AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Amendment to Purchase and Sale Agreement is made and entered into this
19th day of August, 1997, by and among PROSERV, INC., a Delaware Corporation
("ProServ"), PROSERV TELEVISION, INC., a Delaware corporation ("TV", and
collectively with ProServ, the "Companies"), XXXXXX X. DELL, an individual
residing at 00000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Seller"), and
THE MARQUEE GROUP, INC., a Delaware corporation (the "Buyer", and collectively
with ProServ, TV and Seller, the "Parties"). All initially capitalized terms
not otherwise defined herein shall have the same meanings as in he Agreement
(defined below) or the Escrow Agreement (as defined in the Agreement);
WHEREAS, the Parties executed that certain Purchase and Sale Agreement
dated June 25, 1997 (the "Agreement"), pursuant to which Seller agreed to sell
to Buyer the shares of stock described in the Agreement;
WHEREAS, the Parties wish to amend the Agreement to evidence certain
agreements between the Parties related to the consummation of the transfer of
stock from Seller to Buyer.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements contained in this amendment and in the Agreement, the Parties
agree as follows:
1. Pursuant to Section 3.1 of the Agreement, the Closing Date is
extended to a date to be selected by the Buyer upon three days written notice
to the Seller, but in no event later than October 15, 1997.
2. The Buyer will no later than August 22, 1998 substitute a Letter
of Credit in the form annexed hereto as Exhibit 1 (the "Buyer's Letter of
Credit") in the amount of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000.00), applied for by Buyer, and extended by The Chase Manhattan Bank
in favor of Seller, for the Escrow Amount provided for in Section 1(b) of the
Escrow Agreement. At the closing of the transactions contemplated by the
Agreement, the Buyer's Letter of Credit shall be surrendered by the Seller to
the Buyer.
3. A. Buyer shall not deposit the additional FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) as provided for in section 2.3(b) of the Agreement. The
Escrow Amount shall be released to the Buyer by the Escrow Agent simultaneously
with the delivery to the Seller of the Buyer's Letter of Credit. Simultaneously
with the release of the Escrow Amount, the Buyer and the Seller shall take such
actions as shall be necessary to terminate the Escrow Agreement. All
appropriate charges of the Escrow Agent shall be deducted from the Escrow
Amount before distribution to the Buyer and shall otherwise be paid in equal
shares by Buyer and Seller.
B. Buyer and Seller shall, simultaneously with the execution and
delivery hereof, also execute and deliver to the Escrow Agent joint
instructions in the form of Exhibit 2
hereto directing the Escrow Agent to liquidate the Escrow Amount and to wire
the Escrow Amount, net of any deductions for fees and expenses of the Escrow
Agent, to the Buyer, whereupon the Escrow Agreement and the Escrow shall
terminate in accordance with its terms.
C. Buyer, as the beneficiary of all net earnings with respect to
the Escrow Amount, shall be responsible for any taxes of any jurisdiction with
respect thereto and, in connection therewith, shall promptly file with the
Escrow Agent an executed Form W-9 setting forth its tax identification number.
This undertaking shall survive the termination of the Escrow Agreement.
4. The Purchase Price, pursuant to section 2.1 of the Agreement, shall
be increased to include an additional 25,000 shares of Buyer's Class A Common
Stock, thus raising the total Consideration Stock to 250,000 shares.
5. The values and amounts contemplated in Article 18 of the Agreement
shall be deemed to be modified accordingly, at the same per share value, to
reflect the increase in the Consideration Stock.
6. This amendment contains the entire understanding of the Parties
hereto with respect to the matters addressed in the amendment of the Agreement.
All other provisions of the Agreement, as amended, remain unchanged. As
required by Section 19.4 of the Agreement, all amendments to the Agreement are
evidenced by an instrument in writing signed by the Parties hereto and the
Parties confirm that any future amendments to the Agreement must also be
evidenced by a written instrument signed by the Parties.
7. This amendment may be executed by facsimile signatures and in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8. The Parties will take such actions and execute such documents as
shall be reasonably necessary or appropriate to implement this amendment.
IN WITNESS WHEREOF, the parties hereto have executed this amendment as
of the date first above written.
Companies:
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PROSERV, INC.
By: /s/ Xxxxxx X. Dell
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Name:
Title:
PROSERV TELEVISION, INC.
By: /s/ Xxxxxx X. Dell
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Name: Xxxxxx X. Dell
Title: CEO & Chairman
Seller:
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/s/ Xxxxxx X. Dell
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Xxxxxx X. Dell
Buyer:
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THE MARQUEE GROUP, INC.
By: /s/ Xxxxxx F.X. Sillerman
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Name: Xxxxxx F.X. Sillerman
Title: Chairman
