Exhibit 2.2
AMENDMENT
AMENDMENT, dated as of August 13, 1996 (this "Amendment"), to the
Agreement and Plan of Merger, by and among Silver King Communications, Inc.
("Parent"), Thames Acquisition Corp. ("Sub") and Savoy Pictures Entertainment,
Inc. (the "Company"), dated as of November 27, 1995, as heretofore amended (the
"Merger Agreement").
W I T N E S S E T H :
WHEREAS, pursuant to the Merger Agreement, Parent, Sub and the
Company have approved the terms and conditions of the business combination
between Parent and the Company to be effected by the merger (the "Merger") of
Sub with and into the Company; and
WHEREAS, Parent, Sub and the Company have agreed that certain
provisions of the Merger Agreement be amended in the manner provided for in
this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Merger Agreement and used
herein shall have the meanings given to them in the Merger Agreement.
II. Amendments to Merger Agreement.
1. Definitions. As used in the Merger Agreement, (a) the term
"Agreement" shall mean the initial merger agreement among the parties hereto,
dated as of November 27, 1995, and any and all amendments thereto entered into
on or prior to the date hereof, (b) the term "Merger" shall mean the merger of
Sub with and into the Company pursuant to the terms and conditions of the
Agreement (as amended as of the date hereof), (c) the term "Company Voting
Agreement" shall mean the voting agreement among certain stockholders of the
Company listed on Annex A of the Agreement and Parent, as such agreement has
been amended as of the date hereof, (d) the term "Parent Voting Agreement"
shall mean the voting agreement among certain stockholders of Parent listed on
Annex B of the Agreement and the Company, as such agreement has been amended as
of the date hereof and (e) the terms "Company SEC Reports" and "Parent SEC
Reports" shall mean each report, schedule, registration statement and
definitive proxy statement filed by the Company or Parent, as the case may be,
with the SEC on or after March 1, 1993 and prior to August 13, 1996.
2. Amendment to Article 2. The first sentence of Section 2.1(c) of
the Merger Agreement is hereby amended by deleting it in its entirety and
substituting in lieu thereof the following:
"Each share of common stock, $.01 par value per share, of the
Company ("Company Common Stock"), issued and outstanding (including
Company Restricted Stock, pursuant to Section 2.3(b)) immediately
prior to the Effective Time (other than shares of Company Common
Stock to be cancelled pursuant to Section 2.1(b)), shall be converted
into the right to receive 0.14 of a fully paid and nonassessable
share of common stock, $.01 par value per share, of Parent ("Parent
Common Stock") (subject, in the case of Company Restricted Stock, to
Section 2.3(b)) (the "Exchange Ratio")."
3. Amendment to Article 3. (a) Section 3.8 of the Merger
Agreement is hereby amended by deleting the text thereof in its entirety and
replacing such text with the following:
"Section 3.8. Absence of Certain Changes or Events. Except as
set forth in Section 3.8 of the Company Disclosure Letter,
contemplated by this Agreement, disclosed in the Company SEC Reports
or disclosed to Parent as referred to in Section 3.18 hereto, (a)
since September 30, 1995, the Company and its subsidiaries have
conducted their businesses only in the ordinary course and in a
manner consistent with past practice and have not taken any of the
actions set forth in paragraphs (a) through (j) of Section 5.2, and
(b) there has not been (i) since August 13, 1996 and excluding in
addition the matters set forth in Schedule A or the proximate
consequences thereof, any event or condition (financial or otherwise)
of any character, individually or in the aggregate, significantly
impairing or which could reasonably be expected to significantly
impair the long-term value of the Company (it being understood that
this standard is very substantially in excess of a Material Adverse
Effect), or (ii) since September 30, 1995, any material change by the
Company in its accounting methods, principles or practices except as
required by concurrent changes in GAAP."
(b) Article 3 of the Merger Agreement is further amended by adding
the following text after the conclusion of Section 3.17:
"Section 3.18. Disclosure. On or prior to August 13, 1996, the
Company has fully and accurately in all respects disclosed to Parent
all material information regarding the business, financial and
operating condition of the Company, including any such information
known by the Chairman of the Board and Chief Executive Officer or
Chief Operating Officer of the Company, and Dan W. Lufkin, a director
of the Company. The historical financial information relating to the
Company set forth in Schedule 3.18 hereto is, to the knowledge of the
Company and such individuals as of August 13, 1996, true and complete
in all material respects, and the projected financial information set
forth in Schedule 3.18 reflects the best good faith estimate, as of
such date, of the Company and such individuals. As of August 13,
1996, neither the Company nor any such individuals has knowledge of
any other condition, circumstance or event relating to the Company,
not so disclosed to Parent, that would, individually or in the
aggregate, have a Material Adverse Effect."
4. Amendment to Article 5. Section 5.5 of the Merger Agreement is
hereby amended by adding the following sentence as the last sentence thereof:
"Without limiting the generality of the foregoing, Parent and the
Company agree to re-file the preliminary Proxy Statement with the SEC
and to respond to any comments from the SEC, in each case as promptly
as reasonably practicable."
5. Amendment to Article 7. Section 7.1 of the Merger Agreement is
hereby amended by deleting subsection (b) thereof in its entirety and replacing
such subsection with the following text:
"(b) by either Parent or the Company, if the Merger shall not have
been consummated by December 31, 1996, provided that such date may be
extended by either party if the definitive Proxy Statement is not
mailed to stockholders of Parent and the Company by November 15, 1996
due to events related to the transaction relating to Home Shopping
Network, Inc. ("HSN") referred to in the Parent Disclosure Letter
(or another transaction involving the capital stock of HSN) (the "HSN
Transaction") to be described in the preliminary Proxy Statement, by
such number of days after November 15, 1996 until the definitive
Proxy Statement is so mailed, and provided further that the right to
terminate this Agreement under this Section 7.1(b) (or to extend the
termination date pursuant to the preceding clause) shall not be
available to any party whose action or failure to act has been the
cause of or resulted in the failure of the Merger to occur on or
before such date and such action or failure to act constitutes a
breach of this Agreement;".
6. Amendment to Article 6. Section 6.2(a) of the Merger Agreement
is hereby amended by adding the following text after the text "as though made
on and as of the Closing Date":
", provided that the representations and warranties in Section 3.6(a)
shall exclude the matters set forth in Schedule A and the proximate
consequences thereof and, provided further, that the representations
and warranties in Sections 3.7(c) and 3.9 as they relate to the
operations of the Company's business in the ordinary course shall be
read as of the Closing Date without reference to any materiality
standard set forth therein and shall be true and correct except to
the extent their failure to be so true and correct shall not
significantly impair, or could reasonably be expected to
significantly impair, the long-term value of the Company (it being
understood that this standard is very substantially in excess of a
Material Adverse Effect)".
7. Parent Disclosure Letter. References in the Parent Disclosure
Letter to the Exchange Agreement and related transactions shall be deemed to
include any HSN Transaction.
III. General.
1. No Other Amendments. Except as expressly amended, modified and
supplemented hereby, the provisions of the Merger Agreement are and shall
remain in full force and effect.
2. Governing Law; Counterparts. (a) This Amendment shall be
governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts made and to be performed therein, without
giving effect to laws that might otherwise govern under applicable principles
of conflicts of law.
(b) This Amendment may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
SILVER KING COMMUNICATIONS, INC.
By: /s/ Barry Diller
Title: Chief Executive Officer
THAMES ACQUISITION CORP.
By: /s/ Michael Drayer
Title: Vice President
SAVOY PICTURES ENTERTAINMENT, INC.
By: /s/ Lewis J. Korman
Title: President