EXHIBIT 2
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "AGREEMENT"), dated as of May 17,
2002, is by and among Cinemark, Inc., a Delaware corporation ("HOLDINGS"),
Cinemark USA, Inc., a Texas corporation ("CINEMARK"), and each of the
shareholders of Cinemark that is a signatory hereto (individually, a
"SHAREHOLDER" and collectively, the "SHAREHOLDERS").
A. Holdings desires to acquire (the "SHARE EXCHANGE") all of the issued
and outstanding shares of (i) Class A Common Stock of Cinemark ("CINEMARK CLASS
A STOCK") and (ii) Class B Common Stock of Cinemark ("CINEMARK CLASS B STOCK")
in consideration for the issuance to the Shareholders of shares of Class A
Common Stock, par value $0.001 per share, of Holdings (the "HOLDINGS CLASS A
STOCK") and Class B Common Stock, par value $0.001 per share, of Holdings (the
"HOLDINGS CLASS B STOCK") (the Holdings Class A Stock and Holdings Class B Stock
are sometimes collectively referred to herein as the "HOLDINGS STOCK") in the
amounts set forth on the signature pages attached hereto, all subject to the
terms and conditions set forth in this Agreement (the Cinemark Class A Stock and
Cinemark Class B Stock are sometimes collectively referred to herein as the
"SHARES"); and
B. The Shareholders desire to exchange the Shares for the Holdings
Class A and Holdings Class B Stock, as applicable, subject to the terms and
conditions set forth in this Agreement; and
C. The parties hereto intend that the Share Exchange qualify as a tax
free exchange under Section 351 of the Internal Revenue Code of 1986, as amended
(the "CODE"); and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Holdings, Cinemark and the Shareholders hereby agree
as follows:
ARTICLE 1
SHARE EXCHANGE
1.1 The Share Exchange. Subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 1.3 hereof), the Shareholders
shall exchange and transfer to Holdings, and Holdings shall exchange and accept
from the Shareholders, all of the Shareholders' right, title and interest in and
to the Shares, free and clear of all liens, options, claims, charges, pledges,
security interests, or other encumbrances of any kind.
1.2 Exchange Ratio. At the Closing, the Shareholders shall deliver
their certificate or certificates representing the Shares, duly endorsed in
blank or in other proper form for transfer, to Holdings in consideration of the
issuance to the Shareholders by Holdings of an aggregate of 24,009,480 shares of
Holdings Class A Stock and 25,710,480 shares of Holdings Class B Stock. Such
Holdings Class A Stock and Holdings Class B Stock shall be issued to the
Shareholders as follows:
(a) Each share of Cinemark Class A Stock issued and
outstanding immediately prior to the Closing Date shall be exchanged
for 270 validly issued, fully paid and nonassessable shares of Holdings
Class B Stock. From and after the Closing
Date, each outstanding certificate which represented shares of Cinemark
Class A Stock shall evidence ownership of and represent the number of
shares of Holdings Class B Stock into which such shares of Cinemark
Class A Stock shall have been exchanged for Holdings Class B Stock
pursuant to this Section 1.2(a).
(b) Each share of Cinemark Class B Stock held by each of Xxx
Xxx Xxxxxxxx, CGI Equities Ltd., the Xxxxxxxx Special Trust, the
Xxxxxxxx Grandchildren's Trust for Xxxxxxx Xxx Xxxxxxx, the Xxxxxxxx
Grandchildren's Trust for Cassie Xxx Xxxxxxx, the Xxxxxxxx
Grandchildren's Trust for Lacey Xxxxx Xxx, the Xxxxxxxx Grandchildren's
Trust for Ashley Xxx Xxx and the Xxxxxxxx Grandchildren's Trust for
Skyler Xxxx Xxxxxxxx issued and outstanding immediately prior to the
Closing Date shall be exchanged for that number of validly issued,
fully paid and nonassessable shares of Holdings Class B Stock set forth
on the signature pages attached hereto. From and after the Closing
Date, each outstanding certificate which represented shares of Cinemark
Class B Stock shall evidence ownership of and represent the number of
Holdings Class B Stock into which such shares of Cinemark Class B Stock
shall have been exchanged for Holdings Class B Stock pursuant to this
Section 1.2(b).
(c) Each share of Cinemark Class B Stock held by each of the
Shareholders other than Xxx Xxx Xxxxxxxx, CGI Equities Ltd., the
Xxxxxxxx Special Trust, the Xxxxxxxx Grandchildren's Trust for Xxxxxxx
Xxx Xxxxxxx, the Xxxxxxxx Grandchildren's Trust for Cassie Xxx Xxxxxxx,
the Xxxxxxxx Grandchildren's Trust for Lacey Xxxxx Xxx, the Xxxxxxxx
Grandchildren's Trust for Ashley Xxx Xxx and the Xxxxxxxx
Grandchildren's Trust for Skyler Xxxx Xxxxxxxx issued and outstanding
immediately prior to the Closing Date shall be exchanged for that
number of validly issued, fully paid and non-assessable shares of
Holdings Class A Stock set forth on the signature pages attached
hereto. From and after the Closing Date, each outstanding certificate
which represented shares of Cinemark Class B Stock shall evidence
ownership of and represent the number of Holdings Class A Stock into
which such shares of Cinemark Class B Stock shall have been exchanged
for Holdings Class A Stock pursuant to this Section 1.2(c).
(d) At the Closing, automatically and without any action on
the part of the holder thereof, Holdings shall assume each outstanding
employee or director stock option of Cinemark outstanding at the
Closing (the "CINEMARK OPTIONS") and each Cinemark Option will become
an option to purchase 270 shares of Holdings Class A Stock at an
exercise price per share equal to the per share exercise price of such
Cinemark Option divided by 270, and will be subject to the same terms
and conditions as such outstanding Cinemark Option; except, that if
Code Section 421 applies to any Cinemark Option because of the
qualifications under Code Section 422 or 423, the exercise price, the
number of shares purchasable pursuant to such Cinemark Option and the
terms and conditions of exercise of such Cinemark Option shall comply
with Code Section 424(a). Holdings shall take all corporate actions
necessary to reserve for issuance a sufficient number of Holdings Class
A Stock for delivery upon exercise of the Cinemark Options that
Holdings assumes hereunder.
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(e) Each share of Cinemark Class A Stock and Cinemark Class B
Stock held in treasury shall be canceled and retired, and shall cease
to exist, without any conversion thereof into Holdings Class A Stock or
Holdings Class B Stock, or the right to receive Holdings Class A Stock
or Holdings Class B Stock.
1.3 Closing. Subject to the terms and conditions of this Agreement, the
closing of the transactions contemplated by this Agreement (the "CLOSING") shall
take place at the offices of Cinemark at 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000 on May 17, 2002, upon satisfaction or waiver of all conditions to
closing set forth in Article 5 of this Agreement. The date on which the Closing
is actually held is referred to herein as the "CLOSING DATE".
1.4 Exchange of Certificates. Upon surrender to Holdings of a
certificate for, or options to purchase, shares of Cinemark Class A Stock or
Cinemark Class B Stock, duly executed by the holder thereof, the holder of such
certificate, or option, shall be entitled to receive as soon as practical in
exchange therefor certificates, or options, representing the number of Holdings
Class A Stock or Holdings Class B Stock into which the share, or option,
represented by the certificate, or option, so surrendered shall have been
exchanged pursuant to Section 1.2, and the certificate, or option, so
surrendered shall be canceled.
1.5 Termination of Transfer Restrictions.
(a) Shareholders' Agreement. Each of Xxx Xxx Xxxxxxxx, CGI
Equities Ltd., the Xxxxxxxx Special Trust, the Xxxxxxxx Grandchildren's
Trust for Xxxxxxx Xxx Xxxxxxx, the Xxxxxxxx Grandchildren's Trust for
Cassie Xxx Xxxxxxx, the Xxxxxxxx Grandchildren's Trust for Lacey Xxxxx
Xxx, the Xxxxxxxx Grandchildren's Trust for Ashley Xxx Xxx, the
Xxxxxxxx Grandchildren's Trust for Skyler Xxxx Xxxxxxxx, Cypress
Merchant Banking Partners L.P., Cypress Pictures Ltd. and Cinemark
hereby terminate that certain Shareholders' Agreement (as defined on
Schedule 3.2 hereto) upon Closing.
(b) Stock Transfer Restriction Agreements. Each of the
Shareholders subject to a Stock Transfer Restriction Agreement as
listed on Schedule 3.2 hereto and Cinemark hereby terminate their
respective Stock Transfer Restriction Agreements upon Closing.
1.6 Effect. After giving effect to the transactions contemplated by
this Agreement, the pro rata ownership of Holdings shall be identical to the
ownership of Cinemark existing immediately prior to the consummation of the
transactions contemplated in this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF CINEMARK
Cinemark represents and warrants as follows:
2.1 Organization, Good Standing, Authority. Cinemark is a corporation
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to own, operate and lease its properties and to carry on its business
as now conducted. Cinemark is duly qualified as a foreign
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corporation to do business, and is in good standing, in each jurisdiction where
the character of its properties owned or leased or the nature of its activities
make such qualification necessary.
2.2 Corporate Power and Authority. Cinemark has the requisite corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
Cinemark has taken all corporate action necessary to authorize its execution and
delivery of this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
2.3 Enforceability. This Agreement has been duly and validly
authorized, executed and delivered by Cinemark, constitutes the legal, valid and
binding obligation of Cinemark and is enforceable against Cinemark in accordance
with its terms except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditor's rights generally and by general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law).
2.4 Capitalization of Cinemark. Cinemark represents and warrants that
the number and designation of shares of Cinemark's capital stock issued and
outstanding consists of 1,500 shares of Class A Common Stock and 182,648 shares
of Class B Common Stock. Cinemark further represents and warrants that there are
6,415 options outstanding to purchase one share of Cinemark Class B Stock
outstanding.
2.5 No Violation. The execution and delivery of this Agreement by
Cinemark, the performance by Cinemark of its obligations hereunder and the
consummation by Cinemark of the transactions contemplated by this Agreement will
not (a) contravene any provision of any of Cinemark's Articles of Incorporation,
as the case may be, or Bylaws, (b) violate or conflict with any law, statute,
ordinance, rule, regulation, decree, write, injunction, judgment, ruling or
order of any governmental authority or of any arbitration award which is either
applicable to, binding upon, or enforceable against Cinemark, (c) conflict with,
result in any breach of, or constitute a default (or an event which would, with
the passage of time or the giving of notice or both, constitute a default)
under, or give rise to a right to terminate, amend, modify, abandon or
accelerate, any material contract which is applicable to, binding upon or
enforceable against Cinemark, (d) result in or require the creation or
imposition of any lien upon or with respect to any of the property or assets of
Cinemark, (e) give to any individual or entity a right or claim against any
Party, which would have a material adverse effect on Cinemark, or (f) require
the consent, approval, authorization or permit of, or filing with or
notification to, any governmental authority, any court or tribunal or any other
person, except any governmental permits or licenses required to operate the
business of Cinemark.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
Each of the Shareholders hereby represents and warrants to Holdings
with respect to itself, and not with respect to any other Shareholder, as
follows:
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3.1 Organization and Qualification. Each Shareholder that is an entity,
is an entity duly created, formed or organized, validly existing, and in good
standing under the laws of its jurisdiction of its creation, formation, or
organization. Each such Shareholder is duly qualified and in good standing as a
foreign entity under the laws of each jurisdiction where qualification is
required.
3.2 Title to Shares. Shareholder is the record and beneficial owner and
holder of the Shares set forth opposite such Shareholder's name on the signature
pages attached hereto, to the knowledge of such Shareholder, free and clear of
any lien, encumbrance, adverse claim, restriction on sale or transfer (other
than restrictions imposed by applicable securities laws), preemptive right,
limitations on voting rights or option except as disclosed on Schedule 3.2, and
has the authority to dispose of such Shares pursuant to this Agreement.
3.3 Power and Authority. Each Shareholder that is an entity has the
entity power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
Each Shareholder who is an individual has the requisite competence and authority
to execute and deliver this Agreement and to perform and to consummate the
obligations hereunder. Each Shareholder has taken all actions necessary to
authorize the execution and delivery of this Agreement, the performance of such
Shareholder's obligations hereunder and the consummation of the transactions
contemplated by this Agreement.
3.4 Enforceability. This Agreement has been duly and validly
authorized, executed and delivered by each shareholder, constitutes the legal,
valid and binding obligation of the Shareholder, and is enforceable against such
Shareholder in accordance with its terms except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law).
3.5 No Violation. The execution, delivery and performance of this
Agreement by the Shareholder and the consummation by the Shareholder of the
transactions contemplated hereby will not require any notice to, filing with, or
the consent, approval or authorization of any person or governmental authority.
Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in the acceleration or
termination of, or the creation in any party of the right to accelerate,
terminate, modify or cancel, any indenture, contract, lease, sublease, loan
agreement, note or other obligation or liability to which the Shareholder is a
party or is bound or to which any of the Shareholder's assets are subject, (ii)
conflict with, violate or result in a breach of any provision of the charter
documents or trust agreement of the Shareholder which is not a natural person or
(iii) conflict with or violate any law, rule, regulation, ordinance, order,
writ, injunction or decree applicable to the Shareholder or by which any of
their respective properties or assets is bound or affected.
3.6 Legal Proceedings. There are no claims, actions, suits,
arbitrations, grievances, proceedings or investigations pending or, to the best
knowledge of each Shareholder threatened, against such Shareholder, at law, in
equity, or before any federal, state, municipal or other governmental or
nongovernmental department, commission, board, bureau, agency or
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instrumentality, domestic or foreign, involving the transactions contemplated
hereby or otherwise affecting the shares.
3.7 Consents. No consent of, or order of or filing with, any court or
governmental body or other person is required in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated herein by the Shareholder.
3.8 Investor Status. Shareholder hereby acknowledges that the
acquisition of the Holdings Stock pursuant to this Agreement is suitable only
for sophisticated investors and that the Holdings Stock is being offered and
issued under an exemption from registration pursuant to Section 4(2) of the
Securities Act of 1933, as amended, (the "SECURITIES ACT") and the Rules and
Regulations promulgated thereunder and the applicable state securities laws and
that this Agreement has not been submitted to or reviewed by the Securities and
Exchange Commission (the "SEC") or the securities regulation agency of any state
or any other governmental agency.
3.9 Absence of Market. Shareholder acknowledges that such Shareholder
must bear the economic risk of his investment in the Holdings Stock for an
indefinite period of time since the shares of Holdings Stock acquired pursuant
to this Agreement have not been registered under the Securities Act, nor any
state securities laws, and therefore cannot be sold unless such shares of
Holdings Stock are subsequently registered under the Securities Act and
applicable state laws or an exemption from registration is available.
3.10 Access to Information. Shareholder represents that such
Shareholder has received and reviewed to such Shareholder's satisfaction all
documents and information that he considers material to such Shareholder's
acquisition of the Holdings Stock. Shareholder acknowledges that all documents,
records, and books (including books and records of Holdings) have been made
available for inspection by such Shareholder's attorney and/or accountant and
appropriate representatives of the Shareholder, and that Shareholder has
received copies of all documents requested by such Shareholder in connection
with his evaluation of this investment. Shareholder represents that such
Shareholder and such Shareholder's representatives have had an opportunity to
ask questions of and receive answers from Holdings regarding Holdings and all
questions and inquiries made by such Shareholder have been responded to
satisfactorily.
3.11 Investment Purposes. Shareholder hereby represents and warrants to
Holdings that such Shareholder is acquiring the Holdings Stock for investment
purposes only, for such Shareholder's own account, and not as nominee or agent
for any other person or entity, and not with a view to, or for resale in
connection with, any distribution thereof within the meaning of the Securities
Act. No Shareholder has any agreement, binding commitment or other arrangement
with any person or entity to sell, transfer or pledge any part or participation
interest in of the Holdings Stock and such Shareholder has no plans to enter
into any such agreement, binding commitment or arrangement.
3.12 Legend. The Shareholders acknowledge that the certificates
representing the shares of Holdings Stock to be delivered by Holdings will bear
one or more of the following restrictive legends as set forth on the signature
pages attached hereto:
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(a) Legend A--General Securities Act Legend. "The Securities
evidenced by this Certificate have not been registered under the
Securities Act of 1933 or the securities laws of any state and may not
be sold or transferred unless there is an effective Registration
Statement covering such Securities or such sale or transfer is exempt
from the registration and prospectus delivery requirements of such act
and any similar requirements of any applicable state securities law."
(b) Legend B--Stockholders' Agreement Legend. "The Securities
represented by this Certificate are subject to certain restrictions set
forth in a Stockholders' Agreement dated as of May 17, 2002, a copy of
which is available upon request from the Secretary of the Company."
(c) Legend C--Stock Transfer Restriction Agreement Legend.
"The sale, assignment, transfer, pledge or other disposition or
encumbrance of the shares represented hereby is restricted by the terms
of a Stock Transfer Restriction Agreement dated as of the 17th day of
May, 2002, as amended, modified or supplemented from time to time, a
copy of which is on file with the Secretary of the Company (the "Stock
Transfer Restriction Agreement"). A copy of the Stock Transfer
Restriction Agreement will be furnished by the Company to the holder
hereof without charge upon written request to the Company at its
principal place of business or registered office. By acceptance of this
certificate, the holder hereof agrees to be bound by the terms,
restrictions and obligations of the Stock Transfer Restriction
Agreement."
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
Holdings represents and warrants to each of the Shareholders as
follows:
4.1 Organization and Qualification. Holdings is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to own, operate and lease its properties and to carry on its business
as now conducted. Holdings is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character of
its properties owned or leased or the nature of its activities make such
qualification necessary.
4.2 Corporate Power and Authority. Holdings has the requisite corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
Holdings has taken all corporate action necessary to authorize its execution and
delivery of this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
4.3 Enforceability. This Agreement has been duly and validly
authorized, executed and delivered by Holdings, constitutes the legal, valid and
binding obligation of Holdings and is enforceable against Holdings in accordance
with its terms except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement
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of creditor's rights generally and by general principles of equity (regardless
of whether such enforcement is sought in a proceeding in equity or at law).
4.4 Holdings Stock. Upon consummation of the transaction contemplated
hereby and the issuance and delivery of the certificates representing the
Holdings Class A Common and the Holdings Class B Common to the Shareholders,
such shares will be duly authorized, validly issued, fully paid, non-assessable
shares. The shares of Holdings Stock issuable upon exercise of options to
purchase Holdings Stock have been duly authorized and reserved for issuance upon
such exercise, and when issued upon exercise in accordance with the terms of the
options, such shares of Holdings Stock will be duly and validly issued, fully
paid and nonassessable.
4.5 Capitalization of Holdings. Holdings represents and warrants that
the number and designation of shares of Holdings authorized capital stock
consists of 50,000,000 shares of preferred stock, par value $0.001, 350,000,000
shares of Class A common stock, par value $0.001 per share and 150,000,000
shares of Class B common stock, par value $0.001 per share. No shares of capital
stock of Holdings are issued or outstanding prior to the Closing.
4.6 No Violation. The execution and delivery of this Agreement by
Holdings, the performance by Holdings of its obligations hereunder and the
consummation by each Party of the transactions contemplated by this Agreement
will not (a) contravene any provision of any Holding's Certificate of
Incorporation, as the case may be, or Bylaws, (b) violate or conflict with any
law, statute, ordinance, rule, regulation, decree, write, injunction, judgment,
ruling or order of any governmental authority or of any arbitration award which
is either applicable to, binding upon, or enforceable against Holdings, (c)
conflict with, result in any breach of, or constitute a default (or an event
which would, with the passage of time or the giving of notice or both,
constitute a default) under, or give rise to a right to terminate, amend,
modify, abandon or accelerate, any material contract which is applicable to,
binding upon or enforceable against Holdings, (d) result in or require the
creation or imposition of any lien upon or with respect to any of the property
or assets of Holdings, (e) give to any individual or entity a right or claim
against any Party, which would have a material adverse effect on Holdings, or
(f) require the consent, approval, authorization or permit of, or filing with or
notification to, any governmental authority, any court or tribunal or any other
person, except any governmental permits or licenses required to operate the
business of Holdings.
4.7 Tax Treatment of Share Exchange. The Share Exchange pursuant to
this Agreement qualifies as a tax-free exchange under Section 351 of the Code.
ARTICLE 5
CONDITIONS TO CLOSING
The obligations of each of the parties to effect the transactions
contemplated by this Agreement shall be subject to the fulfillment at or prior
to the Closing Date of the following conditions, any or all of which may be
waived in writing in whole or in part by the parties:
5.1 Representations and Warranties. The representations and warranties
of each party contained in this Agreement shall be true and correct in all
material respects at and as of the Closing Date with the same force and effect
as though made at and as of that time except those
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representations and warranties which address matters only as of a particular
date shall remain true and correct as of such date.
5.2 Performance of Covenants. Each party shall have performed or
complied with, in all material respects, all of its obligations required by this
Agreement to be performed or complied with at or prior to the Closing Date.
5.3 Shareholder Approval. The Share Exchange and this Agreement shall
have received the requisite approval from the Shareholders.
5.4 Reorganization Opinion. Holdings shall have received an opinion of
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. ("AGSH&F") addressed to each of
Holdings, Xxx Xxx Xxxxxxxx, CGI Equities Ltd., Cypress Merchant Banking Partners
L.P. and Cypress Pictures, Ltd., dated as of the Closing Date (as herein
defined), to the effect that, based upon certificates and letters acceptable to
AGSH&F dated as of the Closing Date, the Share Exchange will qualify as a
tax-free exchange within the meaning of Section 351 of the Code, with customary
exceptions, assumptions and qualifications.
5.5 Stockholders' Agreement. Each of Holdings, Xxx Xxx Xxxxxxxx, CGI
Equities Ltd., Cypress Merchant Banking Partners L.P., Cypress Pictures, Ltd.,
the Xxxxxxxx Special Trust, the Xxxxxxxx Grandchildren's Trust for Xxxxxxx Xxx
Xxxxxxx, the Xxxxxxxx Grandchildren's Trust for Cassie Xxx Xxxxxxx, the Xxxxxxxx
Grandchildren's Trust for Lacey Xxxxx Xxx, the Xxxxxxxx Grandchildren's Trust
for Ashley Xxx Xxx and the Xxxxxxxx Grandchildren's Trust for Skyler Xxxx
Xxxxxxxx shall have entered into the Stockholders' Agreement dated as of the
Closing Date attached hereto as Exhibit A (the "STOCKHOLDERS' AGREEMENT").
5.6 Stock Transfer Restriction Agreements. Each of the Shareholders
other than Xxx Xxx Xxxxxxxx, CGI Equities Ltd., Cypress Merchant Banking
Partners L.P., Cypress Pictures, Ltd., the Xxxxxxxx Special Trust, the Xxxxxxxx
Grandchildren's Trust for Xxxxxxx Xxx Xxxxxxx, the Xxxxxxxx Grandchildren's
Trust for Cassie Xxx Xxxxxxx, the Xxxxxxxx Grandchildren's Trust for Lacey Xxxxx
Xxx, the Xxxxxxxx Grandchildren's Trust for Ashley Xxx Xxx and the Xxxxxxxx
Grandchildren's Trust for Skyler Xxxx Xxxxxxxx shall have entered into a Stock
Transfer Restriction Agreement with Holdings dated as of the Closing Date in
substantially the form attached hereto as Exhibit B (the "STOCK TRANSFER
RESTRICTION AGREEMENT").
5.7 Certificate of Incorporation. The Certificate of Incorporation in
substantially the form attached hereto as Exhibit C shall have been filed with
the Secretary of State of the State of Delaware.
5.8 Articles of Share Exchange. An Articles of Share Exchange in
substantially the form attached hereto as Exhibit D shall have been filed with
the Secretary of State of the State of Texas.
5.9 Deliveries. Cinemark, Holdings and each Shareholder that is an
entity shall have delivered each of the following documents and instruments:
(a) Certificate of Good Standing. A Certificate of Good
Standing dated within ten business day of the Closing Date issued by
the appropriate Secretary of State;
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(b) Secretary Certificate. A certificate of the Secretary or
Assistant Secretary dated the Closing Date certifying (i) such party's
charter, Bylaws or other governing documents and good standing, (ii)
the adoption and continued effect of the resolutions of the appropriate
board of directors authorizing this Agreement and the Share Exchange,
and (iii) the incumbency and signatures of the officers authorized to
execute this Agreement and all other documents, instruments and
agreements to be executed pursuant to this Agreement;
(c) Executive Officer Certificate. A certificate of an
executive officer dated the Closing Date certifying the satisfaction of
the conditions set forth in Section 5.1 and Section 5.2;
(d) Other Documents. Such other documents, instruments, and
certificates as may reasonably be requested for the transactions
contemplated by this Agreement.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification by the Shareholders. Each Shareholder shall
severally indemnify and hold harmless Cinemark and Holdings, and each of their
respective officers, directors, employees and each other Shareholders from any
liability, damage, deficiency, loss, penalty, cost or expense, including
reasonable attorneys' fees and costs of investigating and defending against
lawsuits, complaints, actions or other pending or threatened litigation
(collectively, "COSTS") arising from or attributable to any breach of any
representation, warranty, covenant or agreement made by such Shareholder in this
Agreement.
6.2 Indemnification by Holdings. Holdings shall indemnify and hold
harmless the Shareholders from Costs arising from or attributable to any breach
of any representation, warranty, covenant or agreement made by Holdings in this
Agreement.
6.3 Procedures for Resolution and Payment of Claims for
Indemnification.
(a) If a party entitled to be indemnified under this Article 5
(the "INDEMNITEE") shall incur any Costs or determine that it is likely
to incur any Costs, including without limitation claims by third
parties, and believes that it is entitled to be indemnified against
such Costs by another party hereunder (the "INDEMNITOR"), such
Indemnitee shall deliver to the Indemnitor a certificate (an "INDEMNITY
CERTIFICATE") signed by the Indemnitee which Indemnity Certificate
shall:
(i) state that the Indemnitee has paid or properly
accrued Costs, or anticipates that it will incur liability for Costs
for which such Indemnitee is entitled to indemnification pursuant to
this Agreement; and
(ii) specify in reasonable detail each individual
item of Cost included in the amount so stated, the date such item was
paid or properly accrued, the basis for any anticipated liability and
the nature of the misrepresentation, breach of warranty or breach of
covenant to which each such item is related and the computation of the
amount to which such Indemnitee claims to be entitled hereunder.
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(b) In case the Indemnitor shall object to the indemnification
of an Indemnitee in respect of any claim or claims specified in any
Indemnity Certificate, the Indemnitor shall within 30 days after
receipt by the Indemnitor of such Indemnity Certificate deliver to the
Indemnitee a written notice to such effect and the Indemnitor and the
Indemnitee shall, within the 30-day period beginning on the date of
receipt by the Indemnitee of such written objection, attempt in good
faith to agree upon the rights of the respective parties with respect
to each of such claims to which the Indemnitor shall have so objected.
If the Indemnitee and the Indemnitor shall succeed in reaching
agreement on their respective rights with respect to any of such
claims, the Indemnitee and the Indemnitor shall promptly prepare and
sign a memorandum setting forth such agreement. Should Indemnitee and
the Indemnitor be unable to agree as to any particular item or items or
amount or amounts, then Indemnitee and the Indemnitor shall arbitrate
such dispute pursuant to Section 9.4 hereof.
(c) Claims for Costs specified in any Indemnity Certificate to
which an Indemnitor shall not object in writing, claims for Costs
covered by a memorandum of agreement of the nature described in
paragraph (b), claims for Costs the validity and amount of which have
been the subject of arbitration as described in paragraph (b) and
claims for Costs the validity and amount of which shall have been the
subject of a final judicial determination are hereinafter referred to,
collectively, as "AGREED CLAIMS".
(d) Promptly after the assertion by any third party of any
claim against any Indemnitee that, in the judgment of such Indemnitee,
may result in the incurrence by such Indemnitee of Costs for which such
Indemnitee would be entitled to indemnification pursuant to this
Agreement, such Indemnitee shall deliver to the Indemnitor a written
notice describing in reasonable detail such claim and such Indemnitor
may, at its option, assume the defense of the Indemnitee against such
claim (including the employment of counsel, who shall be satisfactory
to such Indemnitee, and the payment of expenses). Any Indemnitee shall
have the right to employ separate counsel in any such action or claim
and to participate in the defense thereto, but the fees and expenses of
such counsel shall not be at the expense of the Indemnitor unless (i)
the Indemnitor shall have failed, within a reasonable time after having
been notified by the Indemnitee of the existence of such claim as
provided in the preceding sentence, to assume the defense of such
claim, (ii) the employment of such counsel has been specifically
authorized by the Indemnitor, or (iii) the named parties to any such
action (including any impleaded parties) include both such Indemnitee
and the Indemnitor and such Indemnitee shall have been advised in
writing by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those
available to Indemnitor. No Indemnitor shall be liable to indemnify any
Indemnitee for any settlement of any such action or claim effected
without the consent of the Indemnitor but if settled with the written
consent of the Indemnitor, or if there be a final judgment for the
plaintiff in any such action, the Indemnitor shall jointly and
severally indemnify and hold harmless each Indemnitee from and against
any loss or liability by reason of such settlement of judgment. If an
Indemnitor assumes the defense of an Indemnitee against a claim
asserted hereunder, the Indemnitee shall give the Indemnitor access to
Cinemark's books and records as necessary to conduct such defense and
cooperate in such defense.
11
(e) In the event that an Indemnitee subsequently recovers any
or all of the amount of an Agreed Claim from a party other than the
Indemnitor, the Indemnitee shall reimburse immediately to the
Indemnitor, in cash, an amount equal to the amount of such previously
paid Agreed Claim which shall have been recovered.
ARTICLE 7
GENERAL PROVISIONS
7.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally,
mailed by certified mail (return receipt requested) or sent by a nationally
recognized overnight delivery service or facsimile transmission (if also sent by
personal delivery, certified mail or overnight delivery service) to the parties
at the following addresses or at such other addresses as shall be specified by
the parties by like notice:
(a) if to Holdings or Cinemark:
Cinemark, Inc.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Attn: General Counsel
Facsimile No. (000) 000-0000
(b) if to a Shareholder, to the address below such
Shareholder's name on its respective signature page attached hereto.
Notice so given shall (in the case of notice so given by mail) be deemed to be
given and received in the fourth calendar day after posting, in the case of
notice so given by overnight delivery service on the date of actual delivery
and, in the case of notice so given by facsimile transmissions or personal
delivery, on the date of actual transmission or, as the case may be, personal
delivery.
7.2 Further Assurances. The parties agree (i) to furnish upon request
to each other such further information, (ii) to execute and deliver to each
other such other documents, and (iii) to do such other acts and things, all as
the other party may reasonably request for the purpose of carrying out the
intent of this Agreement and the transactions contemplated herein.
7.3 Entire Agreement and Modification. This Agreement and the
agreements contemplated herein supersede all prior agreements between the
parties with respect to its subject matter and constitutes a complete and
exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by Holdings, Cinemark and the Shareholders.
7.4 Waiver. At any time prior to the Closing, any term, provision or
condition of this Agreement may be waived in writing (or the time for
performance of any of the obligations or other acts of the parties hereto may be
extended) by Holdings, Cinemark and the Shareholders.
12
7.5 Assignments and Successors. Holdings may not assign any of its
rights under this Agreement. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights and obligations hereunder
may be assigned by any party hereto without the express written consent of
Holdings. Notwithstanding the foregoing or anything else contained in this
Agreement, after the Closing Date, each of the Shareholders, other than
Shareholders who are parties to a Stock Transfer Restriction Agreement, may
assign its rights and obligations hereunder and thereunder, including, without
limitation, with respect to any of the Holdings Stock received hereunder, to any
Related Party (as defined in the Stockholders' Agreement) of such Shareholder
and each reference to a Shareholder hereunder shall include such Shareholder's
Related Parties (as defined in the Stockholders' Agreement) provided, however,
that (i) any such Related Party shall execute an addendum to this Agreement in
form and substance satisfactory to Holdings whereby such Related Party agrees to
be bound by the provisions of this Agreement binding on Shareholders and (ii) no
such assignment shall relieve Shareholders from any obligations of Shareholders
pursuant to Section 6 hereof.
7.6 Severability. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable, then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
7.7 Headings. The headings of sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
7.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas other than the conflict of laws
rules thereof.
7.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
13
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed as of the date first above written.
CINEMARK, INC.
By: /s/ XXXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
--------------------------------------
Title: Secretary
-------------------------------------
CINEMARK USA, INC.
By: /s/ XXXXXX XXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxx
--------------------------------------
Title: Senior Vice President
-------------------------------------
SHAREHOLDERS:
/s/ XXX XXX XXXXXXXX
-------------------------------------------
Xxx Xxx Xxxxxxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Legend: A, B
Shares in Cinemark USA, Inc.
1,500 Class A Common
44,187 Class B Common
Shares in Cinemark, Inc.
12,335,490 Class B Common
Xxxxx Xxxxxxxx, the wife of Xxx Xxx Xxxxxxxx, hereby joins in and
ratifies and confirms the foregoing Share Exchange Agreement as to any and all
interests she may have with respect to any right, title or interest owned by her
in shares of Common Stock registered in her spouse's name, whether derivative of
the community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxx
CGI EQUITIES LTD.
By: CGI Investments, LLC
By: /s/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address:
-----------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, B
Shares in Cinemark USA, Inc.
33,500 Class B Common
Shares in Cinemark, Inc.
9,045,000 Class B Common
CYPRESS MERCHANT BANKING
PARTNERS L.P.
By: CYPRESS ASSOCIATES L.P.
its General Partner
By: THE CYPRESS GROUP L.L.C.,
its General Partner
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Member
---------------------------------
Address:
-----------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, B
Shares in Cinemark USA, Inc.
78,469 Class B Common
Shares in Cinemark, Inc.
21,186,630 Class A Common
CYPRESS PICTURES LTD.
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
--------------------------------------
Title: Member
-------------------------------------
Address:
-----------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, B
Shares in Cinemark USA, Inc.
4,079 Class B Common
Shares in Cinemark, Inc.
1,101,330 Class A Common
THE XXXXXXXX SPECIAL TRUST
By: /s/ XXX XXX XXXXXXXX
----------------------------------------
Xxx Xxx Xxxxxxxx, Trustee
By: /s/ XXXX XXXXXXXXXXX
----------------------------------------
Xxxx Xxxxxxxxxxx, Trustee
Address: 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Legend: A, B
Shares in Cinemark USA, Inc.
14,667 Class B Common
Shares in Cinemark, Inc.
3,960,090 Class B Common
XXXXXXXX GRANDCHILDREN'S TRUST
FOR XXXXXXX XXX XXXXXXX
By: /s/ XXX XXX XXXXXXXX
----------------------------------------
Xxx Xxx Xxxxxxxx, Trustee
By: /s/ XXXX XXXXXXXXXXX
----------------------------------------
Xxxx Xxxxxxxxxxx, Trustee
Address: 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Legend: A, B
Shares in Cinemark USA, Inc.
254 Class B Common
Shares in Cinemark, Inc.
68,580 Class B Common
XXXXXXXX GRANDCHILDREN'S TRUST
FOR CASSIE XXX XXXXXXX
By: /s/ XXX XXX XXXXXXXX
----------------------------------------
Xxx Xxx Xxxxxxxx, Trustee
By: /s/ XXXX XXXXXXXXXXX
----------------------------------------
Xxxx Xxxxxxxxxxx, Trustee
Address: 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Legend: A, B
Shares in Cinemark USA, Inc.
254 Class B Common
Shares in Cinemark, Inc.
68,580 Class B Common
XXXXXXXX GRANDCHILDREN'S TRUST
FOR LACEY XXXXX XXX
By: /s/ XXX XXX XXXXXXXX
----------------------------------------
Xxx Xxx Xxxxxxxx, Trustee
By: /s/ XXXX XXXXXXXXXXX
----------------------------------------
Xxxx Xxxxxxxxxxx, Trustee
Address: 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Legend: A, B
Shares in Cinemark USA, Inc.
254 Class B Common
Shares in Cinemark, Inc.
68,580 Class B Common
XXXXXXXX GRANDCHILDREN'S TRUST
FOR ASHLEY XXX XXX
By: /s/ XXX XXX XXXXXXXX
----------------------------------------
Xxx Xxx Xxxxxxxx, Trustee
By: /s/ XXXX XXXXXXXXXXX
----------------------------------------
Xxxx Xxxxxxxxxxx, Trustee
Address: 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Legend: A, B
Shares in Cinemark USA, Inc.
254 Class B Common
Shares in Cinemark, Inc.
68,580 Class B Common
XXXXXXXX GRANDCHILDREN'S TRUST
FOR SKYLER XXXX XXXXXXXX
By: /s/ XXX XXX XXXXXXXX
----------------------------------------
Xxx Xxx Xxxxxxxx, Trustee
By: /s/ XXXX XXXXXXXXXXX
----------------------------------------
Xxxx Xxxxxxxxxxx, Trustee
Address: 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Legend: A, B
Shares in Cinemark USA, Inc.
254 Class B Common
Shares in Cinemark, Inc.
68,580 Class B Common
/s/ XXXXXX X. XXXX
-------------------------------------------
Xxxxxx X. Xxxx
Address: 0000 Xxxxx Xxxxxx Xxxx Xxxx
-----------------------------------
Xxxxxxxxx, XX 00000
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, C
Shares in Cinemark USA, Inc.
233 Class B Common
Shares in Cinemark, Inc.
62,910 Class A Common
Xxxx Xxxx, the wife of Xxxxxx X. Xxxx, hereby joins in and ratifies and
confirms the foregoing Share Exchange Agreement as to any and all interests she
may have with respect to any right, title or interest owned by her in shares of
Common Stock registered in her spouse's name, whether derivative of the
community property laws, or otherwise.
/s/ XXXX XXXX
-------------------------------------------
Xxxx Xxxx
/s/ XXXXXX X. XXXXX
-------------------------------------------
Xxxxxx X. Xxxxx
Address: 0000 Xxxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
297 Class B Common
Shares in Cinemark, Inc.
80,190 Class A Common
/s/ XXXXXX XXXXXX
-------------------------------------------
Xxxxxx Xxxxxx
Address: 0000 Xxxxxxx Xxxx Xx.
Xxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
350 Class B Common
Shares in Cinemark, Inc.
94,500 Class A Common
Xxxxx Xxxxxx, the wife of Xxxxxx Xxxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx
/s/ XXXXXX XXXXXX III
-------------------------------------------
Xxxxxx Xxxxxx III
Address: 0000 Xxxxx Xxxxx Xx.
XxXxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
175 Class B Common
Shares in Cinemark, Inc.
47,250 Class A Common
Xxxxx Xxxxxx, the wife of Xxxxxx Xxxxxx III, hereby joins in and
ratifies and confirms the foregoing Share Exchange Agreement as to any and all
interests she may have with respect to any right, title or interest owned by her
in shares of Common Stock registered in her spouse's name, whether derivative of
the community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx
/s/ XXXXX XXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
100 Class B Common
Shares in Cinemark, Inc.
27,000 Class B Common
Xxx Xxx Xxxxxxxx, the husband of Xxxxx Xxxxxxxx, hereby joins in and
ratifies and confirms the foregoing Share Exchange Agreement as to any and all
interests he may have with respect to any right, title or interest owned by his
in shares of Common Stock registered in his spouse's name, whether derivative of
the community property laws of the State of Texas, or otherwise.
/s/ XXX XXX XXXXXXXX
-------------------------------------------
Xxx Xxx Xxxxxxxx
/s/ XXXX XXXXXXX
-------------------------------------------
Xxxx Xxxxxxx
Address: 0000 Xxxxxxxxxx Xxxxx
-----------------------------------
Xxxxxx, XX 00000
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, C
Shares in Cinemark USA, Inc.
425 Class B Common
Shares in Cinemark, Inc.
114,750 Class A Common
Xxxx Xxxxxxx, the wife of Xxxx Xxxxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXX XXXXXXX
-------------------------------------------
Xxxx Xxxxxxx
/s/ XXXXX XXXXX
-------------------------------------------
Xxxxx Xxxxx
Address: 0000 Xxxxxxx Xxxx
-----------------------------------
Xxxxxxx, XX 00000
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, C
Shares in Cinemark USA, Inc.
160 Class B Common
Shares in Cinemark, Inc.
43,200 Class A Common
Joy Brand, the wife of Xxxxx Xxxxx, hereby joins in and ratifies and
confirms the foregoing Share Exchange Agreement as to any and all interests she
may have with respect to any right, title or interest owned by her in shares of
Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ JOY BRAND
-------------------------------------------
Joy Brand
/s/ XXXXXXXX X. XXXXXXXX
-------------------------------------------
Xxxxxxxx X. Xxxxxxxx
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
453 Class B Common
Shares in Cinemark, Inc.
122,310 Class A Common
/s/ XXXXXX XXXXXXX
-------------------------------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxxxxxxx Xx.
Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
400 Class B Common
Shares in Cinemark, Inc.
108,000 Class A Common
/s/ XXXX XXXXXXX
-------------------------------------------
Xxxx Xxxxxxx
Address: 0000 Xxxxxxx
Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
226 Class B Common
Shares in Cinemark, Inc.
61,020 Class A Common
Xxxxx Xxxxxxx, the wife of Xxxx Xxxxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXXX
-------------------------------------------
Xxxxx Xxxxxxx
/s/ XXX XXXXXXX
-------------------------------------------
Xxx Xxxxxxx
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
425 Class B Common
Shares in Cinemark, Inc.
114,750 Class A Common
Xxxxx Xxxxxxx, the wife of Xxx Xxxxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXXX
-------------------------------------------
Xxxxx Xxxxxxx
/s/ XXXXXX X. XXXXXXXX
-------------------------------------------
Xxxxxx X. Xxxxxxxx
Address: 000 Xxxx Xxx Xxxxx
-----------------------------------
Xxxxxxx, Xxxxx 00000
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, C
Shares in Cinemark USA, Inc.
226 Class B Common
Shares in Cinemark, Inc.
61,020 Class A Common
Xxxxxxxxx X. Xxxxxxxx, the wife of Xxxxxx X. Xxxxxxxx, hereby joins in
and ratifies and confirms the foregoing Share Exchange Agreement as to any and
all interests she may have with respect to any right, title or interest owned by
her in shares of Common Stock registered in her spouse's name, whether
derivative of the community property laws of the State of Texas, or otherwise.
/s/ XXXXXXXXX X. XXXXXXXX
-------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
/s/ XXXX X. STOCK
-------------------------------------------
Xxxx X. Stock
Address: 0000 Xx. Xxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
475 Class B Common
Shares in Cinemark, Inc.
128,250 Class A Common
Xxxxx Stock, the wife of Xxxx X. Stock, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXX STOCK
-------------------------------------------
Xxxxx Stock
/s/ XXXXXXX X. XXXXX
-------------------------------------------
Xxxxxxx X. Xxxxx
Address: 0000 Xxxxxxxx Xx.
Xxxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
227 Class B Common
Shares in Cinemark, Inc.
61,290 Class A Common
Xxxxx Xxxxx, the wife of Xxxxxxx X. Xxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXX
-------------------------------------------
Xxxxx Xxxxx
/s/ XXXXXX X. XXXX
-------------------------------------------
Xxxxxx X. Xxxx
Address: 0000 Xxxxxxxxxx Xx.
Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
360 Class B Common
Shares in Cinemark, Inc.
97,200 Class A Common
/s/ XXXXXX X. XXXXXXX
-------------------------------------------
Xxxxxx X. Xxxxxxx
Address: 0000 Xxxxxx Xxxx Xx.
Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
226 Class B Common
Shares in Cinemark, Inc.
61,020 Class A Common
/s/ XXXX XXXXXXX
-------------------------------------------
Xxxx Xxxxxxx
Address: 0000 Xxxxxx
Xxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
60 Class B Common
Shares in Cinemark, Inc.
16,200 Class A Common
Xxx Xxxxxxx, the wife of Xxxx Xxxxxxx, hereby joins in and ratifies and
confirms the foregoing Share Exchange Agreement as to any and all interests she
may have with respect to any right, title or interest owned by her in shares of
Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXX XXXXXXX
-------------------------------------------
Xxx Xxxxxxx
/s/ XXXXXXX X. XXXXXXXX
-------------------------------------------
Xxxxxxx X. Xxxxxxxx
Address: 0000 Xxxxxxxx Xxxxx
-----------------------------------
XxXxxxxx, XX 00000
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, C
Shares in Cinemark USA, Inc.
173 Class B Common
Shares in Cinemark, Inc.
46,710 Class A Common
Xxxxx Xxxxxxxx, the wife of Xxxxxxx X. Xxxxxxxx, hereby joins in and
ratifies and confirms the foregoing Share Exchange Agreement as to any and all
interests she may have with respect to any right, title or interest owned by her
in shares of Common Stock registered in her spouse's name, whether derivative of
the community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxx
/s/ XXXX X. XXXXXX
-------------------------------------------
Xxxx X. Xxxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
110 Class B Common
Shares in Cinemark, Inc.
29,700 Class A Common
Xxx Xxxxxx, the husband of Xxxx Xxxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
he may have with respect to any right, title or interest owned by him in shares
of Common Stock registered in his spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXX XXXXXX
-------------------------------------------
Xxx Xxxxxx
/s/ XXX XXXXXX
-------------------------------------------
Xxx Xxxxxx
Address: 000 Xxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
50 Class B Common
Shares in Cinemark, Inc.
13,500 Class A Common
Xxxxxx Xxxxxxx, the wife of Xxx Xxxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXXX XXXXXXX
-------------------------------------------
Xxxxxx Xxxxxxx
/s/ XXXXX XXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxx
Address:
-----------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, C
Shares in Cinemark USA, Inc.
100 Class B Common
Shares in Cinemark, Inc.
27,000 Class A Common
Xxx Xxxxxxxx, the husband of Xxxxx Xxxxxxxx, hereby joins in and
ratifies and confirms the foregoing Share Exchange Agreement as to any and all
interests he may have with respect to any right, title or interest owned by him
in shares of Common Stock registered in his spouse's name, whether derivative of
the community property laws of the State of Texas, or otherwise.
/s/ XXX XXXXXXXX
-------------------------------------------
Xxx Xxxxxxxx
/s/ XXX XXXXXXXX
-------------------------------------------
Xxx Xxxxxxxx
Address:
-----------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Legend: A, C
Shares in Cinemark USA, Inc.
45 Class B Common
Shares in Cinemark, Inc.
12,150 Class A Common
Xxxxx Xxxxxxxx, the wife of Xxx Xxxxxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxx
/s/ XXXX XXXXXX
-------------------------------------------
Xxxx Xxxxxx
Address: 0000 Xxxxx Xxxxx Xx.
Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
30 Class B Common
Shares in Cinemark, Inc.
8,100 Class A Common
Xxxxx Xxxxxx, the wife of Xxxx Xxxxxx, hereby joins in and ratifies and
confirms the foregoing Share Exchange Agreement as to any and all interests she
may have with respect to any right, title or interest owned by her in shares of
Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx
/s/ XXXX XXXXXXXXX
-------------------------------------------
Xxxx Xxxxxxxxx
Address: 000 Xxxx Xx.
Xxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
50 Class B Common
Shares in Cinemark, Inc.
13,500 Class A Common
Xxxxxxx Xxxxxxxxx, the wife of Xxxx Xxxxxxxxx, hereby joins in and
ratifies and confirms the foregoing Share Exchange Agreement as to any and all
interests she may have with respect to any right, title or interest owned by her
in shares of Common Stock registered in her spouse's name, whether derivative of
the community property laws of the State of Texas, or otherwise.
/s/ XXXXXXX XXXXXXXXX
-------------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ XXXX XXXX
-------------------------------------------
Xxxx Xxxx
Address: 1625 Xxxxx
Xxxxxx Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
50 Class B Common
Shares in Cinemark, Inc.
13,500 Class A Common
Xxxxxx Xxxx, the wife of Xxxx Xxxx, hereby joins in and ratifies and
confirms the foregoing Share Exchange Agreement as to any and all interests she
may have with respect to any right, title or interest owned by her in shares of
Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXXX XXXX
-------------------------------------------
Xxxxxx Xxxx
/s/ XXXXX XXXX
-------------------------------------------
Xxxxx Xxxx
Address: 000 Xxxxxxx Xx.
Xxxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
100 Class B Common
Shares in Cinemark, Inc.
27,000 Class A Common
Xxxxxx Xxxx, the wife of Xxxxx Xxxx, hereby joins in and ratifies and
confirms the foregoing Share Exchange Agreement as to any and all interests she
may have with respect to any right, title or interest owned by her in shares of
Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXXX XXXX
-------------------------------------------
Xxxxxx Xxxx
/s/ XXXXX XXXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxxx
Address: 000 Xxxxxxx Xxxx Xxxx
Xxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
150 Class B Common
Shares in Cinemark, Inc.
40,500 Class A Common
Xxxxx Xxxxxxxxx, the wife of Xxxxx Xxxxxxxxx, hereby joins in and
ratifies and confirms the foregoing Share Exchange Agreement as to any and all
interests she may have with respect to any right, title or interest owned by her
in shares of Common Stock registered in her spouse's name, whether derivative of
the community property laws of the State of Texas, or otherwise.
/s/ XXXXX XXXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxxx
/s/ XXX XXXXXX
-------------------------------------------
Xxx Xxxxxx
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
600 Class B Common
Shares in Cinemark, Inc.
162,000 Class A Common
/s/ XXXXXXX XXXXX
-------------------------------------------
Xxxxxxx Xxxxx
Address: 000 Xxxxxxxx Xxxxx, #000
Xxxxxx, Xxxxx 00000
Legend: A, C
Shares in Cinemark USA, Inc.
200 Class B Common
Shares in Cinemark, Inc.
54,000 Class A Common
Xxxxxxx Xxxxx, the wife of Xxxxxxx Xxxxx, hereby joins in and ratifies
and confirms the foregoing Share Exchange Agreement as to any and all interests
she may have with respect to any right, title or interest owned by her in shares
of Common Stock registered in her spouse's name, whether derivative of the
community property laws of the State of Texas, or otherwise.
/s/ XXXXXXX XXXXX
-------------------------------------------
Xxxxxxx Xxxxx
SCHEDULE 3.2
1. Shareholders' Agreement, dated March 12, 1996, among Cinemark, Xxx Xxx
Xxxxxxxx, Cypress Merchant Banking Partners L.P., Cypress Pictures Ltd.
and the certain Trusts signatory thereto, as amended (the
"SHAREHOLDERS' AGREEMENT").
2. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxxxx Xxxxxx and Cinemark.
3. Stock Transfer Restriction Agreement, dated April 1, 1996, between
Xxxxxx X. Xxxx and Cinemark.
4. Stock Transfer Restriction Agreement, dated November 6, 1996, between
Xxxxxx X. Xxxxx and Cinemark.
5. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxxxx X. Xxxxx and Cinemark.
6. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxxxx Xxxxxx III and Cinemark.
7. Stock Transfer Restriction Agreement, dated November 23, 2000, between
Xxxxx Xxxxx and Cinemark.
8. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxxxxxxx X. Xxxxxxxx and Cinemark.
9. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxxxxx Xxxxxxx and Cinemark.
10. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxxx Xxxxxxx and Cinemark.
11. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxx Xxxxxxx and Cinemark.
12. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxx Xxxxxxx and Cinemark.
13. Stock Transfer Restriction Agreement, dated April 1, 1996, between
Xxxxxx X. Xxxxxxxx and Cinemark.
14. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxxxxx X. Xxxxxxxx and Cinemark.
15. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxxx X. Stock and Cinemark.
16. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxxxxxx X. Xxxxx and Cinemark.
17. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxxxxx X. Xxxx and Cinemark.
18. Stock Transfer Restriction Agreement, dated October 30, 2001, between
Xxxxxx X. Xxxxxxx and Cinemark.
19. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxx Xxxxxxx and Cinemark.
20. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxxxxx X. Xxxxxxxx and Cinemark.
21. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxx X. Xxxxxx and Cinemark.
22. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxx Xxxxxx and Cinemark.
23. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxxx Xxxxxxxx and Cinemark.
24. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxx Xxxxxx and Cinemark.
25. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxx Xxxxxxxxx and Cinemark.
26. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxx Xxxx and Cinemark.
27. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxxx Xxxxxxxxx and Cinemark.
28. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxx Xxxxxx and Cinemark.
29. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxx Xxxxxxxx and Cinemark.
30. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxxx Xxxx and Cinemark.
31. Stock Transfer Restriction Agreement, dated December 28, 2001, between
Xxxxxxx Xxxxx and Cinemark.
EXHIBIT A
Stockholders' Agreement
EXHIBIT B
Form of Stock Transfer Restriction Agreement
EXHIBIT C
Certificate of Incorporation
EXHIBIT D
Articles of Share Exchange
