Exhibit 10.1
AMENDMENT TO SHARE PURCHASE AGREEMENT
AMENDMENT, dated as of July 8, 2005 (this "Amendment"), by and among First
National Holding S.A., a societe anonyme organized under the laws of Luxembourg
("FNH"), Emergent Telecom Ventures S.A., a societe anonyme organized under the
laws of Switzerland ("ETV"), Pisces Investment Limited, a company organized
under the Companies Law of Cyprus and wholly-owned subsidiary of FNH and ETV
("Pisces", and together with FNH and ETV, the "Buyers"), and Metromedia
International Group, Inc., a Delaware corporation (the "Seller"), to the Share
Purchase Agreement, dated as of February 17, 2005, by and among the Buyers and
the Seller (as amended by that certain letter agreement among the Buyers and the
Seller, dated June 14, 2005, the "Share Purchase Agreement"). Capitalized terms
used herein but not otherwise defined herein will have the meanings set forth in
the Share Purchase Agreement.
WHEREAS, the parties hereto wish to amend the Share Purchase Agreement upon
the terms and conditions hereinafter set forth to, among other things, (i)
eliminate the closing condition that the holders of the Seller's common stock
approve the Share Purchase and (ii) set the Closing Date as August 8, 2005; and
WHEREAS, pursuant to Section 7.4 of the Share Purchase Agreement, the
parties hereto may amend the Share Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby forever acknowledged and confessed, the parties
hereto agree as follows:
1. Section 2.2 of the Share Purchase Agreement is hereby amended and
restated in its entirety as follows:
"Section 2.2. Closing; Closing Date. Subject to the satisfaction or waiver
of all of the conditions to closing contained in Article VI, the closing of
the Share Purchase (the "Closing") shall take place (a) at the offices of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 1285 Avenue of the Americas,
New York, New York, at 10:00 a.m. on August 8, 2005, or (b) at such other
place and time or on such other date as the Buyers and the Seller may agree
in writing. The date on which the Closing occurs is referred to as the
"Closing Date.""
2. The second sentence of Section 3.1(a) of the Share Purchase Agreement
is hereby amended and restated in its entirety as follows:
"The Seller has all necessary corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby."
3. Section 3.2(a) of the Share Purchase Agreement is hereby amended and
restated in its entirety as follows:
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"(a) Authority. The board of directors of the Seller has adopted
resolutions: (i) approving and declaring expedient this Agreement and the
transactions contemplated hereby, including, without limitation, the Share
Purchase; and (ii) declaring that it is for the best interests of the Seller
that the Seller enters into this Agreement and consummates the Share Purchase
upon the terms and subject to the conditions set forth in this Agreement. The
execution, delivery and performance of this Agreement by the Seller and the
consummation by the Seller of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of the
Seller. This Agreement has been duly executed and delivered by the Seller and,
assuming due execution and delivery by each of the Buyers, constitutes the valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, subject to (x) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws, (y) laws of general
applicability relating to or affecting creditors' rights and (z) general equity
principles."
4. Section 3.2(c)(i) of the Share Purchase Agreement is hereby amended
and restated in its entirety as follows:
"(i) the filing with the United States Securities and Exchange Commission
(the "SEC") of (A) current reports on Form 8-K and (B) such other filings and
reports that may be required in connection with this Agreement and the
transactions contemplated hereby under the applicable United States federal
securities laws;"
5. Section 3.15 of the Share Purchase Agreement is hereby deleted in its
entirety and is replaced with the words "intentionally omitted."
6. Section 3.17 of the Share Purchase Agreement is hereby deleted in its
entirety and is replaced with the words "intentionally omitted."
7. Section 4.4 of the Share Purchase Agreement is hereby amended and
restated in its entirety as follows:
"Section 4.4 SEC Information. None of the information with respect to the
Buyers or any of their respective Subsidiaries or Affiliates that the Buyers
furnish to the Seller for use in any document required to be filed by the Seller
with the SEC, at the time of the filing thereof or at the time of any
distribution or dissemination thereof, will contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading."
8. Section 5.2 of the Share Purchase Agreement is hereby deleted in its
entirety and is replaced with the words "intentionally omitted."
9. Section 5.4(a)(iv) of the Share Purchase Agreement is hereby deleted
in its entirety and is replaced with the words "intentionally omitted."
10. The portion of Section 5.4(d) of the Share Purchase Agreement prior to
clause (i) thereof is hereby amended and restated in its entirety as follows:
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"(d) Notwithstanding the foregoing, nothing in this Agreement shall prevent
the Seller or its board of directors from:"
11. Section 5.4(e)(ii) of the Share Purchase Agreement is hereby deleted
in its entirety and is replaced with the words "intentionally omitted."
12. Section 5.5(c) of the Share Purchase Agreement is hereby amended and
restated in its entirety as follows:
"(c) The Buyers and the Seller shall not, the Buyers shall not permit any
of their respective Subsidiaries to, and the Seller shall not permit the Company
or its Subsidiaries to, take any action that would reasonably be expected to
result in any of the conditions to the Share Purchase set forth in Article VI of
this Agreement not being satisfied or satisfaction of those conditions being
delayed."
13. Section 5.8 of the Share Purchase Agreement is hereby deleted in its
entirety and is replaced with the words "intentionally omitted."
14. Section 6.1(a) of the Share Purchase Agreement is hereby deleted in
its entirety and is replaced with the words "intentionally omitted."
15. Section 6.2(a) of the Share Purchase Agreement is hereby amended by
inserting the following at the end thereof:
"; provided, however, that in no event shall the failure to obtain approval
of the Share Purchase from the requisite stockholders of the Seller result in
the non-fulfillment of the condition contained in this Section 6.2(a)."
16. Section 6.2(b) of the Share Purchase Agreement is hereby amended by
inserting the following at the end thereof:
"; provided, however, that in no event shall the failure to obtain approval
of the Share Purchase from the requisite stockholders of the Seller result in
the non-fulfillment of the condition contained in this Section 6.2(b)."
17. The portion of Section 7.1 of the Share Purchase Agreement prior to
subsection (a) thereof is hereby amended and restated in its entirety as
follows:
"This Agreement may be terminated at any time prior to the Closing Date:"
18. Sections 7.1(b)(iii), (f)(i), (ii) and (iv), (g), (h) and (i) of the
Share Purchase Agreement are each hereby deleted in their respective entirety
and are each replaced with the words "intentionally omitted."
19. The portion of Section 7.1(e) of the Share Purchase Agreement prior to
the first proviso thereof is hereby amended and restated in its entirety as
follows:
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"(e) by the Seller, if the board of directors of the Seller shall approve,
subject to complying with the terms of this Agreement, a Superior Proposal in
accordance with Section 5.4;"
20. Sections 7.3(c)(ii), (d) and (e) of the Share Purchase Agreement are
each hereby deleted in their respective entirety and are each replaced with the
words "intentionally omitted."
21. The first sentence of Section 7.4 of the Share Purchase Agreement is
hereby amended and restated in its entirety as follows:
"Subject to applicable laws, this Agreement may be amended by the parties
hereto, by action taken or authorized by their respective boards of directors."
22. Section 8.4 of the Share Purchase Agreement is hereby amended and
restated in its entirety as follow:
"Section 8.4. Entire Agreement; Third-Party Beneficiaries. This Agreement,
as amended by letter agreement, dated June 14, 2005, and Amendment dated
July 8, 2005, and the documents and instruments and other agreements among
the parties hereto as contemplated by or referred to herein, including the
Seller Disclosure Letter and the Buyers Disclosure Letter, (a) constitute
the entire agreement among the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof, it
being understood that any confidentiality agreement entered into between
the Seller and any other party or any affiliate of any other party hereto
shall continue in full force and effect until the Closing and shall survive
any termination of this Agreement, and (b) are not intended to confer upon
any other Person any rights or remedies hereunder, except as specifically
provided in the following sentence. The provisions of Section 5.9 are
intended to be for the benefit of, and shall be enforceable by, the
Employees and their respective heirs and personal representatives, and
shall be binding on the Buyers and their successors and assigns. In the
event the Buyers or one of their respective successors or assigns (i)
consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity in such consolidation or
merger or (ii) transfers all or substantially all of its properties and
assets to any Person, then, and in each case, proper provision shall be
made so that the successors or assigns of such Buyer, as the case may be,
honor the obligations set forth in Section 5.9."
23. Section 8.7 of the Share Purchase Agreement is hereby amended and
restated in its entirety as follow:
"Section 8.7 Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to principles of conflict of laws. The parties hereto hereby declare that
it is their intention that this Agreement shall be regarded as made under the
laws of the State of New York and that the laws of said State shall be applied
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in interpreting its provisions in all cases where legal interpretation shall be
required. Each of the parties hereto: (a) irrevocably and unconditionally
submits to the exclusive jurisdiction of the courts of the State of New York and
of the federal courts sitting in the State of New York with respect to all
actions and proceedings arising out of or relating to this Amendment and the
transactions contemplated hereby; (b) agrees that all claims with respect to any
such action or proceeding shall be heard and determined in such courts and
agrees not to commence any action or proceeding relating to this Amendment or
the transactions contemplated hereby except in such courts; (c) irrevocably and
unconditionally waives any objection to the laying of venue of any action or
proceeding arising out of this Agreement or the transactions contemplated hereby
and irrevocably and unconditionally waives the defense of an inconvenient forum;
and (d) irrevocably appoints The Corporation Trust Company in the case of each
Buyer and the Corporation Service Company in the case of the Seller as its agent
for the sole purpose of receiving service of process or other legal summons in
connection with any such dispute, litigation, action or proceeding brought in
such courts and agrees that it will maintain The Corporation Trust Company in
the case of each Buyer and the Corporation Service Company in the case of the
Seller at all times as its duly appointed agent in the State of New York for the
service of any process or summons in connection with any such dispute,
litigation, action or proceeding brought in such courts and, if it fails to
maintain such an agent during any period, any such process or summons may be
served on it by mailing a copy of such process or summons to it in accordance
with, and in the manner provided in, Section 8.2 hereof, with such service
deemed effective on the fifth day after the date of such mailing."
24. The second proviso of Section 8.11 of the Share Purchase Agreement is
hereby amended and restated in its entirety as follows:
"; provided, further that such assignment is made not less than ten
Business Days in advance of the Closing Date."
25. Article VIII of the Share Purchase Agreement is hereby amended by
adding the following new Section 8.14 at the end thereof:
"Section 8.14. DGCL Section 271. The parties to this Agreement agree that
in the event of a challenge under Section 271 of the Delaware General
Corporation Law of any provision of this Agreement or the application
thereof in any lawsuit or other legal proceeding, whether judicial or
administrative, or in the event a court of competent jurisdiction grants an
injunction or declares the consummation of the transactions contemplated
hereby to be void or unenforceable pursuant to Section 271 of the Delaware
General Corporation Law, such challenge, injunction or declaration shall
not be deemed to be a breach by any party hereto of any of its
representations, warranties or covenants set forth herein and shall not
entitle any party to terminate this Agreement pursuant to Section
7.1(b)(i)."
26. Ratification of Share Purchase Agreement. Except as otherwise
expressly provided by this Amendment, all of the terms and conditions of the
Share Purchase Agreement are hereby ratified and shall remain unchanged and
continue in full force and effect.
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27. Term of Agreement. This Amendment shall become effective upon the
execution hereof by each of the parties hereto; provided, however, that this
Amendment shall terminate, become null and void and otherwise have no further
force or effect if (a) the Closing shall not have occurred on or before
September 8, 2005; provided further, however, that if the Buyers shall have
breached their covenant and agreement to pay the Purchase Price at the Closing
and the Seller shall have given written notice of such breach and intention to
terminate the Agreement pursuant to and in accordance with Section 7.1(c) of the
Share Purchase Agreement, then this Amendment shall not terminate unless the
Buyers demonstrate to the reasonable satisfaction of the Seller prior to the
expiration of the thirty (30) day period referred to in Section 7.1(c) of the
Share Purchase Agreement that they are ready, willing and able to cure such
breach and the sole reason the Buyers are prevented from doing so is the
existence of an effective Legal Requirement or Order that has the effect set
forth in Section 6.1(b) of the Share Purchase Agreement (and upon the
termination of this Amendment in such a circumstance, the notice of breach will
be rendered null and void) or (b) a Governmental Entity of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
permanent, non-appealable Legal Requirement or Order which (i) is in effect and
(ii) has the effect of making the Share Purchase illegal or otherwise
restraining, enjoining or prohibiting consummation of the Share Purchase (or the
consummation of any other transactions contemplated by the Share Purchase
Agreement if it would have the effect of restraining or prohibiting the
consummation of the Share Purchase). Upon any termination of this Amendment, the
Share Purchase Agreement shall continue in full force and effect in accordance
with its terms immediately prior to the execution and delivery of this Amendment
and shall be unchanged, unaltered and unaffected by any term or provision of
this Amendment that was previously in effect.
28. Headings. The headings in this Amendment are for convenience of
reference only and shall not limit or otherwise affect the meanings hereof.
29. Governing Law; Jurisdiction. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflict of laws. The parties hereto hereby declare that it is
their intention that this Amendment shall be regarded as made under the laws of
the State of New York and that the laws of said State shall be applied in
interpreting its provisions in all cases where legal interpretation shall be
required. Each of the parties hereto: (a) irrevocably and unconditionally
submits to the exclusive jurisdiction of the courts of the State of New York and
of the federal courts sitting in the State of New York with respect to all
actions and proceedings arising out of or relating to this Amendment and the
transactions contemplated hereby; (b) agrees that all claims with respect to any
such action or proceeding shall be heard and determined in such courts and
agrees not to commence any action or proceeding relating to this Amendment or
the transactions contemplated hereby except in such courts; (c) irrevocably and
unconditionally waives any objection to the laying of venue of any action or
proceeding arising out of this Amendment or the transactions contemplated hereby
and irrevocably and unconditionally waives the defense of an inconvenient forum;
and (d) irrevocably appoints The Corporation Trust Company in the case of each
Buyer and the Corporation Service Company in the case of the Seller as its agent
for the sole purpose of receiving service of process or other legal summons in
connection with any such dispute, litigation, action or proceeding brought in
such courts and agrees that it will maintain The Corporation Trust Company in
the case of each Buyer and the Corporation Service Company in the case of the
Seller at all times as its duly appointed agent in the State of New York for the
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service of any process or summons in connection with any such dispute,
litigation, action or proceeding brought in such courts and, if it fails to
maintain such an agent during any period, any such process or summons may be
served on it by mailing a copy of such process or summons to it in accordance
with, and in the manner provided in, Section 8.2 of the Share Purchase
Agreement, with such service deemed effective on the fifth day after the date of
such mailing.
30. WAIVER OF JURY TRIAL. EACH OF THE BUYERS AND THE SELLER HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AMENDMENT OR THE ACTIONS OF THE BUYERS OR THE SELLER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
31. Severability. In the event that any provision of this Amendment or the
application thereof becomes or is declared by a court of competent jurisdiction
to be void or unenforceable, the remainder of this Amendment will continue in
full force and effect and the application of such provision to other Persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties to this Amendment. The parties hereto further agree to replace any such
void or unenforceable provision of this Amendment with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business and other purposes of such void or unenforceable provision.
32. Counterparts. This Amendment may be executed in two 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 each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed in multiple originals by their authorized officers, all as of the date
first above written.
THE BUYERS:
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EMERGENT TELECOM VENTURES S.A.
By: /S/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
FIRST NATIONAL HOLDING S.A.
By: /S/ Xxxxx X. Schuarhasdt
--------------------------------
Name: Xxxxx X. Schuarhasdt
Title: Managing Director
PISCES INVESTMENT LIMITED
By: /S/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
THE SELLER:
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METROMEDIA INTERNATIONAL GROUP, INC.
By: /S/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman and Chief Executive Officer
