Exhibit 10.23
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of _________, 2002 (this
"Agreement"), by and between Loews Cineplex Entertainment Corporation, a
Delaware corporation (the "Company"), and ______________, [a _____________ of
the Company] ("__________").
A. ________ desires to acquire from the Company, and the
Company desires to sell to __________, shares of the Company's class A common
stock, par value $0.01 per share (the "Common Stock"); and
B. Simultaneously herewith, 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"), are entering into a Stockholders Agreement, providing
for certain restrictions on the transfer of the shares of the capital stock and
other securities of the Company held by ___________ from time to time (the
"Stockholders Agreement");
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. Subject to and in accordance with the terms
and conditions of this Agreement, ________ hereby subscribes for and agrees to
purchase ________ shares of Common Stock for an aggregate purchase price of
$__________ (the "Purchase Price").
b. Purchase and Sale of Common Stock. At the closing of the
purchase and sale of the Common Stock (the "Closing"), the Company shall issue
and sell to __________, and _______ shall purchase from the Company,
________ shares of Common Stock for the Purchase Price.
c. 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 __________, 2002,
or at such other place or on such other date as may be mutually agreeable to the
Company and __________. At the Closing, (i) _________ shall pay to the Company
the Purchase Price by wire transfer of immediately available funds to an account
designated by the Company, and (ii) the Company shall deliver to _______ a
certificate representing _______ shares of the Common Stock.
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
Common Stock to be issued by the Company to _______ 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 _________. _______ hereby
represents and warrants to, and covenants and agrees with, the Company as
follows:
a. Limitations on Transfer. The Common Stock acquired by
_______ hereunder shall be subject to the transfer restrictions contained in the
Stockholders Agreement.
b. Non-Contravention. The execution and delivery of this
Agreement by _______ and the consummation of the transactions contemplated
hereby do not require _______ 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 _______ is a party or by which his 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.
i. _______ 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. _______ has not been given any oral or written
information, representations or assurances by the
Company or any representative thereof in
connection with _______'s acquisition of the
Common Stock other than as contained in this
Agreement and the Stockholders Agreement, and
_______ is relying on his own business judgment
and knowledge concerning the business, financial
condition and prospects of the Company in making
the decision to acquire the Common Stock. _______
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 the
Stockholders Agreement, and, if given or made,
information received from any person and any
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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. _______ 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 to evaluate the
merits and risks of the acquisition of the Common
Stock and to make an informed investment decision.
iv. __________ understands that an investment in the
Common Stock is a speculative investment which
involves a high degree of risk of loss of
__________'s investment therein. __________ is
able to bear the economic risk of such investment
for an indefinite period of time, including the
risk of a complete loss of __________'s investment
in such securities. __________ 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
or any applicable state securities laws or an
exemption from such registration is available.
v. __________ acknowledges that he 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 he has requested.
vi. __________ and his purchaser representative 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
__________ or purchaser representatives or
advisors, if any, have requested to examine.
vii. __________ agrees that there may be affixed to the
certificate(s) representing the Common Stock the
legends set forth in Section 2 of the Stockholders
Agreement (until in the opinion of counsel, which
opinion must be reasonably satisfactory in form
and substance to counsel for the Company, they are
no longer necessary or required).
d. Knowledge. __________ has a high degree of familiarity with
the business, operations, financial condition and prospects of the Company.
4. Indemnification. __________ acknowledges that he
understands the meaning and legal consequences of the representations and
warranties in Section 3 hereof, and hereby agrees to indemnify and hold harmless
the Company, and its officers, directors, employees, agents,
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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 __________. Notwithstanding the foregoing, however, no
representation, warranty, acknowledgment or agreement made herein by __________
shall, in any manner, be deemed to constitute a waiver of any rights granted to
__________ 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.
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
__________ in this Agreement shall survive the acceptance of __________'s
subscription by the Company.
f. __________ agrees that in the event further action or
execution of documents is required of __________, __________ will take any and
all such actions and execute any such documents as are necessary or appropriate
in connection with the business of the Company.
g. This Agreement and the Stockholders Agreement constitute
the entire agreement of __________ and the Company relating to the matters
contained herein and supersede all prior contracts or agreements, whether oral
or written.
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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.
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IN WITNESS WHEREOF, the undersigned have executed this
Subscription Agreement as of the date first written above.
LOEWS CINEPLEX ENTERTAINMENT
CORPORATION
By:
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Name:
Title:
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