Exhibit 2.A
AMENDMENT
to
BINDING LETTER OF INTENT
This Amendment dated as of October 13, 2002 (this "Amendment") amends
the Binding Letter of Intent dated as of September 26, 2002 (the "LOI") among
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("LTBM"), Rothschilds 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"). Although this amendment contemplates the
execution and delivery of a definitive agreement, it is intended to be legally
binding upon each of LTBM, the LTBM Trust, JHM and the JHM Trust.
Terms used in this Amendment and not defined herein are used as defined
in the LOI.
1. The Option Term is hereby extended to May 16, 2005, PROVIDED that
each of the following conditions are fulfilled by the time set forth therein:
(a) the agreement in respect of outstanding personal issues
concluded between Messrs. Bonnant and ▇▇▇▇▇▇▇ in Geneva shall
have been signed by or on behalf of LTBM and JHM no later than
the date hereof;
(b) the unsold balance of the 3,500,000 Class A Shares to be
released to the LTBM Trust on the Closing Date pursuant to
Section 4 of the LOI (being an aggregate of 2,466,402 Class A
shares) shall have been sold on or prior to the Closing Date;
LTBM cannot block a sale of any shares if the price is at
least Euro 7.80 or over; the net proceeds of such sale to be
released at the Closing to LTBM's Trust in accordance with
Section 4 of the LOI;
(c) LTBM's Trust shall have received an advance against the
Closing of Euro 2,000,000 promptly after the execution and
delivery of this Amendment by all parties hereto; such advance
to be extended by Floscule (except as may be otherwise agreed
between JHM and LTBM) and would therefore reduce the amount of
net proceeds that would otherwise be released at the Closing
to LTBM's Trust in accordance with Section 4 of the LOI; it
being understood that, if the Closing shall not have occurred
as contemplated by the LOI and the parties shall not have
signed a definitive transaction agreement by October 31, 2002
in respect of the transactions contemplated by the LOI, then
LTBM's Trust shall be obligated to repay such advance to
Floscule no later than December 2, 2002; and
(d) beginning on September 15, 2004 (except as agreed
otherwise between LTBM and JHM), and prior to each of the
subsequent dates, the following number of Class A Shares held
by the LTBM Trust shall have been sold to JHM or his designee
at a per share price of Euro 8.10 plus an amount per share
equal to the sum of (i) 4.9% per annum calculated from the
First Anniversary to the earlier
of the date of sale or October 15, 2004 and (ii) 6.9% per
annum calculated from October 16, 2004 to the date of sale:
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October 15, 2004 214,286
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November 15, 2004 214,286
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December 15, 2004 214,286
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January 14, 2005 214,286
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February 15, 2005 214,286
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March 15, 2005 214,285
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April 15, 2005 214,285
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Total 1,500,000
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Each of LTBM, the LTBM Trust, JHM and the JHM Trust agrees to use
commercially reasonable best efforts in good faith to cause each of the
foregoing conditions to be fulfilled.
If conditions (a), (b) and (c) set forth above are not satisfied by the
Closing Date, the Option Term shall not be extended. If any of the sales set
forth in condition (d) set forth above is not completed by the specified date,
the Option Term shall be deemed to have expired as of such date, and there shall
be no further obligation of LTBM, the LTBM Trust, JHM, or the JHM Trust in
respect of such sales.
2. Subject to the Option Term having been extended pursuant to Section
1 above, commencing on October 15, 2004, assuming that the Option remains
unexercised, the LTBM Trustees, upon the direction of LTBM, shall be entitled to
designate an additional nominee for a total of two (the "Additional Nominee") to
serve on the supervisory board of the Company as a nominee of the Floscule
Group. The Additional Nominee shall be reasonably satisfactory to JHM (it being
understood that the Additional Nominee may not be (i) an investment banker under
engagement with or previously under engagement with LTBM or (ii) a lawyer who
has performed or expects to perform non-business legal services for LTBM). JHM
and the JHM Trustees shall vote, or cause to be voted, all of their shares in
the Company in favor of the nomination of the Additional Nominee for so long as
LTBM's Trust continues to own not less than an aggregate of 19,165,307 Class A
and Class B shares of the Company. If necessary, JHM and the JHM Trustees shall
exercise their rights under the Shareholders Agreement to cause ▇▇▇▇▇▇
Investissements to vote in favor of electing and re-electing the Additional
Nominee for such period. This Section 2 replaces the first sentence of Section
12 of the LOI.
3. All other provisions of the LOI remain unaffected by this Amendment.
4. This Amendment will take effect (a) as to LTBM or JHM, when each of
them has signed this Amendment, (b) as to the LTBM Trust, when the LTBM Trustees
have signed this Amendment and (c) as to the JHM Trust, when the JHM Trust has
signed this Amendment. Each of LTBM and JHM agrees to use commercially
reasonable best efforts to have their respective trustees sign this Amendment as
promptly as possible (i.e. within 24 hours of JHM's and LTBM's signing). This
Amendment may be signed in counterparts, all of which, taken together, shall
constitute one and the same agreement.
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5. Each of the LTBM Trustees and the JHM Trustees (the "Trustees") has
entered into this Amendment solely in its capacity as trustee of the respective
trusts of which they are trustees and the obligations of the Trustees hereunder
are subject to the provisions of such trusts. Notwithstanding any other
provision of this Amendment or the LOI, any and all liabilities of the Trustees
created by this Amendment 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:
a. the obligations of, and rights against, the Trustees under
this Amendment and any and all liability of the Trustees that
may otherwise arise in connection with this Amendment and the
matters contained in this Amendment shall be performed,
satisfied and paid only out of, and enforced only against and
recourse under this Amendment 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; and
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b. no obligation of the Trustees under this Amendment or that
otherwise may arise in connection with the matters contained
in this Amendment is binding upon, nor in respect thereof
shall any resort or recourse be had, judgment issued, or
execution or other process levied against, any other property
of the Trustees held in its capacity as trustee under other
trust instruments or held in its personal capacity.
Agreed and Accepted as of the date first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ The ▇▇▇ Trust
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: Rothschilds Trust Guernsey
Limited,
As trustees of the ▇▇▇ Trust
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
Agreed and accepted as of the date first above written.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ The JACTMAC Media Trust
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: Codan Trust Company Limited,
Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
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