AGREEMENT AND PLAN OF MERGER
Exhibit
1
Execution
Copy
AGREEMENT AND PLAN OF MERGER, dated as of April 2, 2008 (the “Agreement”), by and
between Claxson Interactive Group Inc., a British Virgin Islands business company (the
“Company”) and Remainco Inc., a British Virgin Islands business company and a direct
wholly-owned subsidiary of the Company (“NEWCO”).
WHEREAS, the Board of Directors of the Company, based upon the unanimous recommendation of a
special committee of independent directors of the Company (the “Special Committee”) has (i)
determined that this Agreement and the transactions contemplated hereby, including the Merger (as
defined below), is fair to and in the best interests of the members of the Company and (ii)
approved this Agreement and the transactions contemplated hereby; and
WHEREAS, the Board of Directors of NEWCO has approved this Agreement and the merger (the
“Merger”) of NEWCO with and into the Company in accordance with the BVI Business Companies
Act, 2004 (as amended) of the British Virgin Islands (the “BCA”), upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, NEWCO and the Company hereby agree as
follows:
ARTICLE I
THE MERGER
THE MERGER
Section 1.1 The Merger. At the Effective Time (as defined in Section 1.3 hereof), and
subject to the terms and conditions of this Agreement and the BCA, NEWCO shall be merged with and
into the Company, the separate existence of NEWCO shall thereupon cease, and the Company shall be
the surviving company in the Merger (the “Surviving Company”).
Section 1.2 Surviving Company; Effects of the Merger. At the Effective Time, the
Surviving Company shall continue its existence under the laws of the British Virgin Islands. The
Merger shall be effective as provided under section 173 of the BCA. Without limiting the generality
of the foregoing and subject thereto, at the Effective Time, all the property, rights, privileges,
immunities, powers and franchises of the Company and NEWCO shall vest in the Surviving Company, and
all debts, liabilities and duties of the Company and NEWCO shall become the debts, liabilities and
duties of the Surviving Company.
Section 1.3 Effective Time. As soon as practicable after the satisfaction or due
waiver of the conditions set forth in Article V, the parties hereto shall cause the Merger to be
consummated by filing articles of merger (including a plan of merger) (the “Articles of
Merger”) with the Registrar of Corporate Affairs, in the form set forth on Schedule 1.3, as
required by and executed in accordance with the relevant provisions of the laws of the British
Virgin Islands (the date and time of the filing of the Articles of Merger with the Registrar of
Corporate Affairs (or such later time as is specified in the Articles of Merger) being the
“Effective Time”).
Section 1.4 Memorandum and Articles of Association of the Surviving Company. At the Effective Time and without any further action on the part of the Company or NEWCO, the
Amended and Restated Memorandum of Association and Articles of Association of the Company
shall be the memorandum of association and articles of association of the Surviving Company and
concurrently with the filing of the Articles of Merger, the Company shall file the Second Amended
and Restated Memorandum of Association and Articles of Association in the form substantially
attached hereto as Exhibit A (collectively, the “Amended Memorandum and Articles”).
Section 1.5 Board of Directors and Officers of the Surviving Company. At the Effective Time, the number of persons constituting the whole board of directors of the Surviving Company
shall be five (5) and each person other than those listed on Schedule 1.5 hereto serving
immediately prior to the Effective Time as a director of the Company shall be, and hereby is
(effective immediately prior to the Effective Time) removed from office, and each person listed on
Schedule 1.5 hereto shall become at the Effective Time a director of the Surviving Company, each of
such directors to hold office, subject to the applicable provisions of the Amended Memorandum and
Articles, until the next meeting of the members of the Surviving Company and until his successor
shall be duly qualified or until his earlier death, resignation, removal, or disqualification. Each
of the officers of the Company immediately prior to the Effective Time shall become upon the
Effective Time an officer of the Surviving Company until his respective successor is duly elected
or appointed and qualified or until his earlier death, resignation, removal or disqualification.
Section 1.6 Conversion of Shares. At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof:
(a) Each ordinary share of NEWCO of par value U.S.$1.00 per share (each a “NEWCO
Share” or, collectively, the “NEWCO Shares”) that is issued and outstanding immediately
prior to the Effective Time shall by virtue of the Merger and without any action on the part of the
holder thereof automatically be cancelled and retired and shall cease to exist, and no cash or
other consideration shall be delivered or deliverable in exchange therefor. The member of NEWCO
shall cease to have any rights with respect to such shares.
(b) Each Class A common share of the Company of par value U.S.$0.01 per share, Class C common
share of the Company of par value U.S.$1.00 per share, Class F common share of par value U.S.$1.00
per share and Class H common share of par value U.S.$1.00 per share (each, a “Share” or,
collectively, the “Shares”) of the Company issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger, be treated as follows:
(i) Subject to Section 1.8, each Share held by a person not listed in the table set
forth on Schedule 1.6(b)(ii)(each of such Shares, an “Exchanged Share” or,
collectively, the “Exchanged Shares”) shall be converted into the right to receive
from the Surviving Company after the Merger cash in an amount equal to U.S.$13.75 (the
“Cash Consideration”), and each such Exchanged Share shall no longer be outstanding,
shall automatically be cancelled and retired and shall cease to exist, and each holder of
any such Exchanged Shares shall cease to have any rights with respect thereto, except the
right to receive the Cash Consideration applicable thereto, upon surrender of such Exchanged
Shares in accordance with Section 1.9.
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(ii) In respect of the Shares held by each person listed in the table set forth on
Schedule 1.6(b)(ii) (each of such persons, a “Remaining Holder” or, collectively,
the “Remaining Holders”), each Share held by the Remaining Holders shall remain
outstanding as a share of the same class and par value of the Surviving Company (each of
such Shares, a “Converted Share” or, collectively, the “Converted Shares”)
as set forth on Schedule 1.6(b)(ii).
The Converted Shares, together with the Cash Consideration and the Option Merger Consideration
(as defined in Section 1.7), shall be referred to as the “Merger Consideration”.
Section 1.7 Treatment of Outstanding Options. Prior to the Effective Time, the Board of Directors of the Company (or, if appropriate, a committee thereof) shall adopt appropriate
resolutions and take all other actions necessary to provide that, immediately prior to the
Effective Time, each Outstanding Option (as defined in Section 2.4) prior to the Effective Time
shall, by virtue of the Merger, be treated as follows:
(a) Each Outstanding Option (as defined herein) then outstanding, whether or not then
exercisable, held by a person listed on the table set forth on Schedule 1.6(b)(ii) shall be
converted into the right to receive the option (collectively, the “Converted Options”) to
purchase one share of the same class of shares of the Surviving Company.
(b) Each other Outstanding Option (as defined herein) then outstanding, whether or not then
exercisable, shall be cancelled, and the holder thereof shall be entitled to receive at the
Effective Time or as soon as practicable thereafter from the Surviving Company in consideration for
such cancellation an amount in cash equal to the product of (a) the number of Shares previously
subject to such Outstanding Option and (b) the excess, if any, of U.S.$13.75 over the exercise
price per Share previously subject to such Outstanding Option (together with the Converted Options,
the “Option Merger Consideration”). If such product is equal to or less than zero, such
Outstanding Option shall be cancelled and the holder thereof shall receive no consideration in
respect thereof.
Section 1.8 Dissenting Shares. Notwithstanding any provision contained herein to the contrary, any shareholder of the Company immediately prior to the Effective Time shall be entitled
to receive payment of the fair value for his Shares upon properly dissenting from the Merger in
accordance with the provisions of section 179 of the BCA, the dissenting member shall cease to have
any rights with respect to the Surviving Company except for the right to receive payment of fair
value for his Shares in accordance with the provisions of section 179 of the BCA, and each such
Share (a “Dissenting Share” and collectively, the “Dissenting Shares”)
shall no longer be outstanding, shall automatically be cancelled and retired and shall cease to exist.
Section 1.9
Payment for Shares. (a) Prior to the Effective Time, the Company shall (i) designate a bank or trust company to act as agent for the holders of Shares and Outstanding Options
in connection with the Merger (the “Exchange Agent”) to receive the Merger Consideration to
which holders of such Shares and Outstanding Options may become entitled pursuant to Section 1.6(b)
and Section 1.7(b) and (ii) enter into a written agreement with the Exchange Agent requiring the
Exchange Agent to perform its obligations under this Agreement.
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Immediately prior to the Effective Time, the Company will make available to the Exchange Agent
sufficient funds (the “Exchange Fund”) to make all payments pursuant to Section 1.9(b). Out
of such funds, the Exchange Agent shall, pursuant to irrevocable instructions, make the payments
referred to in Sections 1.6(b) and 1.7(b). Such funds shall not be used for any other purpose. The
Exchange Agent may invest some or all of such funds as the Company directs, provided that all such
investments shall be in obligations of or guaranteed by the United States of America or in money
market or other short-term investment funds having a rating of at least “A” from a
nationally recognized statistical rating agency (collectively, “Permitted Investments”).
Any net profit resulting from, or interest or income produced by, such investments, shall be
payable to the Surviving Company. The Surviving Company shall replace any monies lost through any
investment made pursuant to this paragraph (a) of this Section 1.9.
(b) As soon as practicable after the Effective Time, the Exchange Agent shall mail to each
holder of record of an outstanding certificate or certificates which immediately prior to the
effective time represented Shares (the “Certificates”), or of Shares represented by
book-entry (“Book Entry Shares”), a letter of transmittal (the “Letter of
Transmittal”) for return to the Exchange Agent, and instructions for use in effecting the
surrender of Certificates and receipt of the Merger Consideration or, in the case of Book-Entry
Shares, the receipt of the Merger Consideration for each of such holder’s Shares.
(c) In effecting the delivery of the Cash Consideration in respect of Exchanged Shares
represented by Certificates and Book-Entry Shares entitled to the Cash Consideration pursuant to
Section 1.6(b)(i), upon the surrender of each such Certificate and Letter of Transmittal, or just
the Letter of Transmittal in the case of Book Entry Shares, the Exchange Agent shall pay the holder
of such Certificate or Book-Entry Share the Cash Consideration multiplied by the number of such
Exchanged Shares. Upon such payment by the Exchange Agent, such Certificate, if any, shall
forthwith be cancelled and retired, and the Share shall cease to exist as an issued Share.
(d) In effecting the delivery of the Option Merger Consideration, each person entitled to such
consideration in the Merger pursuant to Section 1.7(b), the Exchange Agent shall pay such person
cash in an amount to which such person is entitled pursuant to Section 1.7(b). Upon such payment by
the Exchange Agent, each such Outstanding Option shall be cancelled and shall cease to exist.
(e) Any portion of the funds made available to the Exchange Agent which remains unclaimed
twelve months after the Effective Time shall be paid to the Surviving Company upon demand. Any
holders of Certificates or Book-Entry Shares prior to the Effective Time who are not Remaining
Holders and any holders of Outstanding Options entitled to Option Merger Consideration in
accordance with Section 1.7(b) and who have not theretofore delivered the Letter of Transmittal
and, if applicable, Certificates, in accordance with the instructions provided pursuant to Section
1.9(b) hereof shall thereafter look only to the Surviving Company for payment of their claim for
the Cash Consideration set forth in Section 1.6(b)(i) hereof or the Option Merger Consideration in
Section 1.7(b) hereof, without any interest thereon, but shall have no greater rights against the
Surviving Company than may be accorded to general creditors of the Surviving Company under the laws
of the British Virgin Islands.
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Section 1.10 No Further Rights or Transfers. At and after the Effective Time of the
Merger, each holder of record of Exchanged Shares and Dissenting Shares that were issued and
outstanding Shares immediately prior to the Effective Time shall cease to have any rights as a
member of the Surviving Company, except for the right to receive the Cash Consideration provided
pursuant to Sections 1.6 and 1.9 hereof upon surrendering any Certificate or Certificates, if
applicable and/or to perfect his or her right to an appraisal of and receive payment thereupon for
his or her Dissenting Shares pursuant to section 179 of the BCA and Section 1.8 hereof if such
holder has validly exercised and not withdrawn or lost such appraisal rights. No transfer of
Exchanged Shares or Dissenting Shares that were issued and outstanding prior to the Effective Time
shall be made on the share register of the Surviving Company. No interest or dividends shall be
paid or accrued on the Cash Consideration or Option Merger Consideration. If the Cash Consideration
(or any portion thereof) is to be delivered to any person other than the person in whose name the
Certificate or Book-Entry Share formerly representing Exchanged Shares surrendered therefor is
registered, it shall be a condition to such right to receive such Cash Consideration that the
Exchange Agent receive a completed Letter of Transmittal with respect to such Exchanged Shares and
that the person receiving such Cash Consideration pay to the Exchange Agent any transfer or other
taxes required by reason of the payment of the Cash Consideration to a person other than the
registered holder of the Certificate or Book-Entry Share surrendered, or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not applicable.
Section 1.11 No Liability. If any Certificates or Letter of Transmittal shall not have
been surrendered prior to seven years after the Effective Time, any such shares, cash, dividends,
distributions or other considerations in respect of such shares shall, to the extent permitted by
applicable law, become the property of the Surviving Company, free and clear of all claims or
interest of any person previously entitled thereto.
Section 1.12 Tax Withholding. The Company and NEWCO shall withhold or cause to be
withheld all taxes and other amounts, if any, required by law to be withheld from the Merger
Consideration or any part thereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to NEWCO as of the date hereof, that except as set
forth in the disclosure schedule provided by the Company to NEWCO (the “Disclosure
Schedule”) (The Disclosure Schedule shall be arranged in Sections corresponding to the numbered
Sections contained in Article II and the disclosure in any Section shall qualify (a) the
corresponding Sections in Article II, and (b) the other Sections in Article II,
to the extent that it is reasonably apparent from a reading of such disclosure that it also
qualifies or applies to such other Sections. The inclusion of any information in the Disclosure
Schedule shall not be deemed to be an admission of acknowledgment, in and of itself, that such
information is required by the terms hereof to be disclosed, is material, has resulted in or would
result in a Material Adverse Effect or is outside the ordinary course of business.):
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Section 2.1 Organization. Each of the Company and each subsidiary of the Company, of
which a majority of the outstanding equity interests are owned, directly or indirectly, by the
Company, and which has operations that are material to the operations of the Company and its
consolidated subsidiaries, taken as a whole (each, a “Subsidiary”) is a company duly
incorporated, validly existing and in good standing under the laws of the jurisdiction of its
formation, with all requisite power and authority to own, operate and lease its properties and to
carry on its business as it is now being conducted. The Company and each of the Subsidiaries is
duly qualified or licensed and in good standing to do business in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except in such jurisdictions where the failure to be so duly
qualified or licensed and in good standing would not, individually or in the aggregate, have a
Material Adverse Effect on the Company or the Subsidiaries. As used herein, the term “Material
Adverse Effect” means, with respect to any person or entity, any change or effect that would be
materially adverse to the business, assets (whether tangible or intangible), financial condition or
results of operations of the person or entity taken as a whole or the ability of such person or
entity to consummate the transaction contemplated hereby.
Section 2.2 Subsidiaries and Joint Ventures. Section 2.2 of the Disclosure Schedule
sets forth all Subsidiaries and Company Joint Ventures. All equity interests of any material
Subsidiary or any Company Joint Venture of the Company held by the Company or any other Subsidiary
of the Company are validly issued, fully paid and non-assessable (to the extent such concepts are
applicable) and were not issued in violation of any preemptive or similar rights, purchase option,
call, or right of first refusal or similar rights. “Company Joint Venture” means any
corporation or other entity (including partnerships, limited liability companies and other business
associations and joint ventures) that is not a Subsidiary and in which the Company, directly or
indirectly, owns an equity interest.
Section 2.3 Authorization. The Company has the necessary power and authority to enter
into this Agreement. The execution and delivery of this Agreement by the Company, the performance
by the Company of its obligations hereunder and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by the Company’s Board of Directors, and
no other proceeding on the part of the Company is necessary to authorize this Agreement or to
consummate the transactions contemplated hereby (other than the approval of this Agreement by the
members of the Company). This Agreement has been duly and validly executed and delivered by the
Company and, assuming the due authorization, execution and delivery hereof by NEWCO and the
enforceability of this Agreement against each of them, is a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy,
insolvency, moratorium, reorganization, receivership, or other similar laws relating to, or
affecting enforcement of, creditors’ rights generally, and general principles of equity (regardless
of whether considered and applied in a proceeding in equity or at law).
Section 2.4 Capitalization of the Company. (a) Prior to the filing of the Amended
Memorandum and Articles the Company’s entire authorized share capital consists of 30,000,000 Class
A common shares, par value U.S.$0.01 per share, 2 Class C common shares, par value U.S.$1.00 per
share, 7 Class F common shares, par value U.S.$1.00 per share, 1 Class H common share, par value
U.S.$1.00 per share and 15,000,000 shares of series A convertible
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preferred shares, par value U.S.$1.00 per share. As of the date hereof, there are 21,808,290
Class A common shares issued and outstanding, 2 Class C common shares issued and outstanding, 7
Class F common shares issued and outstanding, 1 Class H common share issued and outstanding and no
series A convertible preferred shares issued and outstanding. As of the date hereof, 512,677 Class
A common shares are reserved for issuance in connection with the Company’s stock option plans (of
which options to purchase 512,677 shares are outstanding (each an “Outstanding Option” and
collectively, the “Outstanding Options”). Except as set forth above or on Schedule 2.4
hereto, there are outstanding (i) no shares or other voting securities of the Company, (ii) no
securities of the Company or any of the Subsidiaries convertible into or exchangeable for shares or
other voting securities of the Company, (iii) no options, warrants or other rights to acquire from
the Company or any of the Subsidiaries (including any rights issued or issuable under a members
rights plan or similar arrangement), and no obligations of the Company or any of the Subsidiaries
to issue, any shares, voting securities or securities convertible into or exchangeable for shares
or voting securities of the Company, (iv) no equity equivalents, interests in the ownership or
earnings of the Company or any of the Subsidiaries or other similar rights (the shares, options,
warrants, rights, obligations, equity equivalents, and other securities listed in clauses (i)
through (iv) referred to collectively as the “Company’s Securities”), and (v) no
outstanding obligations of the Company or any of the Subsidiaries to repurchase, redeem or
otherwise acquire any of the Company’s Securities or to make any investment (by loan, capital
contribution or otherwise) in any other entity.
(b) Except as set forth in Section 2.4(b) of the Disclosure Schedule, all of the outstanding
shares of, or other ownership interests in, each of the Subsidiaries, is owned by the Company,
directly or indirectly, free and clear of any Lien or any other limitation or restriction
(including any restriction on the right to vote or sell the same, except as may be provided as a
matter of law). For purposes of this Agreement, “Lien” means, with respect to any asset
(including, without limitation, any security) any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset. Except as set forth in Section 2.4(b) of the
Disclosure Schedule, there are no securities of the Company or any of the Subsidiaries convertible
into or exchangeable for, options or other rights to acquire from the Company or any of the
Subsidiaries, and no other contract, understanding, arrangement or obligation (whether or not
contingent) providing for the issuance or sale, directly or indirectly, of any shares or other
ownership interests in, or any other securities of, any of the Subsidiaries. Except as set forth in
Section 2.4(b) of the Disclosure Schedule, there are no outstanding contractual obligations of the
Company or any of the Subsidiaries to repurchase, redeem or otherwise acquire any outstanding
shares of shares or other ownership interests in any Subsidiary.
(c) All issued and outstanding shares of the Company and each of the Subsidiaries have been
duly authorized and validly issued and are fully paid and nonassessable. The Outstanding Options
have been duly authorized and validly issued and are in full force and effect.
Section 2.5 Certain Fees. With the exception of a fee payable to Xxxxxxxx Xxxxx, which
has acted as financial advisor to the Special Committee in connection with the Merger, pursuant to
a letter agreement which has been delivered to the Company, neither the Company nor any Subsidiary
has employed any broker or finder or incurred any liability for any financial
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advisory, brokerage or finders’ fees or commissions in connection with the transactions
contemplated hereby.
Section 2.6 Consents and Approvals; No Violations. (a) Except for (i) applicable
requirements of the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (the “Exchange Act”), and the British Virgin Islands and state securities and
“blue sky” laws, (ii) the filing and recordation of the Articles of Merger as required by the BCA
and the Amended Memorandum and Articles and (iii) as set forth in Section 2.6 of the Disclosure
Schedule, no filing or registration with, no notice to and no permit from, and no authorization,
consent or approval of any public or governmental body or authority or third party is necessary on
behalf of, the Company for the consummation by the Company of the transactions contemplated by this
Agreement (other than approval of this Agreement by the shareholders of the Company), except where
the failure to make such filing, registration or notice or to obtain such permit, authorization,
consent or approval would not, in the aggregate, have a Material Adverse Effect.
(b) Neither the execution and delivery of this Agreement by the Company nor the consummation
by the Company of the transactions contemplated hereby nor compliance by the Company with any of
the provisions hereof will (i) conflict with or result in any breach of any provision of the
memorandum of association or the Articles of association of the Company, (ii) result in a violation
or breach of, or constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which the Company or any of its Subsidiaries is a party or by which any
of them or any of their properties or assets may be bound or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company, any of its Subsidiaries
or any of their properties or assets, excluding from the foregoing clauses (ii) and (iii)
violations, breaches, defaults or such rights which in the aggregate would not have a Material
Adverse Effect.
Section 2.7 No Material Adverse Change. Since December 31, 2007, there have been no
events, circumstances, conditions, changes or occurrences that individually, or in the aggregate,
have had, or could reasonable be expected to have a Material Adverse Effect on the Company or any
of its Subsidiaries.
Section 2.8 Financial Statements. The audited consolidated balance sheet of the
Company for each of the three fiscal years ended as of December 31, 2006, and the related audited
consolidated statements of income, of changes in shareholders’ equity and of cash flows of the
Company, together with all related notes and schedules thereto, accompanied by the reports thereon
of the Company’s accountants and the unaudited consolidated balance sheet of the Company as of
March 31, 2007, and the related unaudited consolidated statements of income for the three months
then ended (i) were prepared in accordance with the books of account and other financial records of
the Company and the Subsidiaries, (ii) present fairly, in all material respects, the consolidated
financial condition and results of operations of the Company and the Subsidiaries as of the dates
thereof or for the periods covered thereby, (iii) have been prepared in accordance with accounting
principles generally accepted in the United States of America applied on a basis consistent with
the past practices of the Company and the Subsidiaries (other
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than compliance with Financial Accounting Standards Board Interpretation Number 48) and (iv)
include all adjustments (consisting only of normal recurring accruals) that are necessary for a
fair presentation, in all material respects, of the consolidated financial condition of the Company
and the Subsidiaries and the results of the operations of the Company and the Subsidiaries as of
the dates thereof or for the periods covered thereby, and in the case of the unaudited statements,
to normal year-end auditing adjustments, none of which are expected to be material in nature or
amount.
Section 2.9 Opinion of Financial Advisor. The Special Committee has received the
opinion of Xxxxxxxx Xxxxx, the Special Committee’s financial advisor, to the effect that the Cash
Consideration to be received in the Merger by the holders of record of Exchanged Shares is fair to
such shareholders from a financial point of view.
Section 2.10 Board Recommendation. On the unanimous recommendation of the Special
Committee, the Board of Directors of the Company has concluded that the Merger is fair to, and in
the best interest of, the Company and the holders of record of the Shares and has approved and
adopted this Agreement.
Section 2.11 Availability of Funds. At the Effective Time, the Company will have all
funds necessary to pay the Cash Consideration with respect to all Exchanged Shares.
Section 2.12 Voting Agreement. Attached as Exhibit B hereto is a true and correct
copy of the voting agreement (the “Voting Agreement”) among the Company and the
shareholders signatory thereto, whereby such shareholders have agreed to vote to approve this
Agreement, the Merger and the Amended Memorandum and Articles or execute a written consent in lieu
of a shareholder vote approving this Agreement, the Merger and the Amended Memorandum and Articles.
The Voting Agreement is in full force and effect.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NEWCO
REPRESENTATIONS AND WARRANTIES OF NEWCO
NEWCO hereby represents and warrants to the Company that:
Section 3.1 Organization. NEWCO is a business company duly incorporated, validly
existing and in good standing under the laws of the British Virgin Islands and has all requisite
power and authority to own, operate and lease its properties and to carry on its business as it is
now being conducted, except where the failure to be so incorporated, existing and in good standing
would not have a Material Adverse Effect on NEWCO.
Section 3.2 Authorization. (a) NEWCO has the necessary power and authority to enter
into this Agreement and to carry out its obligations hereunder. The execution and delivery of this
Agreement by NEWCO, the performance by NEWCO of its obligations hereunder and the consummation by
NEWCO of the transactions contemplated hereby have been duly and validly authorized by the Board of
Directors of NEWCO and the sole member of NEWCO, and no other proceeding on the part of NEWCO is
necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by NEWCO and, assuming the due
authorization, execution and delivery hereof by the
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Company, is a legal, valid and binding obligation of NEWCO, enforceable against NEWCO in
accordance with its terms.
Section 3.3 Capitalization of NEWCO. (a) NEWCO’s maximum number of authorized shares
is 50,000 shares, par value U.S.$1.00 per share. As of the date hereof, there is one (1) share
issued and outstanding. Except as set forth above, there are outstanding (i) no shares or other
voting securities of NEWCO, (ii) no securities of NEWCO convertible into or exchangeable for shares
or other voting securities of NEWCO, (iii) no options, warrants or other rights to acquire from
NEWCO (including any rights issued or issuable under a members rights plan or similar arrangement),
and no obligations of NEWCO to issue, any shares, voting securities or securities convertible into
or exchangeable for shares or voting securities of NEWCO, (iv) no equity equivalents, interests in
the ownership or earnings of NEWCO or other similar rights (the shares, options, warrants, rights,
obligations, equity equivalents, and other securities listed in clauses (i) through (iv) referred
to collectively as the “NEWCO’s Securities”), and (v) no outstanding obligations of NEWCO
to repurchase, redeem or otherwise acquire any of the NEWCO’s Securities or to make any investment
(by loan, capital contribution or otherwise) in any other entity.
(b) All issued and outstanding shares of NEWCO have been duly authorized and validly issued
and are fully paid and nonassessable, free of any preemptive rights.
Section 3.4 No Prior Activities of NEWCO. NEWCO has not incurred, directly or
indirectly, any liabilities or obligations, except those incurred in connection with its formation
and capitalization or with the negotiation of this Agreement and the consummation of the
transactions contemplated hereby. NEWCO has not engaged, directly or indirectly, in any business or
activity of any type or kind, or entered into any agreement or arrangement with any person or
entity, nor is subject to or bound by any material liability, obligation or undertaking, other than
those not contemplated by or in connection with its formation and capitalization or this Agreement
and the transactions contemplated hereby.
Section 3.5 No Violations. Neither the execution and delivery of this Agreement by
NEWCO nor the consummation by NEWCO of the transactions contemplated hereby nor compliance by NEWCO
with any of the provisions hereof will conflict with or result in any breach of any provision of
the memorandum of association and articles of association of NEWCO.
ARTICLE IV
COVENANTS
COVENANTS
Section 4.1 Conduct of Business of the Company. Except as expressly contemplated by
this Agreement, during the period from the date of this Agreement to the Effective Time, the
Company and its Subsidiaries will each conduct their respective operations only in, and the Company
and its Subsidiaries shall not take any action except in, the ordinary and usual course of business
and consistent with past practice, and each of the Company and the Subsidiaries will use its
reasonable best efforts in the ordinary course of business consistent with past practice to
preserve intact its business organization, assets, prospects and advantageous business
relationships, to keep available the services of its officers and employees and to maintain
10
satisfactory relationships with customers, suppliers, contractors, distributors, licensors,
licensees and others having business relationships with it. Without limiting the generality of the
foregoing and except as expressly contemplated by this Agreement, the Company shall not (i) declare
or pay any dividends, (ii) make any distributions or payments to any of its security holders, (iii)
redeem any of its securities, (iv) make any unscheduled principal payments with respect to any of
its indebtedness, or (v) make any contributions to any of its subsidiaries.
Section 4.2 Reasonable Best Efforts. Upon the terms and subject to the conditions
hereof, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or
advisable to consummate and make effective the transactions contemplated by this Agreement and
shall use its reasonable best efforts to obtain all waivers, permits, consents and approvals and to
effect all registrations, filings and notices with or to third parties or governmental or public
bodies or authorities which are necessary or reasonably appropriate in connection with the
transactions contemplated by this Agreement, including, without limitation, filings to the extent
required under the Exchange Act.
Section 4.3 Schedule 13E-3 Filing. (a) NEWCO and the Company shall, as promptly as
practicable and in any event within twenty (20) Business Days of the date of this Agreement, file
with the U.S. Securities and Exchange Commission (the “Commission”) a Schedule 13E-3 (the
“Schedule 13E-3”) with respect to the Merger and disseminate to members (i) such
information as is required by Rule 13e-3 under the Exchange Act and the BCA and (ii) a disclosure
statement (“Disclosure Statement”) to be filed with the Schedule 13E-3. The Company shall
(i) respond as promptly as reasonably practicable to any comments received from the Commission with
respect to such filings and provide copies of such comments to the Special Committee promptly upon
receipt and copies of proposed responses to the Special Committee a reasonable time prior to filing
to allow meaningful comment, (ii) as promptly as reasonably practicable prepare and file (after the
Special Committee has had a reasonable opportunity to review and comment on) any amendments or
supplements necessary to be filed in response to any Commission comments or as required by law and
(iii) use its reasonable best efforts to have the Commission confirm that it has no further
comments on the Schedule 13E-3. For the purposes hereof, the term “Business Day” shall
mean any day that is not a Saturday, Sunday or other day on which banking institutions are required
or authorized by applicable law to be closed in New York City.
(b) None of the information supplied by NEWCO, on the one hand, or the Company on the other
hand, for inclusion in the Schedule 13E-3 or Disclosure Statement, in any information disseminated
to members or in any amendments or supplements thereto, will, at the respective times such Schedule
00X-0, Xxxxxxxxxx Xxxxxxxxx or amendments are filed with the Commission or such information is
mailed to shareholders, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The Schedule 13E-3 will
comply as to form in all material respects with all applicable provisions of the Exchange Act.
NEWCO and the Company shall promptly correct any information in the Schedule 13E-3 or Disclosure
Statement that shall have become false or misleading and take all steps necessary to cause the
Schedule 13E-3 and Disclosure Statement as so corrected to be filed with the Commission, as and to
the extent required by applicable law. If at any time after the
11
Effective Time any further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers or directors of each of the parties hereto shall take such action.
Section 4.4 Indemnification. (a) The Surviving Company shall, from and after the
Effective Time, indemnify, defend and hold harmless each person who is now, or has been at any time
prior to the date of this Agreement or who becomes prior to the Effective Time, an officer,
director, employee, fiduciary or agent of the Company or any of the Subsidiaries or a member of the
Special Committee (the “Indemnified Parties”) against all losses, claims, damages, costs,
expenses (including, without limitation, reasonable attorneys’ and other professionals’ fees),
liabilities or judgments or amounts that are paid in settlement with the approval of the
indemnifying party (which approval shall not be unreasonably withheld) of or in connection with any
claim, action, suit, proceeding or investigation (whether civil, criminal, administrative, or
otherwise) based in whole or in part on or arising in whole or in part out of or pertaining to the
fact that such person is or was a director, officer, employee, fiduciary or agent of the Company or
any of the Subsidiaries or a member of the Special Committee or is or was serving at the request of
the Company or any Subsidiary as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, whether pertaining to any matter existing
or occurring prior to, at or after the Effective Time and whether asserted or claimed prior to, at
or after the Effective Time, provided that the Indemnified Party acted honestly and in good faith
with a view to the best interests of the Company and, in the case of criminal proceedings, the
Indemnified Party had no reasonable cause to believe that such party’s conduct was unlawful
(“Indemnified Liabilities”), including, without limitation, all losses, claims, damages,
costs, expenses (including, without limitation, reasonable attorneys’ and other professionals’
fees), liabilities, judgments, or amounts paid in settlement based in whole or in part on, or
arising in whole or in part out of, or pertaining to this Agreement or any of the transactions
contemplated hereby, in each case to the full extent a company is permitted under the laws of the
British Virgin Islands to indemnify its own directors and officers.
(b) The Surviving Company shall pay expenses (including, without limitation, reasonable
attorneys’ and other professionals’ fees) as such expenses are incurred and in advance of the final
disposition of any such action, suit, proceeding or investigation to each Indemnified Party to the
full extent permitted by law upon receipt of any undertaking to repay required by the laws of the
British Virgin Islands. Without limiting the foregoing, in the event of any such claim, action,
suit, proceeding or investigation (whether arising before, at, or after the Effective Time), (i)
the Surviving Company shall have the right to assume the defense thereof and the Surviving Company
shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any
other expenses subsequently incurred by such Indemnified Parties in connection with the defense
thereof, except that if the Surviving Company elects not to assume such defense or if there are
issues that raise conflicts of interest between the Surviving Company and the Indemnified Parties,
the Indemnified Parties may retain counsel satisfactory to them, and the Surviving Company shall
pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as
statements therefor are received; provided, however, that the Surviving Company
shall be obligated pursuant to this Section 4.4 to pay for only one firm of counsel for all
Indemnified Parties in any jurisdiction unless there are, under applicable standards of
professional conduct (as reasonably determined by counsel to the Indemnified Parties), separate and
distinct interests or legal positions of any two or more Indemnified Parties, in which event such
additional counsel as may be reasonably required by reason of such separate or
12
distinct interests or legal positions may be retained by the Indemnified Parties, (ii) the
Indemnified Parties will cooperate in the defense of any such matter and (iii) the Surviving
Company shall not be liable for any settlement effected without its prior written consent, which
consent shall not be unreasonably withheld; and provided, further, that the
Surviving Company shall not have any obligation hereunder to any Indemnified Party when and if a
court of competent jurisdiction shall ultimately determine, and such determination shall have
become final and nonappealable, that the indemnification of such Indemnified Party in the manner
contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim
indemnification under this Section 4.3, upon learning of any such claim, action, suit, proceeding
or investigation, shall promptly notify the Surviving Company (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have under this Section 4.4
except to the extent such failure materially prejudices such party), and shall deliver to the
Surviving Company any undertaking to repay required by the laws of the British Virgin Islands.
(c) In the event that the Surviving Company or any of its successors and assigns consolidates
with or merges or converts into any other person, entity, or association and shall not be the
continuing or surviving corporation, entity, or association of such consolidation or merger or
conversion or transfers and conveys all or substantially all of its property and assets to any
person, then, and in each case, proper provisions shall be made so that the successors and assigns
of the Surviving Company assume the obligations set forth in this Section 4.4.
(d) The provisions of this Section 4.4 are intended to be for the benefit of, and shall be
enforceable by, each Indemnified Party, his or her heirs and representatives, and may not be
amended, altered or repealed without the written consent of any affected Indemnified Party.
Section 4.5 Directors’ and Officers’ Insurance. (a) For a period of six years from the
Effective Time, the Amended Memorandum and Articles of the Surviving Company shall contain
provisions no less favorable with respect to indemnification than are set forth in Sections 107
through 112 of the Memorandum and Articles of the Company.
(b) The Surviving Company shall maintain in effect for six years from the Effective Time
directors’ and officers’ liability insurance policies containing terms and conditions that are not
less favorable than those of the current directors’ and officers’ liability insurance policies
(other than coverage amount), requiring aggregate annual premiums for such six-year period not in
excess of U.S$225,000 and providing for coverage of U.S$10,000,000 with respect to matters
occurring prior to the Effective Time; provided, however, that in the event of an
expiration, termination or cancellation of such policies, the Surviving Company shall be required
to obtain as much coverage as is possible under substantially similar policies for an annual amount
in aggregate annual premiums of U.S$40,000.
(c) In the event the Surviving Company or any of its successors or assigns (i) consolidates
with or merges into any other person and shall not be the continuing or surviving company or entity
of such consolidation or merger or (ii) transfers all or substantially all of its properties and
assets to any person, then, and in each such case, proper provision shall be made so that the
successors and assigns of the Surviving Company shall assume the obligations set forth in this
Section 4.5.
13
ARTICLE V
CONDITIONS TO THE MERGER
CONDITIONS TO THE MERGER
Section 5.1 Conditions to Each Party’s Obligation to Effect the Merger. The respective
obligations of each party to this Agreement to consummate the Merger shall be subject to the
fulfillment at or prior to the Effective Time, the following conditions, which, other than Section
5.1(d), may not be waived:
(a) This Agreement, the Merger and the Articles of Merger shall have been approved and
adopted by the requisite vote (which may be effected by written consent in lieu of a meeting) of
the directors and the members of the Company required by the Company’s memorandum of association
and articles of association and the BCA.
(b) This Agreement, the Merger and the Articles of Merger shall have been approved and adopted
by the requisite vote (which may be effected by written consent in lieu of a meeting) of the
directors and the sole member of NEWCO required by the memorandum of association and articles of
association of NEWCO and the BCA.
(c) There shall not be outstanding any order, statute, rule, regulation, executive order,
stay, decree, judgment, or injunction which shall have been enacted, entered, issued, promulgated
or enforced by any court or governmental authority which restrains or prohibits the consummation of
the Merger.
(d) Thirty (30) days following the initial filing of the Schedule 13E-3 with the Commission
shall have passed and the Commission shall have indicated that it has no further comments to the
Schedule 13E-3.
Section 5.2 Conditions to the Obligation of NEWCO to Effect the Merger. The
obligations of NEWCO to effect the Merger shall be further subject to the fulfillment at or prior
to the Effective Time of the following conditions, any one or more of which may be waived by NEWCO:
(a) The Company shall have performed and complied in all material respects with the agreements
and obligations contained in this Agreement required to be performed and complied with by it at or
prior to the Effective Time.
(b) The representations and warranties of the Company contained in this Agreement that are
qualified as to materiality shall be true and correct, and the representations and warranties that
are not so qualified shall be true and correct in all material respects, in each case when made and
at and as of the Effective Time.
Section 5.3 Conditions to the Obligations of the Company to Effect the Merger. The
obligations of the Company to effect the Merger shall be further subject to the fulfillment at or
prior to the Effective Time of the following conditions, any one or more of which may be waived by
the Company:
14
(a)
NEWCO shall have performed and complied in all material respects with the
agreements and obligations contained in this Agreement required to be performed and
complied with by it at or prior to the Effective Time.
(b) The representations and warranties of NEWCO contained in this Agreement that are qualified
as to materiality shall be true and correct, and the representations and warranties that are not so
qualified shall be true and correct in all material respects, in each case when made and at and as
of the Effective Time.
ARTICLE VI
ADDITIONAL AGREEMENTS
ADDITIONAL AGREEMENTS
Section 6.1 Non-Solicitation.
(a) Subject to Section 6.1(b), from the date hereof until the Effective Time or, if earlier,
the termination of this Agreement in accordance with Article VIII, none of the Company, the
Company’s Subsidiaries nor any of their respective Representatives shall, directly or indirectly,
(A) initiate, solicit or encourage (including by way of providing information) the submission of
any inquiries, proposals or offers that constitute or may reasonably be expected to lead to, any
Company Acquisition Proposal or engage in any discussions or negotiations with respect thereto or
otherwise knowingly cooperate with or knowingly assist or participate in, or knowingly facilitate
any such inquiries, proposals, discussions or negotiations, or (B) approve or recommend, or propose
to approve or recommend, a Company Acquisition Proposal or enter into any merger agreement, letter
of intent, agreement in principle, share purchase agreement, asset purchase agreement or share
exchange agreement, option agreement or other similar agreement providing for or relating to a
Company Acquisition Proposal or enter into any agreement or agreement in principle requiring the
Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach
its obligations hereunder or propose or agree to do any of the foregoing. Subject to Section
6.1(b), the Company shall immediately cease and cause to be terminated any solicitation,
encouragement, discussion or negotiation with any Persons conducted theretofore by the Company, its
Subsidiaries or any Representatives with respect to any Company Acquisition Proposal and shall use
its (and will cause its Representatives to use their) reasonable best efforts to require the other
parties thereto to promptly return or destroy in accordance with the terms of such agreement any
confidential information previously furnished by the Company, the Company’s Subsidiaries or their
respective Representatives thereunder.
(b) Notwithstanding anything to the contrary contained in Section 6.1(a), if at any time
following the date hereof the Company has received a written Company Acquisition Proposal from a
third party that the Board of Directors of the Company (acting through the Special Committee) (i)
believes in good faith to be bona fide and (ii) determines in good faith, after consultation with
its independent financial advisor and outside counsel, that such Company Acquisition Proposal
constitutes or could reasonably be expected to result in a Superior Proposal, then the Company
shall (A) furnish information with respect to the Company and its Subsidiaries to the Person making
such Company Acquisition Proposal and (B) participate in discussions or negotiations with the
Person making such Company Acquisition Proposal regarding such Company Acquisition Proposal, if and
only to the extent that in connection with the foregoing clauses (A) and (B), the Board of
Directors of the Company (acting through the Special
15
Committee) concludes in good faith (after
consultation with its outside counsel and independent financial advisor) that the failure to take
such action would constitute a breach of the directors’
fiduciary duties under applicable Law; provided, that the Company (x) will not, and
will not allow Company Representatives to, disclose any non-public information to such Person
without entering into a Confidentiality Agreement, and (y) will promptly provide to the Special
Committee any material non-public information concerning the Company or its Subsidiaries provided
to such other Person which was not previously provided to the Special Committee or its
Representatives. From and after the date hereof, the Company shall promptly (within one Business
Day) notify the Special Committee in the event it receives a Company Acquisition Proposal from a
Person or group of related Persons, including the material terms and conditions thereof and the
identity of the party making such proposal or inquiry, to enable the Board of Directors of the
Company (acting through the Special Committee) to evaluate such Company Acquisition Proposal, and
shall keep the Special Committee reasonably apprised as to the status and any material
developments, discussions and negotiations concerning the same.
(d) The Company agrees that any violations of the restrictions set forth in this Section 6.1
by any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of
this Section 6.1 by the Company.
(e) As used in this Agreement, the term:
(i) “Company Acquisition Proposal” means any inquiry, proposal or offer from any
Person or group of Persons other than Newco relating to any direct or indirect acquisition or
purchase (whether in a single transaction or a series of transactions) of (A) all or substantially
all of assets of the Company and its Subsidiaries, taken as a whole, (B) all of the Exchanged
Shares or (C) all of the outstanding shares of the Company; any tender offer or exchange offer that
if consummated would result in any Person or group of Persons beneficially owning all of the
Exchanged Shares or all of the outstanding shares of the Company; or any merger, reorganization,
consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or
similar transaction involving the Company that results in any Person or group of Persons owning all
of the Exchanged Shares or all of the outstanding shares of the Company.
(ii) “Confidentiality Agreement” means a confidentiality and standstill agreement that
contains provisions concerning the material non-public information of the Company disseminated and
provided for the review of the party making a Company Acquisition Proposal with terms and
conditions standard for transactions similar to those that would be the subject of a Company
Acquisition Proposal.
(iii) “Law” means any British Virgin Islands law, ordinance, regulation, rule, code,
order or other requirement or rule of law.
(iv) “Person” means any individual, corporation, company, limited liability company,
partnership, association, trust, joint venture or any other entity or organization, including any
government or political subdivision or any agency or instrumentality thereof.
16
(v) “Superior Proposal” means a Company Acquisition Proposal, which was not obtained
in violation of this Section 6.1, (A) which offers no less than a four percent (4%) increase in the
per share consideration than the Cash Consideration set forth herein, (B) which
the Board of Directors of the Company (acting through the Special Committee) in good faith
determines, would, if consummated, result in a transaction that is more favorable from a financial
point of view to the shareholders of the Company (in their capacities as shareholders) than the
transactions contemplated hereby after receiving the advice of its financial advisor (who shall be
a nationally recognized investment banking firm), (C) which the Board of Directors of the Company
(acting through the Special Committee) in good faith determines is likely to be consummated within
a substantially similar timeframe as the transactions contemplated hereby after taking into account
all appropriate legal (with the advice of outside counsel), financial (including the financing
terms of any such proposal), regulatory or other material aspects of such proposal, (D) for which
financing, to the extent required, is then unconditional and fully committed and (E) which is not
subject to a due diligence condition.
ARTICLE VII
TERMINATION AND ABANDONMENT
TERMINATION AND ABANDONMENT
Section 7.1 Termination. This Agreement may be terminated and the Merger contemplated
hereby may be abandoned at any time prior to the Effective Time, whether before or after approval
of the Merger by the members of the Company and NEWCO:
(a) By mutual written consent of the Boards of Directors of NEWCO and the Company.
(b) By either NEWCO or the Company:
(i) if the Effective Time shall not have occurred by July 31, 2008; or
(ii) if a court of competent jurisdiction or governmental, regulatory or administrative
agency or commission shall have issued an order, decree or ruling or taken any other action
(which order, decree or ruling the parties hereto shall use their reasonable best efforts to
lift), in each case permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement which order is not subject to appeal.
(c) By the Company, if at any time after the date of this Agreement and prior to the Effective
Time, the Company receives a Company Acquisition Proposal and the Board of Directors (acting
through the Special Committee) shall have concluded in good faith that such Company Acquisition
Proposal constitutes a Superior Proposal, provided that the Company concurrently enters into a
definitive agreement providing for the implementation of such Superior Proposal.
Section 7.2 Procedure and Effect of Termination. In the event of termination of this
Agreement and abandonment of the Merger by the Company or NEWCO or both pursuant to Section 7.1
hereof, written notice thereof shall forthwith be given to the other and this Agreement shall
terminate and the Merger shall be abandoned, without further action by any of the parties hereto.
If this Agreement is terminated as
provided herein no party hereto shall have
17
any liability or further obligation to any other
party to this Agreement except that the provisions of this Section 7.2 and Section 8.5 hereof shall
remain in full force and effect.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 8.1 Survival of Representations, Warranties, Covenants and Agreements. The
respective representations and warranties of the parties hereto shall not survive the Effective
Time.
Section 8.2 Amendment and Modification. Subject to applicable law, this Agreement may
be amended, modified or supplemented only by written agreement of NEWCO and the Company at any time
prior to the Effective Time with respect to any of the terms contained herein. Notwithstanding the
foregoing, any amendment or modification of, or supplement to, this Agreement that is adverse to
the holders of the Exchanged Shares shall require the consent of the Special Committee.
Section 8.3 Waiver of Compliance; Consents. Any failure of NEWCO, on the one hand, or
the Company, on the other hand, to comply with any obligation, covenant, agreement or condition
(except for as provided in Section 5.1) herein may be waived in writing by the Company or NEWCO,
respectively, but such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure; provided, however, that the waiver of any obligation, covenant,
agreement or condition herein, or the giving of any consent or the exercise of any material right
hereunder, by the Company, NEWCO or their respective Boards of Directors (other than in connection
with any condition to the obligations of NEWCO set forth in Section 5.1(c) or 5.2, to which this
proviso will not apply) shall require the consent of the Special Committee. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent shall be given in
writing in a manner consistent with the requirements for a waiver of compliance as set forth in
this Section 8.3.
Section 8.4 Validity of Provisions; Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 8.5 Fees and Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the Company or the Surviving Company,
as applicable.
Section 8.6 Parties in Interest. This Agreement shall be binding upon and inure solely
to the benefit of each party hereto, and, except as provided in Sections 4.4 and 4.5, nothing in
this Agreement, express or implied, is intended to confer upon any other person or entity other
than the parties hereto any rights or remedies of any nature whatsoever under or by reason of this
Agreement.
18
Section 8.7 Additional Agreements. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use reasonable best efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the transactions contemplated by
this Agreement. In case at any time after the Effective Time any further reasonable action is
necessary or desirable to carry out the purposes of this Agreement, the proper officers and
directors of each company which is a party to this Agreement shall take all such reasonable
necessary action and the officers and directors of the Surviving Company, upon and after the
Effective Time, are and shall be fully authorized to do and take and cause to be done and taken any
and all such action.
Section 8.8 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, by messenger, by a nationally recognized
overnight delivery company or by registered or certified mail (return receipt requested) or by
facsimile transmission to the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(a) if to NEWCO:
c/o Claxson Interactive Group Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to Company:
Claxson Interactive Group Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
19
with a copy to:
Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to the Special Committee:
c/o Claxson Interactive Group Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
000 00xx Xx., XX
Xxxxxxxxxx, X.X. 00000
000 00xx Xx., XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
Section 8.9 Governing Law; Jurisdiction. Regardless of the place of execution of this
Agreement, the domicile or residence of any party hereto, the location of the principal executive
office of any party hereto, or any other fact or circumstance, this Agreement shall be governed by
and construed in accordance with the laws of the British Virgin Islands (without regard to
conflicts of laws principles). EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE BRITISH VIRGIN ISLANDS IN ANY ACTION, SUIT OR
PROCEEDING ARISING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT OR
PROCEEDING SHALL BE BROUGHT
ONLY IN SUCH COURTS (AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS OR ANY OTHER
OBJECTION TO VENUE THEREIN); PROVIDED, HOWEVER, THAT SUCH CONSENT TO JURISDICTION IS SOLELY FOR THE
PURPOSE REFERRED TO IN THIS PARAGRAPH AND SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE
JURISDICTION OF SUCH COURTS OR IN THE BRITISH VIRGIN ISLANDS OTHER THAN FOR SUCH PURPOSE.
Section 8.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute one and the
same instrument.
20
Section 8.11 Headings. The article and section headings contained in this Agreement
are solely for the purpose of reference, are not part of the agreement of the parties and shall not
affect in any way the meaning or interpretation of this Agreement.
Section 8.12 Entire Agreement. This Agreement, including any exhibits hereto and the
documents and instruments referred to herein, and except as contemplated hereby, embodies the
entire agreement and understanding of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements and understandings between the parties with respect to
such subject matter. There are no agreements, restrictions, promises, representations, warranties,
covenants, or undertakings, other than those expressly set forth or referred to herein.
[Remainder
of Page Intentionally Left Blank]
21
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed on its
behalf by its duly authorized officers, all as of the day and year first above written.
SIGNED and DELIVERED for and |
) | |||||
on behalf of the
|
) | |||||
CLAXSON INTERACTIVE GROUP INC.
|
) | /s/ Xxxxx Xxxxxxx | ||||
by Xxxxx Xxxxxxx
|
) | Director | ||||
a duly authorised director before me
|
) | |||||
Xxxxxx Xxxxxxxx
|
||||||
0000 Xxxxxxxx Xxxxxxxxx |
||||||
Xxxxx, Xxxxxxx 00000 |
||||||
/s/ Xxxxxx Xxxxxxxx
|
||||||
SIGNED and DELIVERED for and
|
) | |||||
on behalf of the
|
) | |||||
REMAINCO INC.
by Xxxxxxxx Xxx a duly authorised director before me |
) ) |
/s/ Xxxxxxxx Xxx
|
||||
) | ||||||
Xxxxxx Xxxxxxxx
|
||||||
0000 Xxxxxxxx Xxxxxxxxx |
||||||
Xxxxx, Xxxxxxx 00000 |
||||||
/s/ Xxxxxx Xxxxxxxx
|
Schedule 1.6(b)(ii)
Converted Shares
Shareholders | Number and Class of Shares | |
1945 Carlton Investments LLC
|
4,178,846 Class A shares, 1 Class C share | |
1947 Carlyle Investments LLC
|
4,358,058 Class A shares, 1 Class C share | |
Hicks, Muse, Xxxx & Xxxxx Latin
America Fund, L.P.
|
5,589,525 Class A shares 1 Class H share | |
Hicks, Muse, Xxxx & Xxxxx Latin
America Private Fund, L.P.
|
1,014,813 Class A shares | |
Davivo International Ltd.
|
830,259 Class A shares | |
HMLA 1-SBS Coinvestors, L.P.
|
217,360 Class A shares | |
HMTF Holdings
|
107,945 Class A shares | |
Xxxxx, Muse Co. Partners, L.P.
|
10,000 Class A shares | |
Xxxxxxx Vivo
|
932,204 Class A shares, 6 Class F shares | |
XXX.xxx Inc.
|
489,417 Class A shares, 1 Class F share | |
Gallia Enterprises Ltd.
|
2,285 Class A shares | |
Xxxx X. Xxxxxx III
|
100,859 Class A shares | |
Interamerican Technology, S.A.
|
26,700 Class A shares | |
Bulls & Bears Enterprises Inc.
|
20,005 Class A shares | |