EXHIBIT 10.2
AMENDMENT TO
STOCK PURCHASE AGREEMENT
This Amendment to Stock Purchase Agreement ("Amendment") is made as of this
30th day of January, 1998, by and among Four Media Company, a Delaware
corporation ("4MC"), and the persons set forth below who are all the
shareholders of Visualize, a California corporation doing business under the
fictitious name of POP ("POP") (the "Shareholders" collectively and each a
"Shareholder" individually), with reference to the following facts:
A. 4MC and the Shareholders entered into a Stock Purchase Agreement
("Agreement") as of November 14, 1997.
B. Pursuant to Section 8.1 of the Agreement, the Closing of the
transactions covered by the Agreement were to have occurred not later than
January 31, 1998, subject to the ability of 4MC to extend the Closing Date to
February 28, 1998 upon delivery of a cashier's check in the amount of Five
Hundred Thousand Dollars ($500,000).
C. 4MC and POP desire to amend the Agreement to defer the Closing Date, to
substitute a promissory note in lieu of a cashier's check and otherwise as set
forth herein.
ACCORDINGLY, the parties agree as follows:
1. Upon execution of this Amendment, in lieu of delivery of a cashier's
check in the amount of Five Hundred Thousand Dollars ($500,000), 4MC will
deliver to X. Xxxxxxxxx and X. Xxxxxx a promissory note in the amount of Five
Hundred Thousand Dollars ($500,000) in form and substance as set forth on
Exhibit A attached hereto. Payment of such note shall be credited against the
Purchase Price.
2. The Closing of the transactions covered by the Agreement shall occur at
4:00 p.m. on February 2, 1998, at the offices of Xxxxxxxxx Glusker Fields Claman
& Machtinger LLP, 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
3. At the Closing, Shareholders shall deliver or cause to be delivered to
4MC each and all of the items set forth at Section 8.2 of the Agreement, except
that the items set forth at Section 8.2(c) and 8.2(d) (good standing
certificates for Visualize and POP Animation) may be deferred and except that
the conditions for delivery of Required Consents set forth in Section 8.2(f) has
been satisfied.
4. 4MC shall deliver or cause to be delivered all of the items set forth
in Section 8.3 of the Agreement except that the items set forth in Section
8.3(c) may be deferred and except that the Closing Cash Consideration and the
Letter of Credit provided for in Sections 8.3(d) and 8.3(f) respectively may be
deferred as hereinafter set forth.
5. All of the items delivered by Shareholders and by 4MC shall be held by
Xxxxxxx Xxxxx ("Xxxxx") pending delivery of the Closing Cash Consideration and
of the Letter of Credit provided for in Sections 8.3(d) and 8.3(f).
Concurrently with the delivery of such Closing Cash Consideration and Letter of
Credit, Niles shall release to the respective parties the items to which each
such party is entitled pursuant to Sections 8.2 and 8.3.
6. The parties expressly agree and understand that, notwithstanding the
deferral of delivery of the Closing items, 4MC shall have the benefits and
burdens of ownership of the common stock of POP from and after February 2, 1998;
provided, however, that if the Closing Cash Consideration and the Letter of
Credit are not delivered by 4MC to the Shareholders on or before February 28,
1998, Niles is hereby irrevocably instructed by the parties (without regard to
subsequent instructions from other than all parties) to return to each party the
items deposited by such party and the entire transaction shall be deemed null
and void ab initio except that the Shareholders shall be entitled to retain the
One Million Dollar ($1,000,000) Deposit and shall be entitled to enforce the
above mentioned Five Hundred Thousand Dollars ($500,000) promissory note. It is
expressly understood that the Deposit (including the $1 million cash Deposit
together with the $500,000 note) are non-refundable and are subject to no
further contingencies except for the obligation of the respective Shareholders
to deliver the documents provided for in Section 8.2 of the Agreement, as above
modified. Notwithstanding the foregoing, 4MC reserves the right to assert the
provisions of Section 7.1(v) of the Agreement until the Closing on February 2,
1998.
7. The Agreement requires transfer of capital leases or equipment standing
in the name of Ten Moons at POP, a partnership, and of Santa Xxxxxx Financial, a
partnership, to POP at or before Closing. By their signatures upon this
Amendment, the Shareholders, who include all of the partners of Ten Moons at POP
and of Santa Xxxxxx Financial, except for POP, and POP by its joinder herein,
agree that all of such leases or equipment at the Closing shall be deemed sublet
to POP upon the same terms and conditions as are set forth in the third party
leases with respect to such equipment and agree further, upon the request of
POP, to assign such leases to POP. Such partners agree to execute any and all
documents and do any and all acts necessary or desirable to effect such
subletting and/or transfer. 4MC will use reasonable efforts in connection with
such transfer to assist the partnerships in minimizing sales taxes, if any.
8. Niles shall have and execute the following rights and duties:
8.1 Niles shall have no duty hereunder to determine the occurrence or
nonoccurrence of any event or the existence of any condition or fact. The
parties hereby expressly agree that Niles shall act solely upon the notices or
demands presented to him hereunder, and in so doing Niles shall not be liable in
any manner to any other party hereto.
8.2 Niles shall be under no liability to the parties for doing or
refraining from doing any act pursuant to the directions of the parties. Niles
shall use due care in exercising his obligations and duties hereunder and Niles
does not assume, nor shall he be subject to, any liability unless the conduct
hereunder constitutes a willful violation of the provisions hereof.
8.3 If conflicting demands are made upon Niles, or if Niles is unable
to determine from the information available to him the manner in which he is to
proceed hereunder, Niles may file an interpleader, or other appropriate action
in Los Angeles, California, to have the dispute or uncertainty determined by the
appropriate court of law, and the parties jointly and severally shall hold Niles
harmless and indemnify him against any and all damages, losses, liabilities,
expenses or costs incurred (including reasonable attorneys' fees) arising out of
or in connection with such interpleader or other action. In the event such
interpleader or other action is brought, Niles shall be fully released and
discharged from all obligations to further perform any and all duties or
obligations imposed on him by this Amendment.
8.4 The parties jointly and severally agree to pay on demand, as well
as to indemnify and hold Niles harmless from and against, all costs, damages,
judgments, attorneys' fees, expenses, obligations and liabilities of any kind or
nature which, in good faith, Niles may incur or sustain in connection with or
arising out of this Agreement.
8.5 The parties agree that Niles' duty hereunder shall be limited to
the safekeeping of the items delivered to him, and for the disposition of the
same in accordance with the terms of this Amendment.
9. Except as expressly set forth herein, the Agreement shall remain in
full force and effect. Without limiting the generality of the foregoing, it is
expressly agreed and understood that all representations, warranties and
indemnities, including but not limited to those relating to reserves for taxes
and the financial statements of POP shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
"4MC"
FOUR MEDIA COMPANY, a Delaware corporation
By: ____________________________________
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
__________________________________________
Xxxx Xxxxxxxxx
__________________________________________
Xxxxxx Xxx
__________________________________________
Xxxxx Xxxxxx
__________________________________________
Xxxx Xxxxxx
__________________________________________
Xxxxxx Xxxxxxxxxxx
__________________________________________
Xxxx Xxx
__________________________________________
Xxxxx Xxxxxxx
EXHIBIT A
FORM OF PROMISSORY NOTE
