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EXHIBIT 10.16(j)
SUBSCRIPTION AGREEMENT
December 30, 1994
Cinemark Mexico (USA), Inc.
7502 Greenville Avenue
Suite 800-LB9
Dallas, Texas 75231
Attention: Lee Roy Mitchell, Vice Chairman
Re: Subscription for Common Stock of Cinemark Mexico (USA), Inc.
1. Subscription. Subject to the terms and conditions hereof, the
undersigned (the "Subscriber") hereby irrevocably subscribes for and agrees to
purchase 574,851 shares (the "Shares") of the common stock, par value $.001 per
share (the "Common Stock"), of Cinemark Mexico (USA), Inc., a Texas corporation
(the "Company"), for which the Subscriber agrees to pay a total purchase price
of $5,000,000 (the "Purchase Price"). Unless otherwise specifically noted,
"dollars" or "$" shall mean United States dollars.
2. Conditions to the Subscription. The Subscriber understands and agrees
that this subscription is made subject to the following terms and conditions.
(a) The Company reserves the absolute right to reject any or all tenders
of the Purchase Price that are not in proper form or the acceptance of which
would, in the opinion of the Company's counsel, be unlawful. The Company also
reserves the right to waive any irregularities or conditions of tender as to
all or any part of the Purchase Price.
(b) This subscription will terminate on January 31, 1995 unless accepted
by the Company before such date. The Subscriber agrees to close the
transaction contemplated by this subscription agreement (the "Closing") on
December 30, 1994, or on such other date on or before January 31, 1995,
specified by the Company (the "Closing Date"). Upon acceptance of this
subscription by the Company, the Company will deliver to the Subscriber a copy
of this subscription agreement duly executed by the Company.
3. Payment for the Shares. Upon acceptance of this subscription by the
Company, the Subscriber shall be irrevocably and unconditionally obligated to
pay to the Company the full amount of the Purchase Price set forth above.
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4. Representations and Warranties of the Subscriber. The Subscriber
understands that this subscription is being conducted pursuant to exemptions
from registration provided for in the Securities Act of 1933, as amended (the
"Securities Act"), and state securities laws, that it is entering into this
subscription agreement without being furnished any offering literature or
prospectus, that this transaction has not been approved or disapproved by the
Texas State Securities Board or the United States Securities and Exchange
Commission or by any administrative agency charged with the administration of
the securities laws of any state because of the nature of and the small number
of persons solicited and the private aspects of the offering, that all
documents, records and books pertaining to this investment have been made
available to the undersigned and his representatives, including his attorney
and/or his accountant, and that the books and records of the Company will be
available upon reasonable notice for inspection by investors during reasonable
business hours at its principal place of business, and the Subscriber hereby
represents and warrants as follows:
(a) The Subscriber confirms that (i) it is duly organized, validly
existing and in good standing under the laws of the State of Texas; (ii) it has
the corporate power and authority to execute, deliver and perform this
subscription agreement; (iii) it is able (A) to bear the economic risk of its
investment, (B) to hold the Shares for an indefinite period of time; and (C) to
afford a complete loss of its investment, and (iv) it is currently a
shareholder of the Company.
(b) The Subscriber confirms that it is an "accredited investor" as
defined in Rule 501 under the Securities Act of 1933.
(c) The Subscriber confirms that, in making this subscription it has
relied solely upon independent investigations made by its representative(s),
including counsel and other advisors and that it and such representatives and
advisors have been given the opportunity to ask questions of, and to receive
answers from, persons acting on behalf of the Company concerning the terms and
conditions of this subscription.
(d) The Subscriber accepts this subscription and the Shares issued
hereunder solely for its own personal account, for investment purposes only,
and the Shares are not being accepted with a view to or for the resale,
distribution, subdivision or fractionalization thereof; the undersigned has no
contract, undertaking, understanding, agreement or arrangement, formal or
informal, with any person to sell, transfer or pledge to any person the Shares;
the undersigned has no present plans to enter into any such contract,
undertaking, agreement or arrangement; and the undersigned understands the
legal consequences of the foregoing representations and warranties to mean that
it must bear the economic risk of the investment for an indefinite period of
time because the Shares have not been registered under the Securities Act and,
therefore, cannot be sold unless they are subsequently registered under the
Securities Act (which the Company is not obligated to do) or an exemption form
such registration is available.
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(e) The Subscriber understands that no federal or state agency has passed
on or made any recommendation or endorsement of the Common Stock and that the
Company is relying on the truth and accuracy of the representations,
declarations and warranties herein made by the Subscriber in offering the
Common Stock without having first registered the same under the Securities Act.
(f) The Subscriber confirms that it has been advised to consult with its
own attorney regarding legal matters concerning the Company and to consult with
independent tax advisors regarding the tax consequences of investing in the
Company.
(g) The Subscriber has not authorized any broker, dealer, agent or finder
to act on his behalf nor does the Subscriber have any knowledge of any broker,
dealer, agent or finder purporting to act on its behalf with respect to this
transaction.
(h) The Subscriber consents to the placement of a legend on the Shares
and any other document evidencing its acceptance of the subscription, which
legend shall be in form substantially as follows:
"THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF WITHOUT REGISTRATION UNDER THE ACT OR UNLESS
COUNSEL TO THE COMPANY SHALL HAVE RENDERED AN OPINION SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(i) The Subscriber represents and warrants that it has full legal right,
power and authority to enter into this subscription agreement and to purchase
the Shares.
5. Representations and Warranties of the Company. The Company represents
and warrants to the Subscriber as of the date of the Company's acceptance
hereof as follows:
(a) The Company is duly organized, validly existing and in good standing
under the laws of the State of Texas and has the corporate power and authority
to own, lease and operate its property and to carry on its business as proposed
to be conducted. The Company has delivered to the Subscriber, or made
available for Subscriber's inspection, true, complete and correct copies of its
Articles of Incorporation and its By-laws, in full force and effect as of the
date of the Company's acceptance hereof, which will not be further amended
prior to the Closing Date. The Company is duly qualified to do business and is
in good standing in all jurisdictions where the nature of its business or the
ownership or leasing of property by it requires such qualification.
(b) Neither the execution and delivery of this subscription agreement,
nor the offering, issuance and sale of the Shares, nor the fulfillment of or
compliance with the terms and
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provisions of this subscription agreement and the Common Stock will conflict
with, or result in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in any violation of, or require any
consent, approval or other action by any court or administrative or
governmental body or any other person pursuant to, the Articles of
Incorporation or By-laws of the Company, any award of any arbitrator or any
agreement (including any agreement with shareholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which the Company is
subject. The Company is not a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness of the Company, any
agreement relating thereto or any other contract or agreement (including its
Articles of Incorporation) which restricts or otherwise limits the issuance and
sale of the Shares.
6. Transferability. The Subscriber agrees not to transfer or assign this
subscription agreement, or any interest herein, and further agrees that the
assignment and transfer of the Shares acquired pursuant to this subscription
shall be made only in accordance with all applicable laws and shall be
restricted by the Shareholders' Agreement.
7. Miscellaneous.
(a) All notices or other communications given or made hereunder shall be
in writing and shall be delivered or mailed by registered or certified mail,
return receipt requested, postage prepaid, to the undersigned at the address
set forth below or to the Company at the address set forth above.
(b) THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
(c) This subscription agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and may be amended
only by a writing executed by all parties hereto.
8. Effect of Representations, Warranties and Acknowledgments. The
representations, warranties and acknowledgments of Paragraphs 4 and 5 are true
and accurate as of the date of this subscription agreement and shall be true
and accurate as of the date of delivery of the Shares. Each party hereto
acknowledges that the other party is relying upon such representations,
warranties and acknowledgments in the sale and delivery of the Shares.
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9. Fees and Expenses. Each party hereto shall be responsible for all
fees and expenses incurred by such party in connection with the preparation,
execution, delivery and performance of this subscription agreement.
CINEMARK II, INC.
By: /s/ Jeffrey J. Stedman
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Name: Jeffrey J. Stedman
Title: Vice President
Address for Notices:
Cinemark II, Inc.
7502 Greenville Ave.
Suite 800, LB-9
Dallas, Texas 75231
This subscription agreement is hereby accepted as of December 30, 1994.
CINEMARK MEXICO (USA), INC.
By: /s/ Alan W. Stock
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Name: Alan W. Stock
Title: President
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