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Exhibit 2.2
PURCHASE AGREEMENT
BETWEEN
X. XXXXXX INTERNATIONAL, INC.
ECO HOLDINGS III LIMITED PARTNERSHIP,
AND
@ ENTERTAINMENT, INC.
DATED JUNE 22, 1997
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement"), is made as of the 22nd day
of June 1997, by and between X. Xxxxxx International, Inc., a corporation
organized under the laws of Delaware ("LCII"); ECO Holdings III Limited
Partnership, a limited partnership organized under the laws of Delaware ("ECO")
and @ Entertainment, Inc., a corporation organized under the laws of Delaware
(the "Company"). LCII and ECO shall hereinafter be referred to as the "Preferred
Shareholders."
WITNESSETH
WHEREAS, ECO owns 4,000 shares of Series A Preferred Stock, par value
one cent ($0.01) per share ("PCI Series A Preferred") of Poland Communications,
Inc., a New York corporation ("PCI") and LCII owns 2,000 shares of Series C
Preferred Stock, par value one cent ($0.01) per share ("PCI Series C
Preferred") of PCI. The PCI Series A Preferred and the PCI Series C Preferred
shall hereinafter be referred to as the "PCI Preferred."
WHEREAS, the Preferred Shareholders desire to sell all of the shares of
PCI Preferred to the Company, upon the terms and conditions and in exchange for
the consideration herein specified;
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises hereinafter set forth, and of other good and valuable consideration,
the parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
THE PURCHASE
1.1. SALE OF PCI PREFERRED. The Preferred Shareholders hereby agree
to sell, assign, transfer, and convey to the Company at the Closing hereinafter
identified, for the consideration set forth in accordance with the provisions of
Article II, all of their rights, title, and interest in and to all of their
shares of the PCI Preferred. At the Closing, the Preferred Shareholders shall
deliver to the Company certificates representing all of the shares of the PCI
Preferred owned by them, validly endorsed in blank or accompanied by stock
powers with respect to such shares validly endorsed in blank.
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ARTICLE II
TERMS OF THE PURCHASE
2.1 CONSIDERATION. As consideration for the purchase of shares of PCI
Series A Preferred and PCI Series C Preferred, the Company hereby agrees to pay
ECO and LCII the amount equal to ten thousand dollars (U.S. $10,000.00) for
each share of PCI Series A Preferred or PCI Series C Preferred sold to the
Company by ECO or LCII, as the case may be, in cash.
ARTICLE III
CONDITIONS PRECEDENT TO CLOSING
The Company and the Preferred Shareholders shall not be required to
proceed on the Closing Date (as hereinafter defined) with the transactions
contemplated by this Agreement unless the following conditions precedent shall
have been fulfilled and satisfied, or shall have been waived in writing by the
Company and the Preferred Shareholders:
3.1. IPO CLOSING. By September 1, 1997, there shall have been a
closing (the "IPO Closing") of an underwritten public offering of shares to be
listed on the New York Stock Exchange or the American Stock Exchange, or to be
quoted on the National Association of Securities Dealers Automated Quotation
System or the National Market System of the National Association of Securities
Dealers pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale to the public of at least
twenty percent (20%) of the Common Stock of the Company outstanding immediately
after the IPO Closing.
3.2. PARTY AUTHORIZATIONS. There shall have been obtained, by means
in conformity with all applicable provisions of all applicable laws, the
approval to the transactions contemplated by this Agreement from each of the
Preferred Shareholders as required by its partnership agreement.
3.3. CORPORATE AUTHORIZATIONS. There shall have been obtained, by
means in conformity with all applicable provisions of all applicable laws, the
approval of the Directors of the Company to the transactions contemplated by
this Agreement.
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3.4. THIRD PARTY CONSENTS. The Company and the Preferred
Shareholders shall have received from all applicable third parties all
consents,non-objections or permits needed for the consummation of the
transactions contemplated by this Agreement.
3.5. LITIGATION. No action, suit or proceeding shall have been
instituted or threatened before a court, arbitration panel or governmental body
with respect to the transactions contemplated hereby, and no regulatory
enforcement proceeding shall be pending before any governmental agency or body
with respect to the transactions contemplated hereby.
3.6. WAIVER. In the event that one or more of the foregoing
conditions in this Article III is not fulfilled as of the Closing, and no party
to this Agreement shall have objected to proceeding with the Closing despite
such non-fulfillment, fulfillment of the condition shall be deemed to have been
waived.
ARTICLE IV
CLOSING
4.1. The actual consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place on the date on which the first
business day after all of the conditions precedent to closing described in
Article III have been satisfied, or waived in writing by all partners hereto.
ARTICLE V
OBLIGATIONS AT THE CLOSING
5.1. PREFERRED SHAREHOLDERS' OBLIGATIONS. At the Closing, each of
the Preferred Shareholders shall deliver to the Company:
1. A copy of certified resolutions adopted by the
governing body or such other authority of such Preferred Shareholder
authorizing or ratifying the execution and delivery of this Agreement, and the
performance by such Preferred Shareholder of its obligations hereunder.
2. Certificates representing all of the shares of PCI
Preferred owned by such Preferred Shareholder, together with appropriate
stock powers in a form satisfactory to the Company and executed by such
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Preferred Shareholder, assigning such certificates to the Company, free and
clear of any liens, claims, options, encumbrances or restrictions of any
nature whatsoever.
5.2 THE COMPANY'S OBLIGATIONS.
1. The Company shall deliver to the Preferred Shareholders cash
in the amounts specified below:
$40,000,000.00 ECO
$20,000,000.00 LCII
ARTICLE VI
FURTHER COVENANTS OF THE PARTIES
6.1 COVENANT REGARDING ISSUANCE OF COMPANY PREFERRED STOCK. If the
condition precedent set forth in Article 3.1., above, has not been satisfied by
September 1, 1997 or waived in writing by the Company and the Preferred
Shareholders in accordance with Article XIV, then (i) the Company shall on
September 15, 1997 issue: to ECO, an equivalent number of shares of Series A
Preferred Stock, with identical rights and preferences as the PCI Series A
Preferred, in exchange for ECO's shares of PCI Series A Preferred Stock; (ii)
the Company shall issue to LCII, an equivalent number of shares of Series C
Preferred Stock, with identical rights and preferences as the PCI Series C
Preferred, in exchange for LCII's shares of PCI Series C Preferred Stock, (iii)
the Preferred Shareholders will replicate, with respect to the Company, the
capital structure, corporate governance and shareholder relation provisions
currently in effect at PCI immediately prior to the execution of this Agreement,
including but not limited to all provisions contained in the Certificate of
Incorporation and Bylaws of PCI (subject to the inherent differences between the
New York Business Corporation Law and the Delaware General Corporation Law); and
(iv) the Preferred Shareholders will contribute all of their shares of PCI
Series A Preferred and PCI Series C Preferred to the Company in exchange for a
like number of shares of a like series of preferred stock of the Company, with
the same rights and preferences of the PCI Series A Preferred and the PCI Series
C Preferred, respectively.
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6.2 FURTHER ASSURANCES WITH RESPECT TO COMPANY STOCK. The Preferred
Shareholders and the Company agree that, from time to time and without further
consideration, each of them shall execute and deliver such further documents
and take such other action as the Company may require more effectively to
transfer to and vest in the Company and put the Company in possession of the
PCI Preferred and all right and interest in the PCI Preferred.
ARTICLE VII
EFFECTIVENESS AND ASSIGNABILITY OF AGREEMENT
This Agreement shall become effective when executed and delivered by
the Company and each of the Preferred Shareholders, and shall be binding in all
respects upon the respective successors and permitted assigns of each of the
Company and the Preferred Shareholders. No party hereto may assign this
Agreement in whole or in part without first obtaining the written consent of
all other parties hereto.
ARTICLE VIII
COMPLETENESS OF AGREEMENT
This Agreement and the Exhibits hereto represent the entire contract
between the Company and the Preferred Stockholders with respect to the subject
matter hereof and supersede all offers, proposals, statements, representations
and agreements with respect to the subject matter hereof. The Exhibits hereto
are incorporated herein by reference, and shall be deemed to be included in any
reference to this Agreement. This Agreement may not be amended except by action
of the Company and each of the Preferred Shareholders hereto set forth in an
instrument in writing signed on behalf of the Company and each of the Preferred
Shareholders hereto.
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ARTICLE IX
CAPTIONS
The captions to the Articles and Sections contained in this Agreement
are for reference only, do not form a substantive part of this Agreement and
shall not restrict nor enlarge any substantive provision of this Agreement.
ARTICLE X
APPLICABLE LAW
This Agreement, and the Exhibits, and all other documents given in
connection herewith, shall be construed in accordance with the laws of the
State of Delaware, without regard to the principles of conflicts of laws.
ARTICLE XI
CHOICE OF FORUM; VENUE; SERVICE OF PROCESS
Any suit, action, or proceeding among any or all of the parties hereto
relating to this Agreement, to any document, instrument, or agreement delivered
pursuant hereto, referred to herein, or contemplated hereby, or in any other
manner arising out of or relating to the transactions contemplated by or
referenced in this Agreement, shall be commenced and maintained exclusively in
the Court of Chancery of the State of Delaware or, if that Court lacks
jurisdiction over the subject matter, in a state court of competent
subject-matter jurisdiction sitting in New Castle County, Delaware. The parties
hereto hereby submit themselves unconditionally and irrevocably to the personal
jurisdiction of such courts. The parties hereto further agree that venue shall
be in New Castle County, Delaware. The parties hereto irrevocably waive any
objection to such personal jurisdiction or venue including, but not limited to,
the objection that any suit, action, or proceeding brought in Delaware, has
been brought in an inconvenient forum. The parties hereto irrevocably agree
that process issuing from such courts may be served on them, either personally
or by certified mail, return receipt requested, at the addresses on the books
and records of the Company; and further irrevocably waive any objection to
service of process made in such manner and at such
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addresses, including without limitation any objection that service in such
manner and at such addresses is not authorized by the local or procedural laws
of the State of Delaware.
ARTICLE XII
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be considered an original but all of which shall constitute but one
and the same Agreement by and among the Company and the Preferred Shareholders.
ARTICLE XIII
NO THIRD PARTY BENEFICIARY
This Agreement is intended to inure to the benefit of the Company and
the Preferred Shareholders only; and no third party shall have any rights,
express or implied, by reason of this Agreement.
ARTICLE XIV
UNILATERAL RIGHT TO WAIVE FAILURES OF OTHER PARTIES
14.1. WAIVER. The Company or any of the Preferred Shareholders may:
1. Extend in writing the time for the performance of any of the
obligations herein contained to be performed for the benefit of such entity;
and
2. Waive in writing the failure in performance of any of the
conditions herein expressed for its benefit.
14.2. EFFECT OF WAIVER. No such waiver or extension shall be valid
unless in writing and signed by the entity granting the waiver or extension,
and no such waiver or extension shall be construed to excuse or mitigate any
subsequent breach or violation of this Agreement not specifically covered by
such waiver.
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ARTICLE XV
SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the other provisions hereof, and the Agreement shall be
construed in all respects as if such invalid or unenforceable provisions were
omitted. Furthermore, upon the request of the Company or any of the Preferred
Shareholders, the Company and the Preferred Shareholders shall add to this
Agreement, in lieu of such invalid or unenforceable provisions, provisions as
similar in terms to such invalid or unenforceable provisions as may be possible
and legal, valid and enforceable.
ARTICLE XVI
TERMINATION
16.1. Termination Events. This Agreement may be terminated at any time
prior to the Closing Date, by mutual written consent of the Company and the
Preferred Shareholders.
16.2. Effect of Termination. In the event of the termination of this
Agreement as provided in Section 16.1, this Agreement shall forthwith become
void, and there shall be no liability on the part of the Company or any of the
Preferred Shareholders; provided that the foregoing shall not relieve any party
for liability for damages actually incurred as a result of any breach of this
Agreement.
IN WITNESS WHEREOF, the Company and the Preferred Shareholders have
caused this Agreement to be executed as of the day and year first above written.
@ ENTERTAINMENT, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx, III
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Name: Xxxxxx X. Xxxxxx, III
Title: Chief Executive Officer
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X. XXXXXX INTERNATIONAL, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
ECO HOLDINGS III LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Advent ECO III L.L.C., General Partner
By: Global Private Equity II Limited
Partnership, Member
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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