EXHIBIT 5.A
EXECUTION COPY
AMENDMENT A TO THE TRANSACTION AGREEMENT
AMENDMENT A dated November 29, 2002 by and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
("LTBM"), Rothschild Trust Guernsey Limited (the "LTBM TRUSTEES"), as trustees
of the ▇▇▇ Trust (the "LTBM TRUST"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("JHM") and Codan Trust
Company Limited (the "JHM TRUSTEES"), as trustees of The JACTMAC Media Trust
(the "JHM TRUST"), amending the Transaction Agreement dated October 30, 2002 by
and among LTBM, the LTBM Trustees, JHM and the JHM Trustees (the "TRANSACTION
AGREEMENT").
W I T N E S S E T H :
WHEREAS, capitalized terms used herein and not otherwise defined shall have
the meaning given to them in the Transaction Agreement;
WHEREAS, LTBM, the LTBM Trustees, JHM and the JHM Trustees wish to amend
the Transaction Agreement to allow for the sale on November 29, 2002 of all of
the remaining 2,466,402 LTBM Released Shares at a price of Euro 7.80 per Share
in cash (less one-half of the fees of CAL FP (as defined below) which half is in
the amount of Euro 325,000 in the aggregate);
WHEREAS, LTBM, the LTBM Trustees, JHM and the JHM Trustees also are
agreeing to certain other matters set forth herein;
WHEREAS, because the LTBM Trustees are entering into this Amendment A
solely in their capacity as trustees of the LTBM Trust, all references herein to
the "LTBM TRUSTEES" shall be understood to refer to the LTBM Trustees, acting
solely in their capacity as trustees on behalf of the LTBM Trust, and not in any
other capacity;
WHEREAS, because the JHM Trustees are entering into this Amendment A solely
in their capacity as trustees of the JHM Trust, all references herein to the
"JHM TRUSTEES" shall be understood to refer to the JHM Trustees, acting solely
in their capacity as trustees on behalf of the JHM Trust, and not in any other
capacity; and
NOW, THEREFORE, for good and valuable consideration (including the mutual
covenants made herein), the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO THE TRANSACTION AGREEMENT FOR TRANSACTIONS OCCURRING ON
NOVEMBER 29, 2002 AND CONSEQUENCES THEREOF. Notwithstanding anything to the
contrary set forth in the Transaction Agreement, the Transaction Agreement is
hereby amended in order to permit the following to occur:
(a) The sale by or on behalf of the LTBM Trustees of all of the
remaining 2,466,402 LTBM Released Shares at a price of Euro 7.80 per Share (less
Euro 325,000 which is equal to one-half of the fee of CAL FP in the transaction)
for total aggregate net proceeds of Euro 18,912,935.60. The proceeds of the sale
shall be received by the LTBM Trustees (I) within three Business Days after
November 29, 2002, and (II) for value no later than three Business Days after
November 29, 2002. For clarity and avoidance of doubt, and notwithstanding
anything to the contrary set forth in the Transaction Agreement, if the sales of
the LTBM Released Shares described in this Section 1(a) are not completed on
November 29, 2002, the term of the JHM Option shall not be extended until May
16, 2005 pursuant to Section 2.02(d) of the Transaction Agreement unless, inter
alia, the Price Shortfall Protection Shares are deposited into escrow on or
prior to December 6, 2002.
(b) LTBM and the LTBM Trustees hereby authorize the deduction from
the gross proceeds of such sale of Euro 325,000 and direct that such amount be
paid to, or as directed by, JHM or the JHM Trustees in satisfaction of one-half
of CAL FP's Euro 650,000 fee. JHM represents and warrants to LTBM and the LTBM
Trustees that the fee of CAL FP is Euro 650,000.
(c) [intentionally blank]
(d) The LTBM Trustees shall set aside from the LTBM Option Shares,
and shall pledge to deliver to or as directed by the JHM Trustees, 2,466,402
Class A Shares (the "Set Aside Shares") solely for the benefit of the JHM
Trustees to cover any losses incurred by them, directly or indirectly, on the
CAL FP equity swap arrangements(the "Equity Swap") with respect to 2,466,402
Shares. Immediately upon or after suffering any such losses, the JHM Trustees
shall certify the amount of such losses to the LTBM Trustees and shall then be
entitled to call for the delivery and transfer of that number of Set Aside
Shares necessary to compensate for such loss. For purposes of compensating for
such loss, Set Aside Shares shall be valued at the Required Proceeds (as defined
below). Any Set Aside Shares not required to be delivered and transferred in
connection with the compensation for such losses shall be released from the
obligations in this Section 1(d) immediately after the maturity date of the
Equity Swap. The number of Class A Shares comprised within the LTBM Option
Shares shall be reduced (i) prior to the maturity date of the Equity Swap by the
number of the Set Aside Shares and (ii) after the maturity date of the Equity
Swap by the number of the Set Aside Shares which are required to be delivered
and transferred to or as directed by the JHM Trustees pursuant to this
Section 1(d) (i.e. Set Aside Shares which are released from the obligations in
this Section 1(d) are reinstated as LTBM Option Shares).
The number of Set Aside Shares which the JHM Trustees shall be entitled to
call for the delivery of (the "Delivered Set Aside Shares") shall be determined
by reference to the per Share cash required to be paid to CAL FP (the "Required
Proceeds") on the maturity date of the Equity Swap and the price which is
achieved in the market on the maturity date on the sale of the relevant number
of Set Aside Shares (the "Achieved Price per Share") on the following basis: (i)
if the Achieved Price per Share on the maturity date is at or above Euro 7.80
per Share plus interest at 6.0% per annum, compounded annually, from November
29, 2002 to the maturity date
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(the "Interest Amount"), then the number of Delivered Set Aside Shares shall be
zero; (ii) if the Achieved Price per Share on the maturity date is at or below
Euro 3.90 per Share plus the Interest Amount, then the number of Delivered Set
Aside Shares shall be 2,466,402; and (iii) if the Achieved Price per Share on
the maturity date is between Euro 7.80 per Share and Euro 3.90 per Share in each
case plus the Interest Amount, then the number of Delivered Set Aside Shares
shall be calculated according to the formula:
2,466,402 X (A - B)
-------------------
B
where A is equal to Euro 7.80 per Share plus the Interest Amount; and B is equal
to the Achieved Price per Share on the maturity date. LTBM and the LTBM Trustees
shall be entitled to substitute for any Set Aside Shares that would otherwise be
Delivered Set Aside Shares at the maturity date of the Equity Swap an amount in
cash that would be equal to the Achieved Price per Share in respect of such Set
Aside Shares and thereafter such Set Aside Shares shall be released from the
obligations in this Section 1(d). As used herein, "maturity date" means the
maturity date of Equity Swap whether scheduled or upon acceleration.
LTBM and the LTBM Trustees hereby irrevocably instruct Floscule and its
successors to hold the Set Aside Shares for the benefit of the JHM Trustees or
any entity designated by them pursuant to this Section 1(d) and not to, directly
or indirectly, sell, transfer, pledge or otherwise encumber the Set Aside Shares
except for transfers to or as directed by the JHM Trustees or any entity
designated by them to satisfy the obligations set forth in this Section 1(d).
LTBM and the LTBM Trustees hereby agree, after the Separation Date, (x) to
procure and cause any entity that directly holds the Set Aside Shares to hold
such Shares for the benefit of the JHM Trustees or any entity designated by them
pursuant to this Section 1(d) and not to, directly or indirectly, sell,
transfer, pledge or otherwise encumber the Set Aside Shares except for transfers
to or as directed by the JHM Trustees or any entity designated by them to
satisfy the obligations set forth in this Section 1(d), and (y) that such
entities are hereby irrevocably instructed to transfer Set Aside Shares to or as
directed by the JHM Trustees or any entity designated by them to satisfy losses
upon delivery of the certificate certifying the amount of such losses to the
LTBM Trustees in accordance with this Section 1(d).
(e) In the event that not all of the Shares referred to in
Section 1(a) above are sold on or before November 29, 2002, the LTBM Trustees
and the JHM Trustees shall on December 6, 2002 deliver irrevocable instructions
to Floscule to permit any remaining balance of the LTBM Released Shares to be
pledged during the period from December 6, 2002 until the March Sale Date to
secure the borrowing of funds by the LTBM Trustees and the distribution of those
funds to LTBM for such period (but without prejudice to the rights of JHM and
the JHM Trustees pursuant to Section 2.03(e)(ii) of the Transaction Agreement).
(f) In consideration of certain undertakings by JHM and the JHM
Trustees to ▇▇▇▇▇▇ Investissement to facilitate the transactions contemplated by
this Amendment and in consideration of the potential reduction in LTBM Option
Shares resulting from the pledge arrangements described in Section 1(d) above,
LTBM and the LTBM Trustees hereby grant to
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the JHM Trustees an option to purchase, at an exercise price of one Euro cent
(Euro 0.01) per share, up to 500,000 Class A Shares (subject to adjustment for
stock splits, stock consolidations and stock dividends). Such option shall be
exercisable on or immediately prior to the exercise of the JHM Option or, if the
JHM Option expires without exercise, upon such expiration or within 30 days
thereafter. The number of Class A Shares for which such option is exercisable
shall be 500,000 unless, pursuant to Section 1(d) above, any Delivered Set Aside
Shares shall have been used to satisfy losses on the Equity Swap. If any
Delivered Set Aside Shares have been used to satisfy such losses, then the
number of shares for which the option described in this Section 1(f) is
exercisable shall be determined as follows:
500,000 X (1 - (Delivered Set Aside Shares DIVIDED BY 2,466,402))
The number of Class A Shares comprised within the LTBM Option Shares
(as reduced pursuant to Section 1(d) above) shall be further reduced by the
number of Class A Shares over which the option contained in this Section 1(f) is
exercised. The JHM Trustees shall be entitled from time to time to sell such
Shares subject to the same restrictions as provided in Section 2.06(c) of the
Transaction Agreement.
2. AMENDMENTS TO THE TRANSACTION AGREEMENT GENERALLY. Notwithstanding
anything to the contrary set forth in the Transaction Agreement, the Transaction
Agreement is further amended as follows:
(a) Upon the sale of all of the LTBM Released Shares in accordance
with Section 1(a) above, the Fulfillment of the LTBM Released Shares Sale
Condition shall be deemed to have been satisfied as of the date of such sale of
the LTBM Released Shares.
(b) Neither LTBM nor the LTBM Trustees shall take any action, or omit
to any action, which would have the effect of preventing the sales set forth in
Section 1(a) from occurring.
(c) The figure of 19,165,307 Shares referred to in the penultimate
sentence of Section 2.05(d)(ii) of the Transaction Agreement shall be replaced
by the figure of which is 19,165,307 Shares less the reductions to the LTBM
Option Shares determined pursuant to Sections 1(d) and 1(f) above.
(d) Immediately following Section 2.05(d)(iv) of the Transaction
Agreement, a new Section 2.05(e) shall be added as follows:
"(e) JHM, the JHM Trustees, LTBM and the LTBM Trustees agree that,
beginning on the Separation Date and continuing so long as JHM, the
JHM Trustees and ▇▇▇▇ Teyssonniere de Gramont, either directly or
indirectly, own more Class B Shares than LTBM and the LTBM Trustees,
then JHM, the JHM Trustees and ▇▇▇▇ Teyssonniere de Gramont, or any
entity that then holds their Shares, shall be the Majority Holder and
shall be entitled to direct ▇▇▇▇▇▇ to vote
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its Shares in accordance with the instructions of the Majority Holder
as set forth in the Shareholders' Agreement. LTBM and the LTBM
Trustees agree that the directions of such Majority Holder represent
the instructions of the Floscule Group and that ▇▇▇▇▇▇, in following
such directions, shall be entitled to rely on this provision as fully
as if ▇▇▇▇▇▇ were a party hereto."
3. NO FURTHER AMENDMENTS. All other provisions of the Transaction
Agreement not amended or supplemented as set forth above remain in full force
and effect unamended as of the date hereof.
4. EFFECTIVENESS. This Amendment A will take effect (a) as to LTBM or
JHM, when each of them has signed this Amendment A, (b) as to the LTBM Trust,
when the LTBM Trustees have signed this Amendment A and (c) as to the JHM Trust,
when the JHM Trust has signed this Amendment A. Each of LTBM and JHM agrees to
use commercially reasonable best efforts to have their respective trustees sign
this Amendment A as promptly as possible (i.e. within 24 hours of JHM's and
LTBM's signing). This Amendment A may be signed in counterparts, all of which,
taken together, shall constitute one and the same agreement.
5. [intentionally blank]
6. OBLIGATIONS. In addition, the parties understand and agree that each
of the LTBM Trustees and the JHM Trustees (the "TRUSTEES") has entered into this
Amendment A solely in its capacity as trustee of the respective trust of which
it is trustee and the obligations of such Trustee hereunder are subject to the
provisions of such trust. Notwithstanding any other provision of this Amendment
A or the Transaction Agreement, any and all liabilities of the Trustees created
by this Amendment A or the Transaction Agreement shall be limited to the extent
such liability can be met from and out of the funds or other property from time
to time subject to the trusts of the respective trusts and, accordingly, the
obligations of, and rights against, the Trustees under this Amendment A or the
Transaction Agreement and any and all liability of the Trustees that may
otherwise arise in connection with this Amendment A or the Transaction Agreement
and the matters contained in this Amendment A or the Transaction Agreement shall
be performed, satisfied and paid only out of, and enforced only against and
recourse under this Amendment A or the Transaction Agreement shall be had only
against, the funds and or other property from time to time subject to the trusts
contained in the respective trust deeds.
7. IRREVOCABLE INSTRUCTIONS. Each of the undersigned hereby irrevocably
authorizes and directs Floscule, ▇▇▇▇▇▇ SA, their applicable successor entities,
TMF and each of its and their directors, officers, employees, agents and
representatives (collectively, "TMF") to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper, advisable or
appropriate as is necessary or desirable to cause Floscule, ▇▇▇▇▇▇ SA and their
applicable successor entities, as the case may be, to:
(1) transfer and pledge Shares and deliver funds in accordance with the
provisions of this Agreement;
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(2) to enter into an equity swap transaction with Credit Agricole Lazard
Financial Products Bank ("CAL FP"), PROVIDED, HOWEVER, that all rights
and obligations related to such equity swap transaction shall be
assigned to the companies indirectly owned or controlled by JHM or the
JHM Trustees in the de-merger of Floscule;
(3) to pledge Class A shares and/or Class B shares to CAL FP to secure
certain obligations of Floscule to CAL FP, PROVIDED, HOWEVER, that all
rights and obligations related to such pledge shall be assigned to the
companies indirectly owned or controlled by JHM or the JHM Trustees in
the de-merger of Floscule and PROVIDED FURTHER, that the terms of such
pledge contain the provisions required by Section 2.07(b) of the
Transaction Agreement;
(4) to pledge certain of its rights to ▇▇▇▇▇▇ and to guarantee certain
rights of ▇▇▇▇▇▇ under the equity swap transaction with CAL FP,
PROVIDED, HOWEVER, that all rights and obligations related to such
pledge shall be assigned to the companies indirectly owned or
controlled by JHM or the JHM Trustees in the de-merger of Floscule.
Any action taken or caused to be taken pursuant to this Section 7 shall be
Released Matters (as defined in Section 5.04 of the Transaction Agreement) and
the provisions of Section 5.04 of the Transaction Agreement shall apply with
equal force and effect to such actions.
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[SIGNATURE PAGE TO AMENDMENT A TO THE TRANSACTION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment A
as of the day and year first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ TRUST
By: Rothschild Trust Guernsey Limited, Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE JACTMAC MEDIA TRUST
By: Codan Trust Company Limited, Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
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