly represents and warrants to the Company that it is a "qualified
institutional buyer" within the meaning of Rule 144A (a "Qualified Institutional
Buyer") and an "accredited investor" within the meaning of Rule 501(a) under the
1933 Act (an "Accredited Investor").
(d) Denominations, Registration. Certificates for the Securities shall
be in such denominations ($1,000 or integral multiples thereof) and registered
in such names as the Initial Purchasers may request in writing at least one full
business day before the Closing Time.
-11-
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possible, will
furnish to each Initial Purchaser, without charge, such number of copies of the
Preliminary Offering Memorandum, the Final Offering Memorandum and any
amendments and supplements thereto and documents incorporated by reference
therein as such Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Company will immediately
notify each Initial Purchaser, and confirm such notice in writing, of (x) any
filing made by the Company of information relating to the offering of the
Securities with any securities exchange or any other regulatory body in the
United States or any other jurisdiction, and (y) prior to the completion of the
distribution of the Securities by the Initial Purchasers as evidenced by a
notice in writing from the Initial Purchasers to the Company, any material
changes in or affecting the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company and its Subsidiaries
which, in the reasonable opinion of counsel to the Company or counsel to the
Initial Purchasers, (i) make any statement in the Offering Memorandum false or
misleading in light of the circumstances then existing or (ii) should be
disclosed in the Offering Memorandum. In such event or if during such time any
event shall occur as a result of which it is necessary, in the reasonable
opinion of the Company, its counsel, the Initial Purchasers or counsel for the
Initial Purchasers, to amend or supplement the Final Offering Memorandum in
order that the Final Offering Memorandum not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances then
existing, the Company will forthwith amend or supplement the Final Offering
Memorandum by preparing and furnishing to each Initial Purchaser an amendment or
amendments of, or a supplement or supplements to, the Final Offering Memorandum
(in form and substance satisfactory in the reasonable opinion of counsel for the
Initial Purchasers) so that, as so amended or supplemented, the Final Offering
Memorandum will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a Subsequent
Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. The Company will
advise each Initial Purchaser promptly of any proposal to amend or supplement
the Offering Memorandum and will not effect such amendment or supplement without
the consent of the Initial Purchasers, which consent shall not be unreasonably
withheld. Neither the consent of the Initial Purchasers, nor the Initial
Purchasers' delivery of any such amendment or supplement, shall constitute a
waiver of any of the conditions set forth in Section 5 hereof.
(d) Qualification of Securities for Offer and Sale. The Company will
use its best efforts, in cooperation with the Initial Purchasers, to qualify the
Securities for offering
-12-
and sale under the applicable state securities laws of such jurisdictions as the
Initial Purchasers may designate and will maintain such qualifications in effect
as long as required for the sale of the Securities; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or foreign limited liability company or
as a dealer in securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject.
(e) Rating of Securities. The Company shall take all reasonable action
necessary to enable Standard & Poors Ratings Group, a division of McGraw Hill,
Inc. ("S&P"), and Moody's Investors Service, Inc. ("Moody's") to provide their
respective credit ratings of the Securities.
(f) DTC. The Company will cooperate with the Initial Purchasers and
use its best efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds."
(h) Restriction on Sale of Securities. During a period of 180 days
from the date of the Offering Memorandum, the Company will not, without the
prior written consent of the Initial Purchasers, (i) directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, any other debt securities of the Company or securities of
the Company that are convertible into, or exchangeable for, the Securities or
such other debt securities, except pursuant hereto or pursuant to the Exchange
Offer or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequences of ownership of the Securities, whether any such transaction
described in clause (i) or (ii) is to be settled by delivery of Securities or
such other securities, in cash, or otherwise.
(i) Termination of Obligations. Notwithstanding any provisions of
paragraphs (a), (b) or (c) of this Section 3 to the contrary, the Company's
obligations under paragraphs (a), (b) and (c) shall terminate on the earliest to
occur of (i) the effective date of a registration statement with respect to the
Securities and (ii) the date upon which the Initial Purchasers cease to hold
Securities acquired as part of their initial distribution, but in any event not
later than nine months from the Closing Time.
-13-
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all reasonable expenses incident to
the performance of its obligations under this Agreement, including (i) the
preparation and printing of the Offering Memorandum (including financial
statements and any schedules or exhibits and any document incorporated therein
by reference) and of each amendment or supplement thereto, (ii) the preparation,
printing and delivery to the Initial Purchasers of this Agreement, the
Registration Rights Agreement, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale and delivery of the
Securities, (iii) the preparation, printing, issuance and delivery of the
certificates for the Securities to the Initial Purchasers, including any charges
of DTC in connection therewith, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under state securities laws in accordance with the provisions of Section 3(d)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Initial Purchasers in connection therewith and in connection
with the preparation of the Blue Sky Survey, any supplement thereto and any
Legal Investment Survey, (vi) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (vii) any fees payable in connection with the
rating of the Securities and (viii) any fees payable to the review by the
National Association of Securities Dealers, Inc. (the "NASD") in connection with
the initial and continued designation of the Securities as PORTAL securities
under the PORTAL Market Rules pursuant to NASD Rule 5322. It is understood, that
except as specified in clauses (iii), (v) and (vii) above, each Initial
Purchaser will pay all of its own costs and expenses including without
limitation the fees and expenses of its counsel.
(b) Termination of Agreement. If this Agreement is terminated by the
Initial Purchasers in accordance with the provisions of Section 5 or Section
10(a)(i) hereof, the Company shall reimburse the Initial Purchasers for all of
their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
---------------------------------------------
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of the
Subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Opinion of Counsel for the Company. At the Closing Time, the
Initial Purchasers shall have received the favorable opinion, dated as of the
Closing Time, of Troop Meisinger Steuber & Pasich, LLP, counsel for the Company,
in form and substance satisfactory to counsel for the Initial Purchasers,
together with signed or reproduced copies of such
-14-
letter for each of the other Initial Purchasers to the effect set forth in
Exhibit A hereto and to such further effect as counsel to the Initial Purchasers
may reasonably request.
(b) Opinion of Special Counsel for the Company. At the Closing Time,
the Initial Purchasers shall have received the favorable opinion, dated as of
the Closing Time, of Squadron, Ellenoff, Plesent & Sheinfeld, LLP, special
counsel for the Company, in form and substance satisfactory to counsel for the
Initial Purchasers, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Initial Purchasers may reasonably
request.
(c) Opinion of Regulatory Counsel for the Company. At the Closing
Time, the Initial Purchasers shall have received the favorable opinion, dated as
of the Closing Time, of Hogan & Hartson, L.L.P., special counsel for the
Company, in form and substance satisfactory to counsel for the Initial
Purchasers, together with signed or reproduced copies of such letter for each of
the other Initial Purchasers to the effect set forth in Exhibit C hereto and to
such further effect as counsel to the Initial Purchasers may reasonably request.
(d) Opinion of Counsel for Initial Purchasers. At the Closing Time,
the Initial Purchasers shall have received the favorable opinion, dated as of
the Closing Time, of Cahill Gordon & Reindel, counsel for the Initial
Purchasers, together with signed or reproduced copies of such letter for each of
the other Initial Purchasers with respect to the matters set forth in (i), (ii),
(v) through (x), inclusive, (xiii) (solely as to the information in the Offering
Memorandum under "Description of the Notes").
In rendering such opinions, counsel for the Initial Purchasers (A)
need not express any opinion with regard to the application of laws of any
jurisdiction other than the Federal laws of the United States, the General
Corporation Law of the State of Delaware and the laws of the State of New York
and (B) may rely, as to matters of fact, to the extent they deem proper, on
representations or certificates of responsible officers of the Company and
certificates of public officials.
In addition, such counsel shall additionally state that such counsel
has participated in conferences with officers and other representatives of the
Company and representatives of the independent accountants for the Company at
which conferences the contents of the Offering Memorandum and related matters
were discussed and, although given the limitations inherent in the role of
outside counsel and the character of determinations involved in the preparation
of the Offering Memorandum, such counsel is not passing upon and does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum and has made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to the
attention of such counsel that would lead such counsel to believe that the
Offering Memorandum, at the date thereof or as of the Closing Time, contained an
untrue statement of a material fact or omitted to state a material
-15-
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no belief with respect to the financial statements,
including the notes thereto, or any other financial or statistical found in or
derived from the internal accounting and other records of the Company and its
Subsidiaries set forth or referred to in the Offering Memorandum).
(e) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Initial Purchasers shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as though
expressly made at and as of the Closing Time and (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time in all material respects.
(f) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Initial Purchasers shall have received from Ernst & Young and
KPMG Peat Marwick LLP letters, dated such date, in form and substance
satisfactory to the Initial Purchasers, together with signed or reproduced
copies of such letter for each of the other Initial Purchasers containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Initial Purchasers with respect to the financial statements
and certain financial information contained in the Offering Memorandum.
(g) Bring-down Comfort Letter. At the Closing Time, the Initial
Purchasers shall have received from Ernst & Young and KPMG Peat Marwick LLP
letters, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (f) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Time.
(h) Maintenance of Rating. At the Closing Time, the Securities shall
be rated at least B1 by Moody's and B by S&P, and the Company shall have
delivered to the Initial Purchasers a letter dated the Closing Time, from each
such rating agency, or other evidence satisfactory to the Initial Purchasers,
confirming that the Securities have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Company's other debt securities by any nationally
recognized securities rating agency, and no such securities rating agency shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities or any of the Company's
other debt securities.
-16-
(i) PORTAL. At the Closing Time, the Securities shall have been
designated for trading on PORTAL.
(j) Registration Rights Agreements. The Company and the Initial
Purchasers shall have entered into the Registration Rights Agreements,
substantially in form and substance as described in the Offering Memorandum
under the heading "Exchange Offer; Registration Rights."
(k) Subordination of Note. At the Closing Time, the NAHI Bridge Note
and the Fox Subordinated Note (each as defined in the Final Offering Memorandum)
shall have been amended in form and substance reasonably satisfactory to the
Initial Purchasers and their counsel to provide for the subordination of such
notes to the Securities.
(l) Credit Facility. At the Closing Time, the Company shall have
received, and the Initial Purchasers shall have been furnished a copy of, either
(i) an amendment to, or consent under, the Existing Credit Facility (as defined
in the Final Offering Memorandum) in form and substance reasonably satisfactory
to the Initial Purchasers and their counsel, permitting, among other things, the
execution, delivery and performance of the Indentures and the issuance of the
Securities thereunder all in accordance with the terms contained in the Final
Offering Memorandum or (ii) the Amended Credit Facility (as defined in the Final
Offering Memorandum) in form and substance reasonably satisfactory to the
Initial Purchasers and their counsel and with substantially the same terms as
those disclosed in the Final Offering Memorandum.
(m) Additional Documents. At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the Initial Purchasers and counsel for the Initial Purchasers.
(n) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled or waived when and as required to be
fulfilled, this Agreement may be terminated by the Initial Purchasers by notice
to the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 7 and 8 shall survive any such termination
and remain in full force and effect.
-17-
SECTION 6. Subsequent Offers and Resales of the Securities.
-----------------------------------------------
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Company hereby represents and warrants, and agrees that it will observe the
following procedures in connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers. Offers
-------------------------------------------------------
or sales shall only be made to (A) persons whom the offeror or seller
reasonably believes to be Qualified Institutional Buyers (as defined in
Rule 144A under the 1933 Act) or (B) non-U.S. persons outside the United
States to whom the offeror or seller reasonably believes offers and sales
of Securities may be made in reliance upon Regulation S.
(ii) No General Solicitation. No general solicitation or general
-----------------------
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be
used in the United States in connection with the offering of the Securities
or by means of any directed selling efforts within the meaning of Section
903 of the 1933 Act.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
---------------------------------
Subsequent Purchaser of a Security acting as a fiduciary for one or more
third parties, in connection with an offer and sale to such purchaser
pursuant to clause (i)(A) above, each third party shall, in the judgment of
the applicable Initial Purchaser, be a Qualified Institutional Buyer or a
non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
---------------------------------
take reasonable steps to inform, and cause each of its Affiliates to take
reasonable steps to inform, persons acquiring Securities from such Initial
Purchaser or affiliate, as the case may be, in the United States that the
Securities (A) have not been registered under the 1933 Act, (B) are being
sold to them without registration under the 1933 Act in reliance on Rule
144A or in accordance with another exemption from registration under the
1933 Act, as the case may be, and (C) may not be offered, sold or otherwise
transferred except (1) to the Company, (2) outside the United States in
accordance with Rule 904 of Regulation S or (3) inside the United States in
accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) pursuant to another
available exemption from registration under the 1933 Act.
(v) Restrictions on Transfer. The transfer restrictions and the
------------------------
other provisions set forth in Section 3.14 of the Indentures, including the
legend required thereby, shall apply to the Securities except as otherwise
agreed by the Company and the Initial Purchasers. Following the sale of the
Securities by the Initial Purchasers to Subsequent
-18-
Purchasers pursuant to the terms hereof, the Initial Purchasers shall not
be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any losses,
damages or liabilities under the 1933 Act, arising from or relating to any
resale or transfer of any Security.
(vi) Delivery of Offering Memorandum. Each Initial Purchaser will
-------------------------------
deliver to each purchaser of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Company. The Company covenants with each Initial
Purchaser as follows:
(i) Due Diligence. The Company agrees to provide answers to each
-------------
prospective Subsequent Purchaser of Securities who so requests concerning
the Company and the Subsidiaries (to the extent that such information is
available or can be acquired and made available to prospective Subsequent
Purchasers without unreasonable effort or expense and to the extent the
provision thereof is not prohibited by applicable law) and the terms and
conditions of the offering of the Securities, as provided in the Offering
Memorandum.
(ii) Rule 144A Information. The Company agrees that, in order to
---------------------
render the Securities eligible for resale pursuant to Rule 144A, while any
of the Securities are "restricted securities" within the meaning of Section
144(a)(3) of the 1933 Act, it will make available, upon request, to any
holder of Securities or prospective purchasers of Securities the
information specified in Rule 144A(d)(4), unless the Company furnishes
information to the Commission pursuant to Section 13 or 15(d) of the 1934
Act (such information, whether made available to holders or prospective
purchasers or furnished to the Commission, is herein referred to as
"Additional Information").
(iii) Restriction on Repurchases. Until the expiration of two years
--------------------------
after the original issuance of the Securities, the Company will not, and
will cause their Affiliates not to, purchase or agree to purchase or
otherwise acquire any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the 1933 Act), whether as
beneficial owner or otherwise (except as agent acting as a securities
broker on behalf of and for the account of customers in the ordinary course
of business in unsolicited broker's transactions) unless, immediately upon
any such purchase, the Company or any Affiliate shall submit such
Securities to the Trustee for cancellation.
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each
Initial Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or
-19-
benefit of, U.S. persons except in accordance with Regulation S or pursuant to
another exemption from the registration requirements of the 1933 Act. Each
Initial Purchaser severally represents and agrees, that, except as permitted by
Section 6(a) above, it has offered and sold Securities and will offer and sell
Securities (i) as part of their distribution at any time and (ii) otherwise
until forty days after the later of the date upon which the offering of the
Securities commences and the Closing Time, only in accordance with Rule 903 of
Regulation S, Rule 144A under the 1933 Act or pursuant to another available
exemption from registration under the 1933 Act. Accordingly, neither the Initial
Purchasers, their affiliates nor any persons acting on their behalf have engaged
or will engage in any directed selling efforts with respect to Securities, and
the Initial Purchasers, their Affiliates and any person acting on their behalf
have complied and will comply with the offering restriction requirements of
Regulation S. Each Initial Purchaser agrees that, at or prior to confirmation of
a sale of Securities (other than a sale of Securities pursuant to Rule 144A), it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it or
through it during the restricted period a confirmation or notice to
substantially the following effect:
"THE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF
U.S. PERSONS (I) AS PART OF THEIR DISTRIBUTION AT ANY TIME AND (II)
OTHERWISE UNTIL FORTY DAYS AFTER THE LATER OF THE DATE UPON WHICH THE
OFFERING OF THE SECURITIES COMMENCED AND THE DATE OF CLOSING, EXCEPT IN
EITHER CASE IN ACCORDANCE WITH REGULATION S OR RULE 144A UNDER THE
SECURITIES ACT. TERMS USED ABOVE HAVE THE MEANING GIVEN TO THEM BY
REGULATION S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
Each Initial Purchaser severally represents and agrees that it has not entered
and will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company.
SECTION 7. Indemnification.
---------------
(a) Indemnification of Initial Purchasers. The Company agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
-20-
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Memorandum or the Final Offering Memorandum (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or, to the Company's best knowledge,
threatened, or of any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever (including, subject to
Section 7(c) below, the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser through Merrill Lynch and Citicorp Securities, Inc. expressly
for use in the Offering Memorandum (or any amendment thereto); and provided,
--------
further that the foregoing indemnification with respect to the preliminary
-------
offering memorandum shall not inure to the benefit of the Initial Purchasers (or
any person controlling the Initial Purchasers) from whom the person asserting
any such losses, claims, damages or liabilities purchased any of the Securities
if a copy of the Offering Memorandum (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Initial Purchasers on the initial resale to
such person, if such is required by law, at or prior to the written confirmation
of the sale of such Securities to such person and if the Offering Memorandum (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability.
(b) Indemnification of Company, Directors and Officers. Each Initial
Purchaser severally agrees to indemnify and hold harmless the Company, its
officers and directors and each person, if any, who controls the Company within
the meaning of Section 15 of
-21-
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section 7, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Offering
Memorandum in reliance upon and in conformity with written information furnished
to the Company by such Initial Purchaser expressly for use in the Offering
Memorandum, it being understood and agreed that the only such information
furnished by any Initial Purchaser consists of the following information in the
Offering Memorandum furnished on behalf of each Initial Purchaser: the last
paragraph at the bottom of the outside front cover page concerning the terms of
the offering by the Initial Purchasers; the legend concerning over-allotments
and stabilization at the bottom of page 5 and the information concerning the
intention of the Initial Purchasers to make a market in the Notes as discussed
in the fifth paragraph under the caption "Plan of Distribution."
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 7(a)
above, counsel to the indemnified parties shall be selected by Merrill Lynch,
and, in the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties receiving such
notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 7 or Section 8
-22-
hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
shall not be liable for any settlement of the nature contemplated by Section
7(a)(ii) effected without its prior written consent if such indemnifying party
(i) reimburses such indemnified party in accordance with such request to the
extent it considers such request to be reasonable and (ii) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for in
------------
Section 7 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchasers on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses)
-23-
received by the Company and the total underwriting discount received by the
Initial Purchasers, bear to the aggregate initial offering price of the
Securities.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates
-24-
of officers of the Company or any of the Subsidiaries submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Initial Purchaser or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Initial Purchasers.
SECTION 10. Termination of Agreement.
------------------------
(a) Termination; General. The Initial Purchasers may terminate this
Agreement, by written notice to the Company, at any time at or prior to the
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Offering Memorandum, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Initial
Purchasers, impracticable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading generally on the New York Stock
Exchange, the American Stock Exchange or in the Nasdaq National Market System
has been suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 7 and 8 shall survive such termination and remain in full force and effect.
SECTION 11. Default by One or More of the Initial Purchasers. If one
------------------------------------------------
or more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the non-defaulting Initial Purchasers shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Initial Purchasers, or any other Initial Purchasers, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the non-
defaulting Initial Purchasers shall not have completed such arrangements within
such 24 hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder, each of
the non-defaulting Initial
-25-
Purchasers shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting Initial
Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-defaulting
Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Initial Purchasers or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Offering Memorandum or
in any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section 11.
SECTION 12. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Initial Purchasers c/o Merrill Lynch,
Pierce, Fenner & Smith Incorporated at North Tower, World Financial Center, New
York, New York 10281-1201, facsimile (212) 449-1642, attention of Gregg Seibert;
notices to the Company shall be directed to it at Fox Kids Worldwide, Inc.,
10960 Wilshire Boulevard, Los Angeles, CA 90024, facsimile (310) 235-5552,
attention of Mel Woods, with a copy to The News Corporation Limited, 1211 Avenue
of the Americas, New York, NY 10036, facsimile (212) 768-2029, attention of
Arthur M. Siskind, Esq.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Initial Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchasers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal Initial Purchasers, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
-26-
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
-27-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
FOX KIDS WORLDWIDE, INC.
By /s/ Mel Woods
---------------------
Title: President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CITICORP SECURITIES, INC.
BEAR, STEARNS & CO. INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION
MORGAN STANLEY & CO. INCORPORATED
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ David Weil
--------------------------------
Authorized Signatory
For themselves and as Initial Purchasers of the other
Initial Purchasers named in Schedule A hereto.
-28-
SCHEDULE A
[Download Table]
Principal Amount
at Maturity
Principal Amount of Senior
Name of Initial Purchaser of Senior Notes Discount Notes
------------------------------------------------ ---------------- ----------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.................................. $190,010,000 $248,087,000
Citicorp Securities, Inc........................ $190,010,000 $248,087,000
Bear, Stearns & Co. Inc......................... $31,667,000 $41,245,000
Donaldson, Lufkin & Jenrette
Securities Corporation........................ $31,667,000 $41,245,000
Morgan Stanley & Co. Incorporated............... $31,666,000 $41,244,000
Total........................................... $475,000,000 $618,670,000
============ ============
Sch A - 1
SCHEDULE B
FOX KIDS WORLDWIDE, INC.
$475,000,000 9 1/4% Senior Notes due 2007
$618,670,000 10 1/4% Senior Discount Notes due 2007
1. The initial public offering price of the Senior Notes shall be
100% of the principal amount at maturity, plus accrued and unpaid interest, if
any, from October 28, 1997.
2. The initial public offering price of the Senior Discount Notes
shall be 60.614% of the principal amount at maturity, plus accretion, if any,
from October 28, 1997.
3. The purchase price to be paid by the Initial Purchasers for the
Senior Notes shall be 98% of the principal amount thereof at maturity.
4. The purchase price to be paid by the Initial Purchasers for the
Senior Discount Notes shall be 59.09865% of the principal amount thereof at
maturity.
5. The interest on the Senior Notes shall be 9 1/4% per annum and
will be payable semiannually in arrears on May 1 and November 1 of each year,
commencing May 1, 1998.
6. Cash interest will not accrue or be payable on the Senior Discount
Notes prior to November 1, 2002 except under certain circumstances. Thereafter,
cash interest on the Senior Discount Notes will accrue at a rate of 10 1/4% per
annum and will be payable semiannually in arrears on May 1 and November 1 of
each year commencing May 1, 2003.
7. The Securities will mature on November 1, 2007.
8. The Senior Notes will be redeemable at the option of the Company,
in whole or in part, at any time on or after November 1, 2002, at the redemption
prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest, if any, to the redemption date, if redeemed during
the 12-month period beginning on November 1, of the years indicated below:
Sch B - 1
[Download Table]
REDEMPTION
YEAR PRICE
---- ----------
2002.................................................. 104.625%
2003.................................................. 103.083%
2004.................................................. 101.542%
2005 and thereafter................................... 100%
The Senior Discount Notes will be redeemable at the option of the
Company, in whole or in part, at any time on or after November 1, 2002, at the
redemption prices (expressed as a percentage of principal amount at maturity)
set forth below, plus accrued and unpaid interest therein, if any, to the
redemption date, if redeemed during the 12-month period beginning on November 1
of the years indicated below:
[Download Table]
REDEMPTION
YEAR PRICE
---- ----------
2002.................................................. 105.125%
2003.................................................. 103.417%
2004.................................................. 101.708%
2005 and thereafter................................... 100%
In addition, on or prior to November 1, 2000, the Company may redeem
up to an aggregate of 35% of the principal amount of the Senior Notes originally
issued at a redemption price of 109.25% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of redemption, and may redeem
up to 35% of the originally issued principal amount at maturity of the Senior
Discount Notes at a redemption price equal to 110.25% of the Accreted Value of
the Senior Discount Notes so redeemed at the redemption date (or, if a Cash
Interest Election has been made, 110.25% of the principal amount at maturity of
the Senior Discount Notes so redeemed, plus accrued and unpaid interest, if any
to the redemption date), in each case with the net cash proceeds of one or more
Public Equity Offerings or sales of Qualified Equity Interests of the Company to
one or more Strategic Equity Investors resulting in gross cash proceeds to the
Company of at least $1,000,000 in the aggregate; provided, however, that not
less than 65% of the originally issued aggregate principal amount of Senior
Notes and not less than 65% of the originally issued principal amount at
maturity of Senior Discount Notes is outstanding immediately after giving effect
to such redemption.
Sch B - 2
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has the requisite power and authority to own, lease
and operate its properties and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under the
Purchase Agreement.
(iii) To the best knowledge of such counsel, the Company is duly
qualified as a corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(iv) Each Subsidiary (as hereinafter defined)* has been duly
organized and is validly existing as a limited liability company or corporation,
as the case may be, in good standing under the laws of the jurisdiction of its
organization, has the corporate or otherwise requisite power, as the case may
be, and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and is duly qualified as a
foreign limited liability company or corporation, as the case may be, to
transact business and to the best knowledge of such counsel is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(v) To the best knowledge of such counsel, there is not pending, any
action, suit, proceeding, inquiry or investigation, to which the Company or any
Subsidiary is a party, or to which the property of the Company or any Subsidiary
is subject, before or brought by any court or governmental agency or body, which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions
----------
* Non-IFE Subsidiaries.
A-1
contemplated in the Purchase Agreement or the performance by the Company of its
obligations thereunder or the transactions contemplated by the Offering
Memorandum.
(vi) All descriptions in the Offering Memorandum of contracts and
other documents to which the Company or any of the Subsidiaries is a party are
accurate in all material respects.
(vii) To the best knowledge of such counsel, neither the Company nor
any of the Subsidiaries is in violation of its certificate of formation, limited
liability company agreement, charter, by-laws or other organizational documents.
(viii) Except as previously made or obtained, as the case may be, no
Governmental Approval is necessary or required in connection with the execution
or delivery by the Company of this Agreement, the Registration Rights Agreements
or the Securities, as applicable, or the performance by the Company of the
transactions contemplated thereby, except such as may be required under state
securities or "Blue Sky" laws, the rules and regulations of the Commission and
the rules and regulations of the National Association of Securities Dealers in
connection with the registration obligations under the Registration Rights
Agreements. The term "Governmental Approval" means any filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of any Governmental Authority (as defined below) pursuant to Applicable
Laws (as defined below). The term "Applicable Laws" means only those laws,
rules and regulations of the State of Delaware, State of California and of the
United States of America that, in such counsel's experience, are ordinarily
applicable to transactions of the type contemplated by this Agreement. The term
"Governmental Authority" means any Delaware, California or federal legislative,
judicial, administrative or regulatory body under Applicable Laws.
(ix) To the best knowledge of such counsel, the execution, delivery
and performance of the Purchase Agreement, the Indentures, the Registration
Rights Agreements and the Securities and the consummation of the transactions
contemplated in the Purchase Agreement and in the Offering Memorandum (including
the use of the proceeds from the sale of the Securities as described in the
Offering Memorandum under the caption "Use Of Proceeds") and compliance by the
Company with its obligations under the Purchase Agreement, the Indentures, the
Registration Rights Agreements and the Securities will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
l(a)(xvi) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to such counsel, to which the Company or any of its
Subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any Subsidiary thereof is
subject (except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
A-2
action result in any violation of the provisions of the certificate of
formation, limited liability company agreement, charter, by-laws or other
organizational document of the Company or any of the Subsidiaries, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of the
Subsidiaries or any of their respective properties, assets or operations.
(x) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
In addition such counsel shall state that such counsel has
participated in conferences with representatives of the Initial Purchasers,
officers and other representatives of the Company and representatives of the
independent certified accountants of the Company, at which conferences the
contents of the Offering Memorandum and the business and affairs of the Company
and the Subsidiaries were discussed, and although such counsel has not verified
and does not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum
(except and only to the extent set forth in subclause (vi) above), on the basis
of the foregoing, no facts have come to the attention of such counsel that lead
such counsel to believe that the Offering Memorandum at the date thereof or as
of the Closing Time, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need not express any
comment with respect to the financial statements, including the notes thereto
and supporting schedules, or any other financial data set forth or referred to
in the Offering Memorandum).
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other than
the Federal law of the United States, the General Corporation Law of the State
of Delaware and the laws of the State of California and (B) may rely, as to
matters of fact, to the extent they deem proper on representations or
certificates of responsible officers of the Company and certificates of public
officials.
References to the Offering Memorandum in this subsection include any
supplements thereto at or prior to the Closing Time.
A-3
Exhibit B
FORM OF OPINION OF COMPANY'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) This Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The Indentures have been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes valid and binding agreements of the Company,
enforceable against each of the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights generally, or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(iii) The Securities are in the form contemplated by the Indentures,
the Securities and Exchange Securities have been duly authorized by the Company
and, when executed by the Company and authenticated by the Trustee in the
manner provided in the Indentures (assuming the due authorization, execution and
delivery of the Indentures by the Trustee) and delivered against payment of the
purchase price therefor in the manner provided for in the Offering Memorandum,
the Securities will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium (including, without limitation, all laws relating to fraudulent
transfers), or other similar laws relating to or affecting enforcement of
creditor's rights generally, or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), and will
be entitled to the benefits of the Indenture.
(iv) The Registration Rights Agreements have been duly authorized,
executed and delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the Initial Purchasers) constitute valid and
binding agreements of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by (i)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating
to or affecting enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) or (ii) as
B-1
to any indemnification or contribution provision thereof, by any applicable
state or federal securities laws, rules or regulations or by public policy.
(v) The Securities, the Indentures and the Registration Rights
Agreements conform in all material respects to the descriptions thereof
contained in the Offering Memorandum.
(vi) The issuance of the Securities is not subject to preemptive or
other similar rights arising by operation of law, or under the certificate of
incorporation or by-laws of the Company.
(vii) The information in the Offering Memorandum under "Description
of the Notes and United States Income Tax Considerations," to the extent that
such information purports to summarize legal matters, or legal conclusions, has
been reviewed by them and is accurate in all material respects.
(viii) Assuming (A) the accuracy of the representations and
warranties of the Company set forth in Section 1 of the Purchase Agreement and
of the Initial Purchasers in Section 2 of the Purchase Agreement, (B) the due
performance by the Company of the covenants and agreements set forth in Section
3(d) and 6(b) of the Purchase Agreement and the due performance by the Initial
Purchasers of the covenants and agreements set forth in Section 6(a) of the
Purchase Agreement, (C) compliance by the Initial Purchasers with the offering
and transfer procedures and restrictions described in the Offering Memorandum,
(D) the accuracy of the representations and warranties made by purchasers to
whom the Initial Purchaser initially resells the Securities pursuant to Rule
144A and (E) that purchasers to whom the Initial Purchaser initially resells the
Securities receive a copy of the Offering Memorandum or other notice that such
resales are made pursuant to Rule 144A under the Securities Act prior to such
sale, it is not necessary in connection with the offer, sale and delivery of the
Securities by the Company and the Initial Purchaser to register the Securities
under the 1933 Act, or to qualify the Indenture under the 1939 Act; it being
understood that such counsel need express no opinion as to any subsequent resale
of the Securities.
(ix) To the best knowledge of such counsel, the execution, delivery
and performance of the Purchase Agreement, the Indentures, the Registration
Rights Agreements and the Securities and the consummation of the transactions
contemplated in the Purchase Agreement and in the Offering Memorandum (including
the use of the proceeds from the sale of the Securities as described in the
Offering Memorandum under the caption "Use Of Proceeds") and compliance by the
Company with its obligations under the Purchase Agreement, the Indentures, the
Registration Rights Agreements and the Securities will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
l(a)(xvi) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to any contract, indenture, mortgage,
B-2
deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to such counsel, to which the Company or any of its
Subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any Subsidiary thereof is
subject (except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any of the Subsidiaries, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of the
Subsidiaries or any of their respective properties, assets or operations.
In addition such counsel shall state that such counsel has
participated in conferences with representatives of the Initial Purchasers,
officers and other representatives of the Company and representatives of the
independent certified accountants of the Company, at which conferences the
contents of the Offering Memorandum and the business and affairs of the Company
and the Subsidiaries were discussed, and although such counsel has not verified
and does not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum
(except and only to the extent set forth in subclause (vi) above), on the basis
of the foregoing, no facts have come to the attention of such counsel that lead
such counsel to believe that the Offering Memorandum at the date thereof or as
of the Closing Time, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need not express any
comment with respect to the financial statements, including the notes thereto
and supporting schedules, or any other financial data set forth or referred to
in the Offering Memorandum).
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other than
the Federal law of the United States, the General Corporation Law of the State
of Delaware and the laws of the State of New York and (B) may rely, as to
matters of fact, to the extent they deem proper on representations or
certificates of responsible officers of the Company and certificates of public
officials.
References to the Offering Memorandum in this subsection include any
supplements thereto at or prior to the Closing Time.
B-3
Exhibit C
FORM OF OPINION OF COMPANY'S REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(C)
(i) The information in the Offering Memorandum under "Risk Factors --
Potential Adverse Impact of Regulation" and "Business -- Government Regulation
and Legislation" to the extent that such information constitutes a summary of
federal communications law and the rules, regulations and administrative orders
promulgated or proposed in pending notices of proposed rulemaking for
promulgation thereunder, has been reviewed by such counsel and is correct in all
material respects.
(ii) Except as previously made or obtained, as the case may be, no
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of any court or administrative agency or authority is
necessary or required under the Communications Act of 1934, as amended, the
Cable Communications Policy Act of 1984, the Cable Television Consumer
Protection and Competition Act of 1992 and the Telecommunications Act of 1996
and the published rules and regulations of the Federal Communications Commission
in connection with the execution or delivery by the Company of the Purchase
Agreement, the Registration Rights Agreements or the Securities, as applicable,
or the performance by the Company of the transactions contemplated thereby.
C-1
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 11/1/07 | | 34 | | | | | None on these Dates |
| | 5/1/03 | | 34 |
| | 11/1/02 | | 34 | | 35 |
| | 11/1/00 | | 35 |
| | 5/1/98 | | 34 |
| Filed on: | | 1/26/98 |
| | 10/28/97 | | 6 | | 34 |
| | 10/22/97 | | 1 | | 6 |
| | 10/9/97 | | 6 |
| List all Filings |
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