STOCK PURCHASE AGREEMENT dated as of November 28, 2008 among NATIONAL AMUSEMENTS, INC., SUMCO, INC., SUMNER M. REDSTONE and ACQUISITION HOLDINGS SUBSIDIARY I LLC
Exhibit 99.2
dated as
of November 28, 2008
among
NATIONAL
AMUSEMENTS, INC.,
SUMCO,
INC.,
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
and
ACQUISITION
HOLDINGS SUBSIDIARY I LLC
STOCK PURCHASE AGREEMENT,
dated as of November 28, 2008 (this “Agreement”), among NATIONAL
AMUSEMENTS, INC., a Maryland corporation (the “NAI”), SUMCO, INC., a
Delaware corporation (“Sumco”), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(“SMR” and,
collectively with NAI and Sumco, the “Sellers”) and ACQUISITION
HOLDINGS SUBSIDIARY I LLC, a Delaware limited liability company (the “Purchaser”).
RECITALS:
A. The
Sellers, collectively, own approximately 87.2% of the total issued and
outstanding shares of common stock, $0.01 par value per share (“Common Stock”), of Midway
Games Inc., a Delaware corporation (the “Company”).
B. Each of
the Sellers wishes to sell to the Purchaser, and the Purchaser wishes to
purchase from the Sellers, the shares of Common Stock beneficially owned by the
Sellers, upon the terms and subject to the conditions set forth
herein.
C. Concurrently
with the execution of this Agreement, NAI and the Purchaser have entered into a
Participation Agreement substantially in the form attached as Exhibit A hereto
(the “Participation
Agreement”) for the participation by the Purchaser in the outstanding
indebtedness owed by the Company to NAI pursuant to the NAI Loan Agreements (as
hereinafter defined), and the future assignment of all of NAI’s right, title and
interest in and to such NAI Loan Agreements to the Purchaser and the assumption
by the Purchaser of certain of NAI’s obligations thereunder, in each case upon
the terms and subject to the conditions set forth in the Participation
Agreement.
NOW, THEREFORE, in
consideration of the premises, and of the representations, warranties, covenants
and agreements set forth herein, the parties agree as follows:
ARTICLE
I
DEFINED
TERMS
1.1 Certain Defined
Terms. For
purposes of this Agreement, the following terms have the corresponding meanings
set forth below:
“Affiliate” means, with respect to
any person, any person directly or indirectly controlling, controlled by or
under common control with, such other person. For purposes of this
definition, “control” (including, with
correlative meanings, the terms “controlled by” and “under common control
with”) when
used with respect to any person, means the possession, directly or indirectly,
of the power to cause the direction of management or policies of such person,
whether through the ownership of voting securities, by contract or
otherwise.
“business day” means any day except
Saturday, Sunday and any day which shall be a legal holiday or a day on which
banking institutions in the State of New York generally are authorized or
required by law or other governmental actions to close.
“Confidentiality Agreement”
means the Confidentiality Agreement, dated November 18, 2008, between ▇▇▇▇▇▇▇▇▇
Partners, LLC and NAI, as amended.
“Encumbrance” means any
security interest, pledge, hypothecation, mortgage, lien or
encumbrance.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Factoring Agreement” means
the Factoring Agreement, dated as of September 15, 2008, among NAI, Midway
Home Entertainment Inc. and Midway Amusement Games, LLC, as
servicer.
“Governmental Authority” means
any court, administrative agency or commission or other governmental authority
or instrumentality, whether federal, state, local or foreign, and any applicable
self-regulatory organization.
“NAI Loan Agreements” means,
collectively, the Secured Loan Agreement and the Unsecured Loan
Agreement.
“person” has the meaning given
to it in Section 3(a)(9) of the Exchange Act.
“Secured Loan Agreement” means
the Loan and Security Agreement, dated February 29, 2008, as amended as of
September 15, 2008, among Midway Home Entertainment Inc. and Midway
Amusement Games, LLC (as Borrowers thereunder) and the Company, Midway Games
West Inc., Midway Interactive Inc., Midway Sales Company, LLC, Midway Home
Studios, Inc., Surreal Software Inc., Midway Studios-Austin Inc. and Midway
Studios-Los Angeles Inc. (as US Credit Parties thereunder) and NAI.
“Securities Act” means the
Securities Act of 1933, as amended.
“Unsecured Loan Agreement”
means the Unsecured Loan Agreement, dated February 29, 2008, as amended as
of September 15, 2008, between the Company and NAI.
1.2 Definitions. The
following terms have the meanings set forth in the Sections set forth
below:
|
Definition
|
Location
|
|
Agreement
|
Preamble
|
|
Closing
|
2.2(a)
|
|
Closing
Date
|
2.2(a)
|
|
Common
Stock
|
Recitals
|
|
Company
|
Recitals
|
|
NAI
|
Preamble
|
|
Participation
Agreement
|
Recitals
|
|
Purchase
Price
|
2.2(b)
|
|
Purchaser
|
Preamble
|
|
Rule 144
|
3.2(c)
|
|
Seller
or Sellers
|
Preamble
|
|
Shares
|
2.1
|
|
SMR
|
Preamble
|
|
Sumco
|
Preamble
|
1.3 Interpretation and Rules of
Construction. In
this Agreement, except to the extent otherwise provided or as the context
otherwise requires:
(a) wherever
required by the context of this Agreement, the singular shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter
genders and vice versa, and references to any agreement, document or instrument
shall be deemed to refer to such agreement, document or instrument, as amended,
supplemented or modified from time to time;
(b) the word
“or” is not
exclusive;
(c) the words
“including,” “includes,” “included” and “include” are deemed to be
followed by the words “without limitation”;
(d) the terms
“herein,” “hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any particular
section, paragraph or subdivision; and
(e) when
reference is made in this Agreement to an Article or Section, such reference
shall be to an Article or Section of this Agreement unless otherwise
indicated.
ARTICLE
II
PURCHASE;
CLOSINGS
2.1 Purchase. On
the terms and subject to the conditions set forth herein, the Purchaser hereby
purchases from the Sellers, and the Sellers hereby sell to the Purchaser, at the
Closing (as hereinafter defined), the number of shares of Common Stock which
appears opposite each Seller’s name on Schedule 2.1 to this Agreement (the
“Shares”).
2.2 Closing.
(a) The
closing of the purchase of the Shares by the Purchaser pursuant hereto and the
closing of the transactions contemplated by the Participation Agreement (the
“Closing”) shall occur
simultaneously at the offices of Shearman & Sterling LLP located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ on the date hereof. The date of
the Closing is referred to as the “Closing Date.”
(b) At the
Closing (i) the Purchaser shall deliver to the broker-dealer designated by
the Sellers, by wire transfer of immediately available funds to an account
or
accounts
designated in writing by Sellers to the Purchaser, an aggregate purchase price
of $100,000 (the “Purchase
Price”) to be allocated among the Sellers in accordance with instructions
from the Sellers, (ii) each Seller shall deliver to such broker-dealer
irrevocable instructions to transfer the Shares to the account of the Purchaser
at such broker-dealer, which shall effect the transfer of the Shares to the
Purchaser free and clear of all Encumbrances and (iii) the Sellers shall
instruct such broker-dealer to take such further action to cause the Depositary
Trust Company, Inc. to further effectuate such transfer.
(c) At the
Closing, the Participation Agreement shall be duly executed and delivered by
each of the parties thereto and the transactions contemplated thereby shall be
consummated. It is the intention of the parties that the transactions
contemplated by the Participation Agreement and this Agreement be treated as
integrated transactions.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and
Warranties of the Sellers. The
Sellers severally and not jointly hereby represent and warrant to the Purchaser
that:
(a) Organization and
Authority. Each Seller that is not a natural person is a
corporation duly organized and validly existing under the laws of the
jurisdiction of its organization, is duly qualified to do business and is in
good standing in all jurisdictions where its ownership or leasing of property or
the conduct of its business requires it to be so qualified and has the corporate
power and authority to own its properties and assets and to carry on its
business as it is now being conducted, except, in each case, where failure to be
so organized and existing, qualified or to have such corporate power and
authority would be reasonably expected to materially adversely affect such
Seller’s ability to perform its obligations under this Agreement or consummate
the transactions contemplated hereby on a timely basis.
(b) Capitalization; Ownership of
Shares. (i) Schedule 2.1 sets forth, with respect to each
Seller, the number of Shares owned by such Seller opposite such Seller’s
name. The Shares listed across from such Seller’s name on
Schedule 2.1 represent all of the shares of Common Stock held by such
Seller and, based on the number of shares of Common Stock reported as
outstanding as of October 31, 2008 in the Company’s Quarterly Report on Form
10-Q for the quarter ended September 30, 2008, constituted 87.2% of the total
issued and outstanding shares of Common Stock as of such date. The
Sellers own all the Shares free and clear of all Encumbrances and upon the
closing, assuming the Purchaser does not have “notice of any adverse claim”, the
Purchaser will be a “protected purchaser” with respect to the Shares, as such
terms are defined in Article 8 of the UCC in effect in New
York.
(ii) As of the
date of this Agreement, no Seller has or is bound by any outstanding
subscriptions, options, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of, or securities or rights
convertible into or exchangeable for, any shares of Common Stock or any other
equity securities of the
Company
or any securities representing the right to purchase or otherwise receive any
shares of capital stock of the Company (including any rights plan or
agreement). As of the date hereof, to the knowledge of the Sellers,
the Company does not have in effect a “poison pill” or rights
agreement.
(c) Authorization.
(i) SMR has
full legal right and capacity to execute and deliver the Agreement and to carry
out his obligations hereunder, and each of NAI and Sumco has the corporate power
and authority to enter into this Agreement, and each of NAI and Sumco has the
corporate power and authority to carry out their respective obligations
hereunder. The execution, delivery and performance by each Seller of
this Agreement and the consummation by each Seller of the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of each Seller and its stockholders, as the case may be. This
Agreement has been duly and validly executed and delivered by the Sellers and,
assuming due authorization, execution and delivery by the Purchaser, this
Agreement is a valid and binding obligation of each Seller party hereto
enforceable against such Seller in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency (including all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors’ rights generally and subject to the effect of general principles of
equity (regardless of whether considered in a proceeding at law or in
equity). No other corporate proceedings are necessary for the
execution and delivery by the Sellers of this Agreement, the performance by them
of their obligations hereunder or the consummation by them of the transactions
contemplated hereby.
(ii) Neither
the execution and delivery by the Sellers of this Agreement nor the consummation
by the Sellers of the transactions contemplated hereby, nor compliance by the
Sellers with any of the provisions hereof, will (A) with or without the
giving of notice, the lapse of time, or both, violate, conflict with, or result
in a breach of any provision of, or constitute a default under, or result in the
termination of, or accelerate the performance required by, or result in a right
of termination or acceleration of, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the material properties or
assets of the Sellers under any of the terms, conditions or provisions of
(i) with respect to NAI and Sumco, the articles of incorporation, charter
or bylaws or other governing document of such Seller or (ii) any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which any Seller is a party or by which it may be
bound, or to which any Seller or any of the properties or assets of any Seller
may be subject, or (B) violate any law (including any fraudulent conveyance
or similar law), statute, ordinance, rule, regulation, permit, concession,
grant, franchise or any judgment, ruling, order, writ, injunction or decree
applicable to any Seller or any of their respective properties or
assets.
(d) Governmental
Consents. Other than the securities or blue sky laws of the
various states, no material notice to, registration, declaration or filing with,
exemption or review by, or authorization, order, consent or approval of, any
Governmental Authority, nor expiration or termination of any statutory waiting
periods, is necessary for the
consummation
by the Sellers of the transactions contemplated by this Agreement or the
Participation Agreement.
(e) Offering of
Securities. None of the Sellers or any person acting at their
direction has taken any action which would subject the sale of any of the Shares
to the Purchaser pursuant to this Agreement to the registration requirements of
the Securities Act.
(f) Brokers and
Finders. Except for Citigroup Global Markets Inc., none of the
Sellers or any of their respective officers or directors has employed any broker
or finder or incurred any liability for any financial advisory fees, brokerage
fees, commissions or finder’s fees, and no broker or finder has acted directly
or indirectly for any Seller, in connection with this Agreement or the
Participation Agreement or the transactions contemplated hereby or
thereby. The Purchaser shall not be responsible for any brokerage,
finder’s or other fee or commission to any broker, finder or investment banker
in connection with the transactions contemplated by this Agreement and the
Participation Agreement based upon arrangements made by or on behalf of the
Sellers or their Affiliates.
(g) Actions. As
of the date hereof, there are no claims, actions, suits, investigations or
proceedings pending or, the knowledge of the Sellers, threatened against the
Sellers or any of their Affiliates before any Governmental Authority that would
or seeks to prevent or materially delay the consummation of any of the
transactions contemplated by this Agreement or the Participation Agreement or
otherwise prevent or materially delay the Sellers from performing their
obligations hereunder or thereunder.
3.2 Representations and
Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Sellers that:
(a) Organization and
Authority. The Purchaser is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, is
duly qualified to do business and is in good standing in all jurisdictions where
its ownership or leasing of property or the conduct of its business requires it
to be so qualified, and has the limited liability company power and authority
and governmental authorizations to own its properties and assets and to carry on
its business as it is now being conducted, except, in each case, where failure
to be so organized and existing, qualified or to have the corporation power and
authority would be reasonably expected to materially adversely affect the
Purchaser’s ability to perform its obligations under this Agreement or
consummate the transactions contemplated hereby on a timely basis.
(b) Authorization.
(i) The
Purchaser has the limited liability company power and authority to enter into
this Agreement and to carry out its obligations hereunder. The
execution, delivery and performance of this Agreement by the Purchaser and the
consummation by the Purchaser of the transactions contemplated hereby have been
duly authorized by the Purchaser’s sole member. This Agreement has
been duly and validly
executed
and delivered by the Purchaser and assuming due authorization, execution and
delivery by the Sellers, this Agreement will be a valid and binding obligation
of the Purchaser enforceable against the Purchaser in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency (including all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting creditors’ rights generally and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding at law or
in equity). No other limited liability company proceedings are
necessary for the execution and delivery by the Purchaser of this Agreement, the
performance by it of its obligations hereunder or the consummation by it of the
transactions contemplated hereby.
(ii) Neither
the execution, delivery and performance by the Purchaser of this Agreement, nor
the consummation by the Purchaser of the transactions contemplated hereby, nor
compliance by the Purchaser with any of the provisions hereof, will
(A) with or without the giving of notice, the lapse of time, or both,
violate, conflict with, or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration of,
or result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Purchaser under any of the terms,
conditions or provisions of (i) its governing documents or (ii) any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which the Purchaser is a party or by which it
may be bound, or to which the Purchaser or any of the properties or assets of
the Purchaser may be subject, or (B) subject to compliance with the
statutes and regulations referred to in the next paragraph, violate any law,
statute, ordinance, rule or regulation, permit, concession, grant, franchise or
any judgment, ruling, order, writ, injunction or decree applicable to the
Purchaser or any of its properties or assets except in the case of
clauses (A)(ii) and (B) for such violations, conflicts and breaches as
would not reasonably be expected to materially adversely affect the Purchaser’s
ability to perform its obligations under this Agreement or the Participation
Agreement or consummate the transactions contemplated hereby or thereby on a
timely basis.
(iii) Other
than the securities or blue sky laws of the various states, no notice to,
registration, declaration or filing with, exemption or review by, or
authorization, order, consent or approval of, any Governmental Authority, nor
expiration or termination of any statutory waiting period, is necessary for the
consummation by the Purchaser of the transactions contemplated by this
Agreement.
(c) Purchase for
Investment. The Purchaser acknowledges that it is acquiring
the Shares from “affiliates” of the Company as defined in Rule 144
promulgated under the Securities Act (“Rule 144”), and as such
any future resales of the Shares shall be made subject to the limitations set
forth in Rule 144 or otherwise in accordance with the registration
requirements (or an exemption therefrom) of the Securities Act. The
Purchaser (1) will not sell or otherwise dispose of any of the Shares,
except in compliance with the registration requirements (or an exemption
therefrom) of the Securities Act and any other applicable securities laws,
(2) has such knowledge and
experience
in financial and business matters and in investments of this type that it is
capable of evaluating the merits and risks of its investment in the Shares and
of making an informed investment decision, (3) is an “accredited investor”
(as that term is defined by Rule 501 of the Securities Act), (4) is
able to fend for itself in the transactions contemplated by this Agreement and
the Participation Agreement, and (5) has the ability to bear the economic
risks of its investment in the Shares.
(d) No Recommendation,
Representation or Liability. The Purchaser acknowledges that
except as expressly set forth in Section 3.1, none of the Sellers or any of
their respective directors, officers, employees, representatives or controlling
persons have recommended the Shares, have any responsibility for making any
independent investigation of the Company, or make any representation or warranty
to the Purchaser, express or implied, with respect to the Company, the Shares or
the accuracy, completeness or adequacy of the Company’s information, or of any
other information relating to the Company, nor shall any of the foregoing
persons be liable for any loss or damages of any kind suffered or incurred by
the Purchaser resulting from the use of any such information provided to the
Purchaser or otherwise reviewed and/or utilized by the Purchaser.
(e) Independent
Advice. The Purchaser understands and acknowledges that
nothing in this Agreement, in the Company’s public information or in any
information provided or presented to the Purchaser by any Seller in connection
with the purchase and sale of the Shares constitutes legal, tax or investment
advice. The Purchaser has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Shares and has made its own assessment and
has satisfied itself concerning the relevant tax and other economic
considerations relevant to its investment in the Shares.
(f) Brokers and
Finders. Neither the Purchaser nor any Affiliate of the
Purchaser or any of their respective officers or directors has employed any
broker or finder or incurred any liability for any financial advisory fees,
brokerage fees, commissions or finder’s fees, and no broker or finder has acted
directly or indirectly for the Purchaser, in connection with this Agreement or
the Participation Agreement or the transactions contemplated hereby and
thereby. No Seller shall be responsible for any brokerage, finder’s
or other fee or commission to any broker, finder or investment banker in
connection with the transactions contemplated by this Agreement and the
Participation Agreement based upon arrangements made by or on behalf of the
Purchaser or its Affiliates.
(g) Actions. There
are no claims, actions, suits, investigations or proceedings pending or, the
knowledge of the Purchaser, threatened against the Purchaser or any of its
Affiliates before any Governmental Authority that would or seeks to prevent or
materially delay the consummation of any of the transactions contemplated by
this Agreement or the Participation Agreement or otherwise prevent or materially
delay the Purchaser from performing its obligations hereunder or
thereunder.
ARTICLE
IV
COVENANTS
4.1 Confidentiality. All
information furnished prior to the Closing to a party or its advisor by a party
or its advisor in connection with the transactions contemplated hereby shall be
subject to, and the recipient of such information shall hold all such
information in confidence in accordance with, and to the extent required by, the
provisions of the Confidentiality Agreement.
ARTICLE
V
MISCELLANEOUS
5.1 Expenses. Except
as otherwise provided herein, each of the parties will bear and pay all other
costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated pursuant to this Agreement or the Participation
Agreement.
5.2 Amendment. No
amendment or waiver of any provision of this Agreement will be effective with
respect to any party unless made in writing and signed by an officer or a duly
authorized representative of such party. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by
law.
5.3 Waivers. No
waiver of any party to this Agreement, as the case may be, will be effective
unless it is in a writing signed by a duly authorized officer of the waiving
party that makes express reference to the provision or provisions subject to
such waiver.
5.4 Counterparts and
Facsimile. For
the convenience of the parties hereto, this Agreement may be executed in any
number of separate counterparts, each such counterpart being deemed to be an
original instrument, and all such counterparts will together constitute the same
agreement. Executed signature pages to this Agreement may be
delivered by facsimile and such facsimiles will be deemed as sufficient as if
actual signature pages had been delivered.
5.5 Governing
Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such
State. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the state and federal courts
located in the Borough of Manhattan, State of New York for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby. Each party agrees not to assert that such forum
is inconvenient or that there is a more convenient forum for such action, suit
or proceeding. Each party further agrees that service of process or
other papers in any such action, suit or proceeding may be made in accordance
with the provisions of Section 5.7.
5.6 WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
5.7 Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the other will be in writing and will be deemed to have been duly given
(a) on the date of delivery if delivered personally or by telecopy or
facsimile, upon confirmation of receipt, (b) on the first business day
following the date of dispatch if delivered by a recognized next-day courier
service, or (c) on the third business day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered as set forth below,
or pursuant to such other instructions as may be designated in writing by the
party to receive such notice.
(a) If to any
Seller, to:
National
Amusements, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Vice President and General Counsel
with a
copy (which copy alone shall not constitute notice) to:
Shearman
& Sterling LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇ O’▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Esq.
(b) If to the
Purchaser, to:
Acquisition
Holdings Subsidiary I LLC
c/o
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Esq.
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
5.8 Entire Agreement,
Etc. (a) This
Agreement (including the Exhibits and Schedules hereto), the Participation
Agreement and the Confidentiality Agreement constitute the entire agreement, and
supersede all other prior agreements, understandings, representations and
warranties, both written and oral, among the parties, with respect to the
subject matter hereof; and (b) this Agreement will not be assignable by
operation of law or otherwise (any attempted assignment in contravention hereof
being null and void.
5.9 Captions. The
article, section, paragraph and clause captions herein are for convenience of
reference only, do not constitute part of this Agreement and will not be deemed
to limit or otherwise affect any of the provisions hereof.
5.10 Severability. If
any provision of this Agreement or the application thereof to any person
(including, the officers and directors of any Seller and the Purchaser) or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof, or the application of
such provision to persons or circumstances other than those as to which it has
been held invalid or unenforceable, will remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby, so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon a suitable and equitable substitute provision to effect the original intent
of the parties.
5.11 No Third Party
Beneficiaries. Nothing
contained in this Agreement, expressed or implied, is intended to confer upon
any person or entity other than the parties hereto, any benefit, right or
remedies.
5.12 Time of
Essence. Time
is of the essence in the performance of each and every term of this
Agreement.
5.13 Specific
Performance. The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms. It is accordingly agreed that the parties shall be
entitled to seek specific performance of the terms hereof, this being in
addition to any other remedies to which they are entitled at law or equity,
without proving that money damages would be inadequate and without posting any
bond.
5.14 Further
Assurances. Each
of the parties hereto shall execute and deliver all such other agreements,
documents and instruments, and take such other further action, as the other
parties may reasonably request to effect the transfer and delivery of the Shares
to the Purchaser and otherwise to effect the transactions contemplated by, and
fully carry out the intent of, this Agreement and the Participation
Agreement.
5.15 Survival. All
representations and warranties of the parties hereto shall survive the Closing
and the covenants and agreements of the parties hereto shall survive the Closing
in accordance with their terms.
5.16 Loser
Pays. With
respect to any dispute among the parties arising out of or relating to this
Agreement or the Participation Agreement, the reasonable attorneys’ fees and
costs incurred by the prevailing party in connection with such dispute shall be
paid by the other party or parties to such dispute.
[Remainder of Page Intentionally Left
Blank]
IN WITNESS WHEREOF, this
Agreement has been duly executed and delivered by the duly authorized officers
of the parties hereto as of the date first herein above written.
NATIONAL AMUSEMENTS,
INC.
By:________________________
Name:
Title:
SUMCO,
INC.
By:________________________
Name:
Title:
By:________________________
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
ACQUISITION HOLDINGS
SUBSIDIARY I LLC
By: MT
Acquisition Holdings LLC, its sole member
By:________________________
Name: ▇▇▇▇
▇▇▇▇▇▇
Title:
President
Schedule 2.1
|
Seller
|
Number of Shares Held
|
|
National
Amusements, Inc.
|
22,687,479
|
|
Sumco,
Inc.
|
45,218,230
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
12,433,557
|