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Dated February 21, 2000
QUOTA PURCHASE
A G R E E M E N T
between
SBS Magyarorszagi Befektetesi Kft as Purchaser
and
CME Hungary BV
as Seller
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LIST OF ANNEXES AND SCHEDULES
TO THE
QUOTA PURCHASE AGREEMENT
Annex 1 Closing Balance Sheet (Clause 2.2.2)
Annex 2 Seller's certificate (Clause 5.3.1)
Annex 3 Purchaser's Certificate (Clause 5.2.1)
Annex 4 Transfer Certificate (Clause 5.3.2)
Annex 5 Assignment of CME Shareholders Loan (Clause 3.1 (d))
Annex 6 CME Guarantee
Annex 7 SBS Guarantee
Annex 8 List of employees (Schedule 1, 1.11.2)
Annex 8a Form of Irisz withdrawal of Request for Legal Review
Annex 8b CME Companies' Release and Waiver
Annex 8c CLT-UFA Companies' Release and Waiver
Annex 8d SBS Companies' Release and Waiver
Annex 9 Purchase Price Certificate (2.2.1)
Annex 10 Land registry extract
Annex 11 Lease Agreements
Annex 12 Minutes of the Fire Department Inspection
Annex 13 Colliers Agreement
Annex 14 Deed of Foundation
Annex 15 List of employee's loan
Annex 16 Indemnification letter
Annex 17 Escrow Agreement
Schedule 1 Seller's warranties
Schedule 2 Purchaser's warranties
Schedule 3 Material contracts
Schedule 4 Insurance contracts
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QUOTA PURCHASE AGREEMENT
T H I S A G R E E M E N T is made on February 21, 2000, BETWEEN:
(1) SBS Magyarorszagi Befektetesi Kft , a limited liability company
registered in Hungary, whose registered office is located at Budapest, Havas
u. 6. H-1056("Purchaser" or "SBS Hungary");
(2) CME Hungary B.V., a limited liability company registered in The Netherlands,
whose registered office is located at Hoogoorddreef 9, 1101 BA Amsterdam
ZuidOost, the Netherlands ("Seller", together with Purchaser, the "Parties");
WHEREAS:
(A) Videovox Studio Kft ("Videovox") is a company organized and existing
under the laws of the Republic of Hungary. Videovox is engaged in the dubbing
business.
(B) The registered capital of Videovox is HUF 648,340,000. The Seller is
the owner of a quota interest in Videovox having a nominal value of HUF
648,340,000, representing the entire equity capital of Videovox ("Sale Quota").
(C) The Seller has agreed to sell and the Purchaser has agreed to purchase
the Sale Quota. Following the consummation of the above transactions the
Purchaser will own 100% of the quota interest in Videovox.
IT IS AGREED as follows:
1. INTERPRETATION
In this Agreement, including its Schedules, unless the context otherwise
requires:
1.1 Definitions
"Affiliate" means, with regard to any person, any other person who,
individually or as part of a "group" controls, is controlled by or is under
common control with, such person;
"Agreement" means this Quota Purchase Agreement;
"BK Rt Share Purchase Agreement" means the Share Purchase Agreement to
be entered into between and by SBS Hungary as purchaser and CME Hungary BV
as seller for the sale of the shares representing 100% of the issued shares
of Budapesti Kommunikacios Rt;
"Closing" means the completion of the sale and purchase of the Sale
Quota, pursuant to Closing , subject to the fulfillment of all conditions
precedent to Closing as set forth in Clause 3.;
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"Closing Date" means the date on which the Closing takes place
pursuant to Clause 5.1;
"CLT-UFA" means CLT-UFA SA, Luxembourg, a 49% shareholder of RTL Klub;
"Confidential Information" has the meaning set forth in Clause 7.3;
"Company Act" means Act No CXLIV of 1997 on Business organizations,
accepted by the Hungarian Parliament on December 9, 1997;
"CME" means collectively CME Media Enterprises BV, CME Hungary BV, CME
Development Corporation, CME Programming Services Inc. and CME Programming
Services BV;
"CME Programming Agreements" means the programming agreements referred
to the Programming Assignment Agreement;
"CME Guarantee" means the Deed of Guarantee to be entered into between
the Seller's Parent Company and the Purchaser guaranteeing the Seller's
performance pursuant to this Agreement;
"Escrow Agent" means ING Bank, Budapest, Hungary;
"Escrow Account" means the bank account of the Purchaser held with the
Escrow Agent;
"Deed of Foundation" means the May 31, 1999 amended and consolidated
text of the Deed of Foundation of Videovox;
"HUF" means Hungarian Forint, the lawful currency of the Republic of
Hungary;
"Hungary" means the Republic of Hungary and the territory of the
Republic of Hungary as the case may be;
"ING" means ING Bank Rt Budapest;
"IRISZ Lawsuit" means the lawsuit initiated by IRISZ TV Rt in 1997
against, ORTT, MTM-SBS Rt and Magyar RTL Klub, challenging the award of
national licenses in the Television Tender;
"IRISZ TV Rt' means Irisz TV Televizios Musorkeszito Rt, the wholly
owned Hungarian subsidiary of CME Hungary BV, which was formed on April 1,
1997 by a consortia led by CME Hungary BV for the purposes of submitting a
bid in the Television Tender;
"IRISZ TV Withdrawal" means the withdrawal of all legal claims
asserted by IRISZ TV against ORTT, MTM-SBS Rt and Magyar RTL Rt in
connection with the Television Tender;
"Magyar RTL Rt" or "RTL Klub" means Magyar RTL Rt, a subsidiary of
CLT-UFA SA, Luxembourg, which has been awarded a television license in the
Television Tender, and which has been Defendant 3. in the IRISZ Lawsuit;
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"MTM" means MTM Kommunikacios Rt, a shareholder of TV2 with 38.5%
voting rights;
"MTM-SBS Rt" or "TV2" means MTM-SBS Rt, an affiliate of the Purchaser
which has been awarded a television license in the Television Tender, and
which has been Defendant 2 in the IRISZ Lawsuit;
"ORTT" means the National Radio and Television Council of Hungary,
which has been Defendant 1 in the IRISZ Lawsuit;
"Person" means an individual, partnership, corporation, company,
trust, unincorporated organisation, or a government or agency or political
sub-division thereof.
"Programming Assignment Agreement" means an agreement to be entered
into between CME Media Enterprises B.V., CME Hungary B.V., CME Development
Corporation, CME Programming Services Inc., CME Programming Services B.V.
and SBS on or before the Closing for the assignment, sublicense or transfer
of substantially all of CME's program library for the territory of Hungary
to SBS;
"Purchaser's Parent Company" means SBS Broadcasting SA, the majority
owner of the Purchaser;
"Purchaser's Warranties" means the warranties of the Purchaser set out
in Clause 6.2 and Schedule 2;
"Sale Quota" means the quota as set forth in Paragraph (B) of the
preambles to this Agreement;
"SBS" means SBS Broadcasting SA, the parent company of the Purchaser
and a shareholder of TV2 with 61,5% economic and with 49% voting rights;
"SBS Guarantee" means the Deed of Guarantee to be entered into between
the Purchaser's Parent Company and the Seller guaranteeing the Purchaser's
performance pursuant to this Agreement;
"Seller's Parent Company" means CME Media Enterprises BV, the sole
owner of the Seller;
"Seller's Warranties" means the warranties of the Seller set out in
Clause 6.1 and Schedule 1;
"Summary Term Sheet" means the Summary Terms Sheet signed by SBS
Broadcasting SA and Central European Media Enterprises Ltd. on February 18,
2000 summarizing the parties understanding of three inter-related
transactions between their respective subsidiaries in Poland, in Hungary
and in Slovenia;
"Television Tender" means a tender announced in 1997 by the ORTT for
national terrestrial television licenses in Hungary;
"US$ or US Dollars" means United States Dollars, the lawful currency
of the United States of America.
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"Videovox Transfer Notice" means a document signed by the Seller and
the Purchaser evidencing that the Purchaser acquired full ownership over
Videovox.
1.2 References
1.2.1 References to "this Agreement" shall include any
Schedule and Annex to it and references to Clauses and
Schedules are references to Clauses of, and Annexes and
Schedules to, this Agreement;
1.2.2 Unless the context otherwise requires, any
reference to a legislative act or provision shall
include such act or provision as from time to time
modified or re-enacted or consolidated so far as such
modification or re-enactment or consolidation applies or
is capable of applying to any transactions entered into
hereunder;
1.2.3 Headings are used for convenience only and shall not
affect the interpretation of this Agreement.
2. AGREEMENT TO PURCHASE THE SALE QUOTA AND CONSIDERATION
Upon the terms and subject to the conditions of this Agreement:
2.1 Purchase of the Sale Quota
Seller hereby agrees to sell, and the Purchaser hereby agrees to
purchase, the Sale Quota, on the Closing Date.
2.2 Consideration and Adjustment
Purchase Price
2.2.1 The purchase price shall be equal to USD 2,300,000 plus
current assets and less current liabilities - excluding all CME related
liabilities - stated in the Closing Balance Sheet and less the Severance
Payment Compensation("Purchase Price"). The Parties jointly established
the Purchase Price in accordance with the above described calculation and
included it in a closing certificate attached hereto in Annex 9.
Adjustment
2.2.2 The Parties agree, that the Seller shall cause Videovox to
prepare, prior to Closing and in conformity with the rules of the
Generally Accepted Accounting Principles of the United States of America
("US GAAP"), an estimated, unaudited December 31, 1999 Balance Sheet of
Videovox ("Closing Balance Sheet"), attached in Annex 1.
2.2.3 The Parties further agree, that Videovox shall prepare, by no
later than March 15, 2000 and in conformity with US GAAP, a balance sheet
of Videovox as of the Closing Date audited by Arthur Andersen, Budapest
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("Audited Balance Sheet"). The costs of such audit shall be borne 50-50%
by the Parties.
2.2.4 The Parties agree, that in the event that the total net
current liabilities stated in the Audited Balance Sheet are 0.3% more than
stated in the Closing Balance Sheet, Purchaser shall be entitled to claim
from the Seller the repayment of the difference ("Purchaser's
Adjustment"). Within no later than 15 working days after the receipt of
the Audited Balance Sheet, Purchaser shall notify the Seller in writing
("Purchaser's Notice") on the amount of Adjustment, if any. If the Seller
shall not have received Notice within 15 working days after Purchaser's
receipt of the Closing Balance Sheet, it shall be deemed that Purchaser
has waived its right to claim Purchaser's Adjustment in respect thereof.
If the Purchaser's Notice shall have been delivered in a timely manner,
the Seller shall transfer the Purchaser's Adjustment to the Purchaser's
bank account specified in Clause 7.13 within 5 working days after the
receipt of the Purchaser's Notice.
2.2.5 The Parties agree, that in the event that the total net
current liabilities stated in the Audited Balance Sheet are 0.3% less than
stated in the Closing Balance Sheet, Seller shall be entitled to claim
from the Purchaser the payment of the difference ("Seller's Adjustment").
Within no later than 15 working days after the receipt of the Audited
Balance Sheet, Seller shall notify the Purchaser in writing ("Seller's
Notice") on the amount of Adjustment, if any. If the Purchaser shall not
have received Notice within 15 working days after Seller's receipt of the
Closing Balance Sheet, it shall be deemed that Seller has waived its right
to claim Seller's Adjustment in respect thereof. If the Seller's Notice
shall have been delivered in a timely manner, the Purchaser shall transfer
the Seller's Adjustment to the Seller's bank account specified in Clause
7.13 within 5 working days after the receipt of the Notice.
Payment
2.2.6 Upon Seller's delivery to the Escrow Agent of the documents
set out in Clause 3.2(a) of this Agreement and the Videovox Transfer
Notice, the Escrow Agent shall wire the Purchase Price from the Escrow
Account to the Seller's bank account specified in Clause 7.13 of this
Agreement.
2.2.7 Within 5 working days after Seller's receipt of the
Purchaser's Notice, the Seller shall transfer in immediately available
funds the Purchaser's Adjustment to the account of the Purchaser as
specified in Clause 7.13.
2.2.8 Within 5 working days after Purchaser's receipt of the
Seller's Notice the Purchaser shall transfer in immediately available
funds the Sellers Adjustment to the account of the Seller as specified in
Clause 7.13.
Severance Payment Compensation
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2.2.9.1 It is the understanding of the Parties that Purchaser shall
close the current operation of Videovox as soon as practicable after
Closing. Therefore, the Parties agree, that the Seller shall compensate
the Purchaser for certain costs of termination of the contracts with
employees and freelancers set out in Annex 8 to this Agreement. The
Purchaser shall reduce the Purchase Price by USD 48,079 as a compensation
of certain termination costs ("Severance Payment Compensation").
2.2.9.2 It is expressly understood and agreed that, with exception
of the Severance Payment Compensation set forth in Clause 2.2.9.1 above,
Purchaser is not entitled to any reimbursment for any costs, expensenses,
or the like in connection with the closing of the operation of Videovox.
3. CONDITIONS PRECEDENT TO CLOSING
3.1 Conditions Precedent to the Obligations of All Parties.
The respective obligations of each Party under this Agreement are
subject to the satisfaction or written waiver by the Seller or by
the Purchaser (as the case may be), at or prior to Closing, of each
of the following conditions:
(a) The Polish Transaction
CME and SBS have entered into the Option Agreement for the
Polish Transaction as described in the Summary Term Sheet.
(b) Sale of BK Rt
The Parties shall have executed the BK Rt Sale Purchase
Agreement.
(c) Execution of Programming Assignment Agreement
CME and SBS shall have entered into the Programming Assignment
Agreement.
(d) Assignment of Shareholder's Loan
CME and SBS shall have executed an assignment letter in
the form attached as Annex 5 for the assignment to SBS of
all CME claims against Videovox relating to the obligation
to make any further payments (whether for principal, or
interest or otherwise) under the loan agreement entered into
by CME Hungary BV with Videovox.
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(e) CLT-UFA Companies Declaration
Purchaser shall have placed in escrow a duly signed
declaration of CLT-UFA and RTL Klub ("CLT-UFA Companies") in
the form set forth in Annex 8(c) to this Agreement, addressed
to CME and IRISZ TV that each of the CLT-UFA Companies waives
and releases each of CME and IRISZ TV, and their respective
shareholders from any legal claims or causes of action in any
forum, whether known or unknown, fixed or contingent, directly
or indirectly, against such parties in connection with the
Television Tender.
(f) Escrow Agreement
The Parties shall have entered into an escrow agreement, in
the form set forth in Annex 17.
3.2 Conditions Precedent to Obligations of the Purchaser.
The obligations of the Purchaser are subject to the
satisfaction or waiver by the Purchaser at or prior to Closing of
each of the following conditions:
(a) Withdrawal of IRISZ TV Claim
The Seller shall have caused the execution
(i) of a petition by IRISZ TV Rt, in the form set forth in Annex
8/a to this Agreement, addressed to the Supreme Court of
Hungary withdrawing all claims asserted by IRISZ TV Televizios
Musorkeszito Rt against ORTT, MTM-SBS Rt and Magyar RTL Rt in
the review procedure pending before the Supreme Court of
Hungary under the file no: Gfv.X.30.197/2000.(earlier under
file No.: 31.132/1999.)
(ii) Seller shall have placed in escrow a duly signed declaration
of CME and IRISZ TV in the form Annex 8/b to this Agreement,
addressed to CLT-UFA, and RTL Klub ("CLT-UFA Companies")and to
SBS, MTM and TV2 (SBS Companies") that each of CME and IRISZ
TV waives and releases each of the CLT-UFA Companies and the
SBS Companies, and their respective shareholders from any
legal claims or causes of action in any forum, whether known
or unknown, fixed or contingent, directly or indirectly,
against such parties in connection with the Television Tender.
(b) No Breach of Representations and Warranties.
The representations and warranties of the Seller referred to
in Schedule 1 shall be true and correct in all material
respects at and as of Closing.
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(c) CME Guarantee
Seller shall have delivered to Purchaser the CME Guarantee
executed by the Purchaser's Parent Company, in the form set
forth in Annex 6.
(d) Resignation of the Managing Director of Videovox
The Managing Director of Videovox shall have tendered
his resignation as of the Closing Date and shall have
received an indemnification letter from the Purchaser the
text of which is attached as Annex 16.
3.3 Conditions Precedent to Obligations of the Seller
The obligations of the Seller are subject to the satisfaction or
waiver by the Seller at or prior to Closing of each of the following
conditions:
(a) No Breach of Representations and Warranties
The representations and warranties of the Purchaser referred
to in Schedule 2 shall be true and correct in all material
respects at and as of Closing.
(b) SBS Guarantee
Purchaser shall have delivered to Seller the SBS Guarantee
executed by the Seller's Parent Company in the form set forth
in Annex 7.
(c) Purchase Price placed in Escrow
SBS shall have placed in escrow an amount equal to the
Purchase Price with the Escrow Agent with the instruction to
release the Purchase Price to the Seller immediately upon
Seller's delivery of the documents set out in Clause 3.2(a)
and the Videovox Transfer Notice and to wire transfer the
amount to the Seller's bank account specified in Clause 7.13.
(d) SBS Companies Declaration
Purchaser shall have placed in escrow a duly signed
declaration of SBS, MTM and TV2 ("SBS Companies") in the form
Annex 8(d) to this Agreement, addressed to CME and IRISZ TV
that each of the SBS Companies waives and releases each of CME
and IRISZ TV, and their respective shareholders from any legal
claims or causes of action in any forum, whether known or
unknown, fixed or contingent, directly or indirectly, against
such parties in connection with the Television Tender.
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4. COVENANTS
4.1 Covenants of Seller and Purchaser
(a) Reasonable efforts.
The Parties shall use their reasonable efforts and fully
cooperate to bring about the fulfillment of all conditions
precedent to Closing on the earliest possible date.
(b) Resale of Hungary Assets
The Parties agree that in the event that Purchaser or SBS or
any of their affiliates sell, transfer, assigns or otherwise
receives an aggregate consideration for any of the Hungarian
Assets, as such term is defined in the Summary Term Sheet,
including the IRISZ Lawsuit, directly or indirectly, from
CLT-UFA, RTL Klub or any subsidiary or affiliate for the
greater of fair market value or actual consideration in excess
of USD 9.0 million plus interest on deferred payment
obligations, in one or more transactions, SBS agrees to pay
the entire amount of such excess to CME in cash within 10
business days of the receipt of the excess cash or other
consideration, including, without limitation, any deferred
payment obligation. Within five business days of any sale or
commitment to sell a Hungarian Asset by SBS, SBS will notify
CME in writing of the terms of such sale or commitment.
(c) Coordinate the withdrawal of IRISZ Lawsuit
The parties agree to use their best efforts to coordinate the
withdrawal of the IRISZ Lawsuit with IRISZ TV, ORTT, RTL KLUB
and TV2.
5. CLOSING
5.1 Date and Place
The Closing shall take place at 9:00 am, on February 21, 2000 at the
offices of ING Bank Rt in Budapest, or on such other date and at
such other time and place as the parties hereto may agree but in any
event, no later than 17:00 pm on February 21, 2000.
5.2 Purchaser's Obligations
On the Closing Date, and against delivery or tender by the Seller of
the documents specified in Clause 5.3 below, the Purchaser shall:
5.2.1 deliver to Seller a certificate in the form set forth in
Annex 3, dated the Closing Date, stating that the
representations and warranties of the
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Purchaser referred to in Schedule 2 are true and correct
in all material respects at and as of Closing; and
5.2.2 deliver to the Seller a certificate in a form reasonably
satisfactory to the Seller certifying that the Escrow
Agent has released and has wired the Purchase Price to
the account of Seller specified in Clause 7.13.
5.3 Seller's Obligations
On the Closing Date, and against delivery or tender by the
Purchaser of the documents specified in Clause 5.2 above, the
Seller shall:
5.3.1 deliver to Purchaser the waiver and declaration
specified in Clause 3.3(d) above;
5.3.2 deliver to Purchaser a certificate in the form attached
in Annex 2, dated the Closing Date, stating that the
representations and warranties of the Seller referred to
in Schedule 1 are true and correct in all material
respects at and as of Closing; and
5.3.3 deliver to Purchaser the Videovox Transfer Notice in
the form attached in Annex 4.
6. WARRANTIES AND INDEMNITIES
6.1 Seller's Warranties
The Seller represents and warrants to the Purchaser as set
forth in Schedule 1.
6.2 Purchaser's Warranties
The Purchaser represents and warrants to the Seller as set
forth in Schedule 2.
6.3 Indemnification
6.3.1 Survival of Representations and warranties
The representations and warranties set forth in Schedule
1 and 2 the covenants set forth in Clause 4.1 b shall
survive the Closing until the first anniversary thereof;
provided that if written notice of a claim for
indemnification hereunder giving reasonable details of
the claim is delivered by a party seeking
indemnification hereunder to a party obligated to make
an indemnification payment hereunder prior to the
expiration of the above mentioned survival
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periods, then such representation and warranty shall
continue to survive with respect to that particular
claim only so long as legal proceedings are instituted
and served with respect to the claim within twelve (12)
months of such written notice. Unless otherwise stated
herein, the covenants and agreements of the parties
hereto shall survive the Closing without limit.
6.3.2 Indemnification by the Seller
Subject to the time limitation set forth in Clause
6.3.1, the Seller agrees to indemnify and hold harmless
the Purchaser, its officers, directors and agents from
and against any and all claims, damages, liabilities,
costs and expenses, including reasonable attorney's fees
("Losses")arising from or in connection with the breach
to any representation, warranty of the Seller set forth
in Schedule 1 except with respect to any Losses arising
from or relating to any action or failure to act due to
willful misconduct or gross negligence on the part of
the Purchaser or such other party suffering the Losses.
6.3.3 Indemnification by the Purchaser.
Subject to the time limitation set forth in Clause
6.3.1, the Purchaser shall indemnify and hold harmless
the Seller and its officers, directors and agents from
and against any and all Losses arising from or in
connection with the breach of any representation or
warranty of the Purchaser set forth in Schedule 2,
except with respect to any Losses arising from or
relating to any action or failure to act due to gross
negligence or willful misconduct on the part of the
Seller or such other party suffering the Losses.
6.3.4 Indemnity Procedures.
Except as expressly provided for otherwise in this Agreement:
(a) Whenever a claim for indemnification shall arise
under this Clause 6, the party entitled to
indemnification (the "Indemnified Party") shall
notify, in writing, the Party from whom
indemnification is sought (the "Indemnifying Party")
of such claim and, when known, the facts constituting
the basis for such claim as soon as reasonably
practicable and in any event, as to any claim by a
third party, within 5 working days of the Indemnified
Party becoming notified in writing of the assertion
of such claim. The Indemnified Party shall have a
duty to mitigate the Losses relating to any such
claim.
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(b) Third Party Claims
Without limiting the generality of the foregoing, in the
event of a claim for indemnification hereunder resulting
from or in connection with any claim or legal proceeding
by a third party, including any tax audit or any
proceeding for the assessment of any tax or other
mandatory payment by a government authority of Hungary
(a "Third Party Claim"), the Indemnified Party shall
give notice to the Indemnifying Party no later than 20
working days prior to the time any response to an
asserted claim is required, if possible. The
Indemnifying Party may assume the defense of any Third
Party Claim, but no settlement shall be made without the
prior written consent of the Indemnified Party, which
consent shall not be unreasonably withheld. If an
Indemnifying Party assumes the defense of any such claim
or legal proceeding, the Indemnifying Party shall be
entitled to select counsel and take all steps necessary
in the settlement or defense thereof; provided, that the
Indemnified Party may, at its own expense, participate
in any such proceeding with the counsel of its choice.
(c) In case of any claim that is not a Third Party Claim,
the Indemnifying Party shall have 30 days within
which it may respond to a notice of a claim for
indemnification given by an Indemnified Party
pursuant to Clause 6.3.4(a). If such claim is not
contested, then the Indemnifying Party shall as soon
as practicable proceed to take whatever action is
required to carry out its indemnification
obligations.
6.3.5 Currency of Payment
All indemnification between the Parties to be paid under
this Agreement shall be paid in US dollars.
6.3.6 Limitation on Liability
No claims arising under or in connection with this
Agreement shall be allowed unless such claims,
individually or in the aggregate, exceed USD 10,000. For
the avoidance of doubt, the preceding sentence does not
require the deduction of any amounts from a permitted
claim. The liability of any Party for all claims under
or in connection with the Agreement shall not exceed USD
2,300,000.
7. OTHER PROVISIONS
7.1 Termination or Rescission
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Notwithstanding anything stated to the contrary, this
Agreement is terminated with prejudice if any condition precedent to
Closing has not been fulfilled and the Closing did not occur by
February 21, 2000.
7.2 Announcements
Without prejudice to the provisions of the Confidentiality
undertaking, until three months after the Closing, the Seller and
its Affiliates shall be required, consult to with the Purchaser as
to the terms of, the timetable for any manner of publication of, any
announcement to shareholders, employees, customers, suppliers,
distributors and sub-contractors and to the media which any of the
Parties may desire or be obliged to make regarding this Agreement.
7.3 Confidentiality
Each Party undertakes that it shall, together with its
employees, officers, advisors and other agents hold in strict
confidence all data and information regarding Videovox obtained
pursuant to this Agreement or otherwise, including the terms of this
Agreement ("Confidential Information") and will not, and will use
its best efforts to ensure that such other persons do not, disclose
such Confidential Information to others without the prior written
consent of the other party, except that the Purchaser may provide
such Confidential Information in response to legal process or
applicable governmental regulations, but only that portion of the
Confidential Information which, in the written opinion of counsel
for the Purchaser, is legally required to be furnished and further
provided that the Purchaser notifies in writing the Seller of its
obligation to provide such Confidential Information so far as it is
practicable. For purposes of this Clause, "Confidential Information"
shall not include any information that:
(i) is within the public domain other than as a result
of a breach of this Agreement;
(ii) becomes available within the public domain other than
(a) as a result of a breach of this Agreement or (b) by
means of other unauthorized disclosure or use,
provided, however that if the unauthorized disclosure
is not attributable to the Purchaser, the terms of
further disclosure will remain subject to this Clause;
(iii) is provided to the Purchaser by a person or entity
(other than the parties hereto) that is lawfully in
possession of such information and has the lawful right
to disclose or use it; or
(iv) following the 90th day after the Closing, relates
solely to the business of Videovox (it being understood
that the terms of this Agreement and the information as
to the business or affairs of the
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Seller shall continue to be Confidential Information).
7.4 Successors and Assigns
This Agreement shall be personal to the Parties and may not be
assigned by any Party without the prior written consent of the other
Partie. The Purchaser, upon notifying the Seller, may assign its
rights and transfer its obligations hereunder to any of its
Affiliates provided that the Purchaser guarantees the performance of
the obligations of such Affiliates set forth herein, in which case
such Affiliates shall assume the obligations of the Purchaser under
this Agreement and shall be bound by the terms hereof.
7.5 Whole Agreement and Variation
This Agreement supersedes all prior agreements and
understandings, oral and written, between the Parties with respect
to the subject matter hereof and contains the whole agreement
between the Parties relating to the subject matter of this
Agreement, including without limitation the Summary Term Sheet and
no variation of this Agreement shall be effective unless in writing
and signed by or on behalf of each of the Parties.
7.6 Costs
Each of the parties shall separately bear all legal,
accountancy, financial advisor, consultant and other fees and costs
and expenses incurred by them in connection with this Agreement and
the sale and purchase of the Sale Quota. The Parties agree that the
fee of the Escrow Agent shall be borne equally by the parties.
7.7 Notices
Any notice, claim or demand requiring to be served under or in
connection with this Agreement or with any arbitration or intended
arbitration under this Agreement shall be in writing in English and
shall be sufficiently given or served if delivered to:
(i) in the case of the Seller to:
CME Group,
Swan House 52-53 Poland Street London W1V 3DF
United Kingdom
Facsimile No.: 44-171-292-7948
For the attention of: Legal Department
(ii) in the case of the Purchaser to:
SBS Magyarorszagi Befektetesi Kft.
Address: Budapest, Havas u. 6. Hungary H-1056
Facsimile No.: 235-7461
For the attention of: Managing Director
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(iii) in the case of Videovox to:
Videovox Studio Kft
Huvosvolgyi ut 64.
H-1021 Budapest
Hungary
Facsimile No.: 391-2003
For the attention of: Legal Department
or such other address as may have subsequently to the
execution of this Agreement been notified to the other parties to
this Agreement for this purpose. Any such notice shall be delivered
by hand, telex or facsimile transmission or sent by pre-paid
registered post and if delivered by hand shall conclusively be
deemed to have been given or served at the time of delivery, if sent
by facsimile shall conclusively be deemed to have been given or
served when confirmation is received at the end of the transmission
and if sent by registered post shall conclusively be deemed to have
been received on the date of delivery as evidenced by the date of
receipt returned to the sender.
7.8 Counterparts
This Agreement may be entered into in any number of
counterparts and by the parties to it on separate counterparts, each
of which when so executed and delivered shall be an original, but
all the counterparts shall together constitute one and the same
instrument.
7.9 Language
This Agreement has been executed in English.
7.10 Governing Law
This Agreement and, save as expressly referred to therein, the
documents to be entered into pursuant to it shall be governed by and
construed in accordance with the laws of Hungary without regard to
its provisions relating to conflict of laws.
7.11 Settlement of Disputes
If the parties hereto are unable to resolve any dispute
arising out of or in connection with this Agreement by amicable
settlement, such dispute shall be finally settled under the
Arbitration Rules of the Hungarian Chamber of Industry and Commerce
(the "Rules") by three arbitrators. Each of the Seller and the
Purchaser shall appoint one arbitrator. The two arbitrators thus
appointed shall choose the third arbitrator. All three arbitrators
shall be fluent in the English language. The place of the
arbitration shall be in Budapest. The Parties hereto each hereby
irrevocably waive the right to submit such disputes, or to appeal,
to any court. The language of the arbitration shall be Hungarian.
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Any award rendered by an arbitration tribunal shall be final and
binding on the Parties and the judgment upon the award rendered may
be entered in any court having jurisdiction thereof.
7.12 Severability
Except as otherwise provided for in this Agreement, if any
part of this Agreement shall be invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity and
enforceability of the remaining portions and the parties shall to
the extent possible, or necessary, replace the invalid or
unenforceable part with a provisions which achieves the original
purpose of the invalid or unenforceable part.
7.13 Payment Account Details
The payment account details of the Parties as at the date of
the Agreement are as follows:
(i) Seller:
Bank: ING Bank NV, Amsterdam, The Netherlands
Account No:02.17.85.562
Account Name: CME Hungary BV
(ii) Purchaser:
Bank: ING Bank Rt, Budapest, Hungary
Account No: 13701017-03709100
Account Name: SBS Magyarorszagi Befektetesi Kft
7.14 Governmental Approvals
7.14.1 All consents and authorizations of, and declarations and
filings with, any governmental authority required to be obtained or
made by the Purchaser in connection with the execution and delivery
of this Agreement or the consummation of the transactions
contemplated hereby shall be the sole responsibility of the
Purchaser. The refusal for any reason of any of the required consent
or approval of any authority will not affect the validity of this
Agreement and shall not give arise any claim by the Purchaser
against the Seller.
7.14.2 The Parties acknowledge that in accordance with Section
24 of the Competition Act the transaction contemplated in this
Agreement may be subject of the approval of the Competition Office.
Pursuant to the provisions of the Competition Act it is the sole
obligation of the Purchaser to seek such approval. Without limiting
the generality of Clause 7.14.1 and in accordance with Clause 7.12
above, the Parties agree that in case the Competition Office would
render this Agreement invalid, the Purchaser - in accordance with
Section 31 of the Competition Act - will sell its interest in
Videovox or do whatever action is required by the Competition Act
and Purchaser will not seek for any remedy from the Seller other
than those agreed in Clause 6.3 above and will
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not seek for any remedy from the Seller for the loss incurred by it
in connection with the invalidity of this Agreement.
IN WITNESS WHEREOF this Agreement has been duly executed the day and year first
before-written.
On behalf of CME Hungary B.V: On behalf of SBS Magyarorszagi
Befektetesi Kft:
/s/ Luc Tomasino /s/ Phil Cleland
- ---------------- ----------------
NAME: Luc Tomasino NAME: Phil Cleland
TITLE:Authorized Representative TITLE:Authorized Representative