AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of September
8, 1999 ("Amendment No. 1"), by and among CBS Corporation, a Pennsylvania
corporation (the "Parent"), King World Productions, Inc., a Delaware corporation
(the "Company"), and K Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the Parent ("Merger Sub"), amending the Agreement and
Plan of Merger, dated as of March 31, 1999 (the "Agreement"), by and among the
parties hereto. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed to such terms in the Agreement.
WHEREAS, the Company and the Parent wish to amend the Agreement in
order to provide for, among other things, (i) the merger of the Company with and
into Merger Sub, with Merger Sub being the Surviving Corporation and (ii) the
waiver by Parent and Merger Sub of certain of the conditions to their
obligations to effect the Merger.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. The Agreement is hereby amended to provide that, upon the terms and
subject to the conditions of the Agreement (as amended by this Amendment No. 1)
at the Effective Time, in accordance with the DGCL the Company shall be merged
with and into Merger Sub and the separate existence of the Company shall cease.
References in the Agreement to the "Merger" shall be deemed to be amended hereby
to be references to the merger described in the preceding sentence. In
furtherance of the foregoing:
(a) Merger Sub shall be the Surviving Corporation in the
Merger;
(b) the Certificate of Incorporation of the Company shall be
the Certificate of Incorporation of the Surviving Corporation; and
(c) Section 2.1(a) is amended to read in its entirety as
follows:
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"Each issued and outstanding share of common stock, par value $.01 per
share, of Merger Sub shall remain outstanding as one share of common
stock, par value $.01 per share, of the Surviving Corporation."
2. Parent and Merger Sub hereby expressly waive any rights they might
otherwise have as a result of any adverse effect resulting from the amendments
effected under paragraph 1 above. Parent shall following the Merger cause Merger
Sub to assume and/or perform all obligations that the Company would have been
obligated to perform but for the amendment effected under paragraph 1 above.
Notwithstanding the foregoing, Parent may elect at any time prior to the
consummation of the Merger, instead of having the Company merge with and into
Merger Sub, as provided for in paragraph 1 above, to have Merger Sub merge with
and into the Company; provided however that such election may be made only if it
would not unreasonably delay the consummation of the Merger and would not in any
way adversely affect the satisfaction of the conditions specified in Section
7.2(d) or 7.3(h) of the Agreement.
3. Section 7.1(c) of the Agreement is hereby amended in its entirety to
read as follows:
"(c) No statute, rule, regulation, executive order, judgment, decree,
or injunction shall have been enacted, entered, promulgated or enforced
(and not repealed, superseded, lifted or otherwise made inapplicable),
by any court of competent jurisdiction or Government Entity which
restrains, enjoins or otherwise prohibits the consummation of the
Transactions contemplated by this Agreement (each party agreeing to use
its best efforts to avoid the effect of any such statute, rule,
regulation or order or to have any such order, judgment, decree or
injunction lifted)."
4. Section 7.1(g) of the Agreement shall be deleted in its entirety.
5. A new section, designated as Section 7.2(e), shall be included in
the Agreement and shall read as follows:
"The Effective Time shall have occurred at or before the close
of business in New York City on June 30, 2000 (the "Outside Date")."
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6. Section 7.3(h) shall be amended to insert the phrase "or Paul,
Weiss, Rifkind, Wharton & Garrison" immediately after the phrase "Weil, Gotshal
& Manges LLC" and to provide that the representation letter referred to in said
Section shall be modified in a manner reasonably agreed to by the parties (a) to
permit the Parent to acknowledge the existence as of September 7, 1999 of the
Parent/Viacom Inc. transaction and (b) to give effect to Section 1 of this
Amendment No. 1.
7. Section 8.1(b) of the Agreement is amended by deleting clause (i)
thereof, and the two provisos contained therein.
8. Section 8.1(g) of the Agreement is hereby amended to read in its
entirety as follows:
"(g) by the Company if the Effective Time shall not have occurred on or
before the Outside Date."
9. Section 7.3(a) of the Agreement is hereby amended (x) by deleting
all references therein to "the Closing Date" and replacing each of said
references with the following: "September 7, 1999", (y) by adding a reference to
Section 3.10 in the first parenthetical of clause (i) thereof and (z) by adding
the following at the end of said Section:
"and (iv) the representations and warranties of the Company set forth
in Section 3.10 shall be true and correct as of the Effective Time
except to the extent the failure of such representations and warranties
to be true and correct would not or would not reasonably be expected to
have a Company Material Adverse Effect."
10. Sections 7.3(e), (f) and (g) of the Agreement are hereby
irrevocably waived by Parent and Merger Sub and, notwithstanding anything to the
contrary contained in the Agreement or in any other agreement or instrument
previously entered into among or between the parties hereto, shall be deemed
deleted from the Agreement.
11. The Company represents and warrants (which representation and
warranty shall be deemed to be a part of the Agreement) that (a) the conditions
appearing in Section 7.3(a), (b), (e) and (g) of the Agreement would have been
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satisfied if the Closing Date had occurred on September 7, 1999 and (b) to its
knowledge the condition appearing in Section 7.3(f) of the Agreement would have
been satisfied if the Closing had occurred on September 7, 1999.
12. Section 5.1(k) of the Agreement hereby is amended by deleting the
references therein to "Section 7.2(a) or 7.2(b)" and inserting in their place
references to "Section 7.3(a) or 7.3(b)."
13. Section 5.2(e) of the Agreement hereby is amended by deleting the
references therein to "Section 7.3(a) or 7.3(b)" and inserting in their place
references to "Section 7.2(a) or 7.2(b)."
14. The Company acknowledges that the changes effected by paragraphs 9
and 10 of this Amendment No. 1 shall not be given any effect for purposes of
Sections 5.1(k) and 6.4 of the Agreement. In addition, the Company agrees that
if any fact, circumstance or event arises that would have resulted in, or would
have been reasonably likely to result in, the failure of the conditions in
Sections 7.3(a), (e), (f) and (g) of the Agreement to be satisfied (the
provisions of paragraphs 9 and 10 of this Amendment No. 1 not being given any
effect for purposes of this sentence), the parties shall work together in good
faith, and take all commercially reasonable actions, as are necessary or
appropriate in an effort to cure such failure; provided that the failure to
effect such cure shall not relieve the parties' respective obligations to
consummate the Transactions.
15. The parties hereby acknowledge that the announcement of the merger
agreement between Parent and Viacom Inc. has delayed and will continue to delay
the consummation of the Merger as a result of the need to amend the Registration
Statement and Proxy Statement/Prospectus to provide additional disclosure as
required by the Securities Act and Exchange Act. The Company hereby waives any
claims it might have against Parent occasioned by such delay; Parent in turn
hereby agrees that it will use its reasonable best efforts to make effective the
Transactions in the most expeditious manner practicable and the Company will
cooperate with Parent in this regard.
16. Except as expressly set forth herein, this Amendment No. 1 is
entered into without waiver of, or prejudice to, the respective rights of the
parties under the Agreement, all of which rights are expressly reserved.
Moreover, except as modified herein, each of the parties hereto acknowledges and
agrees
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that it continues to be bound by each of the terms and provisions of the
Agreement, which terms and provisions, as amended hereby, shall continue in full
force and effect.
17. The parties agree to use their commercially reasonable efforts to
prepare and have executed as promptly as practicable after the date hereof any
necessary amendments to any agreement, document or instrument executed and
delivered in connection with the execution and delivery of the Agreement to
effect the provisions of this Amendment No. 1.
18. This Amendment No. 1 may be executed in one or more counterparts,
all of which shall be considered one and the same agreement, and shall become
effective when one or more of the counterparts has been signed by each of the
parties hereto, it being understood that each party need not sign the same
counterpart.
19. This Amendment No. 1 shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws thereof.
20. Each of the parties represents as to itself (and Parent also
represents as to Merger Sub) that it has duly and validly executed and delivered
this Amendment No. 1 and that, assuming this Amendment No. 1 has been duly and
validly executed and delivered by the other parties hereto, this Amendment No. 1
constitutes the legal, valid and binding obligation of such party enforceable
against it in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to creditors
rights generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
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IN WITNESS WHEREOF, each of the parties hereto has signed this
Amendment No. 1 as of the date first above written.
KING WORLD PRODUCTIONS, INC.
By: /s/ Jonathan Birkhahn
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Name:
Title:
CBS CORPORATION
By: /s/ Louis J. Briskman
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Name:
Title:
K ACQUISITION CORP.
By: /s/ Louis J. Briskman
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Name:
Title: