Exhibit 10.45
AGREEMENT
This AGREEMENT (this "Agreement") is dated as of May ___, 1996, by
and among Clearview Cinema Group, Inc., a Delaware corporation ("CCG"), Roxbury
Cinema, Inc. ("Roxbury"), F&N Cinema, Inc. ("F&N") and Xxxx Xxxxxx, Xxxx Xxxxxx,
and Xxxxxx Xxxxxx (collectively, the "Stockholders")
The CCG and CCC Washington Cinema Corp. ("WCC"), CCC Xxxxxxx
Cinema Corp., ("ACC"), and CCC New City Cinema Corp., a Delaware corporation
("NCC," and collectively with CCG, WCC, ACC, and NCC, the "Purchasers") and
Township of Washington Theater, Inc. ("Washington"), Xxxxxxx Xxxxxxx Cinema,
Inc., ("Xxxxxxx"), and New City Cinema, Inc. ("New City," and collectively with
Washington and Xxxxxxx, the "Sellers") have entered into an Asset Purchase
Agreement dated as of the date hereof, pursuant to which the Purchasers have
agreed to purchase and the Sellers have agreed to sell substantially all of the
assets used by the Sellers in operating certain theaters, all as more fully set
forth in the Asset Purchase Agreement.
The Stockholders are all of the stockholders of Sellers.
The Stockholders own all of the shares of (i) Roxbury which
corporation owns and operates the Cinema Ten Succasunna theater (the "Succasunna
Theater") and (ii) F&N which corporation owns and operates the Parsippany Twelve
theater (the "Parsippany Theater" and together with the Succasunna Theater, the
"Retained Theaters"). The Stockholders together with Roxbury and F&N are
sometimes referred to herein collectively as the "Transferors", or individually
as a "Transferor".
The Asset Purchase Agreement requires as a condition to closing
thereunder that the Stockholders shall have entered into this Agreement granting
to CCG a right of first refusal to purchase the Retained Theaters.
In consideration of $200,000 paid to the Stockholders, the receipt
of which is hereby acknowledged, the parties, each intending to be legally bound
hereby, agree as set forth below:
1. Transfer Restriction. No Transferor shall sell, alienate or
otherwise transfer (collectively a "Transfer") nor permit any corporate
Transferor in which such Transferor holds any interest to Transfer any interest
in whole or any part in any
Retained Theater, except in accordance with the terms of this Agreement;
provided, however, that any Transferor may Transfer his, her or its interest to
any other Transferor; and further provided that any Transferor may Transfer his
or her interest in the Retained Theaters by his or her will but only if, prior
to such Transfer, the beneficiary of such Transfer executes and delivers a
written agreement, in form and substance reasonably satisfactory to CCG,
agreeing to be bound by the terms of this Agreement; and further provided that
any Transferor may transfer up to five percent of the capital stock of such
Transferor to any employee or independent contractor of such Transferor but only
if, prior to such Transfer, the recipient of such Transfer executes and delivers
a written agreement, in form and substance reasonably satisfactory to CCG,
agreeeing to be bound by the terms of this Agreement.
2. Right of First Refusal; Notice. If any Transferor shall at any
time wish to sell, assign, transfer or otherwise dispose (each a "Transfer") of
all or any portion of one or both of the Retained Theaters or shall have
received an offer (an "Offer") soliciting such Transfer, such Transferor shall
promptly delivery written notice (the "Notice") of the terms of such Transfer,
together with a copy of the Offer, if any, to CCG. In the event that the Offer
encompasses other property in addition to the Retained Theaters, the Notice
shall be limited to the part of the Retained Theaters that is included in the
Offer, on such terms as apply to the Retained Theater(s) or that portion thereof
and at such price as shall be reasonably allocated to the Retained Theaters.
3. Exercise. Within the ten day period (the "Exercise Period")
commencing with the date of delivery of the Notice to CCG, CCG may notify the
Transferors in writing of its election (the "Exercise Election") to exercise the
right of first refusal and to purchase the interest in the Retained Theater(s)
on terms, conditions, limitations, and restrictions identical to those set forth
in the Notice. If CCG shall exercise its right of first refusal the Transferors
shall sell, grant, and convey, and CCG shall purchase such portion of the
Retained Theaters as is the subject of the Notice.
4. Access. During the Exercise Period, the Transferors shall
provide to CCG, and such employees, agents, and other representatives as CCG
shall designate, unobstructed access during normal working hours to all parts of
the Retained Theater(s) that is subject to the Offer for the purpose of
conducting due diligence. The Transferors shall provide to CCG such information
and assistance as shall reasonably be requested.
5. Procedure. (a) Immediately upon delivery of the Exercise
Election, CCG shall deposit with Xxxx Xxxxxx, as agent for the Transferors (or
such other person as shall be identified
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to CCG in writing signed by each party (other than CCG) to this Agreement), a
cash amount (the "Initial Deposit") equal to 1% of the purchase price set forth
in the Notice.
(b) At the earlier of (i) thirty days thereafter or (ii) the
signing of definitive transaction documents as provided in section 5(c), CCG
shall deposit with such person as shall be named in a writing signed by all of
the Transferors, an additional amount (the "Deposit") equal to 9% of the
purchase price set forth in the Notice.
(c) the definitive deal documents shall provide terms (including
but not limited to purchase price and closing date) and conditions,
representations, warranties, and covenants, and provisions for indemnification
("Deal Terms") identical to those in the Offer to the extent present in the
Offer and for those Deal Terms not present in the Offer substantially similar to
those contained in the Asset Purchase Agreement dated as of May 29, 1996 among
Clearview Cinema Group, Inc., CCC Washington Cinema Corp., CCC Xxxxxxx Cinema
Corp., CCC New City Cinema Corp., Township of Washington Theater, Inc., Xxxxxxx
Xxxxxxx Cinema, Inc., and New City Cinema, Inc.
(d) The Inital Deposit and the Deposit shall be retained by the
Transferors only in the event that (i) CCG is unwilling or unable to close the
transactions described in the definitive acquisition agreements and (ii) it is
not the case that (A) such unwillingness or inability to close is caused by any
of the Transferors unwillingness or inability to close, (B) any of the Retained
Theaters landlords or existing mortgagees with regard to the fee interest, as
the case may be, have not provided timely consents to assignments of the real
property leases to the subsidiaries of CCG, timely consents to leasehold
mortgages in favor of CCG's lender, timely estoppel certificates, timely
non-disturbance agreements or any other document reasonably requested by CCG and
its lenders in connection with the assignment of such leases or such lender's
security interest in such leases (C) there has occurred a material adverse
change in any of the Retained Theater's business, financial condition or
prospects after the date of the latest financial statements provided to CCG
prior to the delivery by CCG of the Initial Deposit (D) any material or
information provided by the Transferors to CCG shall be or have been materially
incorrect or misleading or (E) any of the Transferors shall have breached in any
material respect any representation, warranty or covenants or conditions set
forth in the definitive acquisition agreements.
6. Sale to Other Persons. In the event that CCG does not deliver
written notice exercising its option within the Exercise Period, the Transferors
may Transfer the interest in the Retained Theaters only upon same terms as those
stated in the Notice to the entity set forth in the Notice; provided, however,
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that a difference between the purchase price set forth in the definitive
acquisition documents as executed and delivered by the Transferors and the
purchase price as set forth in the Notice that is less than 10% of the purchase
price shall not be considered a difference for the purpose of this Section 6.
7. Term. This Agreement shall terminate on the third anniversary
of the date hereof, unless such date shall fall within an Exercise Period
commenced by a Notice delivered to CCG in which case the term of this Agreement
shall be automatically extended until the termination of such Exercise Period.
8. Severability. If any term or other provision of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal or incapable
of being enforced under any rule of Law in any particular respect or under any
particular circumstances, such term or provision shall nevertheless remain in
full force and effect in all other respects and under all other circumstances,
and all other terms, conditions and provisions of this Agreement shall
nevertheless remain in full force and effect 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 that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
9. Specific Performance. The parties hereto acknowledge and agree
that this Agreement may be enforced in a court of competent jurisdiction by a
decree of specific performance. Such remedy shall, however, be cumulative and
not exclusive and shall be in addition to any remedies that the parties hereto
possess.
10. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon each party hereto, its heirs, legal
representatives, successors and assigns; provided, however, CCG may assign this
Agreement only to a wholly-owned subsidiary of CCG.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey (except the
conflict of law provisions thereof).
12. Notices. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given or made i) the second business day after the date of mailing, if
delivered by registered or certified mail, postage prepaid, ii) upon delivery,
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if sent by hand delivery, iii) upon delivery, if sent by prepaid courier, with a
record of receipt, or the next day after the date of dispatch, if sent by cable,
telegram, facsimile or telecopy (with a copy simultaneously sent by registered
or certified mail, postage prepaid, return receipt requested), to the parties at
the following addresses:
(a) if to CCG, to:
Clearview Cinema Group, Inc.
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: A. Xxxx Xxxx, President
with a required copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxxxx LLP
1251 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
(b) if to any Transferor to:
Xxxx Xxxxxx
00 Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
with a required copy to:
Xxxx Xxxxxxxx, Esq.
000 Xxxxx 00
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Any party hereto may change the address to which notice to it, or copies
thereof, shall be addressed, by giving notice thereof to the other parties
hereto in conformity with the foregoing.
13. Modification; Waiver; Remedies Cumulative. To be effective,
any amendment or waiver under this Agreement must be in writing and be signed by
the party against whom enforcement of the same is sought. Neither the failure of
any party hereto to exercise any right, power or remedy provided under this
Agreement or to insist upon compliance by any other party with its obligations
hereunder, nor any custom or practice of the parties at variance with the terms
hereof shall constitute a waiver by such party of its right to exercise any such
right, power or remedy or to demand such compliance. The rights and remedies of
the parties hereto are cumulative and not exclusive of the rights
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and remedies that they otherwise might have now or hereafter, at law, in equity,
by statute or otherwise.
14. Headings. The headings of the various articles, sections and
other subdivisions hereof are for convenience of reference only and shall not
modify, define or limit any of the terms or provisions hereof.
15. Entire Agreement. This Agreement sets forth all of the
agreement between the parties hereto with respect to the subject matter hereof,
and supersede all prior or contemporaneous agreements and understandings,
negotiations, inducements or conditions, express or implied, oral or written.
This Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
CLEARVIEW CINEMA GROUP, INC.
By:______________________________
A. Xxxx Xxxx
Title: President
ROXBURY CINEMA, INC.
By:______________________________
Name:
Title:
F&N CINEMA, INC.
By:______________________________
Name:
Title: President
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Xxxx Xxxxxx
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Xxxxxx Xxxxxx
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Xxxx Xxxxxx
