Dated 1998
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(1) ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND OTHERS
(2) THE MARQUEE GROUP, INC.
(3) THE MARQUEE GROUP (UK) LIMITED
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SHARE PURCHASE AGREEMENT
FOR THE SALE AND PURCHASE OF
ALL THE ISSUED SHARE CAPITAL OF
PARK ASSOCIATES LIMITED
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BIRD & BIRD
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel:▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax:▇▇▇▇ ▇▇▇ ▇▇▇▇
ref:CMC/RMD/MARQU/002
CONTENTS
1 DEFINITIONS AND INTERPRETATION................................... 2
2 SALE OF THE SHARES............................................... 7
3 CONSIDERATION.................................................... 8
4 COMPLETION....................................................... 9
5 COMPLETION NET ASSET STATEMENT................................... 12
6 REPRESENTATIONS AND WARRANTIES................................... 14
7 CONFIDENTIALITY.................................................. 19
8 PROTECTIVE COVENANTS............................................. 20
9 ANNOUNCEMENTS.................................................... 21
10 NOTICES AND RECEIPTS............................................. 21
11 RESOLUTIONS AND WAIVERS.......................................... 22
12 GENERAL.......................................................... 22
13 WHOLE AGREEMENT.................................................. 23
14 GOVERNING LAW.................................................... 23
15 PURCHASERS' WARRANTIES AND COVENANT.............................. 23
SCHEDULE 1
THE SELLERS, THEIR SHAREHOLDINGS AND CONSIDERATION...................... 26
SCHEDULE 2
PARTICULARS OF THE COMPANY.............................................. 28
SCHEDULE 3
DETAILS OF LEASE........................................................ 29
SCHEDULE 4
THE WARRANTIES.......................................................... 30
SCHEDULE 5
PROPERTY LICENCE........................................................ 58
1
THIS AGREEMENT is made on the day of 1998
BETWEEN
(1) THE PERSONS WHOSE NAMES AND ADDRESSES ARE SHOWN IN SCHEDULE 1 (each a
"SELLER" and together the "SELLERS");
(2) THE MARQUEE GROUP, INC. a company incorporated under the laws of the
state of Delaware, the principal office of which is at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ ("MARQUEE INC.");
(3) MARQUEE GROUP (UK) LIMITED, a company incorporated under the laws of
England & Wales with company number 3584251 and whose registered office
is at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("MARQUEE UK").
RECITALS
(A) Park Associates Limited (the "COMPANY") (certain particulars of which
are set out in Schedule 2) is a private company limited by shares
incorporated in England and Wales on 11 November 1980 under the
Companies Acts 1948 to 1976 having an authorised capital of pounds
sterling 1,000,000 divided into 994,590 "C" ordinary shares, 3,400 "D"
ordinary shares and 510 "E" ordinary shares, all of pounds sterling 1
each and 1200 "F" ordinary shares, 1200 "H" ordinary shares, 300 "G"
ordinary shares and 300 "J" ordinary shares of 5Op each, of which 45,900
"C" ordinary shares, 3,400 "D" ordinary shares, 510 "E" ordinary shares,
1200 "F" ordinary shares, 1200 "H" ordinary shares, 300 "G" ordinary
shares and 300 "J" ordinary shares have been issued fully paid or
credited as fully paid (the "SHARES").
(B) The Sellers are the registered holders and (except in the case of the
Shares held by the Trustees) the beneficial owners of the Shares set
opposite their respective names in Schedule 1.
(C) Marquee (UK) is a wholly owned subsidiary of Marquee Inc. (together the
"PURCHASERS" and "PURCHASER" shall be construed accordingly).
(D) The Sellers wish to sell and, in reliance upon the representations,
warranties, and undertakings set out in this Agreement, the Purchasers
are willing to purchase all the issued share capital of the Company on
the terms and subject to the conditions set out in this Agreement.
OPERATIVE PROVISIONS
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement and the Schedules
2
"ACCOUNTS" means all or any one of the audited balance sheet of the
Company as at the Accounts Date and the audited profit and loss account
of the Company for the financial period ended on the Accounts Date and
the notes to such accounts and the directors reports and the other
documents required by law to be annexed thereto;
"ACCOUNTS DATE" means 31 December 1997;
"ANNIVERSARY DATES" means the first, the second, the third, the fourth
and the fifth anniversary of the Effective Date;
"AGREED TERMS" means terms contained in a form which has been agreed and
initialled by or on behalf of the parties for the purpose of
identification immediately prior to the signing of this Agreement;
"BUSINESS DAY" means Monday to Friday inclusive but excluding any day
which is a bank or public holiday in the country concerned;
"CASH CONSIDERATION" means that part of the consideration for the sale
of the Shares as is payable in cash under Clause 3:
"CHANGE OF CONTROL" means the change of control (as defined in Section
840 Taxes Act 1988) of Marquee Inc. (other than as a result of the
acquisition of shares in Marquee Inc. by SFX Entertainment Inc.) and as
a result of such change of control, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ceasing to be
President and Chief Executive Officer of Marquee Inc. (whether
immediately on change of control or subsequently);
"COMMON STOCK" means the shares of no par value in the Common Stock of
Marquee Inc. quoted on the American Stock Exchange;
"COMPLETION" means completion of the sale and purchase of the Shares in
accordance with Clause 4;
"COMPLETION DATE" means the date on which Completion takes place;
"COMPLETION NET ASSET STATEMENT" means the statement of the Net Assets
as at the Effective Date to be prepared in accordance with Clause 5;
"CONSIDERATION" means the Cash Consideration, the Loan Notes and the
Consideration Shares;
"CONSIDERATION SHARES" means the Initial Consideration Shares and the
Deferred Consideration Shares;
"CONSULTANCY AGREEMENT" means a five year consultancy agreement in
agreed terms to be entered into between the Company and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
3
"DEFERRED CONSIDERATION SHARES" means the Common Stock of Marquee Inc.
to be issued to the Sellers in accordance with the provisions of Clause
3.3 and ranking pari passu with the existing Common Stock of Marquee
Inc. at the date of issue;
"DISCLOSURE LETTER" means the letter from the Warrantors to the
Purchasers of the Effective Date and which has been delivered to the
Purchasers prior to the signing of this Agreement;
"EFFECTIVE DATE" means 1 July 1998;
"HOLDING COMPANY" has the meaning given to it in Section 736 and 736A of
the Companies ▇▇▇ ▇▇▇▇;
"INITIAL CONSIDERATION SHARES" means the Common Stock of Marquee Inc. to
be issued by Marquee Inc. at Completion pursuant to Clause 3.2(a) and
ranking pari passu with the existing Common Stock of Marquee Inc. at the
date of issue;
"INSOLVENCY ACT" means the Insolvency ▇▇▇ ▇▇▇▇;
"ISSUE PRICE" means the average closing price of shares of Common Stock
as printed in the eastern edition of the Wall Street Journal over the 20
trading days ending three days prior to the Effective Date or the
relevant Anniversary Date, as appropriate (provided that no account
shall be taken of any trading day in respect of which the said edition
is not published) as converted to Pounds Sterling by the application of
the average spot rate of exchange for the purchase of Pounds Sterling
with US Dollars, as published by the eastern edition of the Wall Street
Journal at the close of business on the twenty business days ending
three days prior to the Effective Date or the relevant Anniversary Date,
as appropriate (provided that no account shall be taken of any business
day in respect of which the said eastern edition of the Wall Street
Journal is not published);
"INTELLECTUAL PROPERTY RIGHTS" means all and any patents, trademarks,
service marks, trade names, registered designs, unregistered design
rights, copyrights and rights in confidential information, and all and
any other intellectual property rights, whether registered or
unregistered, and including all applications and rights to apply for any
of the same;
"LEASE" means the leasehold interest details of which are set out in
Schedule 3;
"LOAN NOTES" means the series of pounds sterling 800,000 nominal
unsecured loan notes of Marquee Inc. in the agreed terms;
"MARQUEE INC. SHARES" means those of the Shares as set out in Part B of
Schedule 1 to be purchased by Marquee Inc. pursuant to the terms of this
Agreement;
"MARQUEE INC.'S STOCKBROKERS" means Continental Stock Transfer & Trust
Company;
4
"MARQUEE UK SHARES" means those of the Shares as set out in Part A of
Schedule 1 to be purchased by Marquee UK pursuant to the terms of this
Agreement;
"NET ASSETS" means the total current assets of the Company less the
total current liabilities of the Company at 12.01 am on the Effective
Date;
"PARTIES" means the parties to this Agreement;
"PERSONAL GUARANTEES" means both (i) the Specific Counter Indemnity
entered into by Struan ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on 24 October 1996 in
▇▇▇▇▇▇ & Co's standard form and the Charge over Credit Balance entered
into by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on 24 October 1996 in consideration of ▇▇▇▇▇▇ &
Co executing a guarantee of CHF 200,000 and (ii) a Second Legal mortgage
over the property known as ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ entered into by ▇▇▇ ▇▇▇▇▇▇ and Mrs. M ▇▇▇▇▇▇ limited to
the sum of pounds sterling 135,000 and a Specific Counter Indemnity
entered into by ▇▇▇ ▇▇▇▇▇▇ in ▇▇▇▇▇▇ & Co's standard form in
consideration of ▇▇▇▇▇▇ & Co executing a guarantee of CHF 200,000, each
of ▇▇▇▇▇▇ & Co's guarantees relating to the guarantees provided by Swiss
Bank Corporation for CHF 200,000 in favour of Federation Internationale
de Football Association ("FIFA") in relation to the FIFA Licenses
granted to Struan ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇.
"PROPERTY LICENCE" means a licence to be granted to the Company by ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇ in respect of the property known as ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, a copy of which is set out in Schedule 5.
"PURCHASERS' ACCOUNTANTS" means Ernst & Young;
"PURCHASERS' SOLICITORS" means Bird & Bird, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
"SELLERS' ACCOUNTANTS" means ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇;
"SELLERS' SOLICITORS" means Freeth ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"SERVICE AGREEMENT" means the service agreement in the agreed terms to
be entered into between the Company and ▇▇▇ ▇▇▇▇▇▇;
"TAX" shall have the meaning ascribed to it in the Tax Deed;
"TAXES ACT 1988" means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
"TAX DEED" means the deed in relation to tax in the agreed terms;
"TAXATION WARRANTIES" means each and every warranty contained in Section
[D] of Schedule 4;
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"TRUSTEES" means ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as trustees of
The ▇▇▇ ▇▇▇▇▇▇ Discretionary Settlement 1998;
"UNTRADEABLE SHARES" means any Initial Consideration Shares or any
issued Deferred Consideration Shares which remain subject to the
restrictions of Clause 3.7;
"WARRANTIES" means all and any of the representations, warranties and
undertakings referred to in Clause 6 and Schedule 4; and
"WARRANTORS" means J. R ▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇▇.
1.2 References in this Agreement to any statutory provisions shall be
construed as references to those provisions as respectively amended,
consolidated or re-enacted (whether before or after the Effective Date)
from time to time and shall include any provisions of which they are
consolidations or re-enactments (whether with or without amendment)
except to the extent that any amendment, consolidation or re-enactment
made after the Effective Date creates or increases the liability of the
parties under this Agreement or the Tax Deed.
1.3 Where any Warranty is qualified by the expression "so far as the
Warrantors are aware" or "to the best of the Warrantors knowledge
information and belief" or any similar expression that statement shall
be deemed to include an additional statement that it has been made after
due and careful enquiry unless stated otherwise. For the purposes of
establishing whether due and careful enquiry has been made the
Warrantors shall be deemed to have given the relevant matter due and
careful thought and to have taken appropriate advice from, and made
proper enquiries of, the other Sellers, the Company's auditors, tax
advisors, insurance brokers, legal advisors and employees but otherwise
they shall not be under any obligation to have taken specialist advice
or to have employed or consulted any third parties.
1.4 The Schedules form part of this Agreement and shall have the same force
and effect as if set out in the body of this Agreement and any reference
to this Agreement shall include the Schedules.
1.5 In this Agreement:-
(a) the masculine gender shall include the feminine and neuter and
the singular number shall include the plural and vice versa;
(b) references to persons shall include bodies corporate,
unincorporated associations and partnerships;
(c) any headings or side notes or, in the case of any legislation
specifically referred to, the inclusion in parentheses of the
title to the relevant Part, Section, Schedule or paragraph
contained in such legislation are for the sake of convenience
only and shall not affect the construction of this Agreement; and
6
(d) references to any party include a reference to the estate,
personal representative, successor, or permitted assigns of that
party; and
(e) a person shall be deemed to be connected with another if that
person is connected with another within the meaning of section
839 of the Taxes ▇▇▇ ▇▇▇▇.
1.6 Except where the contrary is stated, any reference in this Agreement to
a Clause or Schedule is to a Clause or Schedule of this Agreement, and
any reference within a Clause or Schedule to a sub-clause, paragraph or
other sub-division is a reference to such sub-clause, paragraph or other
sub-division so numbered or lettered in that Clause or Schedule.
1.7 In construing this Agreement
(a) the rule known as the ejusdem generis rule shall not apply and
accordingly general words introduced by the word "other" shall
not be given a restrictive meaning by reason of the fact that
they are preceded by words indicating a particular class of acts,
matters or things; and
(b) general words shall not be given a restrictive meaning by reason
of the fact that they are followed by particular examples
intended to be embraced by the general terms.
1.8 All obligations and liabilities under this Agreement or the Tax Deed of
either of the Purchasers shall be joint and several.
2 SALE OF THE SHARES
2.1 Each of the Sellers shall sell with full title guarantee (except for the
Trustees who shall sell with limited title guarantee) those of the
Shares set out opposite his name in Schedule 1 and the Purchasers
relying on the representations, warranties and undertakings of and
indemnities by the Sellers set out in this Agreement shall purchase the
Shares on the terms of this Agreement free from all claims, liens
charges encumbrances and equities and together with all rights attaching
or accruing to them.
2.2 Each of the Sellers severally covenants with the Purchasers that save as
accurately and fairly disclosed in the Disclosure Letter:
(a) he has the right to sell and transfer the full legal and
beneficial interest in the Shares set out opposite his name in
Part A and/or Part B Schedule 1 (as appropriate) to the
Purchasers on the terms set out in this Agreement; and
(b) on or after Completion he will, at his own cost and expense,
execute and do (or procure to be executed and done by any
necessary party) all such deeds, documents, acts and things as
either of the Purchasers may from time to time
7
reasonably require in order to vest any of the Shares set
opposite his name in Part A or Part B of Schedule 1 (as
appropriate) in the relevant Purchaser or its assignee or as
otherwise may be necessary to give full effect to this Agreement;
and
(c) he has the requisite power and authority to enter into and
perform this Agreement and (as appropriate) the Tax Deed and such
entry and performance will not breach, violate, infringe or
otherwise affect the rights of any person;
(d) this Agreement and (if appropriate) the Tax Deed will, when
executed, constitute binding obligations on him in accordance
with their respective provisions;
(e) the execution and delivery of, and performance by him of his
obligations under, this Agreement and (if appropriate) the Tax
Deed will not constitute a default under any instrument or
arrangement binding on him or otherwise to which he is a party or
result in a breach of any order,judgment or decree of any court
or governmental agency to which he is a party or by which he is
bound;
(f) neither he nor any person connected with him has any interest,
directly or indirectly, in any business that has a close trading
relationship with or is or is likely to be competitive with the
business of the Company or in any asset which within the two
years preceding the date of this Agreement has been acquired or
disposed of by or leased to the Company;
(g) there is no option, right of pre-emption, right to acquire,
mortgage, charge, pledge, lien or other form of security or
encumbrance over or affecting any of the Shares set out opposite
his name in either Part A or Part B of Schedule 1 nor is there
any commitment to create or to give any of the foregoing and no
person has claimed to be entitled to any of the foregoing.
2.3 Each of the Sellers hereby waives any rights of pre-emption conferred
upon him by the Articles of Association of the Company or in any other
way in respect of the Shares.
2.4 The parties shall not be obliged to complete the sale and purchase of
any of the Shares unless the sale and purchase of all the Shares is
completed simultaneously in accordance with this Agreement.
3 CONSIDERATION
3.1 The consideration for the sale of the Marquee UK Shares to Marquee UK
shall be pounds sterling 1,600,000 and shall consist of the sum of
pounds sterling 1,600,000 payable in cash on Completion (the "Cash
Consideration") and shall be satisfied by the payment by Marquee UK to
the Sellers of the cash amounts as set out in Part A of Schedule 1;
3.2 The consideration for the sale of the Marquee Inc. Shares to Marquee
Inc. shall be
8
pounds sterling 1,400,000, subject to any adjustment pursuant to Clause 5
and shall consist of:
(a) the sum of pounds sterling 400,000 which shall be satisfied by the
allotment and issue as fully paid and non-assessable by Marquee
Inc. to the Sellers of such number of Initial Consideration
Shares which, at the Issue Price, have a value of pounds sterling
400,000 in aggregate;
(b) the sum of pounds sterling 800,000 which shall be satisfied by the
allotment by Marquee Inc. to the Sellers of the Loan Notes;
(c) the sum of pounds sterling 200,000 which shall be satisfied by the
allotment and issue as fully paid and non-assessable by Marquee
Inc. to the Sellers of the Deferred Consideration Shares in
accordance with the provisions of Clause 3.4.
3.3 The Sellers shall be entitled to the Consideration in the proportions
shown in Parts A and B of Schedule 1.
3.4 Subject to any adjustment pursuant to Clause 5 upon each of the
Anniversary Dates Marquee Inc. shall issue to the Sellers such number of
Deferred Consideration Shares as shall, at the Issue Price, have a value
of pounds sterling 40,000 in aggregate and shall deliver to the Sellers
definitive share certificates for such Consideration Shares. Provided
that in the event of any increase in the value of the Deferred
Consideration Shares to be issued on the first Anniversary Date pursuant
to Clause 5.8 the additional Deferred Consideration Shares shall be
issued to the Warrantors in equal proportions.
3.5 In the event of a Change of Control, any Consideration which remains
outstanding pursuant to Clause 3.4, shall be due for payment within 14
days of the date of the Change of Control and shall be satisfied by the
payment of cash to the Sellers in the percentages set out against their
respective names in Part B of Schedule 1 subject always to the proviso
in clause 3.4.
3.6 If Marquee Inc. consolidates, sub-divides or reorganises its share
capital, declares any distribution or makes any issue by way of
capitalisation or rights to holders of its Common Stock during or by
reference to any period relevant for calculating the Issue Price the
amount of Deferred Consideration Shares or the Issue Price will be
adjusted as Marquee Inc's Stockbrokers for the time being (acting
reasonably as experts and not as arbitrators) certify to be in their
opinion fair and reasonable.
3.7 Without the written consent of Marquee Inc. none of the Sellers shall
dispose of, charge or otherwise encumber any interest in any of the
Consideration Shares or any other securities for the time being
representing or derived from those shares (whether by way of
consolidation, sub-division, capitalisation or rights issue or
otherwise) during the period of one year from the date of allotment of
the relevant Consideration Shares.
9
4 COMPLETION
4.1 Completion shall take place immediately following signature and exchange
of this Agreement when:
(a) the Sellers shall deliver or cause to be delivered to the
Purchasers (as appropriate):
(i) transfers of the Shares duly completed in favour of either
Marquee Inc. or Marquee UK (as appropriate) or as it may
direct;
(ii) the share certificates representing the Shares (or an
express indemnity in a form satisfactory to the Purchasers
in the case of any found to be missing):
(iii) all the Statutory and Minute Books of the Company and its
Common Seal and the Certificates of Incorporation on Change
of Names (if any);
(iv) the Tax Deed duly executed by each of the Warrantors;
(v) a letter of resignation (expressed to be with effect from
the end of the meeting) of the Board of the Company
referred to in sub-clause (d) below, from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
resigning office as Director of the Company, executed as a
deed in the agreed terms;
(vi) the resignation of the auditors of the Company in
accordance with section 394 of the Companies ▇▇▇ ▇▇▇▇,
confirming that there are no circumstances connected with
their resignation which should be brought to the notice of
the members or creditors of the Company and that there are
no fees due to them;
(vii) the letter terminating the employment of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as
an employee of the Company;
(viii) the Property Licence duly executed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇ ▇. ▇▇▇▇▇▇;
(ix) the Service Agreement, duly executed by ▇▇▇ ▇▇▇▇▇▇;
(x) the Consultancy Agreement, duly executed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
and
(xi) the Disclosure Letter.
(b) the Warrantors shall procure that all indebtedness due from any
of the Warrantors or any person connected with them to the
Company shall have been satisfied in full prior to the Effective
Date;
10
(c) all indebtedness due from the Company to any of the Warrantors
(full particulars of which are contained in the Disclosure Letter
but excluding remuneration accrued but not yet due for payment)
shall have been satisfied in full without payment of interest
prior to the Effective Date;
(d) the Sellers shall cause a meeting of the Board of the Company to
be held at which the Board shall:-
(i) appoint such persons as the Purchasers may nominate as
Directors and Secretary of the Company;
(ii) accept the letters of resignation referred to in
sub-clause (a)(v) and (a)(vi) above;
(iii) vote in favour of the registration of the Purchasers
and/or their nominees as members of the Company subject
only to the production of duly stamped and completed
transfers in favour of the Purchasers and/or their
nominees in respect of the Shares;
(iv) appoint Ernst & Young as auditors:
(e) the parties shall join in procuring that all existing bank
mandates in force for the Company shall be altered (in such
manner as the Purchasers shall at Completion require) so as
(inter alia) to reflect the resignations and appointments
referred to above.
(f) the Purchasers shall not be obliged to complete this Agreement
unless the Sellers comply fully with the requirements of
paragraphs (a), (b), (d) and (e) of this Clause;
4.2 Upon completion of all the matters referred to in sub-clause 4.1 Marquee
UK shall:
(a) pay to the Sellers' Solicitors (whose receipt shall be a
sufficient discharge therefor) the Cash Consideration by way of
telegraphic transfer;
(b) deliver to the Sellers' Solicitors a duly executed counterpart of
the Tax Deed;
(c) deliver to the Sellers' Solicitors a duly executed counterpart of
the Disclosure Letter.
4.3 Upon Completion of all the matters referred to in sub-clause 4.1 Marquee
Inc. shall:
(a) allot the Initial Consideration Shares and issue the Loan Notes
to the Sellers and deliver to the Sellers' Solicitors definitive
share certificates in respect of the Initial Consideration Shares
and certificates in the agreed terms in respect of the Loan Notes
in the names of the Sellers; and
11
(b) deliver to the Sellers' Solicitors a duly executed counterpart of:
(i) the Tax Deed;
(ii) the Property Licence;
(iii) the Service Agreement;
(iv) the Consultancy Agreement; and
(v) the Disclosure Letter;
(c) the Sellers shall not be obliged to complete this Agreement
unless the Purchasers have complied fully with their respective
requirements of Clause 4.2 and paragraphs (a) and (b) of this
Clause.
4.4 If in any respect either the Sellers or the Purchasers fail to comply
with all the provisions of Clauses 4.1,4.2 and 4.3 on the date for
Completion then the other of them may:
(a) defer Completion to a date not more than 28 days after the date
for Completion set by this Clause 4 (and so that the provisions
of this sub-clause 4.4 shall apply to Completion as so deferred);
or
(b) proceed to Completion as far as practicable; or
(c) rescind this Agreement (without prejudice to its accrued rights
and remedies).
4.5 Marquee Inc. shall procure as soon as reasonably practicable following
Completion (and in any event within 7 days after Completion) the full
and unconditional release of the Personal Guarantees and Marquee Inc.
shall fully indemnify the Warrantors and Struan ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇.
▇▇▇▇▇▇ against any liability, loss, cost or claim arising out of or in
connection with the Personal Guarantees at any time after the Effective
Date.
5 COMPLETION NET ASSET STATEMENT
5.1 The Sellers and the Purchasers shall as soon as practical and in any
event within five days of the date of Completion instruct the Sellers'
Accountants at the cost of Marquee Inc. to:
(a) prepare the Completion Net Asset Statement using the accounting
policies and methods used in the preparation of the Accounts
together with an opinion by the Sellers' Accountants that the
Completion Net Asset Statement presents on these accounting
policies and methods a true and fair view of the Net Assets of
the Company at the Effective Date;
(b) submit the Completion Net Asset Statement in draft to the parties
within 30
12
days from Completion.
5.2 The Purchasers and the Sellers shall use their best endeavours to
procure that the Sellers' Accountants and the Purchasers' Accountants
shall have access to all the books and records of the Company for the
purposes of enabling them to prepare or check, as the case may be, the
draft Completion Net Asset Statement.
5.3 Upon the completion of the preparation of the draft Completion Net Asset
Statement by the Sellers' Accountants the draft Completion Net Asset
Statement shall be presented to the Purchasers' Accountants for their
approval. Marquee Inc. shall procure that the Purchasers' Accountants
communicate their decision as to whether or not they approve the draft
Completion Net Asset Statement to the Sellers and Marquee Inc. within 14
days of such presentation ("THE APPROVAL PERIOD") and shall, in the
event of non approval, specify with reasonable particularity the reasons
for non approval. In the event that the Purchasers' Accountants fail to
communicate their decision to the Sellers and Marquee Inc. within the
Approval Period they shall be deemed to have approved the draft
Completion Net Asset Statement.
5.4 In the event that the Purchasers' Accountants do not approve the draft
Completion Net Asset Statement within the Approval Period the Sellers
and Marquee Inc. shall use their best endeavours to procure that the
Sellers' Accountants and the Purchasers' Accountants meet together
promptly and in any case within a period of 14 days of the end of the
Approval Period to resolve any dispute that has arisen between them with
regard to the draft Completion Net Asset Statement.
5.5 Any dispute with respect to the draft Completion Net Asset Statement
which is not settled within 28 days of the end of the Approval Period
shall (unless the Sellers and Marquee Inc. otherwise agree in writing)
be referred for final determination to an Independent Accountant
nominated jointly by the Sellers and Marquee Inc. (or failing such
nomination within ten days of one party serving notice upon the other
party to make such nomination) nominated at the request of either party
by the President for the time being of the Institute of Chartered
Accountants in England and Wales. The Independent Accountant shall be
instructed to render his decision (which shall be communicated in
writing to the Sellers and Marquee Inc. and shall be final and binding
on the Sellers and Marquee Inc.) within 21 days of his appointment. The
fees and costs of the Independent Accountant shall be borne and paid by
the Sellers and Marquee Inc. in such proportions as the Independent
Accountant shall consider appropriate. The parties shall provide to the
Independent Accountant all such information assistance and documentation
as he may reasonably require.
5.6 Upon the approval of the Completion Net Asset Statement under Clause 5.3
or 5.4 or the determination of any dispute under Clause 5.5 the Sellers
and Marquee Inc. shall use their best endeavours to procure that the
Sellers' Accountants and the Purchasers' Accountants immediately issue
to the Sellers' Solicitors and the Purchasers' Solicitors respectively
the Completion Net Asset Statement signed by the Sellers' Accountants
and the Purchasers' Accountants respectively in the form so approved,
resolved or
13
decided which shall in the absence of manifest error be final and
binding on the Sellers and the Purchasers.
5.7 In the event that the Completion Net Asset Statement shows that the
value of the Net Assets is less than pounds sterling 0 then the
Consideration shall be deemed to be reduced by an amount equal to the
shortfall and the amount of such reduction will be deducted from the
first instalment and (as necessary) each succeeding instalment of the
Consideration payable under Clause 3.4 until the full amount of the
reduction has been satisfied; and
5.8 In the event that the Completion Net Asset Statement shows that the
value of the Net Assets is greater than pounds sterling 0 then the
Consideration shall be deemed to be increased by an amount equal to the
surplus and the amount of such increase shall be added to the first
instalment of the Consideration payable under Clause 3.4.
6 REPRESENTATIONS AND WARRANTIES
6.1 The Warrantors hereby jointly and severally represent, warrant and
undertake to the Purchasers and each of them that:
(a) except as accurately and fairly disclosed to the Purchasers in
the Disclosure Letter, each of the statements set out in Schedule
4 is true and accurate as at the Effective Date; and
(b) all information contained in the Disclosure Letter is true and
accurate as at the Effective Date and fairly presented and
nothing of which the Warrantors were aware as at the Effective
Date has been omitted from the Disclosure Letter which renders
any of that information misleading as at the Effective Date.
6.2 Each of the Warranties set out in the several paragraphs of Schedule 4
is separate and independent and except as expressly provided to the
contrary in this Agreement is not limited:
(a) by reference to any other paragraphs of Schedule 4; or
(b) by anything in this Agreement or the Tax Deed;
and (save as provided in Clause 6.22 below) none of the
Warranties shall be treated as qualified by any actual or
constructive knowledge on the part of the Purchaser or any of its
agents.
6.3 Each of the Warrantors agree with the Purchasers (as trustee for the
Company and its employees) to waive any rights or claims which he may
have against the Company and its employees in respect of any
misrepresentation, inaccuracy or omission in or from any information or
advice supplied or given to the Warrantors by any of the Company or its
employees in connection with the giving of the Warranties and the
preparation of the Disclosure Letter.
14
6.4 Without restricting the rights of the Purchasers or the ability of the
Purchasers to claim damages on any basis available to them in the event
of any breach of any of the Warranties, the Warrantors undertake with
the Purchasers that the Warrantors will, pay to the Purchasers within 7
days of the earlier of agreement between the Warrantors and the
Purchasers and, in default of such agreement, final determination by
order of a court of competent jurisdiction a sum by way of damages as so
agreed or fully determined as being the amount necessary to put the
Purchasers into the position which would have existed if the Warranties
had been true and accurate and had not been misleading or breached (as
the case may be) together with all costs and expenses reasonably and
properly incurred by the Purchasers as a result of such breach.
6.5 In the event that the Purchasers obtain judgment (without leave to appeal
being granted) against the Warrantors or reaches agreement with the
Warrantors in respect of any claim for breach of the Warranties pursuant
to the Tax Deed or otherwise pursuant to this Agreement (other than a
claim arising under sub-clauses 2.1(c) (d) and (e) of the Tax Deed) then
any amount which shall have been agreed or finally adjudged or
determined to be owing by the Warrantors to the Purchasers shall, where
and to the full extent possible, be satisfied by the cancellation of any
outstanding Loan Notes or any Untradeable Shares held by the Warrantors
or by way of deduction from any instalment (each an "OUTSTANDING
INSTALMENT") of the Consideration due to the Warrantors which remains to
be satisfied pursuant to Clause 3.4 and in the following order of
priority:
(a) firstly by way of cancellation of any outstanding Loan Notes held
by the Warrantors (and pro rata as between the Warrantors) and by
deduction from the value of any Outstanding Instalment due to the
Warrantors, taking the Loan Notes and Outstanding Instalments in
reverse order of maturity, and in the case of any Loan Notes and
Outstanding Instalments which fall due for redemption or
satisfaction on the same date the deduction from the value of the
relevant Outstanding Instalment shall take place in priority to
the cancellation of the relevant Loan Notes;
(b) thereafter by the Warrantors offering and the Purchaser accepting
the cancellation of any issued Deferred Consideration Shares held
by the Warrantors which remain subject to the restrictions
contained in Clause 3.7 (and pro rata as between the Warrantors);
and
(c) thereafter by the Warrantors offering and the Purchasers
accepting the cancellation of any Initial Consideration Shares
held by the Warrantors which remain subject to the restrictions
contained in Clause 3.7 (and pro rata as between the Warrantors)
and for the purposes of paragraphs (b) and (c) of this Clause the value
attributable to the relevant Untradeable Shares for the purposes of such
cancellation shall be their Issue Price.
15
6.6 The Purchasers shall be entitled to take action in respect of any breach
or non-fulfilment of any of the representations, warranties,
undertakings, covenants or agreements on the part of the Warrantors or
any of them contained in or made pursuant to this Agreement both before
and after Completion and (save as provided in Clause 6.22 below) such
action may be taken after Completion in respect of any breach or
non-fulfilment discoverable by the Purchasers on or before Completion
and Completion shall not constitute a waiver of any of the Purchasers'
rights.
6.7 The Warrantors shall have no liability for a claim for breach of the
Warranties where the amount of such claim is less than pounds sterling
5,000 and the liability of the Warrantors in respect of the Warranties:
(a) shall not (when aggregated with any liability under the Tax Deed)
(i) arise unless the amount of all claims (ignoring for this
purposes any individual claims of less than pounds sterling 5,000
each) made in respect of the Warranties and/or the Tax Deed (or
which would have been made but for the operation of this
paragraph or the corresponding provision in the Tax Deed) exceeds
pounds sterling 50,000 or (ii) exceed the sum of pounds sterling
3,000,000 as adjusted pursuant to Clause 5; and
(b) shall terminate (but without prejudice to the rights and
obligations of the parties under the Tax Deed);
(i) on the seventh anniversary of the Effective Date in
respect of those matters set out in Part D (Taxation) of
Schedule 4; and
(ii) on 30 April 2000 in respect of all other matters contained
in Schedule 4;
provided that the limitations contained in this Clause 6.7 shall
not apply to any claim which (or the delay in discovery of which)
is a consequence of fraud, dishonesty or wilful concealment on
the part of the Warrantors, their agents or advisors.
6.8 Any payment made (or suffered by cancellation or deduction pursuant to
Clause 6.5) by the Warrantors for any breach of the Warranties or a
liability under the Tax Deed shall be deemed to be a reduction in the
Consideration.
6.9 The Warranties are given subject to any matters accurately and fairly
disclosed in the Disclosure Letter and to the contents of the documents
contained in the indexed bundle annexed thereto and any other specific
information relating to the Company of which either of the Purchasers
has actual (but not imputed or implied) knowledge at the date hereof.
6.10 No liability shall arise on the part of the Warrantors in respect of any
breach of the Warranties:
16
(a) which arises as a result of any liability to Tax arising or being
increased as a result of any change in the basis or method of
calculation of Tax after the Effective Date with retrospective
effect;
(b) which arises as a result of any retrospective increase in rates
of Tax introduced after the Effective Date;
(c) which arises as a result of any legislation or other governmental
regulation not in force at the Effective Date; whether or not
having retroactive or retrospective effect;
(d) which arises as a result of any voluntary act, omission or
transaction of either of the Purchasers or the Company after
Completion which is outside the ordinary course of business of
the Company;
(e) which arises as a result of any act, transaction, or omission
carried out by the Warrantors at either of the Purchasers'
request and direction unless necessary to comply with any
applicable law or statutory regulation enacted prior to the
Effective Date;
(f) which would not have arisen but for any winding up or cessation
after Completion of any business or trade carried on by the
Company except to the extent that such winding up or cessation is
caused by the subject matter of one or more claims under the
Warranties and/or under the Tax Deed;
(g) which arises as a result of any act, omission, transaction or
arrangement of the Company after the Effective Date (whether or
not in the ordinary course of business of the Company) pursuant
to a legally binding obligation incurred on or before the
Effective Date details of which have been accurately and fairly
disclosed in the Disclosure Letter:
(h) where and to the extent that specific provision or reserve
(including provision for deferred tax) is made for the matter
giving rise to the liability in the Accounts or in the
calculation of Net Assets for the purposes of the Completion Net
Asset Statement;
(i) arising solely from a change after Completion of the Company's
accounting policy or practice or a change of the accounting
reference date of the Company.
6.11 To the extent that any breach of the Warranties is capable of remedy the
Purchasers shall first afford the Warrantors 28 days to remedy the
breach complained of and for such purposes the Purchasers at the
Warrantors' cost shall make available to the Warrantors all assistance
and all papers documents and information in its possession, custody and
control which the Warrantors may reasonably require.
6.12 In the event that the Company or either of the Purchasers shall become
aware of any matter which is likely to constitute a breach of Warranty
the Purchasers shall as soon
17
as reasonably practicable notify in writing the Warrantors giving
reasonable details of such matter and if so requested by the Warrantors
and at the Warrantors' cost shall provide copies of available relevant
documentation and thereafter shall keep the Warrantors informed of
developments and communications relating thereto. In any event notice of
any claim under the Warranties must be served by the Purchasers on the
Warrantors in writing specifying in reasonable detail the nature of the
claim and the breach that results (having regard to the information then
available to the Purchasers) and where reasonably practicable the amount
claimed before the date specified in Clause 6.7(b) and any claim shall
(if not previously satisfied or withdrawn) be deemed to have been waived
or withdrawn at the expiration of nine months after the date upon which
written notice thereof is given to the Warrantors (or such longer period
as the Warrantors may permit) unless legal proceedings shall already
have been issued against and served on the Warrantors.
6.13 Subject to the Warrantors indemnifying and securing the Purchaser and
the Company to their reasonable satisfaction against any liabilities,
costs or expenses which may be incurred in taking such action the
Purchasers shall take or procure that the Company takes such action as
the Warrantors may reasonably request to dispute, compromise or defend
any claim or demand giving rise to the claim for breach of Warranty or
to mitigate any resulting loss.
6.14 Where the Company or the Purchasers or any of them is entitled (whether
by reason of insurance or otherwise) to recover from a third party any
sum in respect of the damage or liability the subject of a claim under
the Warranties the Purchasers shall if so required by the Warrantors
(subject to the Warrantors indemnifying and securing the Purchaser and
the Company to their reasonable satisfaction against any liabilities,
costs or expenses which may be incurred in taking such action) procure
that the Company takes action as the Warrantors may reasonably require
to enforce such recovery and any claim against the Warrantors shall be
limited (in addition to the other limitations on the liability of the
Warrantors referred to in this Clause 6) to the amount by which the
amount of the Purchasers' claim as a result of such breach shall exceed
the amount so recovered (less any reasonable costs, charges and expenses
properly incurred by the Purchasers or the Company in connection
therewith).
6.15 Where in relation to any matter which has been the subject of any claim
for breach of the Warranties the Purchasers or the Company shall recover
any sum (whether by payment, discount, credit or otherwise) referable to
that matter the Purchasers shall forthwith repay to the Warrantors any
sums paid by the Warrantors in respect of such claim (or an appropriate
part thereof) not exceeding the sum recovered.
6.16 If and to the extent that the Warrantors make a payment to a Purchaser
in respect of any breach of the Warranties relating to any liabilities
in respect of which a Purchaser or the Company have a right to
reimbursement (in whole or in part) against any third party the
Purchasers shall upon the request of the Warrantors assign or procure to
be assigned to them for no consideration but at the cost of the
Warrantors the benefit of the right of reimbursement.
18
6.17 In the event of the Warrantors being liable to either of the Purchasers
under the Warranties in respect of an obligation of the Company to pay
Tax and in certain circumstances the payment of Tax will be repaid to
the Company or some other liability to Tax reduced directly in
consequence (in whole or in part) of the payment of Tax by the Company
the liability of the Warrantors shall be reduced and any amount paid to
either of the Purchasers by the Warrantors in respect of the liability
to Tax shall be refunded when and to the extent that the Company
actually receives such repayment or reduction in liability and the
Purchasers shall procure that the Company makes all reasonable claims to
obtain the repayment or reduction when it becomes aware that it is
entitled to do so.
6.18 Any breach of the Warranties shall give rise only to an action in
damages by the Purchasers.
6.19 The provisions of Clause 2.2 of the Tax Deed shall additionally apply in
relation to any claim which could be made under the taxation warranties
as it applies to a claim under the Tax Deed.
6.20 Nothing herein shall in any way diminish the Purchasers' common law duty
to mitigate their loss.
6.21 The Purchasers undertake to retain or procure the retention by the
Company of all such books, records, accounts, correspondence and other
papers of the Company as are material in the context of the liability of
the Warrantors under the Warranties or the Tax Deed during the
subsistence of the liability of the Warrantors under the Warranties or
(as the case may be) the Tax Deed.
6.22 The Purchasers jointly and severally warrant and undertake to and for
the benefit of the Warrantors that (having made due enquiry of its
advisors) they are not aware of any fact, circumstance or information as
at the Effective Date upon the basis of which either of them has or may
have a claim against the Warrantors and/or Sellers under this Agreement
or any of the other documents referred to herein other than under sub-
clauses 2.1(c), (d) and (e) of the Tax Deed (whether for breach of the
Warranties or under the Tax Deed or on any other account whatsoever).
The Purchasers acknowledge that the Warrantors are entering into this
Agreement on the basis that the foregoing warranty is true and accurate
in all respects and, without restricting the rights of the Warrantors,
the Purchasers hereby agree that in the event of such warranty being
found to have been broken, misleading or untrue by reason of either of
the Purchasers being at the time of the Effective Date aware of any such
fact, circumstance or information then the Purchasers shall have no
right to make any claim against the Warrantors and/or the Sellers under
this Agreement or any of the other documents referred to herein in
respect of such fact, circumstance or information.
19
7 CONFIDENTIALITY
7.1 Each of the Sellers hereby undertakes to each of the Purchasers (for
themselves and each as trustee for the Company) that he will:
(a) not at any time after the date of this Agreement (save as
required by law or regulatory authority) divulge or communicate
to any person other than to officers or employees of the Company
whose province it is to know the same or on the instructions of
the Board of Directors of the Company any confidential
information concerning the business, accounts, finance or
contractual arrangements or other dealings transactions or
affairs of the Company which may have come to his knowledge prior
to Completion; and
(b) use his reasonable endeavours to prevent publication or
disclosure of any confidential information concerning such
matters;
provided that such undertakings shall cease to have effect in
relation to any confidential information which comes into the
public domain otherwise than through the fault of any of the
Sellers.
8 PROTECTIVE COVENANTS
8.1 Each Warrantor covenants with each of the Purchasers (for themselves and
each as trustee for the Company) that he will not, in the case of
J.R.▇▇▇▇▇▇ for a period of 5 years from the Effective Date or in the
case of ▇.▇▇▇▇▇▇▇▇ for a period of 2 years from the Effective Date:
(a) be concerned in any business carrying on business within the
United Kingdom of Great Britain and Northern Ireland (and the
Channel Islands and the Isle of Man) or within the Republic of
Ireland which is competitive or likely to be competitive with any
of the businesses carried on by the Company at Completion; or
(b) except on behalf of the Company canvass or solicit orders for
services similar to those being provided by the Company at
Completion from any person who is at Completion or has been at
any time within the year prior to Completion a customer of the
Company; or
(c) induce or attempt to induce any supplier of the Company to cease
to supply, or to restrict or vary the terms of supply, to the
Company; or
(d) induce or attempt to induce any employee of the Company to leave
the employment of the Company; or
(e) use or (in so far as it lies within his control) allow to be used
(except by the Company) any trade name used by the Company at
Completion or any other
20
name intended or likely to be confused with such a trade name.
8.2 For the purposes of this Clause:
(a) a Warrantor is concerned in a business if he carries it on as
principal or agent or if:
(i) he is a partner, director, employee, seconde, consultant
or agent in, of or to any person who carries on the
business; or
(ii) he has any direct or indirect financial interest (as
shareholder or otherwise) in any person who carries on the
business disregarding any financial interest of a person
in securities which are listed on the American Stock
Exchange or the London Stock Exchange or traded on the
Alternative Investment Market, if that person, the
remaining Sellers and any person connected with him or
them are interested in securities which amount to less
than three per cent of the issued securities of that class
and which, in all circumstances, carry less than three per
cent of the voting rights (if any) attaching to the issued
securities of that class.
8.3 Each of the restrictions in each paragraph or sub-clause above shall be
enforceable by the Purchaser independently of each of the others and its
validity shall not be affected if any of the others is invalid; if any
of those restrictions is void but would be valid if some part of the
restrictions were deleted the restriction in question shall apply with
such modification as may be necessary to make it valid without in any
way extending the scope of the restrictions.
8.4 The Warrantors acknowledge that the above provisions of this Clause are
no more extensive than is reasonable to protect the Purchasers as the
purchasers of the Shares.
8.5 If any provision of this Agreement or of any other agreement or
arrangement of which it forms part is subject to registration under the
Restrictive Trade Practices ▇▇▇ ▇▇▇▇, it shall not take effect until the
day after particulars of the agreement or arrangement have been given to
the Director General of Fair Trading under section 24 of that Act.
9 ANNOUNCEMENTS
Neither the Sellers nor the Purchasers shall make or permit any person
connected with any of them to make any announcement concerning the sale and
purchase of the Shares or any ancillary matter before, on or after Completion
except as required by law or other applicable regulation or with the written
approval of the other, such approval not to be unreasonably withheld or
delayed.
10 Notices and receipts
10.1 Any notice or other document to be served under this Agreement may be
delivered or
21
sent by first class registered post (or airmail if to a destination
outside the country where it is despatched) or facsimile process to the
party to be served at his address appearing in this Agreement or at such
other address as he may have notified to the other parties in accordance
with this Clause.
10.2 Any notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 am on the second or (if sent to a destination
outside the country where it is despatched) seventh business day
in the country of the recipient after it was put into the post;
or
(c) if sent by facsimile process, at the expiration of 2 hours after
the time of despatch, if despatched before 3.00 pm on any
business day in the country of the recipient, and in any other
case at 10.00 am on the business day in the country of the
recipient following the date of despatch.
10.3 In proving service of a notice or document it shall be sufficient to
prove that delivery was made or that the envelope containing the notice
or document was properly addressed and posted as a prepaid registered
post or airmail letter or that the facsimile message was properly
addressed and despatched as the case may be.
10.4 The receipt of the Sellers' Solicitors for any sum or document to be
paid or delivered to a Seller will discharge the Purchasers' obligation
to pay or deliver it to that Seller.
10.5 The Purchasers agree that service or delivery of any documents on either
of them (including service of any proceedings) may be effected by
service upon the Purchasers' Solicitors in accordance with this Clause
10.
11 RESOLUTIONS AND WAIVERS
11.1 In relation to the Company the Sellers shall procure the convening of
all meetings, the giving of all waivers and consents and the passing of
all resolutions as are necessary under the Companies ▇▇▇ ▇▇▇▇, its
Articles of Association or any agreement or obligations affecting it to
give effect to this Agreement.
11.2 For so long after Completion as it remains the registered holder of any
of the Shares each of the Sellers will hold them and any distributions,
property and rights hereafter deriving from them in trust for Marquee
Inc. or Marquee UK (as appropriate) and will deal with the Shares and
any distributions, property and rights hereafter deriving from them as
Marquee Inc. or Marquee UK (as appropriate) directs and will on request
by Marquee Inc. or Marquee UK (as appropriate) execute an instrument of
proxy or other document which enables Marquee Inc. or Marquee UK (as
appropriate) or its representative to attend and vote at any meeting of
the Company.
22
12 GENERAL
12.1 Each of the obligations, warranties and undertakings set out in this
Agreement which is not fully performed at Completion will continue in
force after Completion.
12.2 None of the rights or obligations under this Agreement may be assigned
or transferred without the prior written consent of all the parties.
12.3 Where any obligation, representation, warranty or undertaking in this
Agreement is expressed to be made, undertaken or given by the Sellers,
they shall be jointly and severally responsible in respect of it unless
otherwise stated.
12.4 The Purchasers may release or compromise in whole or in part the
liability of any of the Sellers under this Agreement or grant any time
or other indulgence without affecting the liability of any other of the
Sellers.
12.5 Time is of the essence in relation to this Agreement.
12.6 Each party shall pay the costs and expenses incurred by him or it in
connection with the entering into and completion of this Agreement.
12.7 This Agreement may be executed in any number of counterparts, all of
which, taken together shall constitute one and the same Agreement and
any party may enter into this Agreement by executing a counterpart.
13 WHOLE AGREEMENT
13.1 This Agreement and the documents referred to in it contain the whole
agreement between the parties relating to the transactions contemplated
by this Agreement and supersede all previous agreements, arrangements
and understandings between the parties relating to these transactions.
13.2 The parties acknowledge that in agreeing to enter into this Agreement he
or it has not relied on any representation, warranty or other assurance
except those set out in this Agreement and waives all rights and
remedies, which, but for this Clause might be available to it in respect
of such representation, warranty or other assurance provided that
nothing in this Clause shall limit or exclude any liability for
fraudulent misrepresentation.
14 GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with
English law. Each of the parties submits to the exclusive jurisdiction
of the English courts for all purposes relating to this Agreement.
23
15 PURCHASERS' WARRANTIES AND COVENANT
15.1 Marquee Inc. covenants that it shall use its reasonable endeavours to
file the reports required to be filed by it under the US Securities
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, as amended (the "EXCHANGE ACT") and the rules and
regulations of the US Securities and Exchange Commission (the
"COMMISSION") thereunder, and it shall, if feasible, take such further
action as any holder of Consideration Shares may reasonably request, all
to the extent required from time to time to enable such holder to sell
Consideration Shares without registration under the US Securities Act of
1933 (the "SECURITIES ACT") within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time or (b) any similar rules or regulations
hereafter adopted by the Commission. Upon the written request of any
holder of Consideration Shares, the Purchaser shall deliver to such
holder a written statement as to whether it has complied with such
requirements.
15.2 Provided that a period of at least 2 years has elapsed since the later
of the date any Consideration Shares were acquired from Marquee Inc. or
an affiliate of Marquee Inc. (within the meaning of Rule 144 under the
Securities Act), Marquee Inc. shall, upon the request of any holder
thereof who is not an affiliate of Marquee Inc. and has not been an
affiliate of Marquee Inc. during the preceding 3 months, use its
reasonable efforts (subject to applicable law) to arrange for the
exchange of the certificates representing such Consideration Shares for
new certificates omitting any legend relating to restrictions on the
transfer of such Consideration Shares.
15.3 The Purchasers hereby jointly and severally warrant and represent to the
Sellers that:
(a) neither the execution of this Agreement by the Purchasers or the
Loan Notes by Marquee Inc. nor the completion of the transaction
as contemplated by this Agreement will violate, conflict with or
result in the breach of any term, limitation in or provisions of,
or constitute a default (or an event that, with the giving of
notice or the lapse of time or both, would constitute a default)
under the terms, provisions or conditions of the constitutional
documents of the Purchasers or any agreement to which either of
the Purchasers are a party or by which the Purchasers are bound,
or violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Purchasers;
(b) no consent or approval by, notice to or registration with any
governmental or other authority is required on the part of either
of the Purchasers in connection with the execution of this
Agreement or the Loan Notes or the completion of the transaction
as contemplated in it;
(c) the Consideration Shares, when issued pursuant to this Agreement,
shall be duly authorised, validly issued, fully paid and
nonassessable and the certificates representing the Consideration
Shares and the Loan Notes, when delivered pursuant to this
Agreement, shall be in due and proper form and shall be duly and
validly executed by the officers of Marquee Inc. named thereon;
24
(d) the execution, delivery and performance by the Purchasers of the
Agreement and the Loan Notes, and all other documents
contemplated hereby and thereby, the fulfilment of and the
compliance with the respective terms and provisions hereof and
thereof, and the consummation by the Purchasers of the
transactions contemplated hereby and thereby, have been duly
authorised by the Board of Directors of the Purchasers (as
appropriate, which authorisation has not been modified or
rescinded and is in full force and effect) and no other corporate
action is necessary for either of the Purchasers to enter into
this Agreement and the Loan Notes, and all other documents
contemplated hereby and thereby, and to consummate the
transactions contemplated hereby and thereby;
(e) where appropriate, this Agreement and the Loan Notes constitute
valid and binding obligations of the Purchasers, enforceable
against such of the Purchasers (as appropriate) in accordance
with their respective terms;
IN WITNESS of which this Agreement has been executed by the parties or their
duly authorised representatives on the date which appears first on page 1.
25
SIGNED by ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ )
in the presence of: )
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: )
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by ▇▇▇▇ ▇▇▇▇▇▇▇ )
acting by his duly appointed )
attorney
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇ )
acting by his duly appointed )
attorney
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
63
SIGNED by ▇▇▇▇ ▇▇▇▇▇▇▇ )
acting by his duly appointed )
attorney
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ )
acting by her duly appointed )
attorney
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by Struan ▇▇▇▇▇▇▇▇ )
acting by his duly appointed )
attorney
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
64
SIGNED by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
acting by her duly appointed )
attorney
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by ▇▇▇▇ ▇▇▇▇▇▇▇ )
acting by his duly appointed )
attorney
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
acting by her duly appointed )
attorney
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
65
SIGNED by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
as trustee of the ▇▇▇ ▇▇▇▇▇▇ )
Discretionary Settlement 1998
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
as trustee of the ▇▇▇ ▇▇▇▇▇▇ )
Discretionary Settlement 1998
acting by her duly appointed attorney
▇▇▇ ▇▇▇▇▇▇ in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
SIGNED by ▇▇▇ ▇▇▇▇▇▇ )
the duly authorised representative of )
Marquee Group (UK) Limited
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
66
SIGNED by ▇▇▇ ▇▇▇▇▇▇ )
the duly authorised representative of )
The Marquee Group Inc.
in the presence of:
Witness Signature:
Witness Address:
Witness Occupation:
67
