EXHIBIT 2.2
AGREEMENT FOR THE PURCHASE OF FILM ASSETS
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This agreement (the "Agreement") is made as of December 31, 1995 by
and between VESICAL LIMITED, a corporation organized under the laws of The
Commonwealth of the Bahamas, (the "Seller") and SABAN INTERNATIONAL N.V., a
corporation organized under the laws of the Netherlands Antilles ("Buyer").
Seller is the owner of certain rights in and to the library of DIC
television programming as Vesical Company N.V., Seller's predecessor in
interest, acquired from Lamalo N.V. in 1988, subject to existing liabilities and
as more fully described in Exhibit "A" and the disclosure statements contained
in Exhibit "B" attached hereto, which by this reference are incorporated herein
(the "DIC Library"). Seller desires to sell all of Seller's right, title, and
interest in the DIC Library.
Buyer desires to purchase from the Seller all of Seller's right,
title, and interest in the DIC Library, subject to the terms and conditions
hereinafter set forth.
In consideration of the mutual terms, conditions and covenants
hereinafter set forth Seller and Buyer agree as follows:
1. Purchase and Sale of DIC Library. Seller shall sell to Buyer,
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and Buyer shall buy from Seller, the following: (a) the DIC Library, (b) all
physical materials in Seller's possession or control of each of the programs
comprising the DIC Library, as set forth in Exhibit "C", (c) originals of,
copies of, or rights of access to, all records pertaining to Seller's, and
Seller's assigns', sublicensees', and designees' exploitation thereof, (d) the
Post 1994 Receivables, as defined below, and (e) all contracts between Seller
and third parties in connection therewith or related thereto, (collectively, the
"DIC Library Assets").
2. Receivables.
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(a) Post 1994 Receivables. This sale includes all monies due to
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Seller at the Closing Date, as hereinafter defined, and those that accrue after
the Closing Date, in either case which are attributable to licenses, leases, and
other agreements for the exploitation of the DIC Library, each of which was
entered into on or after January 1, 1995 ("Post 1994 Receivables").
(b) Collection and Disbursement of Post 1994 Receivables. Seller
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represents and warrants that as of October 26, 1995 Seller directed its
sublicensees Now Entertainment, B.V. ("Now") and Creativite et Development
("C&D") (collectively, "Subdistributors") to hold in reserve Vesical's share of
all monies received by Subdistributors on or after such date for income received
on account of Post 1994 Receivables.
(c) Excluded Receivables. This sale does not include any monies
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due to Seller which are attributable to licenses, leases, and other agreements
for the exploitation of the DIC Library, each of which was entered into before
January 1, 1995 ("Excluded Receivables").
(d) Collection and Disbursement of Excluded Receivables. All
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amounts collected by Buyer or C&D, as the case may be, with respect to the
Excluded Receivables shall be accounted for and remitted to Now on a quarterly
basis, or as otherwise provided in that certain Distribution Agreement dated as
of April 1, 1988 by and between Now and C&D, as modified by that certain
Protocole d'Accord dated November 14, 1994 between Now and C&D as recognized by
the Tribunal de Commerce de Paris in a judgement dated January 19, 1995. On
October 26, 1995, Seller directed C&D to offset against any amounts payable to
Now or Seller with respect to the Excluded Receivables against the amounts paid
to them with respect to Post 1994 Receivables, and to hold such funds in
reserve. Such offsets, at the Closing, equal amounts paid to the Subdistributors
with respect to Post 1994 Receivables. A reconciliation of the payments to the
Subdistributors and offsets is attached as Exhibit "D" hereto.
(e) Amounts Due Now as of January 1, 1995. Any amounts due Now
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as of January 1, 1995, as indicated in Exhibit "E", shall be paid to Now to the
extent not paid prior to the Closing. Saban Entertainment, Inc., a Delaware
corporation ("SEI") guarantees that its affiliates SIP (as defined below) and
C&D shall make full and prompt payment of the foregoing amounts.
(f) Release of Funds Following Closing. On the first business day
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following the Closing, Seller shall irrevocably direct Subdistributors to pay to
SINV Vesical's share of all monies held in reserve by Subdistributors under
paragraph 2(b) or as an offset under paragraph 2(d). If the transactions
contemplated by this Agreement do not close, or if this Agreement is terminated
in accordance with its terms, Buyer shall have no interest in the monies held in
reserve by Subdistributors and such funds shall be distributed as directed by
Seller.
3. Liabilities. For the avoidance of doubt, Buyer is purchasing
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only the DIC Library Assets, subject to existing liabilities and as more fully
described in Exhibit "A" and the disclosure statements contained in Exhibit "B"
attached hereto, or as specifically provided in this Agreement. All accounts
payable, liabilities, and obligations of Seller arising in connection with the
DIC Library Assets prior to the Closing Date shall be assumed by Buyer, and
Buyer shall hold Seller harmless against such amounts and third party claims
therefor. All accounts payable, liabilities, and obligations arising in
connection with the DIC Library Assets after the Closing shall be paid by Buyer,
and Buyer shall hold Seller harmless against such amounts and third party claims
therefor. Except as expressly set forth herein, Buyer is not acquiring,
directly, any of Seller's liabilities that are unrelated to the DIC Library
Assets, by operation of law or otherwise.
4. Purchase Price. In full and complete consideration for the
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transfer of the DIC Library Assets pursuant to this Agreement, Buyer shall pay
Seller the sum of Twelve Million United States Dollars (US$12,000,000) (the
"Purchase Price"). Payment of the Purchase Price shall be made in two
installments, the first installment in the amount of Seven Xxxxxxx Xxx Xxxxxxx
Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$7,200,000) shall be paid on the Closing, and
the second installment in the amount of Four Million Eight Hundred Thousand
United States Dollars (US$4,800,000) shall be paid on the date which is one (1)
year after the Closing. Payment of such second installment shall be secured by
an unconditional, irrevocable letter of credit in the form set
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forth in Exhibit "F" attached hereto, Payment of each installment of the
purchase price shall be made by telegraphic wire transfer to Seller's account at
a bank designated by Seller.
5. Seller's Representations and Warranties. Seller represents and
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warrants to Buyer as follows:
(a) Seller has the authority to execute and deliver this
Agreement, and to perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by Seller
and constitutes a valid and binding obligation of Seller enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, or similar laws relating to creditors rights generally,
and by other principles of law of general applicability limiting a party's
remedies.
(c) Seller has not hypothecated, sold, leased, mortgaged or
otherwise disposed of or encumbered any rights which it acquired from Lamalo
N.V. in 1988 in the DIC Library, except in the normal course of licensing
exploitation rights therein directly or indirectly through C&D or as disclosed
in Exhibits "A" and "B" hereto, or as otherwise permitted herein. All rights in
and to the DIC Library Assets transferred pursuant to this Agreement are free in
all material respects of any and all liens, security interests, claims and
encumbrances, except as otherwise noted in Exhibits "A" and "B", and except for
claims and encumbrances created pursuant to agreements for the exploitation of
the DIC Library Assets entered into in and arising under the ordinary course of
business.
(d) With respect to the period of time following the date of
acquisition of the DIC Library from Lamalo N.V., except as set forth in Exhibits
"A" and "B," Seller is not in material breach or default of any license, lease,
or other agreement exploiting the DIC Library for which accounts receivable are
to be assigned pursuant to this Agreement, which breach has not been disclosed
in writing to Buyer, and will not commit a breach or act of default prior to the
Closing.
(e) There are no outstanding agreements with or commitments or
promises to third parties that were created in the period of time following the
date of acquisition of the DIC Library from Lamalo N. V. with respect to the DIC
Library other than those set forth in Exhibits "A" and "B" and other than
agreements for the exploitation of the DIC Library Assets entered into in the
ordinary course of business.
(f) Other than an agreement which is the sole responsibility of
Seller, Seller has not engaged a broker for the sale represented by this
Agreement. Seller agrees to indemnify and hold Buyer harmless from any broker's
or finder's fee or alleged broker's or finder's fee incurred by Seller, or any
claim by any party that Seller entered into an agreement calling for a broker's
or finder's fee.
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(g) Except as set forth in Exhibits "A" and "B," and the
contracts referred to therein, no special consents are required to be obtained
by Seller to enable it to carry out the transactions contemplated by this
Agreement.
(h) Seller makes no representation or warranty as to any matter
relating to the chain of title to the DIC Library of Lamalo N.V. or its
predecessors-in-interest.
(i) The records and documents supplied to Buyer's representatives
pertaining to Seller's, and Seller's assigns', sublicensees', and designees'
exploitation of the DIC Library, are complete in all material respects, and, to
the extent prepared by Seller or C&D, are accurate in all material respects.
(j) Except for one contract for the exploitation of the DIC
Library in the Bahamas made directly by Now, all contracts for the exploitation
of the DIC Library were made by or through C&D.
(k) With respect to the second sentence of Section 3, Seller is
not aware of any liabilities which have not been disclosed in writing to Buyer,
other than liabilities related to delivery problems and obligations pursuant to
written license agreements with exhibitors, broadcasters, agents, subagents, and
home video distributors of programs in the DIC Library that have been made
available to Buyer's representatives for their review and inspection. Written
disclosures made to SIP, as defined below, pursuant to the C&D Acquisition, as
defined below, shall be deemed to be written disclosures to SINV hereunder.
The above representations and warranties shall survive the Closing.
6. Buyer's Representations and Warranties. Buyer represents and
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warrants to Seller as follows:
(a) Buyer has the authority to execute and deliver this
Agreement, and to perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by Buyer
and constitutes a valid and binding obligation of Buyer enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, or similar laws relating to creditors rights, and by
other principles of law of general applicability limiting a party's remedies.
(c) Buyer agrees to indemnify and hold Seller harmless from any
broker's or finder's fee or alleged broker's or finder's fee incurred by Buyer,
or any claim by any party that Buyer entered into an agreement calling for a
broker's or finder's fee.
(d) Buyer has reviewed Exhibits "A" and "B," and the other
disclosure materials provided to it, and it is satisfied with them. Buyer has
had, during the course of this transaction, the opportunity to ask questions of,
and receive answers from, management concerning the DIC Library Assets, and
Seller's business, assets and prospects related thereto, and
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to review all relevant contracts. Buyer has exercised its own judgement and
analysis in entering into this Agreement. Buyer acknowledges that the ultimates,
projections and other forward looking information are rough estimates of
potential future performance, and are not a guarantee of future performance, and
that Buyer has not relied upon such information in entering into this Agreement.
(e) Buyer is a sophisticated buyer, with experience and knowledge
of the industry and markets in which the DIC Library Assets are exploited.
(f) No special consents are required to be obtained by Buyer to
enable it to carry out the transactions contemplated by this Agreement.
The above representations and warranties shall survive the Closing.
7. Indemnification of Seller. Buyer agrees to indemnify and hold
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Seller harmless from any liability arising out of or related to the DIC Library
after the Closing Date, except to the extent that such liability arises as a
result of a breach of a representation or warranty by Seller.
7A. Physical Materials. If, during the one year period beginning on
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the Closing, SINV is unable to service a licensee of the DIC Library by reason
of a lack of customary exploitation materials which either (i) conform to
broadcast norms in existence on the Closing Date, or (ii) conform to production
norms customarily used at the date of production for comparable programs, or
(iii) are reasonably acceptable for the servicing of such licensee; and, in
addition, SINV is unable to obtain such materials (e.g., tapes for broadcast)
from sources at its disposal or from third parties, Vesical shall reimburse SINV
for the direct loss it suffers due to SINV's inability to provide such delivery
materials. Notwithstanding the foregoing, Vesical shall not reimburse SINV for
any loss with respect to a series of programs licensed in a territory if such
series of programs had been licensed in that territory during the five (5) years
preceding the Closing.
8. Negotiation and Documentation Costs. Buyer and Seller each shall
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assume full responsibility for its costs incurred directly or indirectly in
connection with the negotiation, documentation, and consummation of the
transactions contemplated by this Agreement.
9. Closing. The closing of the transactions contemplated hereby
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shall take place on April 18, 1996, or as soon thereafter as is practical (the
"Closing"). Notwithstanding the foregoing, the closing shall take place
concurrently with closing of a transaction contemplated between Saban
International Paris SARL ("SIP"), a company organized under the laws of France
and which is affiliated with SINV, and the shareholders of C&D, pursuant to
which SIP shall purchase 100% of the shares of stock of C&D (the "C&D
Acquisition"). The Closing shall take place in the Netherlands Antilles at a
location mutually agreed by the parties.
(a) Buyer's Closing Documents. At the closing, Buyer shall
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deliver to Seller, the following:
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(i) The first installment of the Purchase Price;
(ii) The irrevocable letter of credit issued by Imperial
Bank, securing payment of the second installment of the Purchase Price;
(iii) Certified copies (or the local equivalent thereof) of
the resolutions of the managing directors of Buyer authorizing the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby; and
(iv) The letter of instructions regarding the disbursement
of collections with respect to the Excluded Receivables described in Section
2(d), in the form attached hereto as Exhibit "G."
(v) The guarantee of SEI with respect to the obligations of
SIP and C&D described in Section 2(e), in the form attached hereto as Exhibit
"L."
(b) Seller's Closing Documents. At the Closing, Seller shall
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deliver to Buyer, the following:
(i) An instrument of assignment of the DIC Library Assets in
the form attached hereto as Exhibit "H".
(ii) The letter of instructions regarding the release of the
reserves described in Section 2(e), in the form attached hereto as Exhibit "I".
(iii) Certified copies of the resolutions of the managing
directors of Seller authorizing the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
(iv) Access letters covering all physical materials in
Seller's possession and control, of each of the programs comprising the DIC
Library, executed by Seller, and addressed to Now, and a similar letter executed
by Now and addressed to C & D, in the form attached hereto as Exhibit "J."
10. Notices. Notices and other communication hereunder shall be in
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writing and shall be deemed given if delivered personally, facsimile (receipt of
which is confirmed by the party to whom sent), mailed, or air couriered to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice).
If to SINV, to:
Plaza XxXx Xxxxxx 0-0
Xxxxxxx, Xxxxxxxxxxx Antilles
Facsimile number: 000-000-00-00
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If to Vesical, to:
Windemere House
000 Xxxx Xxx Xxxxxx
X.X. Xxx XX-0000
Nassau, Bahamas
Facsimile number: (000) 000-0000
11. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of, and be subject to the exclusive jurisdiction of
the courts of, the Netherlands Antilles applicable to contracts to be performed
wholly within such jurisdiction.
12. Attorneys Fees. In the event that any action, suit, or other
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proceeding is instituted concerning or arising out of this Agreement, the
prevailing party shall recover all of such party's reasonable attorneys' fees
and costs incurred in such action, suit and proceeding.
13. Confidentiality. Except as required by applicable law, the terms
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of this Agreement and the terms of the acquisition of the DIC Library Assets
will be kept strictly confidential. Each party may disclose otherwise
confidential information to its accountants, attorneys, and other professional
advisors, provided that each agrees to maintain such disclosure in confidence.
To the extent that any other disclosure becomes legally required, the non-
disclosing party shall be notified promptly and before disclosure is made. In
the event the transactions contemplated hereby fail to close, each party shall
promptly return any materials it has received from the other. No party shall
make any public announcement or statement with respect to this Agreement or the
purchase and sale of the DIC Library Assets without the prior written approval
of the other party to this Agreement except for the public announcement attached
hereto as Exhibit "K" and any other announcement or statement containing
substantially the same information.
14. Termination. The parties' obligations hereunder may be
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terminated and the transactions contemplated herein abandoned as follows:
(a) By mutual agreement of the parties;
(b) By Buyer, at Buyer's election, if Seller refuses or is unable
to close the transactions contemplated by this Agreement;
(c) By Seller, at Seller's election, if Buyer refuses or is
unable to close the transactions contemplated by this Agreement;
(d) By Buyer, at Buyer's election, if the C&D shareholders refuse
or are unable to close the transactions contemplated by the C&D Acquisition; or
(e) By Seller, at Seller's election, if SIP refuses or is unable
to close the transactions contemplated by the C&D Acquisition.
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15. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
16. Limitation on Remedies. The parties agree that neither of them
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shall have available the remedy of rescission in the event of a breach of this
Agreement.
17. Integration. This Agreement and the attached exhibits contain
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the entire agreement between the parties, and there are no further or other
agreements or understandings, written or oral, in effect between them relating
to the subject matter of this Agreement. This Agreement constitutes the "Long
Form Agreement" to which reference is made in that certain letter agreement
between the parties dated as of October 26, 1995 (the "Letter Agreement"), and,
when executed by the parties, shall supersede the Letter Agreement which shall
be of no further force and effect.
18. Exhibits. The exhibits to this Agreement constitute an integral
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part hereof, and are incorporated into this Agreement. The disclosure of any
contract which constitutes a DIC Library Asset shall be considered to be a
disclosure of all of the terms and conditions of such contract.
19. Severability. Should any provision of this Agreement be
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determined to be void, invalid or unenforceable for any reason, such defect
shall not render void, invalid or unenforceable any other provision of this
Agreement.
20. Amendments and Waivers. This Agreement may be amended, or any
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provision waived, only by a writing signed by the parties hereto.
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21. Time of the Essence. Time is of the essence of each provision of
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this Agreement in which time is an element.
IN WITNESS WHEREOF, the parties have executed this Agreement, as of
December 31, 1995.
SABAN INTERNATIONAL N.V.
By /s/ X.X. xx Xxxx
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Its Managing Director
Date ________________________
VESICAL LIMITED
By /s/
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Its Vice-President
Date ________________________
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