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EXHIBIT 10.16(k)
PURCHASE AGREEMENT
Warrants to Purchase Common Stock
of
CINEMARK MEXICO (USA), INC.
August 30, 1995
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Cinemark Mexico (USA), Inc.
7502 Greenville Avenue, Suite 800
Dallas, Texas 75231
August 30, 1995
To Each of the Purchasers
Who Are Signatories Hereto
Ladies and Gentlemen:
Cinemark Mexico (USA), Inc., a Texas corporation (the "Company"), hereby
agrees with each of you as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"accredited investor" shall have the meaning specified in Section 2.3.4
hereof.
"accumulated funding deficiency" shall have the meaning specified in
Section 4.6 hereof.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Person authorized to act and who acts on behalf of the
Purchaser with respect to the transactions contemplated by this Agreement and
the other Documents.
"Agreement" means this Purchase Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
"Applicable Law" means any Federal, state, local or foreign statute, law,
ordinance, governmental rule or regulation or any judgment, decree, rule or
order of any court or governmental agency or authority applicable to the
Company or any of its Subsidiaries or any of their respective properties,
assets or operations.
"Business Day" means a day that is not a Saturday, a Sunday or a day on
which banking institutions in the State of New York and the State of Texas are
not required to be open.
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"Capital Stock" means any capital stock of any Person and shares,
interests, participations or other ownership interests (however designated), of
any Person and any rights (other than debt securities convertible into capital
stock), warrants or options to purchase any thereof.
"Charter Documents" means the Articles or Certificate of Incorporation and
By-Laws or similar organizational documents, as amended to the Closing Date, of
the applicable Person.
"Cinemark de Mexico" means Cinemark de Mexico, S.A. de C.V., a Mexican
corporation.
"Closing" shall have the meaning specified in Section 2.2.2 hereof.
"Closing Date" shall have the meaning specified in Section 2.2.2 hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Common Shares" shall have the meaning specified in Section 2.1 hereof.
"Common Stock" shall mean the Common Stock, $0.001 par value per share, of
the Company.
"Company" shall mean Cinemark Mexico (USA), Inc., a Texas corporation, and
any successor thereto.
"Default" means any event, act or condition that is, or after notice or
passage of time or both would, constitute an Event of Default.
"disqualified person" shall have the meaning specified in Section 2.3.3
hereof.
"Documents" means all documents delivered in connection with the
transactions contemplated hereby, including without limitation, this Agreement,
the Warrant Registration Rights Agreement, the Second Supplemental Indenture
and the Warrant Certificates collectively, or each of such documents
singularly, and any documents or instruments contemplated by or executed in
connection with any of them or any of the transactions contemplated hereby or
thereby.
"employee benefit plan" shall have the meaning specified in Section 2.3.3
hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" shall mean any "employee benefit plan" maintained or
contributed to by the Company or any of its "affiliates" (as defined in section
4.07(d)(7) of ERISA).
"Event of Default" shall mean any event defined as an Event of Default in
the Indenture.
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"First Amendment to Warrant Registration Rights Agreement" means the First
Amendment to Warrant Registration Agreement dated as of August 30, 1995 by and
between the Company, Cinemark II, Inc., New Wave Investments A.V.V. and the
Purchasers who are signatories hereto.
"Indemnified Parties" shall have the meaning specified in Section 2.6.1
hereof.
"Indenture" means the Indenture, dated as of July 30, 1993, by and among
the Company, Cinemark de Mexico, S.A. de C.V. and United States Trust Company
of New York, as Trustee, as the same may be amended from time to time, in
accordance with the terms thereof.
"Intellectual Property" shall have the meaning specified in Section 4.11
hereof.
"June 30, 1995 Quarterly Report" shall have the meaning specified in
Section 4.6.1 hereof.
"Lien" shall have the meaning specified in the Indenture.
"Losses" shall have the meaning specified in Section 2.6.1 hereof.
"Notes" shall mean those certain 12% Series A, 12% Series B and 12% Series
C Senior Subordinated Notes due 2003.
"party in interest" shall have the meaning specified in Section 2.3.3
hereof.
"Pension Plan" shall have the meaning specified in Section 4.9 hereof.
"Permitted Investments" shall have the meaning specified in the Indenture.
"Person" shall mean any individual, partnership, corporation, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity.
"Proceeding" shall mean an action, claim, suit or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or to the knowledge of the Company threatened.
"Purchasers" shall mean those Persons who have executed a counterpart of
this Agreement on any one of the signature pages hereto who are to be
purchasers of the Securities.
"qualified trust" shall have the meaning specified in Section 2.3.3
hereof.
"Rule 144" means Rule 144 as promulgated by the Commission pursuant to the
Securities Act, and any successor rule or regulation thereto.
"Rule 144A" means Rule 144A as promulgated by the Commission pursuant to
the Securities Act, and any successor rule or regulation thereto.
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"Second Supplemental Indenture" means the Second Supplemental Indenture
dated as of August 30, 1995 by and among the Company, Cinemark de Mexico and
United States Trust Company of New York, as Trustee.
"Securities" means the Warrants.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
"Subsidiary" means with respect to any Person, (i) a corporation a
majority of whose capital stock with voting power, under ordinary
circumstances, to elect directors is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person
and one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Trustee" means United States Trust Company of New York, as trustee under
the terms of the Indenture.
"Warrant" shall have the meaning specified in Section 2.1 hereof.
"Warrant Certificate" shall have the meaning specified in Section 2.2
hereof.
"Warrant Registration Rights Agreement" shall mean the Warrant
Registration Rights Agreement dated July 30, 1993, by and among the Company,
New Wave Investments A.V.V., Cinemark II, Inc. and each of the purchasers which
were signatories thereto, as amended, modified or supplemented to the date
hereof relating to the registration of the Warrants and the Common Shares
pursuant to the Securities Act.
SECTION 2. PURCHASE AND SALE OF SECURITIES
2.1 Issuance of Securities.
The Company has taken all necessary corporate action to authorize the
issuance and sale to the Purchasers of warrants (the "Warrants") to purchase
152,411 shares (the "Common Shares") of its Common Stock, and the issuance of
the Common Shares issuable upon exercise of the Warrants. The Company has
offered to the Purchasers the right to purchase the Warrants for an amount
negotiated by the Company and the Purchasers, which amount the board of
directors of the Company has determined to be the fair market value of the
Warrants.
2.2 Sale and Purchase of the Securities; the Closing
2.2.1. Sale and Purchase of Warrants
Subject to the terms and conditions set forth herein, the Company hereby
agrees to sell to each Purchaser that number of Warrants set forth opposite the
name of such Purchaser on the execution page hereof. The Warrants shall be
sold at a price of $8.6879 per Warrant, for an aggregate purchase price of
$1,324,131.53 for all the Warrants. The
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Company agrees (i) to cause to be authorized and to reserve and keep available
at all times during which any Warrants remain outstanding, free from preemptive
rights, out of its treasury stock or authorized but unissued shares of Common
Stock, par value $0.001 per share solely for the purpose of effecting the
exercise of the Warrants pursuant to the terms of the certificate evidencing
each Warrant (the "Warrant Certificate"), sufficient shares of its Common Stock
to provide for the exercise of 1.1 times the number of outstanding Warrants,
(ii) to issue and cause the Company to deliver such shares of Common Stock as
required upon each exercise of the Warrants, in accordance with the terms of
each Warrant Certificate, and (iii) to take all actions necessary to ensure
that all such shares of Common Stock will, when issued, be duly and validly
issued, fully paid and nonassessable. The Company further agrees that if any
such shares of its Common Stock to be reserved for the purpose of exercise of
the Warrants require registration with or approval of any governmental
authority under any Federal, state or local law before such shares of Common
Stock may legally be issued or delivered upon exercise of the Warrants, then it
shall secure such registration or approval, as the case may be, and maintain
such registration or approval in effect so long as any Warrants remain
outstanding.
In reliance upon the representations and warranties of the Company
contained herein and in the other Documents, and subject to the terms and
conditions set forth herein and therein, each Purchaser hereby agrees,
severally and not jointly, to purchase the Warrants at the purchase price set
forth in this Section. Each Purchaser shall, severally and not jointly, be
liable for only the purchase of that portion of such Warrants indicated on the
execution page hereof that relates to such Purchaser.
2.2.2. Closing
The sale and purchase of the Securities shall take place at a closing (the
"Closing") at the offices of the Company at 7502 Greenville Avenue, Suite 800,
Dallas, Texas 75231, commencing at 10:00 A.M. Dallas, Texas, time, on August
30, 1995, or such other place, Business Day and time as may be agreed upon by
the Purchasers and the Company (such time and date being referred to as the
"Closing Date"). At the Closing, the Company will deliver to each of you one
or more Warrant Certificates in the aggregate principal or other amount or
amounts to be purchased by each of you, registered in each of your names or in
the name(s) of such nominee(s) or designee(s) as each of you may request,
against payment of the purchase price therefor by delivery of a check payable
in immediately available funds made payable to the Company or to its order, or
by Federal funds bank wire transfer to such bank account as the Company shall
designate at least two Business Days prior to the Closing Date.
2.3 Purchaser's Representations
2.3.1. Authorization and Authority.
You represent to the Company that you are authorized to enter into
this Agreement, to perform your obligations hereunder and to consummate the
transactions contemplated hereby. You further represent that, when executed,
this Agreement will be a legal, valid and binding obligation of you,
enforceable against you in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors, rights and remedies
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generally and subject, as to enforceability, to general principles of equity
(regardless of whether such enforcement is sought in a proceeding in equity or
at law).
2.3.2. Investment Intent; Transfer of Securities.
You further represent to the Company that you are purchasing the
Securities being purchased by you hereunder for your own account, and with no
intention of distributing or reselling said Securities or any part thereof in
any transaction that would be in violation of the securities laws of the United
States of America or any state thereof, without prejudice, however, to your
right at all times to sell or otherwise dispose of all or any part of said
Securities pursuant to an effective registration statement under the Securities
Act and in compliance with applicable state securities laws, or under an
exemption from such registration available under the Securities Act and other
applicable state securities laws and subject, nevertheless, to the disposition
of your property being at all times within your control.
If you desire to offer, sell or otherwise transfer, pledge or hypothecate
all or any part of the Securities (other than pursuant to an effective
registration statement under the Securities Act or pursuant to Rule 144 or Rule
144A) you shall deliver to the Company a written opinion of counsel (who may be
in-house or special counsel), reasonably satisfactory in form and substance to
the Company, that there is available therefor an exemption from the
registration requirements of the Securities Act. Upon original issuance
thereof, and until such time as no longer required by law, each Warrant
Certificate evidencing the Securities (and all securities issued in exchange
therefor or substitution thereof) shall bear a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH
SECURITIES MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED, EXCEPT PURSUANT TO (i) A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER
SUCH ACT, (ii) RULE 144 OR RULE 144A UNDER SUCH ACT, OR (iii) ANY
OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT RELATING TO THE
DISPOSITION OF SECURITIES, AND IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE LAWS OF ANY STATE OF THE UNITED STATES.
At such time that any such legend is no longer required by law to be borne
by such certificate, the Company shall, at the request of the holder thereof,
cause such legend to be removed or replace such certificate with an unlegended
security.
2.3.3. ERISA.
You further represent that either (i) no part of the funds used to
purchase the Securities to be purchased by you constitutes assets allocated to
any qualified trust that contains the assets of any employee benefit plan with
respect to which the Company or any ERISA Affiliates is a party in interest or
disqualified person or (ii) the use of such assets would not constitute a
non-exempt prohibited transaction. The representations made by you in the
preceding clauses are made solely in reliance upon your review of the list (a
copy of which is set forth as Schedule 2.3.3 hereto), previously furnished to
you by the Company, which sets forth the employee benefit plans with respect to
which the Company or any ERISA Affiliates is a party in interest or a
disqualified person. The terms "employee benefit plan" and "party in
interest" shall have the meanings
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assigned to such terms in Section 3 of ERISA, the term "disqualified person"
shall have the meaning assigned to such term in section 4975 of the Code, and
the term "qualified trust" shall mean any trust qualified under section 401(a)
of the Code in which is held the assets of any employee benefit plan.
2.3.4. Accredited Investor; Individual Purchasers
You further represent that (i) you have received a copy of the Company's
most recent quarterly report, (ii) no oral or written representations have been
made to you concerning the Securities, the Company, its business or prospects,
tax consequences or other matters, and (iii) you have had an opportunity to
investigate the business and financial condition of the Company, and to obtain
such information as you require from the Company's officers and directors, as
applicable. In addition, each Purchaser represents that it is and any of its
managed accounts, if applicable, are "accredited investors" within the meaning
of Rule 501 under the Securities Act.
2.3.5. Securities Not Registered.
You further represent that you understand that (i) the Securities have not
been registered under the Securities Act and are being offered and sold under
an exemption from registration thereunder, (ii) you must bear the economic risk
of your investment in the Securities for an indefinite period of time because
it is not anticipated that there will be any market for the Securities and
because the Securities cannot be resold unless subsequently registered under
the Securities Act or unless an exemption from such registration is available,
and (iii) no federal or state agency has passed on or made any recommendations
or endorsements of the Securities.
2.3.6. Terms of Warrants.
Each Purchaser agrees to be bound by the terms and provisions of the Warrant
Certificate substantially in the form attached hereto as Exhibit A.
2.4 No Closing
Notwithstanding anything to the contrary contained in this Agreement, this
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing:
(i) By the mutual consent of all of the parties;
(ii) By the Purchasers at any time in the event of a breach or
default by the Company in the observance or in the timely performance of
any of its obligations hereunder which is not waived by Purchasers and
which remains uncured for fifteen (15) days after receipt of notice in
writing of such breach or default;
(iii) By the Company at any time in the event of a breach or default
by the Purchasers in the observance or in the timely performance of any of
their obligations hereunder which is not waived by the Company and remains
uncured for fifteen (15) days after receipt of notice in writing of such
breach or default;
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(iv) If the Closing shall not have occurred on or before August 31,
1995, at anytime thereafter by the Purchasers if the Purchasers are not on
said date in default in the observance or in the due and timely
performance of any of their obligations hereunder; or
(v) If the Closing shall not have occurred on August 31, 1995, at
anytime thereafter by the Company if the Company is not on said date in
default in the observance or in the due and timely performance of any of
its obligations thereunder.
No termination under this section shall be effective unless and until the
terminating party gives written notice of such termination to the other party.
2.5 Expenses
Whether or not the Securities are sold, the Company shall pay all
reasonable expenses relating to this Agreement and the other Documents,
including, but not limited to:
(a) the cost of printing, reproducing and filing this Agreement, the
other Documents and any other documents contemplated hereby or thereby;
(b) the reasonable fees and charges and disbursements of Ropes & Gray,
your special counsel, or such other counsel as you may employ on your behalf
with the consent of the Company;
(c) the cost of delivering to your home office or the office of your
designee the Securities purchased by you at the Closing upon the issuance
thereof;
(d) all reasonable out-of-pocket expenses relating to any amendment to,
or modification of, or any waiver, or consent or preservation of rights under,
this Agreement or any of the Documents;
(e) all reasonable fees and out-of-pocket expenses (including reasonable
fees and out-of-pocket expenses of one special counsel to be selected by the
Purchasers) in connection with any registration or qualification of the
Securities for offer and sale hereunder under the securities or "blue sky" laws
of any jurisdiction requiring such registration or qualification or in
connection with obtaining any exemptions from such requirements.
2.6 Indemnification
2.6.1. Scope of Indemnification.
In addition to all other sums due hereunder or provided for in this
Agreement or any of the other Documents and any and all obligations of the
Company to indemnify you hereunder or under any of the other Documents, the
Company shall, without limitation as to time, indemnify and hold harmless you,
your Affiliates, and the employees, officers, directors, and Agents of you and
your Affiliates, including attorneys and consultants (individually, an
"Indemnified Party" and collectively, the "Indemnified Parties"), to the
fullest extent lawful, from and against any and all losses,
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claims, damages, liabilities, costs (including, without limitation, reasonable
costs of preparation and reasonable attorneys' fees) and expenses, including
expense of investigation (collectively, "Losses"), incurred by any Indemnified
Party, as a consequence of any claim by or obligation to a third party which
arises out of or in connection with this Agreement or the other Documents or
the transactions contemplated hereby or thereby (or any other document or
instrument executed herewith or pursuant hereto or thereto), whether or not the
transactions contemplated by this Agreement are consummated and whether or not
any Indemnified Party is a formal party to any Proceeding; provided, however,
that the Company shall not be liable to any Indemnified Party for any Losses
(i) resulting from a violation by such Indemnified Party of a legal restriction
on its investment powers, (ii) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or review) that such Losses arose from the negligence or
willful misconduct of such Indemnified Party, (iii) arising out of or based
upon any untrue statement of a material fact furnished to the Company in
writing by any Indemnified Party, or upon any omission of a material fact in
such writing required to make the statements therein not misleading, and such
writing is stated to be specifically for use in any registration statement,
prospectus or form of prospectus or in any amendment or supplement thereto or
in any preliminary prospectus, or (iv) resulting from any diminution in the
value of the Warrants, in each case on account of economic conditions generally
or an adverse, change in the financial condition of the Company. Subject to
the provisions of the last sentence of Section 2.6.2, the Company agrees
promptly to reimburse any Indemnified Party for all such Losses as they are
incurred and disclosed to the Company in writing by such Indemnified Party.
The obligations of the Company to each Indemnified Party hereunder shall be
separate obligations, and the liability of the Company to any Indemnified Party
hereunder shall not be extinguished solely because any other Indemnified Party
is not entitled to indemnity hereunder.
2.6.2. Indemnification Procedures.
If any proceeding shall be brought or asserted against any Indemnified
Party in respect of which indemnity may be sought from the Company hereunder,
such Indemnified Party promptly shall notify the Company in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the payment of
all reasonable fees and expenses incurred in connection with the defense
thereof; provided, that the failure of any Indemnified Party to give such
notice shall not relieve the Company of its obligations pursuant to this
Agreement, except to the extent that it shall be finally determined by a court
of competent jurisdiction (which determination is not subject to appeal or
review) that such failure shall have materially prejudiced the Company.
Any such Indemnified Party shall have the right to employ separate counsel
in any such action, claim or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or Parties unless: (1) the Company has agreed to pay
such fees and expenses; or (2) the Company shall have failed promptly to assume
the defense of such action, claim or proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such action, claim or
proceeding; or (3) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such Indemnified Party and the
Company, and such Indemnified Party shall have been advised by counsel that a
conflict of interest may exist if such counsel represents such Indemnified
Party and the
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Indemnifying Party (and in the case of any of (1), (2) or (3), if such
Indemnified Party notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense thereof and the reasonable fees and expenses of
such counsel shall be at the expense of the Company), it being understood,
however, that, the Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for all such Indemnified Parties, which firm shall be designated in writing by
such Indemnified Parties. The Company shall have the right to employ separate
counsel in, and to participate in the defense of, any action or proceeding with
respect to which it has no right to assume the defense, but the fees and
expenses of such counsel shall be at the expense of the Company. No
Indemnified Party will be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). The
Company shall not consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release, in form and
substance satisfactory to the Indemnified Party, from all liability in respect
of such action, claim or proceeding for which such Indemnified Party would be
entitled to indemnification hereunder (whether or not any Indemnified Party is
a party thereto). All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such action or proceeding in a manner not
inconsistent with this Section 2.6) shall be paid to the Indemnified Party, as
incurred, upon written notice thereof to the Company; provided, that the
Company may require such Indemnified Party to undertake to reimburse all such
fees and expenses to the extent it is finally judicially determined by a court
of competent jurisdiction (which determination is not subject to appeal or
review) that such Indemnified Party is not entitled to indemnification
hereunder.
2.7 Contribution
2.7.1. Indemnification Provisions Unenforceable.
If a claim by an Indemnified Party for indemnification under Section 2.6
is found unenforceable in a final judgment by a court of competent jurisdiction
(not subject to further appeal or review) even though the express provisions
hereof provide for indemnification in such case, then the Company, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of the Company, on the one
hand, and such Indemnified Party, on the other hand, in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of the Company, on
the one hand, and any Indemnified Party, on the other hand, shall be determined
by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact, has been taken by, or relates to
information supplied by the Company on the one hand or such Indemnified Party
on the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such action, statement or
omission. The amount paid or payable by a party as a result of any Losses
shall be deemed to include any legal or other fees or expenses incurred by such
party in connection with any proceeding.
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2.7.2. No Pro Rata Allocation.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.7 were determined by pro rata
allocation or by any other method of allocation that does not account for the
equitable considerations referred to in Section 2.7.1 hereof. Notwithstanding
the provisions of this Section 2.7, no Indemnified Party shall be required to
contribute any amount in excess of the amount by which the price at which the
Securities sold by such Indemnified Party and distributed to the public exceeds
the amount of any damages that such Indemnified Party has otherwise been
required to pay by reason of such statement or omission. No Person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the
Securities Act shall be entitled to contribution from any Person who is not
guilty of such fraudulent misrepresentation.
2.7.3. Survival of Obligations.
The obligations of the Company under Section 2.6 and this Section 2.7
shall survive the redemption of the Securities, any transfer of the Securities
by you, or exercise of the Warrants, and any termination of this Agreement or
the other Documents.
2.8 Further Actions.
During the period from the date hereof to the Closing Date, the Company
shall take all actions reasonably necessary or appropriate to cause their
representations and warranties contained in Section 5 hereof to be true and
correct in all material respects as of the Closing Date, after giving effect to
the transactions contemplated by this Agreement, as if made on and as of such
date.
SECTION 3. CLOSING CONDITIONS
3.1 Conditions to Your Obligations.
Your obligation to purchase and pay for the Securities to be delivered to
you at the Closing shall be subject to the satisfaction of the following
conditions as of the Closing Date.
3.1.1 (a) a favorable opinion, dated the Closing Date and addressed
to you, from counsel for the Company, in form and substance reasonably
satisfactory to you and substantially in the form set forth in Exhibit B
hereto; and
(b) a favorable opinion, dated the Closing Date and addressed to you,
from Creel, Garcia-Cuellar y Muggenburg, Mexican counsel for Cinemark de
Mexico, in form and substance reasonably satisfactory to you and substantially
in the form set forth in Exhibit C hereto.
3.1.2. Officers' Certificates.
(a) You shall have received a certificate or certificates, dated the
Closing Date and signed by the President or a Vice President of the Company
certifying (i) that the conditions set forth in Sections 3.1.4 through 3.1.6,
and Sections 3.1.8, 3.1.10 and 3.1.11 hereof have been satisfied on and as of
such date and (ii) as to such other matters as you may reasonably request.
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(b) You shall have received a certificate, dated the Closing Date and
signed by the Secretary or an Assistant Secretary of the Company, certifying
such matters as such Purchaser may reasonably request.
3.1.3. Issue of Securities.
Simultaneously with the sale to you of the Securities to be purchased by
you at the Closing, the Company shall have issued Warrant Certificates and
received payment for the Securities.
3.1.4. Representations and Warranties True; No Event of Default.
The representations and warranties of the Company contained herein and in
each of the other Documents shall be true and correct in all material respects
at and as of the Closing Date, after giving effect to the transactions
contemplated by this Agreement and the other Documents, as if made on and as of
such date. There shall exist at and as of the Closing Date (after giving
effect to the transactions contemplated by this Agreement and the other
Documents) no Default or Event of Default.
3.1.5. Compliance with Agreements.
The Company shall have performed and complied in all material respects
with all agreements, covenants and conditions contained herein and in the other
Documents that are required to be performed or complied with by the Company on
or before the Closing Date.
3.1.6. Your Purchase Permitted by Applicable Laws; Legal Investment.
Your purchase of and payment for the Securities to be purchased by you (a)
shall not be prohibited by any applicable law or governmental regulation,
release, interpretation or opinion and (b) shall be permitted by the laws and
regulations of the jurisdictions to which you are subject.
3.1.7. The First Amendment to Warrant Registration Rights Agreement,
the Warrant Certificates and the Second Supplemental Indenture.
(a) The Company shall have executed the Warrant Certificates, and you
shall have received an original, duly executed by the Company, of the Warrant
Certificates.
(b) The Company shall have duly executed and delivered to you the First
Amendment to Warrant Registration Rights Agreement incorporating the Warrants.
(c) The Company, Cinemark de Mexico and United States Trust Company of
New York, as Trustee, shall have duly entered into the Second Supplemental
Indenture and you shall have received counterparts, conformed and executed, of
the Second Supplemental Indenture.
3.1.8. Consents and Permits.
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The Company shall have received all consents, permits and other
authorizations, and made all such filings and declarations, as may be required
pursuant to any law, statute, regulation or rule (Federal, state, local and
foreign), contemplated by this Agreement and the other Documents, including the
issuance and sale of the Securities to the Purchasers, and pursuant to all
other agreements, orders and decrees to which any of them is a party or to
which any of them is subject, in connection with the transactions to be
consummated on or prior to the Closing Date contemplated by this Agreement and
the other Documents.
3.1.9. Proceedings Satisfactory.
All corporate proceedings taken in connection with the sale of the
Securities and all documents relating thereto, shall be reasonably satisfactory
in form and substance to you. You shall have received copies of such documents
as you or they may reasonably request in connection with the Closing, all in
form and substance reasonably satisfactory to you. Each Document shall be
reasonably satisfactory in form and substance to you.
3.1.10 No Material Adverse Change
There shall have not occurred any material adverse change in the
operations, business, properties, prospects, condition (financial or otherwise)
or results of operations of the Company, and its subsidiaries, taken as a
whole, subsequent to June 30, 1995, other than the failure to make an interest
payment due on August 1, 1995 as required by the Indenture.
3.1.11. No Material Judgment or Order.
There shall not be on the Closing Date any judgment or order of a court of
competent jurisdiction or any ruling of any agency of the Federal, state or
local government that, in the reasonable judgment of you or your special
counsel, would prohibit the sale or issuance of the Securities hereunder or
subject the Company to any material penalty if the Securities were to be issued
and sold hereunder.
3.1.12. Payment of Interest on the Notes.
On the Closing Date, the Company shall have deposited with the Trustee
pursuant to Section 3.7(1) of the Indenture an amount of money equal to the
aggregate amount due with respect to the August 1, 1995 interest payment under
the terms of the Notes.
3.2 Conditions to the Obligations of the Company.
The obligations of the Company to sell the Securities to be delivered to
you at the Closing shall be subject to the satisfaction of the following
conditions:
3.2.1. Sale of Securities
The Purchasers shall have delivered payment to the Company, in respect of
the several purchases of the Securities, in an aggregate amount of
$1,324,131.53.
3.2.2. Purchasers' Representations and Warranties.
Each Purchaser's payment of the purchase price for the Securities
purchased by him or it at the Closing shall constitute a certification by that
Purchaser that all of his or its representations and warranties made herein and
in the other Documents shall be true and correct in all material respects at
and as of the Closing Date, after giving effect to the transactions
contemplated by this Agreement and the other Documents, as if made at and as of
such date.
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3.2.3. No Material Judgment or Order.
There shall not be on the Closing Date any judgment or order of a court of
competent jurisdiction or any ruling of any agency of the Federal, state or
local government that, in the reasonable judgment of the Company, would
prohibit the sale or issuance of the Securities hereunder or subject the
Company to any material penalty if the Securities were to be issued and sold
hereunder.
3.2.4. The Sale by the Company Permitted by Applicable Laws.
The sale by the Company and your payment for the Securities to be
purchased by you (a) shall not be prohibited by any applicable law or
governmental regulation, release, interpretation or opinion, (b) shall not
subject the Company to any penalty under or pursuant to any applicable law or
governmental regulation, and (c) shall be permitted by the laws and regulations
of the jurisdictions to which the Company is subject.
3.2.5. Consents and Permits.
Each Purchaser shall have received all consents, permits and other
authorizations, and made all such filings and declarations, as may be required
pursuant to any law, statute, regulation or rule (Federal, state, local and
foreign), contemplated by this Agreement and the other Documents, including the
purchase of the Securities by such Purchaser, and pursuant to all other
agreements, orders and decrees to which such Purchaser is a party or to which
such Purchaser is subject, in connection with the transactions to be
consummated on or prior to the Closing Date contemplated by this Agreement and
the other Documents.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of you as follows:
4.1 Organization, Standing and Qualification.
4.1.1 Organization; Standing.
The Company and Cinemark de Mexico are corporations duly incorporated,
validly existing and in good standing under the laws of their respective
jurisdictions of incorporation; have all requisite corporate power and
authority to own or lease, and operate their respective properties and assets,
and to carry on their respective businesses as now conducted and as proposed to
be conducted; and are duly qualified or licensed to do business and are in good
standing as foreign corporations in all jurisdictions in which such companies
own or lease property or in which the conduct of their respective businesses
requires them so to qualify or be licensed, except where the failure so to
qualify would not, singly or in the aggregate, have a Material Adverse Effect.
4.1.2 Authority.
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The Company and Cinemark de Mexico have all requisite corporate power and
authority to enter into and perform all of their respective obligations under
this Agreement and the other Documents to which each is a party, to issue, sell
and deliver the Securities to be issued by it, and to carry out the
transactions contemplated by this Agreement or any other Document.
4.2 Capitalization.
The total authorized Capital Stock of the Company on the Closing Date will
consist of 100,000,000 shares of Common Stock, 1,382,982 shares of which will
be issued and outstanding. On the Closing Date, each share of the Company's
Capital Stock that is issued and outstanding will have been duly authorized and
validly issued, and will be fully paid and nonassessable. There are no
outstanding (i) securities convertible into or exchangeable for any Capital
Stock of the Company, (ii) except as disclosed in Schedule 4.2 attached hereto,
options, warrants or other rights to purchase or subscribe to Capital Stock of
the Company, or securities convertible into or exchangeable for Capital Stock
of the Company, (iii) contracts, commitments, agreements, understandings,
arrangements, calls or claims of any kind relating to the issuance of any
Capital Stock of the Company, any such convertible or exchangeable securities
or any such options, warrants or rights or (iv) any voting trust, agreement,
contract, commitment, understanding or arrangement with respect to the voting
of any Capital Stock of the Company, except (a) preemptive rights contained in
the Articles of Incorporation of the Company and (b) the Shareholders Agreement
dated as of July 30, 1993 among the Company, Cinemark II, Inc. and New Wave
Investments A.V.V.
4.3 Authorization of Agreement and Other Documents.
The Company and Cinemark de Mexico have taken all corporate actions
necessary to authorize each to enter into and perform their respective
obligations under each of this Agreement and the other Documents to which each
is a party and to consummate the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Securities).
This Agreement is, and, as of the Closing Date (assuming payment of the
purchase price for the Securities by the Purchasers), each of the Documents to
which the Company or Cinemark de Mexico is a party will be, a legal, valid and
binding obligation of the Company and Cinemark de Mexico, respectively,
enforceable against the Company and, in accordance with its terms, except as
such enforcement may be subject to (i) applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws now or
hereafter affecting creditors' rights and remedies generally and (ii) general
principles of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law).
4.4 No Violation
4.4.1 Existing Violations.
Neither the Company nor Cinemark de Mexico is (i) in violation of its
respective Charter Documents or (ii) in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or
any other evidence of indebtedness or in any indenture, mortgage, deed of trust
or any other agreement or instrument to which any of them is a party other than
such defaults that could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
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There exists no condition that, with the passage of time or otherwise, would
constitute a violation of such Charter Documents or a default under any such
document or instrument or result in the imposition of any penalty or the
acceleration of any indebtedness or other obligation other than such defaults
that would not, singly or in the aggregate, result in a Material Adverse
Effect.
4.4.2 Execution of Agreement.
Neither the execution or delivery by the Company or Cinemark de Mexico of
this Agreement or the other Documents to which any of them is a party, the
issuance, sale or delivery of the Securities, the performance by the Company or
Cinemark de Mexico of any of their obligations pursuant to this Agreement and
the other Documents, nor the consummation of the transactions contemplated
hereby or thereby will conflict with, violate, constitute a breach of or a
default (with the passage of time or otherwise) under, require the consent of
any Person (other than consents already obtained) under, result in the
imposition of any penalty, or result in the imposition of a lien on any
properties of the Company or Cinemark de Mexico or an acceleration of
indebtedness or other obligation pursuant to, (i) the Charter Documents of the
Company or Cinemark de Mexico, (ii) any bond, debenture, note or any other
evidence of indebtedness or any indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or Cinemark de Mexico is a party
or by which either of them is bound or to which any of the property or assets
of the Company or Cinemark de Mexico is subject, or (iii) any Applicable Law,
except in any case where such violation, default, breach or conflict, or the
absence of such consent or the creation of such lien, would not, singly or in
the aggregate, result in a Material Adverse Effect.
4.5 Use of Proceeds.
The proceeds from the sale of the Securities shall be used by the Company
to acquire, construct and operate indoor motion picture theatres in Mexico, and
other businesses incidental thereto and to make Permitted Investments as such
term is defined in the Indenture.
4.6 Financial Statements
4.6.1 No Material Adverse Change
Since June 30, 1995, there has been no material adverse change in the
properties, business, prospects, operations, earnings, assets, liabilities or
condition (financial or otherwise) of the Company or Cinemark de Mexico from
that set forth in the Company's quarterly report on Form 10-Q for the quarterly
period ended June 30, 1995 (the "June 30, 1995 Quarterly Report"), other than
the failure to make an interest payment due on August 1, 1995 as required by
the Indenture.
4.6.2 Liabilities
On a consolidated basis, the Company and Cinemark de Mexico have no
liability or obligation (absolute, accrued, contingent or otherwise), except
(i) liabilities reflected in the June 30, 1995 Quarterly Report, and (ii) other
liabilities incurred in the ordinary course of business, consistent with past
practices (and in any case not in excess of $250,000), since June 30, 1995.
The Company and Cinemark de Mexico have no material,
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long-term commitments other than the Notes or material unrealized losses or
anticipated losses from any unfavorable commitments, except as reflected in the
June 30, 1995 Quarterly Report.
4.6.3 No Untrue Statement
None of the June 30, 1995 Quarterly Report or any of the Documents
contains as of its respective date and the date hereof any untrue statement of
a material fact or omits to state a material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
4.7 Litigation.
4.7.1 No Material Proceedings.
There is no Proceeding against or affecting the Company or Cinemark de
Mexico or any of their properties or assets except for such Proceedings that,
if finally determined adversely to the Company or Cinemark de Mexico, would
not, singly or in the aggregate, have a Material Adverse Effect.
4.7.2 No Material Judgments.
Neither the Company nor Cinemark de Mexico is subject to any judgment,
order, decree, rule or regulation of any court, governmental authority or
arbitration board or tribunal that would, singly or in the aggregate, have a
Material Adverse Effect.
4.8 Taxes
All material tax returns required to be filed by the Company or Cinemark
de Mexico in any jurisdiction (including foreign jurisdictions) have been
timely so filed, and all material taxes, assessments, fees and other charges
(including, without limitation, withholding taxes, penalties, and interest) due
or claimed to be due from the Company or Cinemark de Mexico that are due and
payable have been paid, other than those (i) being contested in good faith and
for which an adequate reserve or accrual has been established or (ii) those
currently payable without penalty or interest and for which an adequate reserve
or accrual has been established or extensions duly filed. The Company and
Cinemark de Mexico know of no actual or proposed additional tax assessments for
any fiscal period against the Company or Cinemark de Mexico that would, singly
or in the aggregate, have a Material Adverse Effect. Neither the Company's nor
Cinemark de Mexico's income or franchise tax returns are under audit and no
waivers of the statute of limitations or extensions of time with respect to any
tax returns have been granted by the Company or Cinemark de Mexico.
4.9 ERISA
The execution and delivery of this Agreement, the other Documents and the
sale of the Securities to be purchased by you will not, to the Company's
knowledge, involve any "prohibited transaction." To the Company's knowledge,
none of the Company, Cinemark de Mexico, or any of their ERISA Affiliates is a
"party in interest" or a "disqualified person" except as to those employee
benefit plans set forth on Schedule 2.3.3. To the Company's knowledge, no
condition exists or event or transaction has occurred in
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connection with any "employee benefit plan" maintained or contributed to by the
Company or Cinemark de Mexico or any ERISA Affiliate of the Company or Cinemark
de Mexico any plan being herein referred to as the "Pension Plan") that could
result in the Company or Cinemark de Mexico or any such ERISA Affiliate
incurring any liability, fine or penalty which would, singly or in the
aggregate, have a Material Adverse Effect. With respect to any Pension Plan
that is subject to Title IV of ERISA, (a) the fair market value of the assets
of such Pension Plan equals or exceeds (and will equal or exceed immediately
subsequent to the consummation of the transactions contemplated hereby) the
present value of the liabilities of such Pension Plan (as determined in
accordance with the actuarial methods and assumptions set forth in the latest
actuarial report for such Pension Plan), except (i) as set forth on Schedule
4.9 hereto, or (ii) where the failure so to equal or exceed would not, singly
or in the aggregate, have a Material Adverse Effect and (b) there exists (and
will exists immediately subsequent to the consummation of the transactions
contemplated hereby) no accumulated funding deficiency.
4.10 Compliance with Laws.
The Company and Cinemark de Mexico are not in violation of any Applicable
Law, except such violations as may not, singly or in the aggregate, have a
Material Adverse Effect. Neither the Company nor Cinemark de Mexico has failed
to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership or operation of their respective
properties or the conduct of their business as currently conducted, except such
failures as could not, singly or in the aggregate, have a Material Adverse
Effect.
4.11 Governmental Consents.
No consent, approval or authorization of, or filing, registration or
qualification with, any governmental or regulatory authority or body is
required in connection with or as a condition to the execution and delivery of
this Agreement or any of the other Documents or the consummation of
transactions contemplated hereby or thereby (including, without limitation, the
offer, issuance, sale or delivery of the Securities at the Closing), except for
such consents, approvals, authorizations, filings, registrations or
qualifications as have been made or obtained on or before the Closing Date (and
copies of which will be delivered to you upon your request) or are not required
to be made or obtained prior to the Closing Date and except to the extent that
the failure to obtain any such consents, approvals, authorizations or
qualifications or to make any such filings or registrations could not, singly
or in the aggregate, have a Material Adverse Effect.
4.12 Private 0ffering.
4.12.1 Sale Exempt.
Based in part on representations made by the Purchasers, and assuming the
correctness of such representations, the sale of the Securities hereunder is
exempt from the registration and prospectus delivery requirements of the
Securities Act.
4.12.2 No General Solicitation.
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In the case of each offer or sale of the Securities, no form of general
solicitation or general advertising was used by the Company or any of its
officers, directors or employees including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper, magazine
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees had been invited by any general solicitation or general
advertising. No offers were made by the Company or any of its officers,
directors or employees other than to persons whom the offeror reasonably
believed to be accredited investors or sophisticated purchasers as those terms
have been construed under Section 4(2) of the Securities Act. The Purchasers
are the sole purchasers of the Securities. No securities of the same class as
any of the Securities have been issued and sold by the Company within the
six-month period immediately prior to the date hereof. The Company agrees that
neither it nor anyone acting on its behalf, will, with the Company's knowledge,
offer any Securities so as to bring the issuance and sale of any of the
Securities within the provisions of Section 5 of the Securities Act nor offer
any similar securities for issuance or sale to, or solicit any offer to acquire
any of the same from, or otherwise approach or negotiate with respect thereto
with anyone if the sale of any of the Securities and any such securities could
be integrated as a single offering for purposes of the Securities Act.
4.13 Brokers.
The Company has not dealt with any broker, finder, commission agent or
other Person in connection with the sale of the Securities and the transactions
contemplated by this Agreement and the other Documents. The Company is under no
obligation to pay any broker's fee or commission in connection with such
transactions.
4.14 Patents, Trademarks, etc.
The Company and Cinemark de Mexico own, or are licensed under, and have
the right to use, all material patents, trademarks, trade names, copyrights,
technology, know-how and processes (collectively, "Intellectual Property")
necessary for the conduct of their respective businesses. The consummation of
the transactions contemplated by this Agreement and the other Documents will
not alter or impair any such rights, except to the extent that any such
alterations or impairments would not, singly or in the aggregate, have a
Material Adverse Effect. No claims have been asserted by any person to the use
of any Intellectual Property or challenging or questioning the validity or
effectiveness of any license or agreement related thereto and the use of such
Intellectual Property by the Company or Cinemark de Mexico does not infringe on
the rights of any person, except to the extent that any such claims or
infringements would not, singly or in the aggregate, have a Material Adverse
Effect.
4.15 Title to and Condition of Properties.
The Company and Cinemark de Mexico (a) have good and marketable title to
all the real or personal properties and other assets (tangible, intangible or
mixed) each purports to own, free and clear of all liens, except for liens
permitted under the Indenture and (b) enjoy peaceful and undisturbed possession
under all leases to which each is a party as lessee. To the Company's
knowledge, all leases and other agreements to which the Company or Cinemark de
Mexico is a party are valid and binding and in full force and effect. To the
Company's knowledge, no default has occurred or is continuing under such leases
and other agreements, and no consent need be obtained (other than
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consents that will be obtained prior to the Closing Date), from any Person in
respect of any such lease or agreement in connection with the transactions
contemplated by this Agreement and the other Documents, except to the extent
that any such defaults, or the failure to obtain any such consents, could not,
singly or in the aggregate, have a Material Adverse Effect. The properties
used or useful to the conduct of the business of the Company and Cinemark de
Mexico are in good repair and working order, except to such extent as could
not, singly or in the aggregate, have a Material Adverse Effect. The Company
and Cinemark de Mexico maintain with reputable insurers such insurance as may
be required by law and such other insurance, to such extent and against such
hazards and liabilities, as is customarily maintained by companies similarly
situated (which may include self-insurance in the same form as is customarily
maintained by companies similarly situated).
4.16 Burdensome Agreements
To the knowledge of the Company, no agreement or instrument to which the
Company or Cinemark de Mexico is a party or by which either of them may be
bound or to which any of their properties may be subject contains any unusual
or burdensome provisions that would have a Material Adverse Effect on the
Company or Cinemark de Mexico.
4.17 Cinemark II, Inc. Investment
On December 30, 1994, Cinemark II, Inc. purchased 574,851 shares of common
stock of the Company at a price of $8.6979 per share.
4.18 Survival of Indemnification and Contribution and Representations and
Warranties.
All of the representations and warranties of the Company in this Agreement
and the other Documents and in any other document, financial statement or other
instrument or certificate delivered to you by or on behalf of the Company in
connection with this Agreement and the Documents and the transactions
contemplated hereby and thereby shall be deemed to constitute representations
and warranties hereunder and shall be true in all material respects at and as
of the Closing Date, after giving effect to the transactions contemplated
hereby.
All of the obligations to indemnify you and contribute to your losses
contained in this Agreement and the other Documents and in any other document,
financial statement or other instrument or certificate delivered to you by or
on behalf of the Company in connection with this Agreement and the Documents
and the transactions contemplated hereby and thereby and all of the
representations and warranties of the Company shall survive the execution and
delivery of this Agreement and the other Documents, any investigation by you
and the issuance of the Securities.
SECTION 5. MISCELLANEOUS
5.1 Notices.
Prior to the Closing, and thereafter with respect to matters pertaining to
this Agreement only, all notices and other communications provided for or
permitted
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hereunder shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail return receipt requested, telex, or facsimile:
(a) if to you, at your address set forth below your signature on the
signature page hereto with a copy to Ropes & Gray, One International Place,
Boston, Massachusetts 02110, Attention: Don S. De Amicis, Esq.; and
(b) if to the Company, at its address set forth on the first page of this
Agreement with a copy to Akin, Gump, Strauss, Hauer & Feld, L.L.P., 1700
Pacific Avenue, Suite 4100, Dallas, Texas 75201-4618, Attention: Terry Schpok,
Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being timely delivered to a next-day air courier; five business days after
being deposited in the mail, postage prepaid, if mailed; when answered back if
telexed; and when receipt is acknowledged by the recipient's telecopier
machine, if telecopied.
From and after the Closing, the foregoing notice provisions shall be
superseded by the notice provisions of the Document under which notice is
given.
5.2 Successors and Assigns
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, and to the extent set forth in
Sections 2.6 and 2.7 hereof, the Indemnified Parties and their respective
heirs, personal representatives, successors and assigns and no other persons
shall acquire or have any right under or by virtue of this Agreement.
5.3 Amendment and Waiver
This Agreement and the other Documents may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, provided that the same are in writing and signed by you and the
Company.
5.4 Counterparts.
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
5.5 Headings.
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
5.6 Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PURCHASER TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
5.7 Entire Agreement.
This Agreement, together with the other Documents and the Securities are
intended by the parties as a final expression of their agreement and intended
to, be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein and
therein. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein and therein. This Agreement,
together with the other Documents and the Securities, supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
5.8 Severability
If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to
be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
that may be hereafter declared invalid, illegal, void or unenforceable.
If this Agreement is satisfactory to you, please so indicate by signing
the acceptance at the foot of a counterpart of this Agreement and return such
counterpart to the Company whereupon this Agreement will become binding between
us in accordance with its terms.
Very truly yours,
CINEMARK MEXICO (USA), INC.
By: /s/ Jeffrey J. Stedman
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Name: Jeffrey J. Stedman
Title: Vice President
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