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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
INTEGRITY MEDIA, INC.
AND
ANTON JACOBUS BEKKER
PAUL MICHAEL ALCOCK
SAREPTA MUSIC (PTY) LTD
DATED AS OF MARCH 18, 2003
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS.....................................................................................1
SECTION 1.1 CERTAIN DEFINITIONS..........................................................................1
SECTION 1.2 SINGULAR AND PLURAL..........................................................................6
SECTION 1.3 INTERPRETATION...............................................................................6
ARTICLE 2 PURCHASE AND SALE OF SHARES.....................................................................6
SECTION 2.1 PURCHASE AND SALE OF SHARES AND CLAIMS.......................................................6
SECTION 2.2 PURCHASE PRICE...............................................................................6
SECTION 2.3 PLACE AND DATE OF CLOSING; CLOSING DELIVERIES................................................7
SECTION 2.4 WIRE TRANSFERS...............................................................................8
SECTION 2.5 REGISTRATION OF SHARE TRANSFER...............................................................8
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLERS.......................................................8
SECTION 3.1 ORGANIZATION.................................................................................8
SECTION 3.2 CAPITALIZATION...............................................................................9
SECTION 3.3 OWNERSHIP OF SHARES..........................................................................9
SECTION 3.4 AUTHORITY....................................................................................9
SECTION 3.5 GOVERNMENTAL AUTHORIZATION...................................................................9
SECTION 3.6 NON-CONTRAVENTION............................................................................9
SECTION 3.7 OWNERSHIP OF ASSETS.........................................................................10
SECTION 3.8 FINANCIAL STATEMENTS........................................................................10
SECTION 3.9 ABSENCE OF CERTAIN CHANGES..................................................................10
SECTION 3.10 ABSENCE OF UNDISCLOSED LIABILITIES..........................................................11
SECTION 3.11 MATERIAL CONTRACTS..........................................................................12
SECTION 3.12 LITIGATION..................................................................................14
SECTION 3.13 COMPLIANCE WITH APPLICABLE LAWS.............................................................14
SECTION 3.14 ENVIRONMENTAL COMPLIANCE....................................................................14
SECTION 3.15 PERSONAL PROPERTY...........................................................................14
SECTION 3.16 REAL PROPERTY...............................................................................15
SECTION 3.17 INTELLECTUAL PROPERTY.......................................................................15
SECTION 3.18 EMPLOYEE BENEFIT PLANS......................................................................16
SECTION 3.19 LABOR AND EMPLOYMENT MATTERS................................................................17
SECTION 3.20 TAX MATTERS.................................................................................17
SECTION 3.21 BROKERAGE AND FINANCIAL ADVISERS............................................................18
SECTION 3.22 CONSENTS AND APPROVALS......................................................................18
SECTION 3.23 INSURANCE...................................................................................18
SECTION 3.24 CONVERSION TO PRIVATE COMPANY...............................................................19
SECTION 3.25 APPOINTMENT OF ACTING MANAGER...............................................................19
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER........................................................19
SECTION 4.1 CORPORATE EXISTENCE AND POWER...............................................................19
SECTION 4.2 AUTHORITY...................................................................................19
SECTION 4.3 GOVERNMENTAL AUTHORIZATION..................................................................20
SECTION 4.4 NON-CONTRAVENTION...........................................................................20
SECTION 4.5 BROKERAGE AND FINANCIAL ADVISERS............................................................20
SECTION 4.6 SUFFICIENT FUNDS............................................................................20
ARTICLE 5 COVENANTS......................................................................................20
SECTION 5.1 CONDUCT OF BUSINESS.........................................................................20
SECTION 5.2 CERTAIN TRANSACTIONS........................................................................21
SECTION 5.3 INVESTIGATIONS; PRE-CLOSING ACCESS..........................................................21
SECTION 5.4 POST-CLOSING ACCESS.........................................................................22
SECTION 5.5 FILINGS; OTHER ACTIONS; NOTIFICATIONS.......................................................22
SECTION 5.6 FURTHER ASSURANCES..........................................................................22
SECTION 5.7 EXPENSES....................................................................................23
SECTION 5.8 TAX MATTERS.................................................................................23
SECTION 5.9 DISCLOSURE SUPPLEMENTS......................................................................25
SECTION 5.10 PUBLICITY...................................................................................25
SECTION 5.11 FILING OF CONSENT TO ACT AS DIRECTOR OR OFFICER FORMS.......................................25
SECTION 5.12 SUBMISSION OF EXCHANGE CONTROL APPLICATION..................................................25
SECTION 5.13 COIDA REGISTRATION..........................................................................25
ARTICLE 6 CONDITIONS TO CLOSING..........................................................................26
SECTION 6.1 CONDITIONS TO CLOSING OF EACH PARTY.........................................................26
SECTION 6.2 CONDITIONS TO OBLIGATIONS OF SELLERS........................................................26
SECTION 6.3 CONDITIONS TO OBLIGATIONS OF BUYER..........................................................26
ARTICLE 7 TERMINATION....................................................................................28
SECTION 7.1 TERMINATION BY MUTUAL CONSENT...............................................................28
SECTION 7.2 TERMINATION BY EITHER SELLERS OR BUYER......................................................28
SECTION 7.3 TERMINATION BY SELLERS......................................................................28
SECTION 7.4 TERMINATION BY BUYER........................................................................28
SECTION 7.5 EFFECT OF TERMINATION AND ABANDONMENT.......................................................28
ARTICLE 8 INDEMNIFICATION................................................................................29
SECTION 8.1 SURVIVAL....................................................................................29
SECTION 8.2 OBLIGATION OF SELLERS TO INDEMNIFY..........................................................29
SECTION 8.3 OBLIGATION OF BUYER TO INDEMNIFY............................................................29
SECTION 8.4 NOTICE OF LOSS, ASSERTED LIABILITY..........................................................30
SECTION 8.5 OPPORTUNITY TO CONTEST......................................................................30
SECTION 8.6 SETTLEMENT..................................................................................30
SECTION 8.7 PROCEDURES FOR INDEMNIFICATION..............................................................31
SECTION 8.8 LIMITATIONS ON INDEMNIFICATION..............................................................31
SECTION 8.9 SOLE REMEDY.................................................................................31
SECTION 8.10 CERTAIN REDUCTIONS; SUBROGATION RIGHTS......................................................31
ARTICLE 9 MISCELLANEOUS..................................................................................32
SECTION 9.1 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES..............................................32
SECTION 9.2 AMENDMENTS..................................................................................32
SECTION 9.3 WAIVERS.....................................................................................32
SECTION 9.4 ASSIGNMENT..................................................................................33
SECTION 9.5 NOTICES.....................................................................................33
SECTION 9.6 GOVERNING LAW...............................................................................34
SECTION 9.7 COUNTERPARTS................................................................................34
SECTION 9.8 CAPTIONS....................................................................................34
SECTION 9.9 INTERPRETATIONS.............................................................................34
SECTION 9.10 SEVERABILITY................................................................................34
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of March
18, 2003, is entered into by and between INTEGRITY MEDIA, INC., a Delaware
corporation ("Buyer"), and ANTON JACOBUS BEKKER, an individual resident of the
Republic of South Africa temporarily abroad, PAUL MICHAEL ALCOCK, an individual
resident of the Republic of South Africa (collectively, "Sellers"), and SAREPTA
MUSIC (PTY) LTD, a private company organized and existing under the laws of the
Republic of South Africa and successor in interest to Sarepta Music CC, a close
corporation organized under the laws of the Republic of South Africa and
converted into Sarepta Music (Pty) Ltd pursuant to the Conversion (Sarepta
Music (Pty) Ltd and Sarepta Music CC are collectively referred to as the
"Company").
RECITALS:
WHEREAS, Sellers own the entire issued share capital of the Company,
being 100 ordinary par value shares of R1 each (the "Shares"); and
WHEREAS, Sellers desire to sell to Buyer, and Buyer desires to
purchase from Sellers, the Shares.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS.
(a) The following capitalized terms shall have the respective
meanings set forth below:
"Affiliate" means, with respect to a specified Person, at the time in
question, any other Person controlling, controlled by or under common control
with the specified Person.
"Applicable Law" means any domestic or foreign federal, state, local
or supranational statute, law, ordinance, rule, administrative code,
administrative interpretation, regulation, order, writ, injunction, directive,
judgment, decree, policy,
ordinance, decision, guideline or other requirement (including those of any
self-regulatory organization) applicable to and enforceable against any of the
parties hereto.
"Artists" means the featured performers or artists whose performances
are embodied in or on the Master Recordings.
"Books and Records" means the books of accounts, minute books,
shareholder record books and other records of the Company.
"Business" means the business of the Company as presently conducted
and as proposed to be conducted.
"Business Day" means any day other than a Saturday, Sunday, or a day
on which banking institutions in the Republic of South Africa are permitted or
obligated by Applicable Law to be closed.
"Buyer Material Adverse Effect" means any circumstances, change in, or
effect on the Buyer or its business that, individually or when taken together
with all other related circumstances, results in a change in or effect on the
Buyer or its business that is materially adverse to the condition (financial or
otherwise), results of operations, earnings, business, assets (including
intangible assets) or prospects of the Buyer.
"Closing" means the consummation of the transactions contemplated by
this Agreement.
"COIDA" means the Compensation for Occupational Injuries and Disease
Act, 130 of 1993.
"Composer" means any writer, creator or producer of any performance by
an Artist embodied in or on the Master Recordings.
"Contract" means any written or oral agreement, arrangement,
commitment, contract, indenture, instrument, lease or obligation of any kind or
character to which any Person is a party or that is binding on any Person or
its assets or business.
"Environmental Laws" means any national, state or local laws, rules or
regulations of the Republic of South Africa, and any orders or decrees,
relating to the regulation or protection of the natural environment or to
releases or threatened releases of Hazardous Materials into the soil, land
surface or subsurface strata, surface waters (including navigable waters, ocean
waters, streams, ponds, drainage basins, and wetlands), ground waters, drinking
water supply, stream sediments, ambient air (including indoor air) and any
other environmental medium or natural resource.
"GAAP" means the Republic of South Africa generally accepted
accounting principles or practices as in effect from time to time.
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"Governmental Authority" means any public body or authority, including
courts of competent jurisdiction, domestic, supranational or foreign, or any
department, agency, board, governmental or non-governmental self-regulatory
organization, or other authority thereof.
"Guaranteed Indebtedness" of any Person means all Indebtedness of any
Person that is either (i) guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (a) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (b) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (c) to
supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether or not such
property is received or such services are rendered and any agreement to
maintain working capital or other balance sheet condition) or (d) otherwise to
assure the holder of such Indebtedness against loss, or (ii) secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any lien, security interest or other charge or
encumbrance upon or in property (including without limitation accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness.
"Hazardous Materials" means any waste or other substance that is
listed, defined, designated or classified as, or otherwise determined to be,
hazardous, radioactive or toxic or a pollutant or a contaminant under or
pursuant to any Environmental Law, including any admixture or solution thereof,
and specifically including petroleum and all derivatives thereof or synthetic
substitutes therefor and asbestos or asbestos-containing materials.
"Indebtedness" means, for any Person without double counting, (a) all
indebtedness or other obligations of such Person for borrowed money or for the
deferred purchase price of property or services, (b) all indebtedness created
or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (c) all obligations
under leases that are or should be, in accordance with GAAP, recorded as
capital leases in respect of which such Person is liable as lessee, (d)
liabilities in respect of unfunded vested benefits under any Plan, (e) all
obligations owed pursuant to any interest rate hedging arrangement and (f) all
Guaranteed Indebtedness.
"Knowledge" means, with respect to Sellers, those facts that are known
or should reasonably have been known after due inquiry by each of the following
individuals: Anton Jacobus Bekker, Paul Michael Alcock, Karen Dunnett, John
Hurley and Nici Vorster; and with respect to Buyer, those facts that are known
or should reasonably have been known after due inquiry by each of the following
individuals: P. Michael Coleman, Donald S. Ellington, Jerry W. Weimer, Keith J.
Manwaring and Donald K. Mayes.
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"Liabilities" means obligations of any nature, whether absolute,
accrued, contingent or otherwise, whether due or to become due and whether or
not required to be reflected or reserved against on a balance sheet under GAAP.
"Lien" means any claim, charge, conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, security interest or other security arrangement,
on or with respect to any asset or property.
"Loss" means any loss, damage, liability, claim, diminution in value,
cost or expense, including, but not limited to, reasonable attorneys' fees.
"Master Recordings" means the original material object in which
sounds, with or without visual images, are fixed by any method now known or
hereafter developed and from which sounds, with or without visual images, can
be perceived, reproduced or otherwise communicated, either directly or with the
aid of a machine, device or process including outtakes, unused portions and
similar material relating to the above.
"Order" means any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or writ
of any Governmental Authority, or any binding determination pursuant to
arbitration or other similar alternative dispute resolution forum.
"Permits" means all licenses, permits, orders, approvals,
registrations, authorizations, qualifications and filings with and under all
federal, state, local or foreign laws or governmental or regulatory bodies.
"Permitted Liens" means (i) Liens for Taxes not yet due and payable,
(ii) any minor imperfection of title that does not materially interfere with
the present use or the continuation of such present use in the Business, (iii)
purchase money Liens arising in the ordinary course of business, and (iv) Liens
reflected in the Financial Statements.
"Person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company,
trust, estate, unincorporated organization, governmental, judicial or
regulatory body, business unit, division or other entity.
"Sellers Material Adverse Effect" means any circumstances, change in,
or effect on the Company or its Business that, individually or when taken
together with all other related circumstances, results in a change in or effect
on the Company or its Business that is materially adverse to the condition
(financial or otherwise), results of operations, earnings, business, assets
(including intangible assets) or prospects of the Company.
"Tax" means any tax, charge, fee, duty, levy or other assessment
imposed by any Governmental Authority, including income, premium, gross
receipts, excise, real or
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personal property, value added, sales, gain, use license, capital stock,
transfer, franchise, payroll, withholding, social security or other tax,
assessment or governmental charge, including interest and penalties thereon.
"Tax Dispute Resolution Mechanism" shall mean the following procedure:
The parties will in good faith attempt to negotiate a settlement of the
dispute. Following receipt of notice from the party disputing the Straddle
Period Tax Returns, the parties shall in good faith attempt to negotiate a
settlement of the dispute. If the parties are unable to negotiate a resolution
of the dispute within fifteen (15) days, the dispute will be submitted to any
independent accounting firm of internationally recognized standing reasonably
satisfactory to the Buyer and the Sellers, or, in the event the parties cannot
agree on a reasonably satisfactory accounting firm, the dispute will be
submitted to the Chairman of Law Society of South Africa (collectively, the
"Tax Dispute Accountants"). The parties will present their arguments to the Tax
Dispute Accountants within five (5) days after submission of the dispute to the
Tax Dispute Accountants. The Tax Dispute Accountants will resolve the dispute,
in a fair and equitable manner and in accordance with the applicable Tax law
and this Agreement, within fifteen (15) days after the parties have presented
their arguments to the Tax Dispute Accountants, but in no case later than ten
(10) days prior to the due date of the applicable Tax Return. The fees and
expenses of the Tax Dispute Accountants in resolving a dispute will be borne by
the party whose position is determined to be the least correct by the Tax
Dispute Accountants and the resolution of the Tax Dispute Accountants shall be
binding on the parties.
(b) The capitalized terms set forth below shall have the meanings
ascribed thereto in the referenced sections and any word or phrase defined in
the body of this Agreement, as opposed to this Article 1, shall have the
meaning ascribed to it in such definition throughout this Agreement:
TERM SECTION
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Agreement 1st Paragraph
Asserted Liability 8.4
Benefit Plans 3.18(a)
Buyer 1st Paragraph
Claims 2.1
Claims Notice 8.4
Closing Date 2.3(a)
Company 1st Paragraph
Contest Notice 8.5
Conversion 3.24
Deposit 2.2
Exchange Control Application 5.12
Exchange Control Approval 2.3(a)
Financial Statements 3.8
Indemnified Party 8.4
Indemnifying Party 8.4
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Intellectual Property 3.17(a)
Leased Real Property 3.16(b)
Material Contracts 3.11(a)
Owned Personal Property 3.15(b)
Personal Property Leases 3.15(a)
Pre-Closing Tax Returns 5.8(a)(i)
Pre-Signing Matter 5.9
Post-Signing Matter 5.9
Purchase Price 2.2
Purchase Price Allocation 2.2
Real Property Leases 3.16(b)
Sellers 1st Paragraph
Shares 2nd Paragraph
Straddle Period Tax Returns 5.8(b)(i)
Tax Returns 3.20(a)
Termination Date 7.2
Threshold Amount 8.7(a)
SECTION 1.2 SINGULAR AND PLURAL. Unless the context indicates a
contrary intention, an expression which denotes gender includes the other
genders, a natural person includes a juristic person and vice versa, and the
singular includes the plural and vice versa.
SECTION 1.3 INTERPRETATION. If any provision in a definition
contains a substantive provision conferring rights or imposing obligations on
any party to this Agreement, then notwithstanding that it is in the
interpretation clause, effect shall be given to it as if it were a substantive
provision of this Agreement.
ARTICLE 2
PURCHASE AND SALE OF SHARES
SECTION 2.1 PURCHASE AND SALE OF SHARES AND CLAIMS. On the Closing
Date, upon the terms and subject to the conditions of this Agreement, Sellers
will sell, assign, transfer and deliver to Buyer, and Buyer will purchase and
accept from Sellers, the Shares and all of Sellers' rights, title and interests
in and to, including any and all claims of whatsoever nature and from
whatsoever cause arising, if any, which each of the Sellers may have against
the Company on the Closing Date, Sellers' loan accounts in the Company,
including, but not limited to, the members' loans recorded in the Financial
Statements (collectively, the "Claims").
SECTION 2.2 PURCHASE PRICE. On the Closing Date, upon the terms and
subject to the conditions of this Agreement, Buyer shall pay to Sellers the
aggregate amount of One Million (1,000,000) S.A. Rands in cash (the "Purchase
Price"), representing the total consideration to be paid to Sellers of One
Million Six Hundred Thousand (1,600,000) S.A. Rands minus the Six Hundred
Thousand (600,000) S.A. Rands deposit made by Buyer to the Company, acting as
an agent for the Sellers, on November 21, 2002 (the
6
"Deposit"), for the Shares and Claims. As between Buyer and Sellers, the
Purchase Price shall be allocated first to the Claims with the balance to the
Shares and to each Seller in accordance with the instructions listed on
SCHEDULE 2.3 (the "Purchase Price Allocation"). Sellers have agreed as to the
Purchase Price Allocation and Buyer shall have no responsibility with respect
to the Purchase Price Allocation.
SECTION 2.3 PLACE AND DATE OF CLOSING; CLOSING DELIVERIES.
(a) The Closing shall take place at the offices of Bowman
Gilfillan Inc., 9th Floor, Twin Towers West, Sandton City, South Africa, at
10:00 a.m. South African time on March 31, 2003 or, in the event that the
parties to this Agreement have not received the approval by the Exchange
Control Department of the South African Reserve Bank of the Exchange Control
Application contemplated by Section 5.12 of this Agreement (the "Exchange
Control Approval") prior to March 31, 2003, the Closing shall take place on the
Business Day after the day on which the parties receive the Exchange Control
Approval (the "Closing Date"); provided, however, that in the event that the
Exchange Control Approval is obtained on or after April 15, 2003 and prior to
April 30, 2003, the Closing Date shall be April 30, 2003. The Closing shall be
deemed effective as of 12:01 a.m. on the Closing Date only in the event that
the parties to this Agreement have received the Exchange Control Approval.
(b) Prior to the Closing, Sellers shall execute and/or deliver to
Bowman Gilfillan Inc. to be held in trust for Buyer and delivered to Buyer at
the Closing pending receipt of the Exchange Control Approval, the following:
(i) certificates representing all of the Shares,
together with duly signed and currently dated share transfer forms
signed by the Sellers as transferors with the Buyer's name inserted
therein as transferee, and any other instruments necessary to transfer
to Buyer good and marketable title to such Shares;
(ii) the Company's register of members and/or
shareholders and the Books and Records;
(iii) the documents and instruments specified in Section
6.3;
(iv) evidence of receipt of all consents identified on
SCHEDULE 6.3;
(v) the written resignation of all the directors of the
Company (other than the directors appointed on behalf of the Buyer),
its secretary and public officer, signed and dated as of the Closing
Date, which shall take effect immediately following the Closing,
together with a written undertaking by each of such directors that
they release any and all claims against the Company for compensation,
loss of office or otherwise, except for accrued but unpaid
remuneration and expenses waiting to be reimbursed;
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(vi) a Deed of Cession duly executed by Paul Michael
Alcock, Buyer and the Company; and
(vii) a Deed of Cession duly executed by Anton Jacobus
Bekker, Buyer and the Company.
(c) Prior to the Closing, Buyer shall execute and/or deliver to
Bowman Gilfillan Inc. to be held in trust for Sellers and delivered to Sellers
at the Closing pending receipt of the Exchange Control Approval the following:
(i) a cash payment equal to the amount of the Purchase
Price paid in accordance with the instructions listed on SCHEDULE 2.3;
and
(ii) the documents and instruments specified in Section
6.2;
SECTION 2.4 WIRE TRANSFERS. Any payment of cash required under this
Agreement shall be paid to the recipient in immediately available funds, S.A.
Rands, by means of either (a) a wire transfer, if the recipient provides to the
payer appropriate wire transfer instructions at least two Business Days prior
to the required date of payment, or (b) a check; provided however, that any
such payment shall be made into a South African bank account in accordance with
Applicable Law.
SECTION 2.5 REGISTRATION OF SHARE TRANSFER. At the Closing, the
Company's auditors shall, following receipt of the stamp duty payable with
respect to the transfer of the Shares, attend to registration of the transfer
of the Shares and the issuance of a new share certificate in the name of the
Buyer as the holder of the Shares, which issue shall constitute constructive
delivery of the Shares to the Buyer. The Sellers shall ensure that the share
certificates and register of members will be forwarded to the Buyer as soon as
possible after transfer has been registered as aforesaid.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby represent and warrant to Buyer as follows:
SECTION 3.1 ORGANIZATION. The Company is a private company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. The Company is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification or licensing necessary. The Company has heretofore made
available to Buyer complete and correct copies of the certificate of
incorporation, memorandum of understanding, articles of association and
by-laws, as currently in effect, of the Company.
8
SECTION 3.2 CAPITALIZATION. The authorised share capital of the
Company is R100 made up by way of 100 ordinary par value shares of R1 each.. As
of the date hereof there are, and as of the closing date there will be 100 of
such shares issued. The Shares have been duly authorized and validly issued and
are fully paid and non-assessable. Except as set forth in this Section 3.2,
there are no outstanding (i) shares of capital stock or voting securities of
the Company, (ii) securities of the Company convertible into or exchangeable
for shares of capital stock or voting securities of the Company or (iii)
options or other rights or agreements, either directly or indirectly, to
acquire from the Company, or other obligation of the Company to issue, any
capital stock, voting securities or securities convertible into or exchangeable
for capital stock or voting securities of the Company.
SECTION 3.3 OWNERSHIP OF SHARES. Sellers are the record and
beneficial owners of the Shares, free and clear of any Liens and any other
limitation or restriction (including any restriction on the right to vote, sell
or otherwise dispose of such Shares) and such Shares constitute all of the
issued shares of the Company. Sellers will transfer and deliver to Buyer at the
Closing valid title to the Shares free and clear of any Liens and any such
limitation or restriction. Company does not own, directly or indirectly, any
equity or voting interest in, or otherwise control, any Person, and does not
have any agreement or commitment to acquire any such interest.
SECTION 3.4 AUTHORITY. Sellers have all requisite power and
authority to execute and deliver, and to perform their obligations under this
Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Sellers and, subject to the
due execution and delivery by Buyer, will be a valid and binding obligation of
Sellers, enforceable against Sellers in accordance with its terms, except as
(i) the enforceability hereof may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
SECTION 3.5 GOVERNMENTAL AUTHORIZATION. Except as pertaining to the
Exchange Control Approval or set forth on SCHEDULE 3.5, the execution, delivery
and performance by Sellers of this Agreement and the consummation of the
transactions contemplated hereby do not require Sellers to obtain any consent,
approval or action of, make any filing with, or give any notice to, any
Governmental Authority.
SECTION 3.6 NON-CONTRAVENTION. Except as disclosed on SCHEDULE 3.6,
the execution, delivery and performance by Sellers of this Agreement and the
consummation of the transactions contemplated hereby will not (a) violate any
provision of the certificate of incorporation, memorandum of understanding,
articles of association or by-laws, as currently in effect, of the Company, (b)
violate, conflict with, result in the breach of or default under (or with
notice, lapse of time, or both would result in such a breach or default),
result in any modification of the effect of, provide the other contracting
party the right to terminate or materially amend, or require the other
contracting party to consent to the assignment or continuation of, any Material
Contract to which the Company is a
9
party, (c) violate any Order against or binding upon Sellers or the Company,
(d) violate any agreement with, or condition imposed by, any Governmental
Authority upon Sellers or the Company, (e) subject to obtaining the
governmental authorizations referred to in Section 3.4 hereof, violate any
Applicable Law, or (f) result in a breach or violation of any of the terms or
conditions of, constitute a default under, or otherwise cause an impairment or
a revocation of, any Permit of the Company, except for such breaches,
violations, defaults, impairments or revocations that would not have a Sellers
Material Adverse Effect.
SECTION 3.7 OWNERSHIP OF ASSETS. Except as set forth on SCHEDULE
3.7(A), the Company has good and indefeasible or marketable, as appropriate,
title to, or a valid leasehold interest in, or valid license to use, the
properties and assets it uses, including the Master Recordings listed on
SCHEDULE 3.7(B), the properties and assets shown on the Financial Statements or
acquired thereafter and all assets necessary for the conduct of its Business as
presently conducted and as presently proposed to be conducted, except for
properties and assets disposed of in the ordinary course of business since the
date of the Financial Statements and subject to no Liens except for Permitted
Liens. Except as described on SCHEDULE 3.7(A), buildings, equipment,
automobiles and other tangible assets of the Company necessary for the
operation of the Business are in good operating condition in all material
respects and are fit for use in the ordinary course of business.
SECTION 3.8 FINANCIAL STATEMENTS. SCHEDULE 3.8 contains complete and
correct copies of the balance sheets and statements of income and cash flow
from operations of the Company as of and for the periods ended June 30, 2002
and June 30, 2001 (collectively, the "Financial Statements"). The Financial
Statements (i) are in accordance with the books and records of the Company,
(ii) have been prepared in accordance with GAAP, and (iii) present fairly in
all material respects the financial position of the Company as of the dates
indicated and the results of its operations for the periods indicated.
SECTION 3.9 ABSENCE OF CERTAIN CHANGES. Since June 30, 2002, except
(i) as disclosed on SCHEDULE 3.9, (ii) for the actions contemplated by Section
3.24 of this Agreement, and (iii) for the transactions contemplated hereby,
Sellers and the Company have conducted the Business in the ordinary course of
business consistent with past practices and there has not been:
(a) any change in the Company's authorized or issued capital
stock; any grant of any stock option or right to purchase shares of capital
stock of the Company; any issuance of any security convertible into such
capital stock; any grant of any registration rights with respect to such stock;
any purchase, redemption, retirement, or other acquisition by the Company of
any shares of its capital stock;
(b) any amendment to the certificate of incorporation, memorandum
of understanding, articles of association or by-laws of the Company other than
the Conversion;
10
(c) any Lien placed on, or any sale or transfer of the Company's
assets, except for sales or transfers of products and services made in the
ordinary course of business consistent with past practice and except for
Permitted Liens;
(d) any capital expenditure except in the ordinary course of
business consistent with past practice;
(e) any material adverse change in the Company's business
affairs, condition (financial or otherwise) or prospects, or in the Company's
relationship with any Artist, Composer, singer, musician, publisher, producer,
customer, supplier, employee or other Person having a business relationship
with the Company;
(f) any employment, deferred compensation, severance, retirement
or other similar agreement (or any amendment to any such existing agreement)
offered to or entered into with any employee, any grant of any severance or
termination pay or "stay" bonus to any employee, or any change in compensation
or other benefits payable to any employee other than merit or tenure increases
granted in the ordinary course of business;
(g) any labor dispute, other than routine individual grievances,
or any activity or proceeding by a labor union or representative thereof to
organize any employees, or any lockouts, strikes, slowdowns, work stoppages or
any threats thereof by or with respect to any employees; or
(h) any loans to any employee other than loans to employees in
accordance with the terms of the Benefit Plans.
SECTION 3.10 ABSENCE OF UNDISCLOSED LIABILITIES.
(a) The Company does not have any Liabilities, contingent or
otherwise, or any unrealized or anticipated losses, except (a) Liabilities that
are fully reflected or reserved against in the Financial Statements, which
reserves are appropriate and reasonable, and (b) Liabilities incurred by the
Company in the ordinary course of business consistent with past practices that
are not required by GAAP to be reflected or reserved against on a balance
sheet.
(b) The Company is not directly or indirectly liable, by
guarantee, indemnity or otherwise, upon or with respect to, or obligated, by
discount or repurchase agreement or in any other way, to provide funds with
respect to, or obligated to guarantee or assume, any Liability for any person.
(c) All cash received by the Company and held in trust for the
benefit or on the account of an Artist, Composer or a customer of the Company
has at all times and is currently properly accounted for in accordance with the
Contract of each Artist, Composer or customer. There has been no violation or
breach by the Company or Sellers, of any Law, statute, regulation, fiduciary
obligation or agreement with respect to any such cash.
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SECTION 3.11 MATERIAL CONTRACTS.
(a) SCHEDULE 3.11 contains a correct and complete list of all
Contracts (other than the Personal Property Leases and Real Property Leases)
pursuant to which the Company has any rights or benefits or undertakes any
obligations or liabilities, in each case that requires or could require any
party thereto to pay 10,000 S.A. Rands or more annually, that is:
(i) an agreement, contract, or commitment with any
present or former employee or consultant or for the employment of any
person, including any consultant, who is engaged in the conduct of the
Business;
(ii) an agreement, contract, or commitment for the future
purchase of, or payment for, supplies or products, or for the
performance of services by a third party which supplies, products or
services are used in the conduct of the Business;
(iii) an agreement, contract or commitment of the Company
to perform collection services or similar duties in connection with
the Business;
(iv) an agreement with any Artist, Composer, singer,
musician, publisher or producer who renders services or otherwise
participates in the preparation or production of any sound recordings
in which the Company owns, licenses or otherwise controls the
copyright, in whole or in part, exclusively or non-exclusively, under
federal and foreign copyright law;
(v) any distribution agreement, any contract, or other
commitment related to the Business including agreements with any
Artist, Composer, singer, musician, publisher or producer;
(vi) a lease under which the Company is the lessor;
(vii) a note, debenture, bond, equipment trust agreement,
letter of credit agreement, loan agreement, or other contract or
commitment for the borrowing or lending of money relating to the
Business or agreement or arrangement for a line of credit or
guarantee, pledge, or undertaking of the indebtedness of any other
person relating to the Business;
(viii) an agreement, contract, or commitment for any
charitable or political contribution relating to the Business;
(ix) an agreement, contract, or commitment limiting or
restraining the Business or any successor thereto from engaging or
competing in any manner or in any business, nor, to the Knowledge of
Sellers, is any employee of the Company subject to any such agreement,
contract, or commitment;
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(x) a material agreement, contract, or commitment
relating to the Business not made in the ordinary course of business;
(xi) an agreement, contract or commitment between the
Company and any officer, director or Affiliate; or
(xii) any surety, fidelity or performance bonds of the
Company required by any entity.
The Contracts listed on SCHEDULE 3.11 are collectively the "Material
Contracts." A true and correct copy of each Material Contract (or, if oral, a
written description thereof) has been made available to Buyer.
(b) Each of the Material Contracts was entered into by the
Company in the ordinary course of business consistent with past practice, is in
full force and effect and there exists no breach or violation of or default
under any of such Material Contracts by the Company or, to the Knowledge of
Sellers, any other party to such Material Contracts or any event which, with
notice or the lapse of time, or both, to the Knowledge of Sellers, will create
a breach or violation thereof or default thereunder by the Company or any other
party to such Material Contracts.
(c) Except as set forth in SCHEDULE 3.11, there exists no actual
or, to the best Knowledge of Sellers, any threatened termination, cancellation,
or limitation of, or any amendment, modification, or change to any Material
Contract, which would alter the business or condition, financial or otherwise,
of the Business, including without limitation, (i) the business relationship of
the Company with any Artist, Composer, singer, musician, publisher, producer,
customer, distributor, or related group of customers or distributors whose
transactions with the Company individually or in the aggregate, are material to
the operations and financial condition of the Business, (ii) the requirements
of any customer or related group of customers of the Company whose purchases
individually or in the aggregate are material to the operations and financial
condition of the Business, or (iii) the business relationship of the Company
with any material supplier to the Business.
(d) The Company has made accurate and timely payment of the
royalties and/or other payments required by any Material Contract.
(e) The Company has not granted any power of attorney affecting
or with respect to the Business that remains outstanding.
(f) The consummation of the transactions provided for herein will
not create or constitute a default or event of default under any Material
Contract or require the consent of any other party to any such Material
Contract in order to avoid a default or event of default.
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SECTION 3.12 LITIGATION. Except as set forth on SCHEDULE 3.12, (a)
there are no outstanding Orders that relate to the Company; and (b) there are
no claims, actions, suits or proceedings pending or, to the Knowledge of
Sellers, threatened against Sellers, the Company or any of their properties or
assets that (i) relate to the Company, or (ii) are reasonably likely to have a
Sellers Material Adverse Effect.
SECTION 3.13 COMPLIANCE WITH APPLICABLE LAWS.
(a) Except as listed on SCHEDULE 3.13, the Company is in
compliance in all material respects with all Applicable Laws, and has not
received any written notice alleging any violation of any such Applicable Law.
(b) Except as listed on SCHEDULE 3.13, the Company has all
material Permits necessary to conduct the Business in the manner it is
presently being conducted, and all such Permits are valid and in full force and
effect. Except as listed on SCHEDULE 3.13, the Company has not engaged in any
activity that is reasonably likely to cause revocation or suspension of any
such Permit and no action or proceeding looking to or contemplating the
revocation or suspension of any such Permit is pending or, to Sellers'
Knowledge, threatened.
SECTION 3.14 ENVIRONMENTAL COMPLIANCE. (a) The Company is in
compliance with all applicable Environmental Laws; (b) the Company has all
material Permits required under any applicable Environmental Laws and is in
compliance with their respective requirements; and (c) there are no pending or,
to Sellers' Knowledge, threatened claims under Environmental Laws against the
Company.
SECTION 3.15 PERSONAL PROPERTY.
(a) SCHEDULE 3.15 contains a true and correct list of each lease
by the Company pursuant to which the Company leases tangible personal property
(the "Personal Property Leases"). True and correct copies of each lease listed
on SCHEDULE 3.15 and any amendments, extensions, and renewals thereof are
attached thereto. Each of the leases described on SCHEDULE 3.15 is in full
force and effect, and there are no existing defaults or events of default, real
or claimed, or events which with notice or lapse of time or both would
constitute defaults. No rights of the Company under such leases have been
assigned or otherwise transferred as security for any obligation of the
Company. The consummation of the transactions provided for herein will not
create or constitute a default or event of default under any such lease or
require the consent of any other party to any such lease in order to avoid a
default or event of default.
(b) SCHEDULE 3.15 contains a complete and correct list of all
items of tangible personal property that are owned by the Company
(collectively, the "Owned Personal Property"). The Company has good, valid and
marketable title to each item of Owned Personal Property, free and clear of all
Liens other than Permitted Liens.
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(c) Except as disclosed on SCHEDULE 3.15, the Owned Personal
Property and the personal property subject to the Personal Property Leases
constitute all of the tangible personal property required to conduct the
Business.
(d) All of the Owned Personal Property and the Personal Property
Leases used in the Business are in the name of the Company as of the date
hereof.
SECTION 3.16 REAL PROPERTY.
(a) The Company does not own any real property.
(b) SCHEDULE 3.16 contains a true and correct list of each lease
(the "Real Property Leases") by the Company of any real property (the "Leased
Real Property") and a summary description of all plants and structures located
on each such parcel of Leased Real Property. Each of the Real Property Leases
listed on SCHEDULE 3.16 is in full force and effect and there is no existing
default or event of default, real or claimed, or event which with notice or
lapse of time or both would constitute a default thereunder by the Company or,
to the Knowledge of Sellers, any other party to such Real Property Leases.
Except for Permitted Liens, the interest of the Company in the Real Property
Leases is free and clear of any Liens or rights of any third parties. The
consummation of the transactions provided for herein will not create or
constitute a default or event of default under any Real Property Lease or
require the consent of any other party to any Real Property Lease in order to
avoid a default or event of default.
(c) There is no default or breach by the Company nor, to the
Knowledge of Sellers, any other party thereto, under any covenants, conditions,
restrictions or easements which may affect the Leased Real Property or any
portion or portions thereof which are to be performed or complied with by the
owner of the Leased Real Property, and no condition or circumstance exists
which, with the giving of notice or the passage of time, or both, would
constitute a default or breach by the Company nor, to the Knowledge of Sellers,
any other party thereto, under any such covenants, conditions, restrictions,
rights-of-way or easements.
(d) All of the Real Property Leases used in the Business are in
the name of the Company as of the date hereof.
SECTION 3.17 INTELLECTUAL PROPERTY.
(a) SCHEDULE 3.17 sets forth a complete and accurate list of all
patents, trademarks, trade names, service marks, domain names, copyrights and
computer software used in the Business. Except as set forth on SCHEDULE 3.17,
the Company owns or has the uncontested right to use all Intellectual Property
necessary for the conduct of its Business as presently conducted. For purposes
of this Agreement, the term "Intellectual Property" shall mean, collectively,
patents, designs, inventions, trademarks, trade names, domain names, service
marks, copyrights, computer software, manufacturing processes and confidential
or proprietary information.
15
(b) Except as listed on SCHEDULE 3.17, no claim is pending, or to
the Knowledge of Sellers threatened, and the Company has not received any
written notice that the conduct of its Business (including without limitation,
its use of any Intellectual Property) infringes upon, misappropriates or
conflicts with any rights in Intellectual Property claimed by any third party.
No claim is pending, or to the Knowledge of Sellers threatened, which alleges
that any Intellectual Property owned or licensed by or to the Company or which
the Company otherwise has the right to use is invalid or unenforceable by the
Company.
(c) Except as set forth on SCHEDULE 3.17 and as of the date
identified therein, no royalties or fees are payable by the Company to anyone
for use of the Intellectual Property. Correct and complete copies of all
agreements pursuant to which the Company licenses any Intellectual Property
have been delivered to Buyer. Except as set forth on SCHEDULE 3.17, all such
agreements are in full force and effect, and, to the Knowledge of Sellers,
there are no existing defaults or events of default, real or claimed, or events
which with or without notice or lapse of time, or both, would constitute
defaults under such agreements that would give the non-defaulting party a right
to terminate such agreement or a right to receive any payment pursuant to such
agreement.
SECTION 3.18 EMPLOYEE BENEFIT PLANS.
(a) SCHEDULE 3.18 sets forth a correct and complete list of all
pension, retirement, profit sharing, deferred compensation, severance pay,
vacation, bonus or other incentive plan, all other written employee programs,
arrangements or agreements, all medical, vision, dental or other health plans,
all life insurance plans, and all other employee benefit plans or fringe
benefit plans currently providing benefits to any of the current employees of
the Company and/or their dependents (collectively, the "Benefit Plans").
(b) To the Knowledge of Sellers, except as disclosed in SCHEDULE
3.18, all the Benefit Plans comply in all material respects with and have been
administered in substantial compliance with all Applicable Laws, and Sellers
have not received any written notice from any Governmental Authority
questioning or challenging such compliance.
(c) To the Knowledge of Sellers, except as disclosed in SCHEDULE
3.18, there are no unresolved claims or disputes or circumstances likely to
give rise to any claim or dispute under the terms of, or in connection with,
the Benefit Plans other than claims for benefits which are payable in the
ordinary course, and no litigation has been commenced, is pending or threatened
with respect to any Benefit Plan.
(d) Except as disclosed in SCHEDULE 3.18, all Benefit Plans
which, under Applicable Law, are required to be registered or approved by any
Governmental Authority, have been so registered or approved.
16
(e) Except as disclosed in SCHEDULE 3.18, all contributions to
all Benefit Plans required to be made through the Closing Date have been or
shall be made by the Company or Sellers or, if applicable, shall be accrued in
accordance with GAAP, and the Company does not have any liability to any
current or former employee with respect to the funding of post-retirement
medical aid contributions.
(f) Except as disclosed in SCHEDULE 3.18, all Benefit Plans
which, under Applicable Law, are required to be funded, are either funded to an
extent sufficient to provide for accrued benefit obligations with respect to
the current employees of the Company or are fully insured, in each case based
upon applicable accounting and actuarial practice and procedure.
SECTION 3.19 LABOR AND EMPLOYMENT MATTERS. SCHEDULE 3.19 contains a
correct and complete list of all employees of the Company as of the Closing
Date, specifying for each person his or her job title. Except as disclosed on
SCHEDULE 3.19, the employment of all employees is in accordance with the rules
and regulations set out in the Basic Conditions of Employment Act of the
Republic of South Africa. Except as set forth in SCHEDULE 3.19, (i) the Company
is not a party to any union agreement or collective bargaining agreement or
work rules or practices agreed to with any labor organization or employee
association applicable to its employees and no attempt to organize any of such
employees has been made or is pending, (ii) there has been no labor strike,
dispute, slowdown, stoppage or lockout against or affecting the Company, and
(iii) no unfair labor practice charge or complaint against the Company is
pending before the Commission for Conciliation, Mediation and Arbitration and
Labour Court of the Republic of South Africa or any similar Governmental
Authority with respect to the Company's employees. In addition, the Sellers
shall not (i) purport to appoint any person as an employee of the Company or
discipline or dismiss any employee of the Company as of the date hereof and the
Closing Date without the express written approval of the Buyer, or (ii) take
any action which would render the Company subject to any claim under any
Applicable Law as it pertains to employment matters.
SECTION 3.20 TAX MATTERS. Except as set forth in SCHEDULE 3.20:
(a) All Tax and information reports, returns and related
documents (collectively, the "Tax Returns") required to be filed by or with
respect to the Company have been timely filed, all Taxes owed for periods
ending on or before the Closing Date have been timely paid (whether or not
shown on any Tax Returns), and all such Tax Returns are true, complete and
accurate;
(b) Sellers have prior to the date hereof provided to Buyer
copies of the portions of all Tax Returns of the Company for the taxable
periods ending after the date upon which Sellers formed Sarepta Music CC;
(c) There are no outstanding agreements extending or waiving the
statutory period of limitation applicable to any claim for, or the period for
the collection or
17
assessment of, Taxes due for any taxable period with respect to any Tax for
which the Company may be subject or liable;
(d) No audit, assessment, collection or other proceeding by any
Governmental Authority is pending or threatened with respect to (i) any Taxes
due from or with respect to the Company, or (ii) any Tax Return of or with
respect to the Company;
(e) There are no Liens for Taxes upon the assets or properties of
the Company, except for statutory Liens for current Taxes not yet due;
(f) The Company is not a party to any agreement relating to the
sharing or allocation of Taxes or indemnification agreement with respect to
Taxes or similar contract or arrangement;
(g) The Company has not been a member of an affiliated group
filing a consolidated income Tax Return nor does the Company have any liability
for Taxes of any other person as a transferee or successor, by contract or
otherwise.
SECTION 3.21 BROKERAGE AND FINANCIAL ADVISERS. No broker, finder or
financial adviser has acted directly or indirectly as such for, or is entitled
to any compensation from, the Company, Buyer, Sellers or their Affiliates in
connection with this Agreement or the transactions contemplated hereby.
SECTION 3.22 CONSENTS AND APPROVALS. Except as set forth on SCHEDULE
3.11 or SCHEDULE 3.22, and except for consents required under Contracts that
are not material to the Business, no consent, approval or authorization of, or
filing or registration with, any Governmental Authority or any other Person, is
required on the part of the Company or Sellers in connection with Sellers'
execution and delivery of this Agreement or the consummation by Sellers of the
transactions contemplated hereby and thereby.
SECTION 3.23 INSURANCE. The Business and the assets and properties
used thereto are insured under various policies of general liability and other
forms of insurance, which are set forth on SCHEDULE 3.23, and which policies
are in amounts adequate in the reasonable judgment of Sellers to protect the
Business from significant loss. All such policies are in force and effect with
premiums thereon timely paid and no act or failure to act has occurred which
caused or may cause any such policy to be canceled or terminated. The Company
has not been refused any insurance with respect to the Business by any
insurance carrier to which it has applied for insurance or with which it has
carried insurance during the past five (5) years. There are no outstanding
requirements or recommendations by any current insurer or underwriter with
respect to the Business which require or recommend changes in the conduct of
the Business, or require any repairs or other work to be done with respect to
any of the operations or assets of the Business. The consummation of the
transactions provided for herein will not create or constitute a default or
event of default under any insurance policy or require the consent of any other
party to any such insurance policy in order to avoid a default or event of
default.
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SECTION 3.24 CONVERSION TO PRIVATE COMPANY. Effective December 10,
2002, Sarepta Music CC, a close corporation organized and existing under the
laws of the Republic of South Africa and the predecessor in interest to the
Company, was merged into and with or converted into the Company (the
"Conversion"), such that (i) the Company was validly organized and is validly
existing as a private company under the laws of the Republic of South Africa,
(ii) the Company is the successor to and has all the rights, privileges,
immunities and powers of Sarepta Music CC; (iii) all property, real, personal
and mixed, and all debts due on whatever account and all and every other
interest of or belonging to or due Sarepta Music CC were transferred to or
vested in the Company, and the title to any real estate or interest therein
vested in Sarepta Music CC did not revert and was not in any way impaired by
reason of the Conversion; (iv) the Company is responsible and liable for all of
the liabilities and obligations of Sarepta Music CC, and any claim existing or
action or proceeding pending by or against Sarepta Music CC at the time of the
Conversion may be prosecuted as if the Conversion had not taken place, with all
rights and obligations of Sarepta Music CC having passed to the Company by
operation of law; and (v) neither the rights of creditors nor any Liens upon
the property of Sarepta Music CC were impaired by the Conversion.
SECTION 3.25 APPOINTMENT OF ACTING MANAGER. Sellers have appointed
George Nurden Cross to serve as Acting Manager of the Company in accordance
with the terms listed on SCHEDULE 3.25.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers as follows:
SECTION 4.1 CORPORATE EXISTENCE AND POWER. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all corporate powers required to carry on its
business as now conducted. Buyer is duly qualified to do business as a foreign
corporation and is in good standing in the State of Alabama.
SECTION 4.2 AUTHORITY. Buyer has all requisite power and authority
to execute and deliver, and to perform its obligations under this Agreement and
to consummate the transactions contemplated hereby and thereby, and the
performance by Buyer of its obligations under this Agreement have been duly
authorized by all necessary corporate action on the part of Buyer. This
Agreement has been duly executed and delivered by Buyer, and subject to the due
execution and delivery by Sellers will, upon due execution and delivery, be
valid and binding obligations of Buyer, enforceable against Buyer in accordance
with their respective terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium or other similar Applicable Laws
affecting the enforcement of creditors' rights generally, and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
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SECTION 4.3 GOVERNMENTAL AUTHORIZATION. Except as set forth on
SCHEDULE 4.3, the consummation of the transactions contemplated hereby do not
require Buyer to obtain any consent, approval or action of, make any filing
with, or give any notice to, any Governmental Authority.
SECTION 4.4 NON-CONTRAVENTION. Except as disclosed on SCHEDULE 4.4,
the execution, delivery and performance by Buyer of this Agreement and the
consummation of the transactions contemplated hereby will not (a) violate any
provision of the certificate of incorporation, bylaws or any other
organizational document of Buyer, (b) violate, conflict with, result in the
breach of or default under (or with notice, lapse of time, or both would result
in such a breach or default), result in any modification of the effect of,
provide the other contracting party the right to terminate or materially amend,
or require the other contracting party to consent to the assignment or
continuation of, any material Contract to which Buyer is a party, (c) violate
any Order against or binding upon Buyer, (d) violate any agreement with, or
condition imposed by, any Governmental Authority upon Buyer, (e) subject to
obtaining the governmental authorizations referred to in Section 4.3 hereof,
violate any Applicable Law, or (f) result in a breach or violation of any of
the terms or conditions of, constitute a default under, or otherwise cause an
impairment or a revocation of, any Permit related to Buyer's business, except
for such breaches, violations, defaults, impairments or revocations that would
not have a Buyer Material Adverse Effect.
SECTION 4.5 BROKERAGE AND FINANCIAL ADVISERS. No broker, finder or
financial adviser has acted directly or indirectly as such for, or is entitled
to any compensation from, Buyer in connection with this Agreement or the
transactions contemplated hereby.
SECTION 4.6 SUFFICIENT FUNDS. Buyer has or will have at Closing
sufficient funds available to pay the Purchase Price, to pay all fees and
expenses related to the transactions contemplated hereby, and to operate the
Company as a going concern.
ARTICLE 5
COVENANTS
SECTION 5.1 CONDUCT OF BUSINESS.
(a) Prior to the Closing, except as necessary to effect the
transactions contemplated by this Agreement, Sellers shall cause the Company
to, (i) accrue all royalty payments on any Company sales occurring prior to the
Closing Date, (ii) in all material respects operate the Business as presently
operated and only in the ordinary course and consistent with past practice,
(iii) use commercially reasonable efforts to preserve the value of the
Business, and (iv) use commercially reasonable efforts to preserve the
Company's relationships with and the goodwill of its Artists, Composers,
singers, musicians, publishers, producers, customers, suppliers, employees and
other Persons having business dealings with the Company.
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(b) Without limiting the generality of Section 5.1(a), and except
as otherwise disclosed in this Agreement or as necessary to effect the
transactions contemplated by this Agreement, or except with the prior approval
of Buyer (which shall not be unreasonably withheld, conditioned or delayed),
Sellers will cause the Company not to:
(i) enter into any contract that would constitute a
Material Contract, other than in the ordinary course of business
consistent with past practice;
(ii) dispose of or acquire any asset used or to be used
in the Business, other than acquisitions or dispositions in the
ordinary course of business;
(iii) enter into, adopt or (except as may be required by
Applicable Law or the terms of any such arrangement) modify or
terminate any bonus, profit sharing, severance, termination, stock
purchase agreement, pension, retirement, deferred compensation,
employment, severance or other employee benefit agreement, trust,
plan, fund or other arrangement for the benefit or welfare of any
employee, or amend any such arrangement as it relates to employees
(except for changes in compensation payable to any employee that is a
merit or tenure increase granted in the ordinary course of business);
(iv) change any of the accounting principles, practices,
methods or policies employed by the Company, except as may be required
as a result of a change in Applicable Law or GAAP;
(v) (A) make any distribution, (B) issue, sell, pledge,
redeem, dispose of or encumber any of its stock, (C) amend its
certificate of incorporation, memorandum of understanding, articles of
association or bylaws, (D) incur or modify any material indebtedness
or other material liability, (E) make or authorize or commit for any
capital expenditures other than in amounts not exceeding 10,000 S.A.
Rands in the aggregate, or (F) make any acquisition of, or investment
in, assets or stock of any other Person; or
(vi) agree in writing or otherwise to take any of the
actions described above in this Section 5.1(b).
SECTION 5.2 CERTAIN TRANSACTIONS. From the date of this Agreement
through the Closing, neither the Sellers nor the Company, or any of their
respective officers, employees, representatives or agents, will solicit,
encourage, initiate or engage in any negotiations or discussions with any
Person or group (other than Buyer and its Affiliates and their respective
representatives) concerning any sale or other disposition of the assets of the
Company.
SECTION 5.3 INVESTIGATIONS; PRE-CLOSING ACCESS. Prior to the Closing
Date, Buyer shall be entitled, through its employees and representatives, to
make such investigation of the assets, liabilities, business and operations of
the Company, and such
21
examination of the books and records of the Company as Buyer may reasonably
request; provided, however, that Buyer shall not have any contact with any
vendors or customers of the Company or other similar third parties without the
prior written consent of Sellers, which consent shall not unreasonably be
withheld. Any investigation, examination or interview by Buyer of the Company's
employees or access pursuant to any of the provisions of this Section 5.3 shall
only be conducted or occur at reasonable times upon reasonable prior notice;
and each of the parties hereto, and its respective employees and
representatives, including, without limitation, counsel, investment bankers,
and independent public accountants, shall cooperate with the other's employees
and representatives, as the case may be, in connection with such review and
examination.
SECTION 5.4 POST-CLOSING ACCESS.
(a) Following the Closing Date, Sellers shall allow Buyer upon
reasonable prior notice and during regular business hours, through Buyer's
employees and representatives, the right, at Buyer's expense, to examine and
make copies of any books and records retained by Sellers to the extent they
relate to the Company, for any reasonable business purpose concerning the
conduct of the Business prior to the Closing Date. Access to such books and
records shall be at Buyer's expense.
(b) Following the Closing Date, Buyer shall maintain the Books
and Records for a minimum period of seven years and, during such time period,
shall allow Sellers, upon reasonable prior notice and during regular business
hours, the right, at Sellers' expense, to examine and make copies of the Books
and Records transferred to Buyer at the Closing for any reasonable business
purpose. Access to such Books and Records shall be at Sellers' expense and may
not unreasonably interfere with Buyer's, the Company's or any successor
company's business operations.
SECTION 5.5 FILINGS; OTHER ACTIONS; NOTIFICATIONS. Sellers and Buyer
shall cooperate with each other and use (and shall cause their respective
Affiliates to use) all commercially reasonable efforts to do or cause to be
done all things necessary, proper or advisable on its part under this Agreement
and Applicable Laws to consummate and make effective the transactions
contemplated by this Agreement as soon as practicable, including, without
limitation, preparing and filing as promptly as practicable all documentation
to effect all necessary notices, reports and other filings. Sellers and Buyer
each shall keep the other apprised of the status of matters relating to
completion of the transactions contemplated hereby, including promptly
furnishing the other with copies of notices or other communications received by
Sellers or Buyer, as the case may be, or any of their Affiliates, from any
third party or Governmental Authority with respect to the transactions
contemplated by this Agreement. Sellers and Buyer each shall give prompt notice
to the other of any change that is reasonably likely to result in a Sellers
Material Adverse Effect or Buyer Material Adverse Effect, respectively.
SECTION 5.6 FURTHER ASSURANCES. On and after the Closing Date,
Sellers (as reasonably requested from time to time by Buyer) and Buyer (as
reasonably requested from time to time by Sellers) shall take all reasonably
appropriate action and execute any
22
additional documents, instruments or conveyances of any kind (not containing
additional representations and warranties) which may be reasonably necessary to
carry out any of the provisions of this Agreement.
SECTION 5.7 EXPENSES. Except as otherwise specifically provided in
this Agreement, the parties to this Agreement shall bear their respective
expenses incurred in connection with the preparation, execution and performance
of this Agreement and the transactions contemplated hereby, including, without
limitation, all fees and expenses of agents, representatives, counsel,
investment bankers, actuaries and accountants.
SECTION 5.8 TAX MATTERS.
(a) Tax Periods Ending on or Before the Closing Date.
(i) The Company shall prepare or cause to be prepared
and file or cause to be filed all Tax Returns for the Company for all
periods ending on or prior to the Closing Date which are to be filed
after the Closing Date ("Pre-Closing Tax Returns"). The Pre-Closing
Tax Returns shall be prepared by the Company in a manner that is, to
the extent permitted by law, consistent with the last Tax Return filed
by the Company prior to the date of this Agreement in each relevant
jurisdiction with respect to the Company. A copy of the Pre-Closing
Tax Returns shall be submitted to the Buyer at least thirty (30) days
prior to their due date, including extensions.
(ii) The Company shall pay all Taxes of the Company with
respect to such periods ending on or prior to the Closing Date.
(b) Tax Periods Beginning Before and Ending After the Closing
Date.
(i) The Company shall prepare or cause to be prepared
and file or cause to be filed any Tax Returns of the Company for Tax
periods which begin before the Closing Date and end after the Closing
Date ("Straddle Period Tax Returns"). The Straddle Period Tax Returns
shall be prepared by the Company in a manner that is, to the extent
permitted by law, consistent with the last Tax Return filed prior to
the date of this Agreement in each relevant jurisdiction with respect
to the Company. The Straddle Period Tax Returns shall be submitted to
the Buyer at least forty-five (45) days prior to their due date,
including extensions. The Buyer shall have the right to conduct a
reasonable review of the Straddle Period Tax Returns prepared by the
Company and the Company shall not file such Straddle Period Tax
Returns without the prior written consent of the Buyer, which consent
shall not be unreasonably withheld or delayed. Any dispute regarding
the Straddle Period Tax Returns shall be resolved pursuant to the Tax
Dispute Resolution Mechanism. Following the resolution of any such
dispute, the Company shall prepare and timely file the Straddle Period
Tax Returns, as modified based on the resolution of any dispute.
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(ii) For purposes of this Agreement, in the case of any
Taxes that are imposed on a periodic basis and are payable for a
Taxable period that includes (but does not end on) the Closing Date,
the portion of such Tax which relates to the portion of such Taxable
period ending on the Closing Date shall (x) in the case of any Taxes
other than Taxes based upon or related to income or receipts, be
deemed to be the amount of such Tax for the entire Taxable period
multiplied by a fraction the numerator of which is the number of days
in the Taxable period ending on the Closing Date and the denominator
of which is the number of days in the entire Taxable period, and (y)
in the case of any Tax based upon or related to income or receipts be
deemed equal to the amount which would be payable if the relevant
Taxable period ended on the Closing Date. Any credits relating to a
Taxable period that begins before and ends after the Closing Date
shall be taken into account as though the relevant Taxable period
ended on the Closing Date. All determinations necessary to give effect
to the foregoing allocations shall be made in a manner consistent with
prior practice of the Company.
(c) Cooperation on Tax Matters. The Buyer and the Sellers shall
cooperate fully, as and to the extent reasonably requested by the other party,
in connection with the filing of Tax Returns pursuant to this Section and any
audit, litigation or other proceeding with respect to Taxes. Such cooperation
shall include the retention and (upon the other party's request) the provision
of records and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. The Company and the Sellers agree (i) to retain
all books and records with respect to Tax matters pertinent to the Company
relating to any Taxable period beginning before the Closing Date until the
expiration of the statute of limitations (and, to the extent notified by the
Buyer or the Sellers, any extensions thereof) of the respective Taxable
periods, and to abide by all record retention agreements entered into with any
taxing authority, and (ii) to give the other party reasonable written notice
prior to transferring, destroying or discarding any such books and records and,
if the other party so requests, the Company or the Sellers, as the case may be,
shall allow the other party to take possession of such books and records. The
Buyer and the Sellers further agree, upon request, to use their best efforts to
obtain any certificate or other document from any governmental authority or any
other Person as may be necessary to mitigate, reduce or eliminate any Tax that
could be imposed (including, but not limited to, with respect to the
transactions contemplated by this Agreement).
(d) Certain Taxes. All transfer, documentary, sales, use, stamp
registration and other such Taxes and fees (including any penalties and
interest as well as any and all Taxes incurred by the Company or Buyer at any
time in connection with the transfer of the Claims) incurred in connection with
this Agreement shall be borne by the Sellers; provided, however that the stamp
duty payable with respect to the transfer of the Shares shall be borne by the
Buyer. The Company will file all necessary Tax Returns and other documentation
with respect to all such transfer, documentary, sales, use, stamp registration
and other Taxes and fees, and, if required by any Applicable Law, the Sellers
will, and will cause their Affiliates to, join in the execution of any such Tax
Returns and
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other documentation. The parties will cooperate to the extent reasonably
necessary to prepare such filings or returns as may be required.
SECTION 5.9 DISCLOSURE SUPPLEMENTS. From time to time prior to the
Closing, and as soon as reasonably practicable following a material event,
Sellers shall provide Buyer with notice of such material event and any possible
negative impact of such event on Buyer, and supplement or amend their Schedules
hereto (i) with respect to any matter that was required to be disclosed or set
forth in a Schedule on the date of this Agreement but was omitted from such
Schedule (a "Pre-Signing Matter"), and (ii) with respect to any matter that, if
existing or occurring at or prior to the date of this Agreement, would have
been required to be set forth or described in a Schedule or that is necessary
to correct any information in a Schedule that has been rendered inaccurate
thereby (a "Post-Signing Matter"); provided however, that Buyer may
unilaterally extend the Closing Date to allow Buyer five (5) Business Days to
review such supplements prior to the Closing Date.
SECTION 5.10 PUBLICITY. The parties agree to consult with each other
before making any press releases or other public disclosure related to this
Agreement or the transaction contemplated hereby.
SECTION 5.11 FILING OF CONSENT TO ACT AS DIRECTOR OR OFFICER FORMS.
Sellers and Buyer shall cooperate to complete and file with the appropriate
Governmental Authority all documentation necessary to replace Anton Jacobus
Bekker and Paul Michael Alcock as directors of the Company with P. Michael
Coleman, Jerry W. Weimer and Keith J. Manwaring, including, without limitation,
Consent to Act as Director or Officer forms (Form CM29).
SECTION 5.12 SUBMISSION OF EXCHANGE CONTROL APPLICATION. Prior to the
Closing Date, Buyer and Sellers shall cooperate and jointly file, through
Standard Corporate and Merchant Bank, a South African Authorised Dealer, an
exchange control application, mutually acceptable to Buyer and Sellers, seeking
approval by the South African Reserve Bank of the transactions contemplated by
this Agreement (the "Exchange Control Application"). The Exchange Control
Application fee charged by Standard Corporate and Merchant Bank shall be borne
by Buyer.
SECTION 5.13 COIDA REGISTRATION. The Sellers warrant that they shall
procure that the Company expeditiously takes all such steps as may be necessary
or reasonably required to obtain registration for the Company in terms of
COIDA.
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ARTICLE 6
CONDITIONS TO CLOSING
SECTION 6.1 CONDITIONS TO CLOSING OF EACH PARTY.
(a) The respective obligations of each party to consummate the
transactions contemplated hereby are subject to the fulfillment prior to or at
Closing of the following condition, unless waived by both parties in writing:
No Applicable Law or Order shall be in effect that prohibits or enjoins, and no
litigation, action or other proceeding shall be pending that seeks to prohibit
or enjoin or that seeks material monetary damages with respect to, the
consummation of the transactions contemplated hereby.
(b) This Agreement shall not come into force or effect until the
parties to this Agreement have received the Exchange Control Approval.
SECTION 6.2 CONDITIONS TO OBLIGATIONS OF SELLERS. The obligations of
Sellers to consummate the transactions contemplated hereby are subject to the
fulfillment prior to or at Closing of the following conditions, unless waived
by Sellers in writing:
(a) (i) All of the covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing (considered collectively) and each of those covenants and
obligations (considered individually) shall have been duly performed and
complied with in all material respects, (ii) each of Buyer's representations
and warranties contained in this Agreement shall be true and correct in all
material respects (ignoring, for this purpose, any materiality or material
adverse effect qualifications to such representations and warranties) as of the
date of this Agreement and as of the Closing Date as if made on the Closing
Date (except as to any representation or warranty which specifically relates to
an earlier date), and (iii) Sellers shall have received a certificate signed by
a duly authorized officer of Buyer to the effect that the foregoing conditions
have been satisfied. Compliance with covenants and obligations and accuracy of
representations and warranties shall be determined without regard to
supplements or amendments to Schedules made pursuant to Section 5.9.
(b) Sellers shall have received from Buyer a certified copy of
the resolutions duly adopted by Buyer's board of directors (i) approving the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and (ii) authorizing its representative to
sign this Agreement, and any documents and agreements attached hereto, on its
behalf.
SECTION 6.3 CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of
Buyer to consummate the transactions contemplated hereby are subject to the
fulfillment prior to or at Closing of the following conditions, unless waived
by Buyer in writing:
(a) (i) All of the covenants and obligations that Sellers are
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing (considered
26
collectively) and each of those covenants and obligations (considered
individually) shall have been duly performed and complied with in all material
respects, (ii) each of Sellers' representations and warranties contained in
this Agreement shall be true and correct in all material respects (ignoring,
for this purpose, any materiality or material adverse effect qualifications to
such representations and warranties) as of the date of this Agreement and as of
the Closing Date as if made on the Closing Date (except as to any
representation or warranty which specifically relates to an earlier date), and
(iii) Buyer shall have received a certificate signed by the Sellers to the
effect that the foregoing conditions have been satisfied. Compliance with
covenants and obligations and accuracy of representations and warranties shall
be determined without regard to supplements or amendments to Schedules made
pursuant to Section 5.9.
(b) Buyer shall have received from Sellers a certified copy of
the resolutions duly adopted by the Company's board of directors (i) approving
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, (ii) authorizing its representative to sign
this Agreement, and any documents and agreements attached hereto, on its
behalf, (iii) approving the transfer of the Shares pursuant to and in terms of
this Agreement, (iv) authorizing the registration of transfer of the Shares
from the Sellers to the Buyer, (v) appointing the Buyer's nominees as directors
of the Company with effect from the Closing Date; (vi) noting and approving the
cession of the Sellers' loan accounts in the Company to Buyer; and (vii)
accepting the resignations of the directors of the Company referenced in
Section 2.3(b)(v) of this Agreement.
(c) The approvals and consents listed on SCHEDULE 6.3 shall have
been received or deemed received in each case without any conditions,
restrictions or limitations.
(d) All of the Material Contracts are in full force and effect as
of the Closing Date.
(e) There shall not have been any distributions of any kind from
the Company to any Person from November 30, 2002 through the Closing Date.
(f) Sellers shall provide evidence to Buyer, satisfactory to
Buyer as determined by Buyer in its sole discretion, of compliance with Section
3.24 of this Agreement.
(g) There shall not have been any Sellers Material Adverse Effect
with respect to the Company or its assets between the date hereof and the
Closing Date, and Buyer shall have received a certificate dated as of the
Closing Date, signed by Sellers to such effect.
27
(h) Buyer shall have received evidence that the documents
contemplated by Section 5.11 of this Agreement have been properly filed with
the appropriate Governmental Authority.
ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any
time prior to the Closing Date by mutual written consent of Sellers and Buyer.
SECTION 7.2 TERMINATION BY EITHER SELLERS OR BUYER. This Agreement
may be terminated and the transactions contemplated hereby may be abandoned (i)
by either Sellers or Buyer if the Exchange Control Approval has not been
obtained by April 30, 2003 or such later date as the parties may agree to in
writing (the "Termination Date"); (ii) by either Sellers or Buyer if any Order
permanently restraining, enjoining or otherwise prohibiting consummation of the
transactions contemplated by this Agreement shall become final and
non-appealable; provided, that the right to terminate this Agreement pursuant
to clause (i) above shall not be available to any party that has breached in
any material respect its obligations under this Agreement in any manner that
shall have proximately contributed to the occurrence of the failure of the
transactions contemplated by this Agreement to be consummated.
SECTION 7.3 TERMINATION BY SELLERS. This Agreement may be terminated
and the transactions contemplated hereby abandoned at any time prior to the
Closing Date by Sellers if there has been a material breach by Buyer of any
representation, warranty, covenant or agreement contained in this Agreement
that, together with all such breaches, would prevent any of the conditions set
forth in Article 6 from being satisfied (other than by waiver) prior to the
Termination Date and that is not curable or, if curable, is not cured within 20
days after written notice of such breach is given by Sellers to Buyer.
SECTION 7.4 TERMINATION BY BUYER. This Agreement may be terminated
and the transactions contemplated hereby abandoned at any time prior to the
Closing Date by Buyer if there has been a material breach by Sellers of any
representation, warranty, covenant or agreement contained in this Agreement
that, together with all such breaches, would prevent any of the conditions set
forth in Article 6 from being satisfied (other than by waiver) prior to the
Termination Date and that is not curable or, if curable, is not cured within 20
days after written notice of such breach is given by Buyer to Sellers.
SECTION 7.5 EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of this Agreement and the abandonment of the transactions pursuant
to this Article 7, this Agreement shall become void and of no effect with no
liability on the part of any party hereto (or of any of its representatives)
and the Deposit shall be refunded to Buyer within five (5) Business Days of
termination of this Agreement in accordance with Section 2.4 of this Agreement;
provided, however, except as otherwise provided herein,
28
no such termination shall relieve any party hereto of any liability or damages
resulting from any breach of this Agreement.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 SURVIVAL. All representations and warranties, and all
pre-closing covenants and agreements, made or undertaken by the parties in this
Agreement shall survive the Closing for a period of eighteen (18) months
following the Closing Date.
SECTION 8.2 OBLIGATION OF SELLERS TO INDEMNIFY. Subject to the
limitations set forth in this Article 8, Sellers agree to jointly and severally
indemnify Buyer and hold Buyer harmless from and against all Losses asserted
against, imposed upon or incurred by the Company or Buyer resulting from,
arising out of, based upon or otherwise in respect of any of the following:
(a) any breach of or inaccuracy in any representation or warranty
of Sellers contained in this Agreement;
(b) any breach of any covenant or agreement made or to be
performed by Sellers pursuant to this Agreement;
(c) any failure of the Company to pay any Tax arising or becoming
due on or prior to the Closing as a result of the consummation of the
transactions contemplated by this Agreement or otherwise; provided, however,
that Sellers shall not be responsible for the stamp duty payable with respect
to the transfer of the Shares contemplated by Section 5.8(d) of this Agreement;
(d) the failure of the Company or Sellers to register the Company
in terms of the COIDA; provided, however, that Sellers shall only be
responsible for Losses incurred under this Section 8.2(d) to the extent to
which the cause of action in respect of such Loss arose during the period of
time prior to the Closing Date or prior to the date on which the Company became
registered in terms of the COIDA, whichever period is longer; or
(e) the reasonable costs to Buyer of enforcing this indemnity
against Sellers.
SECTION 8.3 OBLIGATION OF BUYER TO INDEMNIFY. Subject to the
limitations contained in this Article 8, Buyer agrees to indemnify and hold
Sellers harmless from and against all Losses asserted against, imposed upon or
incurred by Sellers resulting from, arising out of, based upon or otherwise in
respect of any of the following:
(a) any breach of or inaccuracy in any representation or warranty
of Buyer contained in this Agreement;
(b) any breach of any covenant or agreement made or to be
performed by Buyer pursuant to this Agreement; or
29
(c) the reasonable costs to Sellers of enforcing this indemnity
against Buyer.
SECTION 8.4 NOTICE OF LOSS, ASSERTED LIABILITY. Promptly after (a)
becoming aware of circumstances that have resulted in a Loss for which a party
entitled to indemnification pursuant to Section 8.2 or Section 8.3 intends to
seek indemnification under such Section (the "Indemnified Party") or (b)
receipt by the Indemnified Party of written notice of any demand, claim or
circumstances which, with the lapse of time, the giving of notice or both,
would give rise to a claim or the commencement of any litigation that may
result in a Loss (an "Asserted Liability"), the Indemnified Party shall give
notice thereof (the "Claims Notice") to any other party obligated to provide
indemnification pursuant to Section 8.2 or Section 8.3 (the "Indemnifying
Party"). The Claims Notice shall describe the Loss or the Asserted Liability in
reasonable detail, and shall indicate the amount (estimated, if necessary) of
the Loss or Asserted Liability that has been or may be suffered by the
Indemnified Party. If a Claims Notice is not provided promptly as required by
this Section 8.4, the Indemnified Party nonetheless shall be entitled to
indemnification by the Indemnifying Party except to the extent that the
Indemnifying Party is prejudiced by such late receipt of the Claims Notice.
SECTION 8.5 OPPORTUNITY TO CONTEST. The Indemnifying Party may elect
to compromise or contest, at its own expense, any Asserted Liability. If the
Indemnifying Party elects to compromise or contest such Asserted Liability, it
shall within 30 days (or sooner, if the nature of the Asserted Liability so
requires) notify the Indemnified Party of its intent to do so by sending a
notice to the Indemnified Party (the "Contest Notice"), and the Indemnified
Party shall cooperate, at the expense of the Indemnifying Party, in the
compromise or contest of such Asserted Liability. If the Indemnifying Party
elects not to compromise or contest the Asserted Liability, fails to notify the
Indemnified Party of its election as herein provided or contests its obligation
to indemnify under this Agreement, the Indemnified Party (upon further notice
to the Indemnifying Party) shall have the right to pay, compromise or contest
such Asserted Liability on behalf of and for the account and risk of the
Indemnifying Party. In any event, the Indemnified Party and the Indemnifying
Party may participate, at their own expense, in the contest of such Asserted
Liability. Sellers and Buyer shall cooperate fully with the other as to all
Asserted Liabilities, shall make available to each other as reasonably
requested all information, records, and documents relating to all Asserted
Liabilities and shall preserve all such information, records, and documents
until the termination of any Asserted Liability. Sellers and Buyer also shall
make available to the other, as reasonably requested, its personnel, agents,
and other representatives who are responsible for preparing or maintaining
information, records, or other documents, or who may have particular knowledge
with respect to any Asserted Liability.
SECTION 8.6 SETTLEMENT. No settlement of an Asserted Liability under
this Article 8 shall be made without the prior written consent by or on behalf
of the Indemnified Party, which consent shall not be unreasonably withheld,
conditioned or delayed. If the Indemnifying Party assumes the defense of such
Asserted Liability, (i) no compromise or settlement thereof may be effected by
the Indemnifying Party without the
30
Indemnified Party's consent unless (A) there is no finding or admission of any
violation of Law on the part of Indemnified Party and no effect on any other
claim that may be made against the Indemnified Party, (B) the sole relief
provided is monetary damages that are paid in full by the Indemnifying Party,
and (C) the compromise or settlement includes, as an unconditional term
thereof, the giving by the claimant or the plaintiff to the Indemnified Party
of a release, in form and substance reasonably satisfactory to the Indemnified
Party, from all liability in respect of such Asserted Liability, and (ii) the
Indemnified Party shall have no liability with respect to any compromise or
settlement thereof effected without its consent.
SECTION 8.7 PROCEDURES FOR INDEMNIFICATION. Upon determination of
the amount of an Asserted Liability that is binding on both the Indemnifying
Party and the Indemnified Party, the Indemnifying Party shall pay the amount of
such Asserted Liability by wire transfer of immediately available funds within
ten (10) days of the date such amount is determined.
SECTION 8.8 LIMITATIONS ON INDEMNIFICATION.
(a) The Indemnifying Party shall indemnify the Indemnified Party
only when the aggregate of all such Losses or Asserted Liabilities exceeds
50,000 S.A. Rands (the "Threshold Amount"). After the aggregate of all such
Losses or Asserted Liabilities suffered by the Indemnified Party exceeds the
Threshold Amount, the Indemnifying Party shall be required to indemnify the
Indemnified Party for all such Losses or Asserted Liabilities in excess of the
Threshold Amount. In no event shall the Indemnifying Party be required to make
indemnification payments hereunder in the aggregate exceeding 1.6 million S.A.
Rands.
(b) No party otherwise entitled to indemnification under this
Agreement shall be indemnified pursuant to this Agreement to the extent that
such party's Losses are increased or extended by the willful misconduct,
violation of Applicable Law or bad faith of such party. Prior to the execution
of this Agreement and Closing Date, Buyer has conducted its own due diligence
investigation of the affairs of the Company. In the course of such
investigation, Buyer has not discovered any Pre-Signing Matter or any
Post-Signing Matter that was omitted from any Schedule or the existence of
which otherwise would have caused any of the representations or warranties of
Sellers to be inaccurate or untruthful in any respect that was not disclosed to
Sellers.
(c) The limitations of this Section 8.8 shall not apply to
indemnification under Section 8.2(c) of this Agreement.
SECTION 8.9 SOLE REMEDY. Each party's sole and exclusive remedy for
any breach of this Agreement by the other party shall be as provided under this
Article 8.
SECTION 8.10 CERTAIN REDUCTIONS; SUBROGATION RIGHTS. All
indemnification payments payable hereunder shall be reduced by the net amount
of insurance proceeds received by, or any net Tax benefits inuring to the
benefit of, the Indemnified Party as a
31
result of the Loss for which the Indemnified Party is seeking indemnification.
In the event that the Indemnifying Party shall be obligated to indemnify the
Indemnified Party pursuant to this Article 8, the Indemnifying Party shall,
upon payment of such indemnity in full, be subrogated to all rights of the
Indemnified Party with respect to the Loss to which such indemnification
relates; provided, however, that the Indemnifying Party shall only be
subrogated to the extent of any amount paid by it pursuant to this Article 8 in
connection with such Loss.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. Except
as otherwise expressly provided herein, this Agreement (including the documents
and instruments referred to herein) constitutes the entire agreement between
the parties with respect to the transactions contemplated hereby and supersedes
all prior arrangements or understandings with respect thereto, written or oral.
Nothing in this Agreement, expressed or implied, is intended to confer upon any
person or entity, other than the parties or their respective successors, any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
SECTION 9.2 AMENDMENTS. This Agreement may be amended only by a
subsequent writing signed by both parties. No course of performance by either
party hereto shall be deemed to modify or amend this Agreement unless the same
shall be consented to in a writing signed by both parties.
SECTION 9.3 WAIVERS.
(a) Prior to or at the Closing, Buyer shall have the right to
waive any default in the performance of any term of this Agreement by Sellers,
to waive or extend the time for the compliance or fulfillment by Sellers of any
and all of its obligations under this Agreement, and to waive any or all of the
conditions precedent to the obligations of Buyer under this Agreement, except
any condition which, if not satisfied, would result in the violation of any
Applicable Law. No such waiver shall be effective unless in writing signed by a
duly authorized officer of Buyer.
(b) Prior to or at the Closing, Sellers shall have the right to
waive any default in the performance of any term of this Agreement by Buyer, to
waive or extend the time for the compliance or fulfillment by Buyer of any and
all of its obligations under this Agreement, and to waive any or all of the
conditions precedent to the obligations of Sellers under this Agreement, except
any condition which, if not satisfied, would result in the violation of any
Applicable Law. No such waiver shall be effective unless in writing signed by
Sellers.
(c) The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the
32
breach of any term contained in this Agreement in one or more instances shall
be deemed to be or construed as a further or continuing waiver of such
condition or breach or a waiver of any other condition or of the breach of any
other term of this Agreement.
SECTION 9.4 ASSIGNMENT. Except as expressly contemplated hereby,
neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any party hereto (whether by operation of law or
otherwise), in whole or in part, without the prior written consent of the other
party. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
SECTION 9.5 NOTICES. All notices or other communications that are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by certified mail, postage pre-paid, or by
courier or overnight carrier, to the Persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
(a) If to Sellers to:
Anton Jacobus Bekker
21 Helmsdale Retreat
Templestowe
Victoria
3106
Australia
Telephone: +(03) 98465645
E-Mail: antonb@iprimus.com.au
with a copy (which shall not constitute notice for purposes
of this Agreement) to:
Brian Jennings
Garlicke and Bousfield Inc
PO Box 1219
Umhlanga Rocks
4320
South Africa
or
7 Torsvale Crescent
La Lucia Ridge Office Estate
4051
South Africa
Telephone: +27-31-5705300
33
Facsimile: +27-31-5705301
E-Mail: brian.jennings@gb.co.za
(b) If to Buyer:
Integrity Media, Inc.
1000 Cody Road
Mobile, Alabama 36695
Attention: P. Michael Coleman
Telephone: (251) 633-9000
Facsimile: (251) 633-3476
with a copy (which shall not constitute notice for purposes
of this Agreement) to:
Alston & Bird LLP
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: Alexander W. Patterson
Telephone: (404) 881-7688
Facsimile: (404) 881-4777
SECTION 9.6 GOVERNING LAW. Notwithstanding the place where this
Agreement may be executed by any of the parties, the parties expressly agree
that this Agreement shall in all respects be governed by, and construed in
accordance with, the Applicable Laws of the Republic of South Africa.
SECTION 9.7 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
SECTION 9.8 CAPTIONS. The captions contained in this Agreement are
for reference purposes only and are not part of this Agreement.
SECTION 9.9 INTERPRETATIONS. No uncertainty or ambiguity herein
shall be construed or resolved against any party, whether under any rule of
construction or otherwise. No party to this Agreement shall be considered the
draftsman. The parties acknowledge and agree that this Agreement has been
reviewed, negotiated and accepted by all parties and their attorneys and shall
be construed and interpreted according to the ordinary meaning of the words
used so as to fairly accomplish the purposes and intentions of all parties
hereto.
SECTION 9.10 SEVERABILITY. Any term or provision of this Agreement
that is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the
34
validity or enforceability of any of the terms or provisions of this Agreement
in any other jurisdiction. If any provision of this Agreement is so broad as to
be unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
INTEGRITY MEDIA, INC.
By: /s/ P. Michael Coleman
---------------------------------------
Name: P. Michael Coleman
-------------------------------------
Title: President
------------------------------------
ANTON JACOBUS BEKKER
/s/ Anton Jacobus Bekker
------------------------------------------
PAUL MICHAEL ALCOCK
/s/ Paul Michael Alcock
------------------------------------------
SAREPTA MUSIC (PTY) LTD
By: /s/ Anton Jacobus Bekker
---------------------------------------
Name: Anton Jacobus Bekker
-------------------------------------
Title: Director
------------------------------------