EXHIBIT 6.A
EXECUTION COPY
XXXXXX TRANSACTION AGREEMENT
XXXXXX TRANSACTION AGREEMENT dated November 29, 2002 by and among Xxxxxx
Investissement (as successor to Compagnie Generale d'Industrie et de
Participation), a French corporation ("XXXXXX"), Xxxx X. XxxXxxx ("JHM") and
Codan Trust Company Limited (the "JHM TRUSTEES"), as trustees of The JACTMAC
Media Trust (the "JHM TRUST").
W I T N E S S E T H :
WHEREAS, Xxxxxx, JHM and the JHM Trustees are parties to that certain
Shareholders' Agreement dated March 16, 2000 among Trader Classified Media N.V.
(formerly Xxxxxx.xxx N.V., the "COMPANY"), Floscule B.V., Xxxxxx, Xxxxx
Corporation S.A., Figema S.A., JHM, Xxxxxx X. Xxxxxx XxxXxxx ("LTBM") and Xxxx
Teyssonniere de Gramont (the "SHAREHOLDERS' AGREEMENT");
WHEREAS, JHM and the JHM Trustees are parties to that certain Transaction
Agreement dated October 30, 2002 by and among JHM, the JHM Trustees, LTBM and
Rothschild Trust Guernsey Limited (the "LTBM TRUSTEES"), as trustees of the Xxx
Trust (the "LTBM TRUST"), as amended to date (the "LTBM TRANSACTION AGREEMENT");
WHEREAS, Xxxxxx, JHM and the JHM Trustees wish to enter into a structured
products transaction with CAL FP and wish to agree to certain matters concerning
their ownership of Class A Common Shares and Class B Common Shares (each as
defined in the Shareholders' Agreement) of the Company and the exercise of the
JHM Option (which shall mean the JHM Option as defined in the LTBM Transaction
Agreement in effect on October 30, 2002); and
WHEREAS, because the JHM Trustees are entering into this Agreement solely
in their capacity as trustees of the JHM Trust, all references herein to the
"JHM TRUSTEES" shall be understood to refer to the JHM Trustees, acting solely
in their capacity as trustees on behalf of the JHM Trust, and not in any other
capacity.
NOW, THEREFORE, for good and valuable consideration (including the mutual
covenants made herein), the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DERIVATIVES TRANSACTION. Each of Xxxxxx, JHM and the JHM Trustees
agrees to enter into a structured products transaction with CAL FP on
substantially the same terms as the agreements attached hereto as EXHIBIT A
(collectively, the "STRUCTURED PRODUCTS TRANSACTION AGREEMENTS") and further
agrees to enter into such of the Structured Products Transaction Agreements to
which he or it is a party.
2. INVESTMENT PLANNING ADVANCE NOTICE OF EXERCISE OF THE JHM OPTION.
(a) No later than January 31, 2003, JHM will undertake an in-depth
review with Xxxxxx of potential alternatives concerning the exercise of the JHM
Option. At the request of Xxxxxx, JHM will meet with Xxxxxx in Paris (or such
other location as JHM and Xxxxxx may agree) to present and discuss such
alternatives. The parties have tentatively scheduled such a meeting on
Wednesday, December 11, 2002 in Paris.
(b) No later than March 31, 2003, JHM will outline for Xxxxxx a
preliminary plan concerning the exercise of the JHM Option (the "PRELIMINARY
PLAN"). The Preliminary Plan will include the assumptions on which such Plan is
based and will also include alternatives showing the amount of capital needed
and timing of potential returns of capital. At the request of Xxxxxx, JHM will
meet with Xxxxxx in Paris (or such other location as JHM and Xxxxxx may agree)
to present and discuss the Preliminary Plan. JHM will meet with Xxxxxx as many
times as Xxxxxx may reasonably request so long as mutually convenient dates and
times can be arranged. After its receipt and review of the Preliminary Plan,
Xxxxxx may request, and JHM shall include in the Final Plan, any additional
analyses that Xxxxxx may reasonably request relating to capital needs and timing
of potential returns of capital associated with the exercise of the JHM Option.
(c) No later than September 30, 2003, JHM will provide to Xxxxxx a
final plan concerning the exercise of the JHM Option (the "FINAL PLAN"). The
Final Plan will include at least the same information as set forth in the
Preliminary Plan, and will also include an assignment of probabilities to
capital needs and timing of potential returns of capital and any other
information relating to capital needs and timing of potential returns of capital
as Xxxxxx may have reasonably requested. At the request of Xxxxxx, JHM will meet
with Xxxxxx in Paris (or such other location as JHM and Xxxxxx may agree) to
present and discuss the Final Plan. JHM will meet with Xxxxxx as many times as
Xxxxxx may reasonably request.
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3. SALE OF XXXXXX SHARES.
(a) OBLIGATIONS OF JHM. If at any time Xxxxxx desires to sell all or
a portion of its direct or indirect ownership interest in the Company, it shall
notify JHM (the "LIQUIDITY NOTICE"). Xxxxxx shall specify in the Liquidity
Notice the number of shares of the Company it seeks to sell (the "XXXXXX
LIQUIDITY NOTICE SHARES"). For the period commencing on the date of JHM's
receipt of the Liquidity Notice and ending on the six month anniversary of such
date (such period, the "INITIAL SIX MONTH PERIOD"), JHM shall use his best
efforts to make arrangements for the liquidity of the Xxxxxx Liquidity Notice
Shares (it being understood that, except as provided in Section 3(b) below,
JHM's obligations shall not require JHM, the JHM Trust or the Company to enter
into any agreement in respect of any liquidity arrangements or to purchase any
direct or indirect ownership interests in the Company). Subject to applicable
securities law, JHM shall:
(i) Communicate to Xxxxxx in good faith the reasons why JHM and
the JHM Trustees do not wish to sell all or substantially all of the Company and
provide good reasons to Xxxxxx why they do not want to sell when Xxxxxx does at
that time; and
(ii) Work with Xxxxxx, Xxxxxx'x financial advisors, the Company,
the Company's management and the Company's financial advisors, each to the
extent appropriate, to find the most profitable solution for the sale of the
Xxxxxx Liquidity Notice Shares at the highest attainable price for the Xxxxxx
Liquidity Notice Shares during the Initial Six Month Period.
In addition, in the event that a sale of all of the Xxxxxx Liquidity Notice
Shares has not been consummated, or an agreement in respect of such sale has not
been entered into during the Initial Six Month Period, then for the period
commencing on the date of expiry of the Initial Six Month Period and ending on
the six month anniversary of such date (such period, the "SECOND SIX MONTH
PERIOD"), subject to applicable securities law, JHM shall do the following (if
requested by Xxxxxx):
(i) Assist in the preparation of offering memoranda or
prospectus concerning the sale by Xxxxxx of the Xxxxxx Liquidity Notice Shares
during the Second Six Month Period;
(ii) Notably, prepare and conduct with the Company and the
Company's management road shows and participate in meetings with potential
investors for the purpose of seeking potential buyers in the sale by Xxxxxx of
the Xxxxxx Liquidity Notice Shares during the Second Six Month Period; and
(iii) Work in good faith with Xxxxxx and its financial advisor
(if any), the Company, the Company's management and any potential buyer of the
Xxxxxx Liquidity Notice Shares in order to assist Xxxxxx in obtaining the
highest attainable price for the Xxxxxx Liquidity Notice Shares during the
Second Six Month Period.
Notwithstanding the foregoing in this Section 3(a), nothing in this Section 3(a)
is intended to affect any Sale Process Period (as defined in Section 5 below),
and no Sale Process Period shall
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diminish the obligations of JHM in this Section 3(a); it being understood that
JHM may not unilaterally terminate the efforts to sell the Xxxxxx Liquidity
Notice Shares pursuant to this Section 3(a) but that Xxxxxx alone may determine,
or Xxxxxx and JHM may mutually determine, to terminate such efforts.
(b) SHAREHOLDERS' AGREEMENT WITH THIRD PARTY PURCHASER. If Xxxxxx
xxxxx the Xxxxxx Liquidity Notice Shares to a third party buyer that is not a
"Permitted Transferee" of Xxxxxx (as defined in the Shareholders' Agreement)
(such third party buyer, a "THIRD PARTY PURCHASER") and the Shareholders'
Agreement remains in full force and effect in substantially the form it was in
effect on the date of this Agreement, then, notwithstanding the fact that all of
the Common Shares purchased by the Third Party Purchaser will be Class A Common
Shares (as a result of the conversion of Class B Common Shares), JHM and the JHM
Trustees will agree to enter into a shareholders' agreement with the Third Party
Purchaser, substantially on the same terms as the Shareholders' Agreement in
effect on the date of this Agreement, which shall contain the following terms
and conditions:
(i) the Third Party Purchaser would be allowed (1) to have the
rights to appoint the same number of directors as, prior to such sale, may have
been appointed by Xxxxxx so long as the majority of the Supervisory Board
representatives are appointed by the Floscule Group (as defined in the
Shareholders' Agreement), (2) to have up to two observers sitting on the
Supervisory Board and (3) to take on all the other rights of Xxxxxx (except the
multiple voting rights as provided in clause (ii) of this Section 3(b) below)
under the Shareholders' Agreement as in effect on the date of this Agreement
(e.g. the tag along right); and
(ii) All rights currently attached to the Class B Common Shares
as described in the Shareholders' Agreement, other than the multiple voting
rights of the Class B Common Shares, are considered to be shareholder rights and
could be transferred to a Third Party Purchaser.
4. EXERCISE OF THE JHM OPTION.
(a) NEGOTIATION OF EXERCISE TRANSACTION TERMS. JHM and the JHM
Trustees agree that Xxxxxx shall have a priority right in respect of the
exercise of 35.7% of the JHM Option if an agreement in respect of the Exercise
Transaction Terms (as defined below) is reached between JHM and Xxxxxx. JHM
agrees to work with Xxxxxx on all the options in respect of the Exercise
Transaction Terms with a view to negotiating in good faith an arrangement that
respects the 64.3%/35.7% ratio. Except as provided in clause (iii) of this
Section 4(a), Xxxxxx shall have the right, at any time, to deliver a notice to
JHM stating that Xxxxxx desires to commence negotiations concerning all aspects
of a transaction between JHM and Xxxxxx in respect of the exercise of the JHM
Option, including, without limitation, terms relating to the timing, pricing,
financing, loan availability and other terms related to the exercise of the JHM
Option (collectively, the "EXERCISE TRANSACTION TERMS"). For clarity and
avoidance of doubt, nothing herein shall require either party to come to an
agreement on the Exercise Transaction Terms.
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(i) For a 90-day period commencing on the date of JHM's receipt
of such notice, JHM and Xxxxxx shall negotiate in good faith with a view to
coming to an agreement on the Exercise Transaction Terms. During such 90-day
period, JHM shall negotiate exclusively with Xxxxxx. If JHM and Xxxxxx are not
able to reach agreement on the Exercise Transaction Terms within the first 60
days of such 90 day period, then, if requested by Xxxxxx or JHM, JHM and Xxxxxx
shall retain a mutually acceptable independent third party financial advisor to
assist them in attempting to reach agreement for the remaining 30 days of such
90 day period. The fees and expenses of such third party advisor shall be paid
35.7% by Xxxxxx and 64.3% by JHM, and the engagement of such third party advisor
shall not include any assignment other than assisting in such negotiations. Any
good xxxxx xxxxx encountered in respect of the designation of the third party
financial advisor will not be taken into account in the computation of the
90-day exclusive period. Such negotiations shall be held in Paris unless JHM and
Xxxxxx agree otherwise, and shall be held at mutually convenient times.
(ii) If Xxxxxx and JHM are not able to reach agreement on the
Exercise Transaction Terms by the end of such 90 day period, then, if Xxxxxx so
requests, JHM shall be required to continue such negotiations on a non-exclusive
basis.
(iii) Notwithstanding the foregoing in this Section 4(a), if JHM
desires to pursue a Sale Event (as defined below), JHM, by notice in writing to
Xxxxxx prior to July 1, 2004, may initiate the commencement of the 90 day
exclusive negotiation period set forth in clause (i) of this Section 4(a) so
that the exclusive negotiation period ends prior to the Sale Process Period;
and, following Xxxxxx'x receipt of such notice, Xxxxxx shall not be entitled to
deliver any notice under this Section 4(a), but (A) nothing in this clause (iii)
shall be construed to truncate any 90 day exclusive negotiation period whether
initiated by Xxxxxx or by JHM and (B) if JHM delivers a notice to initiate the
90 day exclusive negotiation period set forth in clause (i) of this Section 4(a)
and, ultimately, no definitive agreement in respect of a Sale Event is signed,
then Xxxxxx'x rights under this Section 4(a) shall immediately be reinstated.
(iv) Notwithstanding the foregoing in this Section 4(a), all
exclusive negotiations, whether initiated by Xxxxxx or by JHM must be concluded
by October 1, 2004 at the latest.
(b) RIGHT OF FIRST REFUSAL ON SALE OF LTBM OPTION SHARES.
If JHM finds a third party purchaser that is not a "Permitted Transferee"
of Floscule (as that term is defined in the Shareholders' Agreement) for all or
part of the "LTBM Option Shares" (as that term is defined in the LTBM
Transaction Agreement), by notice to Xxxxxx, JHM agrees to give Xxxxxx a right
of first refusal (the "Right of First Refusal") with respect to the purchase of
such LTBM Option Shares. Xxxxxx will have 28 days to exercise the Right of First
Refusal. For certainty and avoidance of doubt, this means that, if Xxxxxx
exercises the Right of First Refusal, Xxxxxx would be substituted for such third
party purchaser with respect to the third party purchaser's purchase of LTBM
Option Shares.
JHM's notice to Xxxxxx in respect of the Right of First Refusal shall
contain copies of such third party purchaser's offer and any binding agreements
or nonbinding documents
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(collectively, the "Original Transaction") and will summarize and list the
material terms and conditions of the third party purchaser's offer (including,
without limitation, price, number of shares, payment terms, financing structure
and closing conditions).
To exercise its rights hereunder, Xxxxxx shall deliver to JHM and the JHM
Trustees, within 28 days from the date of Xxxxxx'x receipt of the notice of the
Right of First Refusal, written notice of its intent to exercise the Right of
First Refusal and hence to purchase all (but not less than all) of the LTBM
Option Shares proposed to be purchased by the third party purchaser (the "Xxxxxx
Acceptance Notice").
The Xxxxxx Acceptance Notice, in order to be valid, must contain terms and
conditions no less favorable to JHM and the JHM Trustees as the material terms
and conditions summarized and listed in the notice of the Right of First Refusal
(including price, number of shares, payment terms, financing structure and
closing conditions) and shall give Xxxxxx reasonably sufficient time to satisfy
such closing conditions.
The Xxxxxx Acceptance Notice, when delivered, shall constitute a valid,
binding and enforceable agreement for the purchase by Xxxxxx of the LTBM Option
Shares specified therein on the terms set forth therein.
If Xxxxxx does not deliver a Xxxxxx Acceptance Notice containing terms and
conditions no less favorable to JHM and the JHM Trustees within 28 days, JHM and
the JHM Trustees shall thereafter be free for a period of 28 days after the
preceding 28 days to proceed with the Original Transaction with the same third
party purchaser.
If the definitive agreement in respect of such Original Transaction is not
entered into within 28 days with the initial third party purchaser, then JHM and
the JHM Trustees must again give Xxxxxx the right to exercise its Right of First
Refusal in accordance with the provisions of this Section 4(b).
From time to time and on a regular basis, JHM agrees to provide to Xxxxxx
information concerning the Company and general information concerning the
process of the sale of the LTBM Option Shares, PROVIDED that Xxxxxx agrees to
keep such information confidential unless such information has been previously
disclosed to the public by the Company.
Neither JHM nor the JHM Trustees shall exercise any rights they may have
under the Shareholders' Agreement in order to prevent Xxxxxx from exercising its
rights under this Section 4(b).
For clarity and avoidance of doubt, the rights set forth in this Section
4(b) shall not apply to: (i) any exercise of the JHM Option in which the
purchaser of LTBM Option Shares is a Permitted Transferee of Floscule (so long
as any financing obtained is bona fide financing and is not intended indirectly
to provide a mechanism for JHM to sell all or part of the LTBM Option Shares to
a third party) or (ii) any exercise of the JHM Option followed immediately by a
Sale Event. Except as provided in the immediately preceding sentence, if JHM or
the JHM Trustees propose, directly or indirectly, to transfer the JHM Option to
any person that is not a Permitted
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Transferee of Floscule, neither JHM nor the JHM Trustees shall make any such a
transfer unless and until JHM and the JHM Trustees shall have first complied
with the foregoing provisions of this Section 4
(c) AMENDMENT TO THE SHAREHOLDERS' AGREEMENT. In the event that
Xxxxxx exercises its rights set forth in Section 4(b) above and purchases LTBM
Option Shares, Xxxxxx, JHM and the JHM Trustees agree to amend (1) the terms of
the Shareholders' Agreement to incorporate the terms and conditions negotiated
with Xxxxxx in the December 2001 draft amended and restated Shareholders'
Agreement a copy of which is attached to this Agreement as Exhibit B, and (2) if
applicable, the articles and bylaws of the Company.
5. SALE OF THE COMPANY.
(a) DEFINITIONS. As used in this Section 5, the following terms have
the following meanings:
"SALE EVENT" means (i) the sale by Xxxxxx, JHM and the JHM Trustees of
all of the Class B Common Shares owned by them to an unaffiliated third party
purchaser that is not a Permitted Transferee of either Xxxxxx or Floscule or
(ii) a sale of assets of the Company representing, in the aggregate, more than
70% of the assets of the Company (it being understood that such 70% shall be
measured by reference to the fair market value of such assets, determined in
Euros, as of the date of the then most recently completed quarterly or annual
balance sheet of the Company). In the case of a sale of assets, the parties
agree to use their good faith best efforts to structure their holdings of any
remaining unsold portions of the Company 64.3% by JHM and 35.7% by Xxxxxx.
"SALE PROCESS PERIOD" means the non-exclusive period of up to six
months during which JHM and the JHM Trustees may market the Company to third
parties with the intent of consummating a Sale Event with any third party (it
being understood that such Period may not commence until after the expiration of
the 90 day period of exclusive negotiations with Xxxxxx in respect of a possible
Sale Event to Xxxxxx as provided in Section 5(b)).
(b) NEGOTIATION OF SALE TERMS.
(i) Xxxxxx shall have the right, at any time prior to October
1, 2004, to deliver a notice to JHM stating that Xxxxxx desires to commence
negotiations in respect of a Sale Event pursuant to which Xxxxxx would purchase
the Company (a "SALE EVENT TO XXXXXX"). In the event of a Sale Event, JHM would
work with Xxxxxx to optimize the sale proceeds and coordinate the sale of both
parties' holdings in the Company.
(ii) For a 90-day period commencing on the date of JHM's receipt
of such notice, JHM and Xxxxxx shall negotiate in good faith with a view to
coming to agreement on terms of a Sale Event to Xxxxxx. During such 90-day
period, JHM shall negotiate exclusively with Xxxxxx. If JHM and Xxxxxx are not
able to reach agreement on the terms of a Sale Event to Xxxxxx within the first
60 days of such 90 day period, then, if requested by Xxxxxx or JHM, JHM and
Xxxxxx shall retain a mutually acceptable independent third party
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financial advisor to assist them in attempting to reach agreement for the
remaining 30 days of such 90 day period. The fees and expenses of such third
party advisor shall be paid 35.7% by Xxxxxx and 64.3% by JHM, and the engagement
of such third party advisor shall not include any assignment other than
assisting in such negotiations; PROVIDED that nothing will preclude the Company
from hiring afterwards such third party advisor in respect of a sale process.
Any good xxxxx xxxxx encountered in respect of the designation of the third
party financial advisor will not be taken into account in the computation of the
90-day exclusive period. Such negotiations shall be held in Paris unless JHM and
Xxxxxx agree otherwise, and shall be held at mutually convenient times. For
clarity and avoidance of doubt, nothing herein shall require either party to
come to an agreement on the terms of a Sale Event to Xxxxxx as long as they
negotiate in good faith.
(iii) Notwithstanding the foregoing in this Section 5(b), if JHM
desires to pursue a Sale Event at any time prior to the receipt of Xxxxxx'x
notice in respect of a Sale Event to Xxxxxx, JHM, by notice in writing to
Xxxxxx, may initiate the commencement of the 90 day exclusive negotiation period
set forth in clause (ii) of this Section 5(b); and, following Xxxxxx'x receipt
of such notice, Xxxxxx shall not be entitled to deliver any notice under this
Section 5(b) in respect of a Sale Event to Xxxxxx, but (A) nothing in this
clause (iii) shall be construed to truncate any 90 day exclusive negotiation
period whether initiated by Xxxxxx or by JHM and (B) if JHM delivers a notice to
initiate the 90 day exclusive negotiation period set forth in clause (ii) of
this Section 5(b) and, ultimately, no definitive agreement in respect of a Sale
Event is signed, then Xxxxxx'x rights under this Section 5(b) shall immediately
be reinstated.
(iv) If Xxxxxx and JHM are not able to reach agreement on a Sale
Event to Xxxxxx by the end of such 90 day period, then, if JHM has initiated a
Sale Process Period and if Xxxxxx so requests, JHM shall be required to continue
such negotiations on a non-exclusive basis during such Sale Process Period.
During such Sale Process Period, if Xxxxxx signed a form of confidentiality
agreement (on terms no more favorable to the Company than those signed by the
majority of other participants in the sale process, if any), Xxxxxx would be
invited to participate in the sale process. Such confidentiality would not apply
to the necessary information given to the Board where they would be seen to be
independent to the issue at hand. For clarity and avoidance of doubt, nothing
herein shall be construed to require the conduct of a sale process and nothing
herein shall preclude the Company or the JHM Trustees from entering into an
agreement in respect of a Sale Event except as expressly provided in this
Section 5 (including Xxxxxx'x rights under Section 5(c)).
(v) Notwithstanding the foregoing in this Section 5(b), all
exclusive negotiations, whether initiated by Xxxxxx or by JHM, must be concluded
by December 31, 2004.
(c) RIGHT OF FIRST REFUSAL ON SALE EVENT. JHM may seek to find a
third party to purchase the Company or all or substantially all of its assets in
a Sale Event transaction.
If JHM finds a third party purchaser for a Sale Event (which Sale Event may
occur substantially simultaneously with the exercise of the JHM Option), by
notice to Xxxxxx, JHM agrees to give Xxxxxx a right of first refusal (the "Sale
Event Right of First Refusal") with respect to such purchase at the equity value
offered to purchase the Company plus 7.5%.
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Xxxxxx will have 21 days to exercise the Sale Event Right of First Refusal. For
certainty and avoidance of doubt, this means that, if Xxxxxx exercises the Sale
Event Right of First Refusal , Xxxxxx would be substituted for such third party
purchaser with respect to the Sale Event.
JHM's notice to Xxxxxx in respect of the Sale Event Right of First Refusal
shall contain copies of such third party purchaser's offer and any binding
agreements or nonbinding documents (collectively, the "Sale Event Original
Transaction") and will summarize and list the material terms and conditions of
the third party purchaser's offer (including, without limitation, price, number
of shares, payment terms, financing structure, and closing conditions). If the
Sale Event transaction is based on a payment in kind, Xxxxxx would be allowed to
make a reasonably equivalent offer in cash or cash equivalents.
To exercise its rights hereunder, Xxxxxx shall deliver to JHM and the JHM
Trustees, within 21 days from the date of Xxxxxx'x receipt of the notice of the
Sale Event Right of First Refusal, written notice of its intent to exercise the
Sale Event Right of First Refusal and hence to purchase the Company or all or
substantially all of its assets to the same extent as proposed to be purchased
by the third party purchaser (the "Xxxxxx Sale Event Acceptance Notice") at
107.5% of the equity value offered by such third party purchaser.
The Xxxxxx Sale Event Acceptance Notice, in order to be valid, must include
a price equal to no less than 107.5% of the equity value offered by such third
party purchaser and must contain the other terms and conditions that are no less
favorable to JHM and the JHM Trustees as the material terms and conditions
summarized and listed in the notice of the Sale Event Right of First Refusal
(including, without limitation, number of shares, payment terms, financing
structure, and closing conditions) and shall give Xxxxxx reasonably sufficient
time to satisfy such closing conditions.
The Xxxxxx Sale Event Acceptance Notice, when delivered, shall constitute a
valid, binding and enforceable agreement for the purchase by Xxxxxx of the
Company or all or substantially all of its assets, as the case may be, on the
terms set forth therein.
If Xxxxxx does not deliver a Xxxxxx Sale Event Acceptance Notice containing
the required terms and conditions within 21 days, JHM and the JHM Trustees shall
thereafter be free for a period of 21 days to proceed with the Sale Event
Original Transaction with the same third party purchaser.
If the definitive agreement in respect of such original transaction is not
entered into within 21 days with the initial third party purchaser, then JHM and
the JHM Trustees must again give Xxxxxx the right to exercise its Sale Event
Right of First Refusal in accordance with the provisions of this Section 5(c).
(d) NO SUBSEQUENT SALE OF THE COMPANY. In the event that Xxxxxx
exercises its rights set forth in Section 5(c) above, it agrees that it will
not, either directly or indirectly, sell, enter into an agreement to sell, grant
any option or other right to purchase any equity interests in the Company that
would represent a majority of the voting equity interests in the Company (each,
a "FLIP TRANSACTION") within six months of the date of consummation of its
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purchase of Common Shares pursuant to Section 5(c) above, unless it pays to JHM
and the JHM Trustees an amount per share sold to Xxxxxx equal to the difference
between the per share price of the Flip Transaction and the per share price paid
by Xxxxxx to the JHM Trustees pursuant to Section 5(c). Notwithstanding the
foregoing, during such six month period, Xxxxxx shall be permitted to pledge or
encumber equity interests owned by it, or enter into an equity swap in respect
of such equity interests, PROVIDED that the purpose of such a transaction is
financing for Xxxxxx and not to provide a mechanism for Xxxxxx to sell a
majority of the outstanding voting equity interests of the Company.
(e) ASSET SALE EVENT. Neither JHM (in any capacity, including his
capacity as a member of the Management Board) nor the JHM Trustees will consent
to, vote in favor of, encourage or otherwise cause to be pursued any Sale Event
in which the Company sells assets without compliance with the procedures set
forth in this Section 5, including without limitation all of Xxxxxx'x rights
under Section 5(c).
(f) UNSOLICITED OFFERS. For certainty and avoidance of doubt, if an
unsolicited firm bona fide offer for a Sale Event (the "Sale Event Offer") is
received from a third party, then the rights and obligations set forth in this
Section 5 (other than Sections 5(c) and 5(d)) shall not apply to such
transaction. JHM will keep Xxxxxx informed as soon as practicable of any
discussions or inquiries that are likely to lead to an unsolicited offer. For
purposes of Section 5(c), the date of Xxxxxx'x receipt of a copy of the written
Sale Event Offer shall constitute notice of the Sale Event Offer for purposes of
the commencement of a special 75 day (not 21 day) period in accordance with the
terms set forth in Section 5(c) (it being understood that, for certainty and
avoidance of doubt, Xxxxxx'x price shall be 107.5% of the equity value offered
by such third party). During such 75 day period, JHM shall employ his best
efforts to give Xxxxxx, its advisers and banks access to the all information
concerning the Company and to the management of the Company for the purpose of
financing the Sale Event, provided that Xxxxxx, its advisers and banks sign
suitable confidentiality agreements.
6. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications to either
party hereunder shall be in writing (including telecopy or similar writing) and
will be deemed to have been duly given when delivered by hand, by courier or
when sent by registered letter with return receipt requested, upon receipt, and
shall be given,
if to Xxxx X. XxxXxxx:
Xxxx X. XxxXxxx
00, xxxxx xx Xxxxxxxxxxx
XX-0000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxxxx
Telecopy: (00) 00 000 0000
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with copies to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000 XXX
Telecopy: (000) 000-0000
Attention: F. Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxx & XxXxxxxx
Xxxxxxxxxxx 00
X.X. Xxx 0000, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx
Telecopy: (00) 00 000-0000
Attention: Xxxxxx Xxxxxxxx
if to The JACTMAC Media Trust
Codan Trust Company Limited, Trustee
Richmond House
12 Par La Ville Road
Xxxxxxxx XX CX Bermuda
Telecopy: (00) 0 000-0000
Attention: Xxxxxx Xxxxxxx
with copies to:
Xxxxxxx Xxxx & Xxxxxxx
Richmond House
12 Par La Ville Road
Xxxxxxxx XX CX Bermuda
Telecopy: (000) 000 0000
Attention: Xxxxx XxxXxxxxx
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000 XXX
Telecopy: (000) 000-0000
Attention: F. Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxx
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Xxxxx & XxXxxxxx
Xxxxxxxxxxx 00
X.X. Xxx 0000, 0000 XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx
Telecopy: (00) 00 000-0000
Attention: Xxxxxx Xxxxxxxx
Xxxx X. XxxXxxx
00, xxxxx xx Xxxxxxxxxxx
XX-0000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxxxx
Telecopy: (00) 00 000 0000
if to Xxxxxx Investissement:
00, xxx Xxxxxxxx
00000 Xxxxx Xxxxxx
Telecopy: (00) 0 00 00 00 00
Attention: Xxxx-Xxxxxxx Xxxxxxx
with a copy to:
XX Xxxxxx
00 Xxxxxx Xxxxxx
00000 Xxxxx Xxxxxx
Telecopy: (00) 0 00 000 000
Attention: Xxxxxx Xxxxxxx
(b) AMENDMENTS; NO WAIVERS.
(i) Any provision of this Agreement may be amended if, and only
if, such amendment is in writing and signed by the parties hereto.
(ii) Any provision of this Agreement may be waived if, and only
if, such waiver is in writing and signed by the party or parties against whom
the waiver is sought to be enforced.
(iii) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(c) EXPENSES. All costs and expenses (including, but not limited to
all financial, legal and advisory fees) incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such cost or expense.
12
(d) SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED that, except as expressly set forth in this
Agreement, no party may assign, delegate or otherwise transfer any of its rights
or obligations under this Agreement without the written consent of the other
parties hereto.
(e) GOVERNING LAW, JURISDICTION, ETC.
(i) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE NETHERLANDS.
(ii) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY AND ASSETS, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, TO THE EXCLUSIVE JURISDICTION OF THE
COMPETENT COURT IN AMSTERDAM, THE NETHERLANDS IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT IN RESPECT THEREOF, AND EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH PARTY HEREBY
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY APPLICABLE LAW. EACH PARTY HEREBY SUBMITS TO THE
EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF SUCH COURT. EACH PARTY AGREES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THAT PROCESS MAY BE SERVED ON
EACH PARTY IN THE SAME MANNER THAT NOTICES MAY BE GIVEN PURSUANT TO SECTION 6(A)
HEREOF, EXCEPT THAT PROCESS MAY NOT BE SERVED ON THOSE PARTIES WHO ARE ONLY TO
RECEIVE COPIES PURSUANT TO SECTION 6(A).
(iii) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO
SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN THE
COMPETENT COURT IN AMSTERDAM, THE NETHERLANDS. EACH PARTY HEREBY IRREVOCABLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(f) COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, with the same effect as if the signatures thereto were
upon the same instrument.
13
(g) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings and negotiations, both written and oral,
between the parties with respect to the subject matter hereof. No
representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by any party hereto. Nothing
herein shall be construed as an amendment, modification or waiver of any rights
or obligations under the Shareholders' Agreement.
(h) CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(i) RESCISSION. Each party hereby waives any and all rights to claims
of rescission (UITSLUITING VAN HET RECHT ONTBINDING TE VORDEREN) with respect to
this Agreement or the transactions contemplated hereby.
(j) OBLIGATIONS. The parties hereto understand and agree that all of
the obligations of JHM herein are personal obligations undertaken by him and are
not obligations of the Company. JHM, the JHM Trustees and Xxxxxx agree to take
such actions as may be necessary, including without limitation, exercising their
rights under the Shareholders' Agreement in order to cause the matters agreed to
herein to be effected. In addition, the parties understand and agree that the
JHM Trustees have entered into this Agreement solely in their capacity as
trustee of the respective trusts of which they are trustees and the obligations
of the JHM Trustees are subject to the provisions of such trusts. The JHM
Trustees represent and warrant to Xxxxxx that the execution, delivery and
performance of this Agreement does not and will not contravene or constitute a
breach or default under the provisions of the trust of The JACTMAC Media Trust.
Notwithstanding any other provision of this Agreement, any and all liabilities
of the JHM Trustees created by this Agreement shall be limited to the extent
such liability can be met from and out of the funds or other property from time
to time subject to the trusts of the respective trusts and, accordingly, the
obligations of, and rights against, the JHM Trustees under this Agreement and
any and all liability of the JHM Trustees that may otherwise arise in connection
with this Agreement and the matters contained in this Agreement shall be
performed, satisfied and paid only out of, and enforced only against and
recourse under this Agreement shall be had only against, the funds and or other
property from time to time subject to the trusts contained in the respective
trust deeds.
(k) EXTENSION OF JHM OPTION. If the JHM Option is extended for any
reason beyond May 16, 2005, any references to dates herein shall be
correspondingly extended by the number of days for which the JHM Option has been
extended. For example, if JHM obtains an extension from May 15, 2005 to July 15,
2005, the references herein to dates in 2004 shall be extended by 61 days (the
period of time between May 15 and July 15).
(l) SHAREHOLDERS' AGREEMENT. JHM agrees not to use any rights he may
have under the Shareholders' Agreement in order to frustrate the exercise by
Xxxxxx of its rights under this Agreement. Each of JHM and Xxxxxx hereby agrees
to waive any provisions under the Shareholders' Agreement necessary to permit
the consummation of the transactions
14
contemplated by the Structured Products Transaction Agreements, including any
limitations on pledges of Class B Common Shares as set forth in Section 3.7 of
the Shareholders' Agreement.
(m) NEGOTIATIONS. Neither JHM nor Xxxxxx may unilaterally terminate
any period of exclusive negotiations as set forth in this Agreement prior to the
expiration of said period.
(n) ACKNOWLEDGEMENTS. References in this Agreement to actions by
Xxxxxx or actions by JHM or the JHM Trustees with respect to the shares of the
Company shall be understood to refer to actions taken directly or indirectly
through entities controlled by or under common control with Xxxxxx, JHM or the
JHM Trustees, as the case may be, and, in the performance of his or its
obligations hereunder, each of Xxxxxx, JHM and the JHM Trustees, respectively,
agrees to procure and cause such entities to perform such obligations in
accordance with the provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
[SIGNATURE PAGE TO THE XXXXXX TRANSACTION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written in four originals.
/s/ Xxxx X. XxxXxxx
----------------------------------------
Xxxx X. XxxXxxx
THE JACTMAC MEDIA TRUST
By: Codan Trust Company Limited, Trustee
By: /s/ Xxxxx XxxXxxxxx
-------------------------------------
Name: Xxxxx XxxXxxxxx
Title: Director
XXXXXX INVESTISSEMENT
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Corporate Development Manager
16
