Exhibit 10.15
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of July 24, 2002 (this "Agreement"),
by and among Loews Cineplex Entertainment Corporation, a Delaware corporation
(the "Company"), 1363880 Ontario Inc., a corporation organized and existing
under the laws of Ontario, Canada ("Onex Cinema"), and OCM Cinema Holdings, LLC,
a Delaware limited liability company ("OCM" and, together with Onex Cinema, the
"Stockholders").
A. The Company currently owns a 24.6% interest in Megabox Cineplex,
Inc., a Korean corporation ("Megabox");
B. The Company desires to acquire an additional 1,464,322 shares of
common stock of Megabox, representing a 25.4% interest in Megabox, pursuant to a
Stock Purchase and Subscription Agreement among the Company, Megabox and
Mediaplex, Inc. for an aggregate purchase price of $20.6 million (the
"Acquisition"); and
C. Each of the Stockholders desires to make a capital contribution to
the Company to fund the Acquisition;
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Subscription.
a. Subscription by Onex Cinema. Subject to and in accordance with
the terms and conditions of this Agreement, Onex Cinema hereby subscribes for
and agrees to purchase 3,588 shares of class B common stock, par value $0.01 per
share, of the Company ("Class B Shares") for a purchase price of $3,350 per
share.
b. Subscription by OCM. Subject to and in accordance with the
terms and conditions of this Agreement, OCM hereby subscribes for and agrees to
purchase 2,559 shares of class A common stock, par value $0.01 per share, of the
Company ("Class A Shares" and, together with the Class B Shares, the "Common
Stock") for a purchase price of $3,350 per share.
c. Purchase and Sale of Common Stock. At the closing of the
purchase and sale of the Common Stock to be purchased by the Stockholders (the
"Closing"), the Company shall (i) issue and sell to Onex Cinema, and Onex Cinema
shall purchase from the Company, 3,588 Class B Shares for a purchase price of
$3,350 per share, and (ii) issue and sell to OCM, and OCM shall purchase from
the Company, 2,559 Class A Shares for a purchase price of $3,350 per share.
d. Closing. The Closing shall take place at the offices of the
Company, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. on July 24, 2002, or
at such other place or on such other date as may be mutually agreeable to the
Company and the Stockholders. At the
Closing (i) Onex Cinema shall pay to the Company $12,018,500.55 by wire transfer
of immediately available funds to an account designated by the Company, (ii) OCM
shall pay to the Company $8,573,111.95 by wire transfer of immediately available
funds to an account designated by the Company, (iii) the Company shall deliver
to Onex Cinema a certificate representing 3,588 Class B Shares and (iv) the
Company shall deliver to OCM a certificate representing 2,559 Class A Shares.
2. Representation and Warranties of the Company.
a. Organization; Authorization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement has been duly and
validly authorized by all necessary corporate action of the Company and has been
duly and validly executed and delivered by the Company and constitutes the valid
and binding obligation of the Company, enforceable against it in accordance with
its terms.
b. Authorization and Validity of Issuance of Shares. The shares
of Common Stock to be issued by the Company to each of the Stockholders
hereunder will be duly and validly authorized at the time of issuance and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and nonassessable.
3. Representations and Warranties of the Stockholders. Each
Stockholder hereby severally, as to itself, and not jointly, represents and
warrants to, and covenants and agrees with, the Company as follows:
a. Authorization of Stockholder. The Stockholder has been duly
organized and is validly existing in good standing under the laws of the
jurisdiction of its organization, with the requisite power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
Stockholder has full right, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement have been duly authorized by the Stockholder, and
this Agreement has been duly executed and delivered by the Stockholder and
constitutes the valid and binding obligation of the Stockholder, enforceable
against it in accordance with its terms.
b. Non-Contravention. The execution and delivery of this
Agreement by the Stockholder and the consummation of the transactions
contemplated hereby do not require the Stockholder to file any notice, report or
other filing with, or to obtain any consent, registration, approval, permit or
authorization of or from, any governmental or regulatory authority of the United
States, any state thereof or any foreign jurisdiction, and do not constitute a
material breach or violation of, or a material default under, any provision of
any mortgage, lien, lease, agreement, license, instrument, law, regulation,
order, arbitration, award, judgment or decree to which the Stockholder is a
party or by which its property is bound, in any such case which could prevent,
materially delay or materially burden the transactions contemplated by this
Agreement.
c. Certain Matters Relating to the Shares of Common Stock.
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i. The Stockholder is acquiring the Common Stock for investment
purposes only and not with a view to, or for, distribution,
resale or fractionalization thereof, in whole or in part, in each
case under circumstances which would require registration thereof
under the Securities Act of 1933, as amended (the "Securities
Act"), or any state securities laws.
ii. The Stockholder has not been given any oral or written
information, representations or assurances by the Company or any
representative thereof in connection with the Stockholder's
acquisition of the Common Stock other than as contained in this
Agreement, and the Stockholder is relying on its own business
judgment and knowledge concerning the business, financial
condition and prospects of the Company in making the decision to
acquire the Common Stock. The Stockholder acknowledges that no
person has been authorized to give any information or to make any
representation relating to the Common Stock or the Company, other
than as contained in this Agreement, and, if given or made,
information received from any person and any representation,
other than as aforesaid, must not be relied upon as having been
authorized by the Company or any person acting on its behalf.
iii. The Stockholder is an "accredited investor" as described in Rule
501(a) of Regulation D of the Securities Act, and has such
knowledge and experience in financial and business matters as is
necessary to evaluate the merits and risks of the acquisition of
the Common Stock and to make an informed investment decision.
iv. The Stockholder understands that an investment in the Common
Stock is a speculative investment which involves a high degree of
risk of loss of the Stockholder's investment therein. The
Stockholder is able to bear the economic risk of such investment
for an indefinite period of time, including the risk of a
complete loss of the Stockholder's investment in such securities.
The Stockholder acknowledges that the Common Stock has not been
registered under the Securities Act or any applicable state
securities laws and, therefore, cannot be sold unless
subsequently registered under the Securities Act and/or any
applicable state securities laws or an exemption from such
registration is available.
v. The Stockholder acknowledges that it has had a full opportunity
to ask questions and receive answers concerning the terms and
conditions of the issuance of the Common Stock and has had full
access to such other information concerning the Company as it has
requested.
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vi. The Stockholder and its purchaser representatives and advisors,
if any, have been afforded the opportunity to examine all
documents related to and, if applicable, executed in connection
with, the transactions contemplated hereby, which the Stockholder
or purchaser representatives or advisors, if any, have requested
to examine.
vii. The Stockholder agrees that there may be affixed to the
certificate(s) representing the Common Stock (until in the
opinion of counsel, which opinion must be reasonably satisfactory
in form and substance to counsel for the Company, it is no longer
necessary or required) the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
and may not be sold, transferred, offered for sale, pledged or
hypothecated in the absence of an effective registration statement as
to the securities under the Act or an opinion of counsel satisfactory
to the Company and its counsel that such registration is not
required."
4. Indemnification. Each Stockholder acknowledges that such
Stockholder understands the meaning and legal consequences of the
representations and warranties in Section 3 hereof, and hereby agrees, severally
and not jointly and severally, to indemnify and hold harmless the Company, and
its officers, directors, employees, agents, representatives and affiliates, from
and against any and all loss, damage or liability due to, or arising out of, a
breach of any such representations or warranties made by such Stockholder.
Notwithstanding the foregoing, however, no representation, warranty,
acknowledgment or agreement made herein by a Stockholder shall, in any manner,
be deemed to constitute a waiver of any rights granted to such Stockholder under
federal or state securities laws.
5. No Third Party Beneficiaries. Except with respect to the rights of
the indemnified parties under Section 4, nothing in this Agreement, expressed or
implied, is intended to confer upon any creditor or any other person, other than
the parties hereto or their respective successors, any rights, remedies,
benefits, obligations or liabilities of any nature whatsoever under or by reason
of this Agreement.
6. Miscellaneous.
a. This Agreement may not be modified, waived or terminated
except by an instrument in writing, signed by a party against whom enforcement
of such modification, waiver, or termination is sought.
b. Except as otherwise provided herein, this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their heirs,
executors, administrators, successors, legal representatives and permitted
assigns, and the agreements, representations, warranties, covenants and
acknowledgments contained herein shall be deemed to be made by, and be binding
upon, such heirs, executors, administrators, successors, legal representatives
and permitted assigns.
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c. This Agreement shall be construed in accordance with, and
governed in all respects by, the laws of the State of New York applicable to
contracts made and to be performed wholly within the State of New York, without
regard to any conflicts of law principles thereof that would call for the
application of the laws of any other jurisdiction.
d. This Agreement may be executed in two or more counterparts and
by different parties in separate counterparts, with the same effect as if all
parties hereto had signed the same document. All counterparts so executed and
delivered shall be construed together and shall constitute one and the same
agreement.
e. All the agreements, representations and warranties made by the
Stockholder in this Agreement shall survive the acceptance of each Stockholder's
subscription by the Company.
f. Each Stockholder agrees that in the event further action or
execution of documents is required of such Stockholder, such Stockholder will
take any and all such reasonable actions and execute any such documents as are
reasonably necessary or appropriate in connection with the business of the
Company.
g. This Agreement constitutes the entire agreement of the
Stockholders and the Company relating to the matters contained herein, and
supersedes all prior contracts or agreements, whether oral or written.
h. Common nouns and pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular and plural, as the identity of the person
may in the context require.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Subscription
Agreement as of the date first written above.
1363880 ONTARIO INC.
By: /s/ Xxx Xxx
------------------------------
Name: Xxx Xxx
Title:
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title:
OCM CINEMA HOLDINGS, LLC
By: Oaktree Capital Management, LLC
Its: Manager
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Managing Director
LOEWS CINEPLEX ENTERTAINMENT
CORPORATION
By: /s/ Xxxx X. XxXxxxx, Xx.
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Name: Xxxx X. XxXxxxx, Xx.
Title: Senior Vice President and
General Counsel
