EXHIBIT 2
IRREVOCABLE PROXY AND RIGHT OF FIRST OFFER AGREEMENT, dated as of
September 21, 2001, (this "Agreement"), among 1947 PTVI LLC, a Delaware limited
liability company ("1947"), 1945 PTVI LLC, a Delaware limited liability company
("1945") and XXXXXX XXXXXXX XXXXXXXX ("CEC").
RECITALS
WHEREAS, 1947 and 1945, as assignees of Hampstead Management Company
Ltd ("Hampstead"), have agreed to transfer to CEC 710,134 Class A Common Shares
of Claxson Interactive Group Inc. (the "Claxson Shares") upon the completion of
the business combination transaction described in the Registration Statement
filed by Claxson Interactive Group Inc. ("Claxson") with the U.S. Securities and
Exchange Commission on August 15, 2001 (the "Claxson Closing");
WHEREAS, 1947 and 1945 (as assignees of Hampstead) and CEC are
parties to that certain CEC Equity Agreement, dated as of October 29, 2000 (the
"Equity Agreement"); and
WHEREAS, the parties to the Equity Agreement desire to enter into
this Agreement to clarify certain terms contained therein;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, the parties hereto agree
as follows:
1.1 Irrevocable Proxy and Power of Attorney. (a) CEC hereby
irrevocably appoints each of 1947 and 1945, as CEC's attorney and proxy (with
full power of substitution), with full power and authority to vote, and
otherwise act (by written consent or otherwise) with respect to the Claxson
Shares which CEC is entitled to vote at any meeting of members of Claxson
(whether annual or special and whether or not an adjourned or postponed meeting)
or consent in lieu of any such meeting or otherwise, on the matters and in the
manner specified in Section 1.1 hereof until termination of this Agreement. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. CEC
hereby ratifies and confirms all that each of 1945 and 1947 as CEC's
attorney-in-fact (as and to the extent provided above) shall do. (b) CEC hereby
revokes all other proxies and powers of attorney with respect to the Claxson
Shares which CEC may have heretofore appointed or granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, such proxy or power of attorney shall not be effective) by
CEC with respect thereto so long as this proxy is in effect. The proxy granted
hereby and related power of attorney shall terminate in full upon CEC's
Transfer, subject to the terms hereof, of Claxson Shares to a third party not a
CEC Affiliate, but only with respect to the shares so Transferred. In connection
with any such Transfer, 1945 and 1947 agree to execute a termination agreement,
at the request of CEC, reasonably acceptable to each of them to reflect such
termination.
1.2 Right of First Offer. (a) In the event that, at any time during
the term of this Agreement, CEC proposes to Transfer (other than any Transfer to
a CEC Affiliate, which CEC Affiliate agrees in writing to be bound by the terms
hereof) any of the Claxson Shares, CEC
shall first make an offer to Transfer such Claxson Shares to 1945 and 1947 (the
"Offered Holders") in accordance with the following provisions:
(i) CEC shall deliver a written notice ("Offer Notice") to the
Offered Holders stating (1) CEC's intention to offer such shares, (2) the
number of shares to be offered and (3) the price and terms upon which CEC
proposes to offer such shares.
(ii) Within 10 business days after giving of the Offer Notice, the
Offered Holders shall notify CEC in writing (the "Election Notice",
specifying whether such parties elect, in the aggregate, to purchase, at
the price and on the terms specified in the Offer Notice, all (but not
less than all) of the shares offered by CEC (each Offered Holder
affirmatively so electing an "Exercising Holder").
(iii) If the Offered Holders elect, in the aggregate, to purchase
all of the shares offered pursuant to the Offer Notice, then each
Exercising Holder shall purchase the portion of the Claxson shares
specified in the Election Notice. If both Offered Holders elect to become
Exercising Holders, each shall have the right to purchase at least 50% of
the shares offered by CEC. The closing of a purchase of shares by an
Exercising Holder or Exercising Holders pursuant to this subsection shall
be no later than 10 business days following the delivery of the Election
Notice, subject to receipt of any required regulatory approvals.
(b) Notwithstanding the foregoing, if the Offered Holders do not
collectively elect to purchase all of the shares specified in the Offer Notice,
CEC shall have no obligation to sell any of such shares to the Offered Holders,
and may, during the 60 calendar-day period following the expiration of the
period provided in Section 1.2(a)(ii), enter into an agreement to Transfer or
otherwise Transfer all of the shares specified in the Offer Notice to any other
party (a "Third Party Acquiror"), at a price (in cash or publicly traded
securities with a fair market value at least equal to the cash price referred to
in Section 1.2(a)(i)) and upon terms no more favorable to the Third Party
Acquiror than those specified in the Offer Notice. If CEC does not enter into an
agreement for the Transfer of, or otherwise Transfer, the shares within such
period, or if transactions under such agreement are not consummated within 90
calendar days of the execution thereof, the right provided hereunder shall be
deemed to be revived and such shares shall not be offered or Transferred unless
first re-offered to the Offered Holders in accordance with this Section.
1.3 Effective Date; Term. This Agreement shall become effective as
of the Claxson Closing and shall remain in effect until the earlier of (i) with
respect to any Claxson Shares Transferred by CEC in compliance with Section 1.2
hereof, the date of such Transfer and (ii) the date this Agreement is terminated
by written agreement of all the parties hereto.
1.4 Definitions. As used in this Agreement, the following
capitalized terms shall have the meanings indicated in this Section 1.4:
"Transfer" shall mean any sale, assignment, or other outright
transfer of beneficial ownership of any securities (including through a direct
or indirect holding company) and any pledge or hypothecation (other than a
pledge or hypothecation to or financing arrangement
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through a financial or investment banking institution for bona fide indebtedness
pursuant to which the pledgee agrees in writing to be subject to the terms of
this Agreement to the same extent as the transferee), or similar deposit,
including, without limitation, a transaction the result of which is that
entities not previously controlling such Person have acquired voting control of
such Person, and "Transferred" and "Transferee" shall have correlative meanings.
"CEC Affiliate" shall mean the members of CEC's immediate family and
their lineal descendants, and trusts or similar entities established for the
benefit of such persons, who or which have become party hereto, and any other
entity (other than a natural person) that is under common control with, or
controlled by, CEC or a CEC Affiliate, for so long as CEC or such CEC Affiliate
remains in such relationship.
1.5 Notices. Any and all notices to any party to this
Agreement will be delivered to the following addresses:
(a) If to 1947 or 1945:
c/o Finser Corporation
000 Xxxxxxxx Xxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
with a copy (solely for information purposes) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000-0000
(b) If to CEC:
c/x Xxxxxxxx Television Group
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
with a copy (solely for information purposes) to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, III, Esq.
Fax No.: (000) 000-0000
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or to such other address as any party shall have specified by notice in writing
to the other parties. All such notices, requests, demands and communications
shall be deemed to have been received on the date of personal delivery or
telecopy or on the third business day after the mailing thereof.
1.6 Counterparts. This Agreement 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 counterparts have been signed by any
party and delivered to the other parties, it being understood that all parties
need not sign the same counterpart.
1.7 Governing Law. This Agreement shall be governed, and
construed in accordance with, the laws of the State of New York.
1.8 Submission to Jurisdiction; Waivers. Each of the parties hereto
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by any other party hereto or its successors or assigns may be brought
and determined in the U.S. federal district court for the Southern District of
New York or state court in the Borough of Manhattan, and each of the parties
hereto hereby irrevocably submits with regard to any such action or proceeding
for itself and in respect to its property, generally and unconditionally, to the
exclusive jurisdiction of the aforesaid courts. Each of the parties hereto
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with respect to
this Agreement, (a) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure to
lawfully serve process, (b) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
(c) to the fullest extent permitted by applicable law, that (i) the suit, action
or proceeding in any such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper and (iii) this Agreement,
or the subject matter hereof, may not be enforced in or by such courts and (d)
any right to a trial by jury.
1.9 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
1.10 Enforcement. 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 specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity, including without limitation injunctive relief.
1.11 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective officers or other authorized persons thereunto
duly authorized as of the date first written above.
1947 PTVI LLC
By: /s/Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President and Treasurer
1945 PTVI LLC
By: /s/Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President and Treasurer
/s/Xxxxxx Xxxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxx Xxxxxxxx
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