EXHIBIT 2.2
AMENDING AGREEMENT
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AGREEMENT, dated as of May 14, 1998 among Cineplex Odeon Corporation
("Cineplex"), Sony Pictures Entertainment Inc. ("SPE"), LTM Holdings, Inc.
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("LTM"), Universal Studios, Inc. ("Universal"), and the Xxxxxxx Xxxxxx Xxxxxxxx
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Family Trust (the "Trust") (on behalf of itself and the other members of the
Claridge Group being Xxxxxxx X. Xxxxxxxx, E. Xxx Xxxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxxx Xxxxxxx Foundation and 3096475 Canada Inc.).
WHEREAS, SPE, LTM and Cineplex have entered into an Amended and Restated
Master Agreement dated as of September 30, 1997 (the "Master Agreement");
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WHEREAS, LTM and Universal have entered into an Amended and Restated
Subscription Agreement dated as of September 30, 1997 (the "Subscription
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Agreement"); and
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WHEREAS, the parties desire to amend the Master Agreement and the
Subscription Agreement as set forth below and confirm their understanding of
certain matters under the related Stockholders Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual
agreements contained herein, the parties agree as follows:
SECTION 1 AMENDMENTS TO THE MASTER AGREEMENT
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1.1 The last sentence of Section 7.3 (a) of the Master Agreement is hereby
amended by and restated in its entirety as set forth below:
"In addition, LTM shall have received a certificate of the
Chief Financial Officer of Cineplex Odeon certifying that,
as of the Closing Date, except for (a) amounts owed to
Universal and its Affiliates for film booking and home video
arrangements or under the management agreement in respect of
the Universal City Cinema, (b) obligations and liabilities
included in clauses (ii) (x) and (y) of the definition of
Net Working Capital and Debt reflected in each case in
Cineplex Odeon's Closing Statement or arising under the
Documents or as disclosed in the Cineplex Odeon Reports or
in Section 2.19 of the Cineplex Disclosure Schedule, (c) the
exclusions set forth in the final sentence of paragraph 9 of
the Letter Agreement and (d) obligations and liabilities of
Cineplex Odeon Films, a division of Cineplex Odeon, pursuant
to an agreement made by it with October Films, Inc. pursuant
to which Cineplex Odeon Films acts as a distributor of
October
Films, Inc. films in Canada, Cineplex Odeon has no outstanding
obligations or liabilities, contingent or otherwise, owed to Universal
or the Claridge Group, or their respective Affiliates."
SECTION 2 AMENDMENTS TO THE CINEPLEX ODEON DISCLOSURE STATEMENT
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2.1 Section 2.19 of the Cineplex Odeon Disclosure Statement is hereby
amended by deeming the contents of Schedule "A" attached hereto to be
incorporated into and to form part of the said Section 2.19.
SECTION 3 AMENDMENTS TO THE SUBSCRIPTION AGREEMENT
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3.1 Section 7.15 of the Subscription Agreement is hereby amended and
restated in its entirety as set forth below:
"Section 7.15. Release. Subject to the consummation of the
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Purchase, and excluding (a) amounts owed to Universal and
its Affiliates for film booking and home video arrangements
or under the management agreement in respect of the
Universal City Cinema, (b) obligations and liabilities
included in clauses (ii)(x) and (y) of the definition of Net
Working Capital and Debt reflected in each case in Cineplex
Odeon's Closing Statement or arising under the Documents and
(c) obligations and liabilities of Cineplex Odeon Films, a
division of Cineplex Odeon, pursuant to an agreement made by
it with October Films, Inc. pursuant to which Cineplex Odeon
Films acts as a distributor of October Films, Inc. films in
Canada, Universal, on behalf of itself and its Affiliates,
hereby acknowledges, releases and discharges, and
indemnifies and saves harmless, Cineplex Odeon and the
Cineplex Odeon Subsidiaries and their successors and assigns
from all actions, causes of action, suits, debts, dues, sums
of money, accounts, claims and demands owed by Cineplex
Odeon and the Cineplex Odeon Subsidiaries to Universal and
its Affiliates by reason of any matter, cause, contract
(whether written or oral), course of dealing or thing
whatsoever arising during, or in respect of, the period on
or before the Closing Date."
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SECTION 4 AMENDMENTS TO THE FORM OF TAX SHARING AND INDEMNITY AGREEMENT
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4.1 The form of Tax Sharing and Indemnity Agreement attached as Exhibit E
to the Master Agreement is hereby amended and restated in its entirety in
substantially the same form as set forth in Schedule "B" attached hereto.
SECTION 5 LTM CONSENT TO SALE OF CINEPLEX'S FILM DISTRIBUTION BUSINESS
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5.1 Pursuant to section 5.1(b) of the Master Agreement, LTM hereby
consents to the disposition by Cineplex of all of Cineplex's film distribution
business at or prior to the Closing of the Transactions on terms previously
disclosed to LTM.
SECTION 6 APPOINTMENT OF INDEPENDENT DIRECTORS
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6.1 (a) The parties acknowledge and confirm that, notwithstanding the
provisions of Section 6.18 of the Master Agreement and Section 2.1 of the
Stockholders Agreement, two Independent Directors as opposed to four Independent
Directors will be appointed effective as of the Closing. LTM shall use its best
efforts to cause an additional two Independent Directors to be appointed as soon
as possible following the Closing, such two additional Independent Directors to
be designated by mutual agreement of LTM, Universal, SPE and the two Independent
Directors appointed on Closing. Until such two additional Independent Directors
shall have been duly elected to the Board, LTM shall not take any action
requiring Board authorization unless such action is approved by (i) such vote as
may be required by the Stockholders Agreement and LTM's Amended and Restated
Certificate of Incorporation and Bylaws and the Delaware General Corporation Law
and (ii) a "Weighted Majority of the Board." For purposes of this agreement,
"Weighted Majority of the Board" means a majority of the votes cast by directors
at any meeting at which a quorum is present, in which the vote of each
Independent Director is multiplied by the quotient of (i) 4 divided by (ii) the
number of Independent Directors then in office.
(b) This will confirm (i) the covenant and agreement of each of
Universal and SPE that each of Universal and SPE will use its best efforts to
cause the Company to fulfill the Company's obligations under the third sentence
of paragraph (a) of this Section 6.1 and (ii) the covenant and agreement of the
Company, Universal and SPE that if either Universal or SPE shall fail to use its
best efforts to cause the Company to fulfill in any material respect any of the
Company's obligations under paragraph (a) of this Section 6.1:
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(A) Such failure shall have the consequences specified in Section
8.3 of the Stockholders Agreement and
(B) Each of Universal and SPE shall have the rights and remedies
specified in Section 8.11 of the Stockholders Agreement,
in each case to the same extent as if the covenants of each of Universal
and SPE set forth in clause (i) above were a covenant of Universal and SPE under
the Stockholders Agreement and such covenant were among the obligations
enumerated in the second sentence of Section 8.3 and in Section 8.11(c) thereof.
SECTION 7 TRANSACTION EXPENSES
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7.1 The parties hereto acknowledge that LTM has not approved of any plan
pursuant to which severance costs or "stay" bonuses will be incurred by LTM or
Cineplex Odeon as a result of the Transactions in excess of those previously
proposed by LTM and without the written approval of SPE, Universal, Claridge
Inc. and a majority of the Independent Directors, any such excess shall not be
included as "Transaction Expenses" as defined in Section 2.7 of the Master
Agreement for purposes of determining the Final Closing Statement.
SECTION 8 CLOSING ADJUSTMENT
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8.1 The parties hereto acknowledge that, notwithstanding anything
contained in the Master Agreement to the contrary, the Closing shall in no way
be construed as a waiver of any party's right to object that the Preliminary
Closing Statements were not prepared in accordance with the terms of Sections
2.7, 3.7 and 6.9 of the Master Agreement and the parties agree that any such
objections may be raised subsequent to the Closing in connection with the
determination of the Final Closing Statement.
SECTION 9 APPOINTMENT OF ARBITRATOR
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9.1 The parties acknowledge and confirm that, notwithstanding the
provisions of Section 3.3(d) of the Stockholders Agreement, an Arbitrator has
not been selected as required thereby. Following the Closing, the parties hereto
agree that they will use their reasonable best efforts to appoint promptly an
Arbitrator meeting the requirements of Section 3.3(d) of the Stockholder
Agreement.
SECTION 10 NO OTHER AGREEMENTS
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10.1 Except as expressly set forth herein, this Agreement will not amend or
modify any provision of the Master Agreement, the Subscription Agreement or the
Stockholders Agreement.
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SECTION 11 COUNTERPARTS
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11.1 This agreement may be executed in several counterparts, each of which
so executed shall be deemed to be an original and such counterparts together
shall be but one and the same instrument.
SECTION 12 INTERPRETATION
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12.1 Capitalized terms used but not defined herein shall have the meanings
set forth in the Master Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
LTM HOLDINGS, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
SONY PICTURES ENTERTAINMENT INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and General
Counsel
UNIVERSAL STUDIOS, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President, Corporate Development
CINEPLEX ODEON CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Executive Vice President, Corporate
Affairs and Secretary
XXXXXXX XXXXXX XXXXXXXX FAMILY TRUST
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxx
Title:
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title:
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Schedule "A"
5. Limited Partnership Agreement made as of July 31, 1985 between 619918 Ontario
Inc. and 000000 Xxxxxx Inc. (the "Partnership").
6. Lease made as of June 1, 1985 between Cineplex Odeon Corporation and the
Yonge-Eglinton Cinema Partnership.
7. Guarantee of Cineplex Odeon Corporation dated December 11, 1985 (with respect
to the obligations of the general partner of the Partnership and the
Partnership).
8. Agency Agreement made as of July 31, 1985 between the Yonge-Eglinton Cinema
Partnership and Cineplex Odeon Corporation.
9. Net Lease made as of June 1, 1985 between Yonge-Eglinton Building Limited,
Transtortium Realty Limited and Transplex Building Corporation Limited, and
Cineplex Odeon Corporation.
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