AGREEMENT FOR THE SALE OF SHARES in A.R.J., A.S.
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PhDr.
XXXXX XXXXX
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AND
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CME
MEDIA ENTERPRISES B.V.
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28
October 2005
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CONTENTS
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Clause
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Page
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1.
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Interpretation
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1
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2.
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Sale
and Purchase
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1
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3.
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Conditions
Precedent
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2
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4.
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Completion
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3
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5.
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Initial
Consideration
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5
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6.
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Deferred
Consideration
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5
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7.
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Pre-Completion
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5
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8.
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Loans
and Guarantees
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6
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9.
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Warranties
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7
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10.
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Protective
Covenants
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8
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11.
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Announcements
and Confidentiality
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9
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12.
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Notices
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10
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13.
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Further
Assurances
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11
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14.
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Assignments
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11
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15.
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Payments
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11
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16.
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General
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12
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17.
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Whole
Agreement
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12
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18.
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Governing
Law and Jurisdiction
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12
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19.
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Language
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13
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20.
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Termination
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13
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21.
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Amendments
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13
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Schedule
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Page
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1.
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The
Company
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14
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2.
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Warranties
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15
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Part
1
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Warranties
regarding pre-Completion activities
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15
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Part
2
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Other
Warranties
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16
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3.
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Completion
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24
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Part
1
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Seller's
Obligations
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24
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Part
2
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Purchaser's
Obligations
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26
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4.
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Interpretation
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27
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Signatories
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31
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THIS
AGREEMENT
is made
on 28 October 2005:
BETWEEN:
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(1)
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PhDr.
Xxxxx Xxxxx,
residing at Ľudovíta Fullu Xx. 00, 000 00 Xxxxxxxxxx, birth No.
630820/7147 (the Seller);
and
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(2)
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CME
MEDIA ENTERPRISES B.V., registered
in the commercial register of Chamber of Commerce and Industries
for
Amsterdam, the Netherlands, whose registered office is at Xxxxxxxxxx
Xxxxxxxxxxx 0000, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx (the Purchaser),
represented by Xxxxxx X. Xxxxx, under power of
attorney;
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BACKGROUND:
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(A)
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The
Seller is an owner of 34 per cent of the issued share capital of
A.R.J.,
a.s., having its seat at Xxxxxxxxxx 00, Xxxxxx Xxxxxxxx 000 00,
Identification number 36 379 921, registered in the commercial register
of
the District Court Banská Bystrica, section: Sa, insert No.: 729/S (the
Company).
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(B)
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The
Seller wishes to sell and the Purchaser wishes to purchase 34 per
cent of
the issued share capital of the Company free from any Encumbrance
on the
terms and subject to the conditions set out in this
agreement.
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IT
IS AGREED
as
follows:
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1.
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INTERPRETATION
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1.1
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1.2
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1.3
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The
headings in this agreement do not affect its
interpretation.
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2.
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SALE
AND PURCHASE
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2.1
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Subject
to the Conditions being satisfied or, where applicable, waived,
the
Seller
shall sell and the Purchaser shall purchase the
Shares.
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2.2
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The
Shares shall be sold free from all Encumbrances and together with
all
rights attaching to them.
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2.3
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The
consideration for the sale of the Shares shall be determined in accordance
with clauses 5 and 6.
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2.4
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The
Seller acknowledges
that the Purchaser enters into this agreement in reliance on the
representations, warranties and undertakings on the part of the Seller
set
out in this agreement.
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2.5
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The
Seller:
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1
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(a)
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covenants
with the Purchaser that it
has the right to sell and transfer to the Purchaser the ownership
title in
the Shares on the terms set out in this agreement;
and
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(b)
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waives
all rights of pre-emption which he may have (whether under the
Company's constitutional documents or otherwise) in respect of the
transfer to the Purchaser of any shares of the Company held by any
other
shareholder of the Company.
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3.
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CONDITIONS
PRECEDENT
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3.1
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The
sale and purchase of the Shares is conditional on:
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(a)
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the
Purchaser being satisfied on inspection and investigation as
to:
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(i)
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the
financial, contractual and taxation position of the
Company;
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(ii)
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the
title of the Seller to the Shares and the title of the Company to
its
respective assets (including the title of the Company to the Participation
interest in Markíza);
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(b)
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either:
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(i)
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the
PMU notifying the Purchaser that the Transaction or any matter arising
from it is not subject to its approval;
or
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(ii)
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it
being established, in terms satisfactory to the Purchaser, that the
PMU
does not intend to refer the Transaction or any matter arising from
it to
the European Commission under Article 22(1) of Council Regulation
(EC)
No.139/2004 (the Regulation),
or if such referral is made by the PMU, that the European Commission
will
not examine the Transaction or any matter arising from it under Article
22(3) of the Regulation; and notice of clearance by the PMU of the
Transaction and any associated obligations which may require clearance
being delivered to the Purchaser;
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(c)
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the
Purchaser having received a certified copy of a resolution of the
Council
consenting to the transfer of the Participation Interest 1 from the
Company to MEDIA INVEST pursuant to article 54/1(c) of the Broadcasting
Act;
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(d)
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the
Purchaser having received a certified copy of a participation interest
transfer agreement regarding the transfer the Participation Interest
1 in
Agreed Form duly executed by the Company and MEDIA
INVEST;
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(e)
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the
Purchaser having received a certified copy of an Amendment No. 2
to the
Agreement on coordinated procedure in Agreed Form executed by the
relevant
parties and an agreement for the termination of the Agreement on
coordinated procedure in Agreed Form executed by the relevant
parties;
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(f)
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the
Purchaser having received copies of waivers of the Company's shareholders
of their rights of pre-emption under the
Company's articles in respect of the transfer to the Seller of the
Shares
from Mediapro;
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(g)
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the
Purchaser having received a certified copy of an agreement entered
into
between the Company's shareholders in which the Company's shareholders
waive all their rights of pre-emption under the
Company's articles in respect of the transfer to the Purchaser of
the
entire share capital in the
Company;
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2
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(h)
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the
Purchaser having received from the Seller a confirmation on the Completion
Date that:
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(i)
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there
are no pending or threatened actions or proceedings by or before
any court
or other governmental body or agency which shall seek to restrain,
prohibit or invalidate the
Transaction;
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(ii)
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the
Warranties are true and accurate;
and
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(iii)
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no
event or circumstance has occurred or is likely to occur that constitutes
a Material Adverse Effect.
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3.2
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The
Purchaser may waive the Conditions above (either in whole or in part)
at
any time by giving notice to the Seller. Any such waiver is without
prejudice to Purchaser's right to compensation in respect of a breach
of
any covenant or inaccuracy of any Warranty, as otherwise provided
in this
agreement.
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3.3
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Each
party shall use all reasonable endeavours to procure (so far as it
is so
able to procure) that each Condition is satisfied on or before 30
January
2006 (or such later date as may be agreed by the parties)(the Long
Stop Date).
If the Conditions are not satisfied, or waived in accordance with
the
preceding sub-clause, on or before the Long Stop
Date:
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(a)
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except
for this sub-clause, clauses 1,
clauses 11
to
21
and the provisions of Schedule
4,
all the provisions of this agreement shall lapse and cease to have
effect;
but
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(b)
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neither
the lapsing of those provisions nor their ceasing to have effect
shall
affect any accrued rights or liabilities of any party in respect
of
damages for non-performance of any obligation under this agreement
falling
due for performance prior to such lapse and
cessation.
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3.4
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Immediately
after, in the opinion of the Purchaser (acting reasonably), the Conditions
set out in sub-clauses 3.1(a)
to
3.1(g)
(save for 3.1(h)
which is to be satisfied or waived on the Completion Date) have been
satisfied or waived (to the extent not fulfilled), the Purchaser
shall
notify the Seller of this fact in
writing.
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3.5
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Each
party shall promptly inform the other party in writing about any
relevant
matters in relation to, and shall keep the other party informed in
writing
of, the progress to completion of all items required for the Completion
and any material impediments or delays or of the existence or occurrence
of any conditions that may adversely affect the occurrence of Completion.
Each party shall provide the other party with all information which
the
other party shall reasonably request in writing in order to determine
that
that party has complied with its obligations under sub-clause 3.3.
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3.6
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The
party which is obliged to provide a document shall provide to the
other
party a certified copy of each document required pursuant to sub-clause
3.1
as
and when obtained.
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4.
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COMPLETION
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4.1
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Completion
shall take place at the offices of the Purchaser's Counsel at
15.00 a.m. on the third Business Day after the date on which the last
of the Conditions to be satisfied or waived in accordance with the
preceding clause is satisfied or so waived (or at such other place,
at
such other time and/or on such other date as the parties
may agree).
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4.2
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At
Completion:
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3
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(a)
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the
Purchaser shall notify the Seller as to whether it has completed
the
purchase of the Other ARJ Shares;
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(b)
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if
the Purchaser notifies the Seller that it has completed the purchase
of
the Other ARJ Shares; then:
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(i)
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the
Seller shall observe and perform the provisions of Part
1
of
Schedule
3;
and
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(ii)
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the
Purchaser shall observe and perform the provisions of Part
2
of
Schedule
3;
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(c)
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if
the Purchaser notifies the Seller that it has not completed the purchase
of the Other ARJ Shares, then the Purchaser may elect not to complete
the
purchase of the Shares or to fix a new time and date for Completion
by, in
either case, giving notice to the
Seller.
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4.3
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If
for any reason the provisions of Part
1
of
Schedule
3
are not fully observed and performed as contemplated by clauses
4.1
and 4.2
within three days from the day on which the Completion shall take
place
pursuant to clause 4.1,
the Purchaser may elect (in addition and without prejudice to all
other
rights or remedies available to it) not to complete the purchase
of the
Shares or to fix a new time and date for Completion by, in either
case,
giving notice to the Seller. In particular, the Purchaser shall not
be
obliged to complete the purchase of any of the Shares unless the
purchase
of all the Shares is completed simultaneously in accordance with
this
agreement.
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4.4
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If
the Purchaser elects not to complete the purchase of the
Shares:
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(a)
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except
for this sub-clause, clauses 11
to
21
and the provisions of Schedule
4,
all the provisions of this agreement shall lapse and cease to have
effect;
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(b)
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neither
the lapsing of those provisions nor their ceasing to have effect
shall
affect any accrued rights or liabilities of any party in respect
of
damages for non-performance of any obligation falling due for performance
prior to such lapse and cessation;
and
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(c)
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pursuant
to sub-clause 4.3
as
a result of any of the provisions
of:
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(i)
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clause
(a) of Part
1
of
Schedule
3;
or
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(ii)
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clause
(c) of Part
1
of
Schedule
3
in
relation to the resignations of Ing. Xxxxxxxxx Xxxxxxx and Xxxxxxxxx
Xxxxxx; or
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(iii)
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clause
(d) or (e) of Part
1
of
Schedule
3
in
relation to the resignations of Ing. Xxxxxxxxx
Xxxxxxx,
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not
being
fully observed and performed as contemplated by clauses 4.1
and
4.2,
then
the Seller shall:
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(iv)
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compensate
the Purchaser for all costs, charges and expenses incurred by it
in
connection with the negotiation, preparation and entering into of
this
agreement and in discharging its obligations under it;
and
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(v)
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pay
to the Purchaser a contractual penalty in the an amount equal to
10% of
the Initial Consideration (this is without prejudice to any other
remedy
available to the Purchaser, including the Purchaser's ability to
claim
damages exceeding the amount of the contractual
penalty).
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4
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5.
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INITIAL
CONSIDERATION
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5.1
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The
initial consideration for the sale of the Shares shall be SKK
494,000,000.
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5.2
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The
Initial Consideration is, under clause 4
and Schedule
3,
to be paid to the Seller
on
the later of: (i) 1 January 2006 and (ii) the Completion Date.
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6.
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DEFERRED
CONSIDERATION
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6.1
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As
further consideration for the sale of the Shares, the Seller
shall (subject to the terms of this agreement) be entitled to a sum
of SKK
81,000,000 (the Deferred
Consideration).
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6.2
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The
Deferred Consideration shall be paid to the Seller on or before 31
May
2006.
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7.
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PRE-COMPLETION
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7.1
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Access
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Pending
Completion the Seller shall:
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(a)
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procure
that the Purchaser, its agents and advisors are given full access
to the
books and records of the Company and Mediapro during normal business
hours
on any Business Day and on reasonable notice to the
Seller;
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(b)
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provide
such information regarding the Company which is available to the
Seller as
the Purchaser may reasonably require in order to carry our the inspection
and investigation envisaged under clause 3.1(a);
and
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(c)
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provide
such other co-operation to the Purchaser, its agents and advisers
as they
may reasonably require in each case to enable them to obtain information
about the operations of the Company, including its financial, legal,
and
trading status.
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7.2
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Notice
of any change
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(a)
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The
Seller shall immediately send a notice to the Purchaser in writing
of any
matter or thing which arises or becomes known to it before Completion
which:
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(i)
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is
likely to constitute (or would after the lapse of time constitute)
a
misrepresentation or a breach of any of the other obligations on
its part
under this agreement or makes any Warranty of it incorrect or misleading;
or
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(ii)
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would
mean that any of its Warranties would be incorrect or misleading
at
Completion.
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(b)
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Any
such notice must specify that matter or circumstance in reasonable
detail
and set out such other facts as the Purchaser deem necessary specifying
that matter or circumstance in reasonable detail.
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7.3
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Brand
rights
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(a)
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From
the signing of this agreement, the Seller shall exercise all rights
and
powers available to him so as to procure that neither he nor his
Related
Persons shall use the logo, trade name or word "Markíza" or similar or
shall not take any steps in such manner that that Markíza would not have
an exclusive and full rights and use of the logo, trade name or word
"Markíza" and any similar word, name or xxxx, except as agreed in any
licence agreement entered into between STS and any third party and
except
as provided in (b) below. From the Completion Date, neither the Seller
nor
any Related Person to the Seller shall use the logo, trade name or
word
"Markíza" or similar, except as agreed in any licence agreement entered
into between STS and any such
party.
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5
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(b)
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For
avoidance of any doubt, the parties acknowledge
that:
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(i)
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the
Seller is obliged to procure that:
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(A)
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from
the Completion Date the company xxx.xxxxxxx.xx a.s., ID No. 35 780
908
will be renamed to xxx.xxxx.xx a.s. or to some other name and will
not use
the logo, trade name or word "Markíza" or similar, except as agreed in any
licence agreement with STS provided that the company xxx.xxxxxxx.xx
a.s.
is a Related Person to the Seller;
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(B)
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from
the Completion Date each of TV TIP, a.s. Bratislava, Identification
No.:
35 728 426, the company IMPEX distribution, s.r.o., ID No. 35 740
574 and
EDÍCIA MARKÍZA, s.r.o., ID No. 35 762 756 (each a Target)
will not use the logo, trade name or word "Markíza" or similar, except as
agreed in any licence agreement entered into with STS after the signing
of
this agreement, provided that the respective Target is a Related
Person to
the Seller;
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(C)
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by
the Completion Date the company TV TIP, a.s. Bratislava, Identification
No.: 35 728 426 will not be sold to any third party other than to
the
Purchaser provided that TV TIP, a.s. Bratislava, Identification No.:
35
728 426 is a Related Person to the Seller;
and
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(D)
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by
the Completion Date, the foundation MARKÍZA, registration No.:
203/Na-96/552, will be renamed so that its name will not to contain
the
word "Markíza" or similar.
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(ii)
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the
company xxx.xxxxxxx.xx a.s., ID No. 35 780 908 will have the right
to use
trade name or word or trade xxxx
"Xxxx".
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(c)
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If
the Seller breaches any of its obligation set out in this clause
7.3, it
shall pay to the Purchaser a contractual penalty of SKK 3,000,000
for each
breach.
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8.
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LOANS
AND GUARANTEES
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8.1
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The
parties acknowledge that the Consideration for the Shares has been
agreed
on the basis that:
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(a)
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no
indebtedness of any kind (whether or not presently payable) is owed
by the
Company to the Seller (or any Related Person to the Seller) other
than the
indebtedness shown in the accounting records of the Company that
shall be
repaid in full by the Company at Completion;
and
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6
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(b)
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all
indebtedness of any kind owed by the Seller (or any Related Person
to the
Seller) to the Company (whether or not presently payable) is repaid
in
full by the Seller or such Related Person to the Company on
Completion.
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8.2
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The
Seller shall procure that on or before Completion all indebtedness
due
from the Seller (or any Related Person to the Seller) to the Company
is
satisfied in full. If it is established at any time after Completion
that
any indebtedness of any kind (whether or not presently payable) was
owing
at Completion by the Seller (or any Related Person to the Seller)
to the
Company, contrary to the basis stated above, then the Seller shall
procure
that such indebtedness is immediately paid in
full.
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8.3
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The
Seller shall procure that on Completion the Company is released from
all
guarantees and indemnities given by the Company. The Seller shall
procure
that on Completion all indebtedness owing immediately before Completion
from the
Seller (or any Related Person to the Seller) to the
Company
is
or has been satisfied in full together with all interest accruing
on it up
to (but excluding) Completion.
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9.
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WARRANTIES
|
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9.1
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The
Seller
represents and warrants to the Purchaser that each of the statements
set
out:
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(a)
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in
Part
1
of
Schedule
2
will at Completion be true, accurate and not misleading; and
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(b)
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in
Part
2
of
Schedule
2
is
at the date of this agreement and will at Completion be true, accurate
and
not misleading.
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9.2
|
Each
of the Warranties is separate and independent and, except as expressly
provided to the contrary in this agreement, is not limited by reference
to
any other Warranty.
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9.3
|
None
of the Warranties shall, and the Purchasers' ability to make any
claim
under this agreement shall not, be treated as waived, qualified or
otherwise affected by any actual knowledge or any knowledge imputed
to the
Purchaser or its agents and advisers, including any knowledge resulting
from any due diligence investigation carried out by or on behalf
of the
Purchaser before Completion or which the Purchaser has or obtains
otherwise than in pursuance of its rights under this
agreement.
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9.4
|
Without
prejudice to any other remedy available to the Purchaser or its ability
to
claim damages on any basis which is available to it by reason of
any of
the Warranties being untrue or misleading or being breached, the
Seller
will, under section 725 et seq. of the Commercial Code, indemnify
the
Purchaser in respect of all liabilities (including costs, damages
or
losses, fees and expenses) that the Purchaser may suffer resulting
from or
in connection with any of the Warranties being breached, untrue or
misleading, and for any breach by the Seller of any of its obligations
under this agreement, including an amount equal to any deficiency
or
liability of the Company which arises from any of the Warranties
being
breached, untrue or misleading and which would not have existed or
arisen
if the Warranty in question had not been breached, untrue or
misleading.
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9.5
|
For
the purposes of clause 9.4
the parties confirm that:
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(a)
|
the
Seller has requested the Purchaser to rely on the Warranties being
true
and accurate as of the date when made or deemed to be made and on
the
Seller's promise to comply with all its obligations in this agreement
and
the Purchaser has not been obliged to make such reliance;
and
|
7
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(b)
|
section
728 of the Commercial Code does not apply to the Purchaser under
this
clause.
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9.6
|
The
Seller
informed the Purchaser that:
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(a)
|
the
Seller
brought a claim at the District court Bratislava II against Markíza to
determine that a general meeting of Markíza is invalid and the procedure
no. 23Cb 65/2005 is pending;
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(b)
|
MEDIA
INVEST brought a claim at the District court Bratislava I against
Xxxxxx
Volzová and Xxxx Xxxxxxx to determine that Xxxx Xxxxxxx is not the owner
of participation interest
in Markíza and the procedure no. 29Cb 104/05 is
pending.
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10.
|
PROTECTIVE
COVENANTS
|
|
10.1
|
The
Seller covenants with the Purchaser that he
shall not and shall procure that no Related Person of the Seller
for the
time being shall:
|
|
(a)
|
except
as provided in clause 10.6,
for a period of two years after Completion be concerned in any business
carrying on business which is competitive or likely to be competitive
with
any of the businesses which creates a considerable part of revenues
of
Markíza
and/or STS;
or
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|
(b)
|
for
a period of two years after Completion canvass or solicit orders
for
services similar to those being provided by Markíza or
STS at
Completion from any person who is at Completion or has been at any
time
within the year prior to the Completion Date a supplier of Markíza
or
STS provided that if as a result of that these suppliers would stop
providing supplies or services to Markíza or STS;
or
|
|
(c)
|
for
a period of two years after
Completion:
|
|
(i)
|
induce
or attempt to induce any person who is at Completion a director or
key
employee of Markíza or
STS
to
leave the employment of Markíza or
STS;
or
|
|
(ii)
|
employ
or attempt to employ any person who is at Completion a director or
key
employee of Markíza or
STS;
or
|
|
(d)
|
for
a period of two years after Completion induce or attempt to induce
any
person, who is at Completion or has been at any time within the year
prior
to the Completion Date a supplier of goods or services to Markíza
or
STS,
to cease to supply, or to restrict or vary adversely the terms of
supply,
to Markíza or
STS;
or
|
|
(e)
|
make
use of or (except as required by law or any competent regulatory
body)
disclose or divulge to any third party any information of a secret
or
confidential nature relating to, or to the business or affairs of
Markíza
or
STS; or
|
|
(f)
|
do
anything that would have a Material Adverse Effect on Markíza or
STS.
|
|
10.2
|
For
the purposes of this clause:
|
|
(a)
|
a
person is concerned in a business if it carries on the business as
principal or agent or if:
|
8
|
(i)
|
it
is a partner, director, employee, consultant or agent in, of or to
any
person who carries on the business;
or
|
|
(ii)
|
it
has any direct or indirect financial interest (as shareholder or
otherwise) in any person who carries on the business;
or
|
|
(iii)
|
it
is a partner, director, employee, consultant or agent in, of or to
any
person who has a direct or indirect financial interest (as shareholder
or
otherwise) in any person who carries on the business,
and
|
|
(b)
|
references
to Markíza or
STS
include its successors in business.
|
|
10.3
|
Each
of the restrictions in each paragraph or subclause above shall be
enforceable independently of each of the others and its validity
shall not
be affected if any of the others is
invalid.
|
|
10.4
|
If
any of those restrictions is void but would be valid if some part
of the
restriction were deleted, the restriction in question shall apply
with
such modification as may be necessary to make it
valid.
|
|
10.5
|
The
Seller acknowledges
that the above provisions of this clause are no more extensive than
is
reasonable to protect the Purchaser as the purchaser of the entire
share
capital in the Company.
|
|
10.6
|
The
Seller
is
entitled to come up with new ideas for a new theme for television
programme or to produce a new television programme (each of them
a
TV
Product),
however, the Seller
shall not be entitled to sell the TV Product without that TV Product
having first been offered to the Purchaser by notice in writing to
STS
(the Notice).
The Notice shall specify the TV Product and price at which it is
offered.
If, within 60 days after receipt of the Notice,
STS or the Purchaser does not notify the Seller that it wishes to
purchase
the TV Product, then the Seller will be entitled to sell the TV Product
to
a third party at a price being not less than price specified in the
Notice
and terms not less favourable to the Seller as those set out in the
Notice.
|
|
10.7
|
If
the Seller breaches any of its obligation set out in this clause
10, it
shall pay to the Purchaser a contractual penalty of SKK 3,000,000
for each
breach.
|
|
11.
|
ANNOUNCEMENTS
AND CONFIDENTIALITY
|
|
11.1
|
No
party shall make or permit any person connected with it to make any
announcement concerning this sale and purchase or any ancillary matter
before, on or after Completion except as required by law or any competent
regulatory body or with the prior written approval of the other party,
such approval not to be unreasonably withheld or
delayed.
|
|
11.2
|
The
Purchaser:
|
|
(a)
|
shall
keep confidential all information provided to it by or on behalf
of Seller
which relates to the Seller; and
|
|
(b)
|
if
after Completion, the Company holds confidential information relating
to
Seller, shall keep that information confidential and, to the extent
reasonably practicable, shall return that information to the relevant
Seller or destroy it.
|
|
11.3
|
The
Seller shall:
|
9
|
(a)
|
keep
confidential all information provided to it by or on behalf of the
Purchaser which relates to the Purchaser;
and
|
|
(b)
|
and
shall procure that if after Completion the Seller holds confidential
information relating to the Company, it shall keep that information
confidential and, to the extent reasonably practicable, shall return
that
information to the Purchaser or destroy
it.
|
|
11.4
|
Nothing
in this clause prevents any confidential information being
disclosed:
|
|
(a)
|
with
the written approval of the other party, which in the case of any
announcement shall not to be unreasonably withheld or delayed;
or
|
|
(b)
|
to
the extent required by law or any competent regulatory body, but
a party
required to disclose any confidential information shall promptly
notify
the other party, where practicable and lawful to do so, before disclosure
occurs and co-operate with the other party regarding the timing and
content of such disclosure or any action which the other party may
reasonably elect to take to challenge the validity of such
requirement.
|
|
11.5
|
Nothing
in this clause prevents disclosure of confidential information by
any
party:
|
|
(a)
|
to
the extent that the information is in or comes into the public domain
other than as a result of a breach of any undertaking or duty of
confidentiality by that party/any person;
or
|
|
(b)
|
to
that party's professional advisers, auditors or bankers, but before
any
disclosure to any such person the relevant party shall procure that
he is
made aware of the terms of this clause and shall use its best endeavours
to procure that each such person adheres to those terms as if he
were
bound by the provisions of this
clause.
|
|
12.
|
NOTICES
|
|
12.1
|
Any
notice or other formal communication given under this agreement
(which
includes fax, but not email) must be in writing and may be delivered
in
person, or sent by post or fax to the party to be served at its
address
appearing in this agreement as
follows:
|
|
(a)
|
to
the Seller at:
|
(b)
|
to
the Purchaser at:
|
|
X.
Xxxxxxx, k.s.
|
00-00
Xxxxxxx
|
||
|
Xxxxxxx
Xxxxx Xxxxxxxx
|
Xxxxxx
XX0X 0XX
|
||
|
Xxxxxxx
0, 000 00 Xxxxxxxxxx 0
|
Xxxxxx
Xxxxxxx
|
||
|
Xxxxxx
Xxxxxxxx
|
|||
|
Fax:
x000 0 0000 0000
|
Fax:
x00 00 0000 0000
|
||
|
marked
for the attention of JUDr. Xxx Xxxxxx,
|
marked
for the attention of General
Counsel,
|
or
at any
such other address or fax number of which it shall have given notice for this
purpose to the other party under this clause. Any notice or other communication
sent by post shall be sent by prepaid airmail.
10
|
12.2
|
Any
notice or other communication shall be deemed to have been
given:
|
|
(a)
|
if
delivered, on the date of delivery;
or
|
|
(b)
|
if
sent by post, on the second Business Day after it was put into the
post;
or
|
|
(c)
|
if
sent by fax, on the date of transmission, if transmitted before
3.00 p.m. (local time at the country of destination) on any Business
Day, and in any other case on the Business Day following the date
of
transmission.
|
|
12.3
|
In
proving the giving of a notice or other communication, it shall be
sufficient to prove that delivery was made or that the envelope containing
the communication was properly addressed and posted by prepaid airmail
or
that the fax was properly addressed and transmitted, as the case
may
be.
|
|
13.
|
FURTHER
ASSURANCES
|
|
13.1
|
On
or after Completion the
Seller
shall, at its
own cost and expense, execute and do (or procure to be executed and
done
by any other necessary party) all such documents, acts and things
as the
Purchaser may from time to time require in order to acquire the Shares
or
as otherwise may be necessary to give full effect to the Transaction
Documents.
|
|
13.2
|
In
relation to the
Company,
the Seller shall
procure the convening of all meetings, the giving of all waivers
and
consents and the passing of all resolutions as are necessary under
statute
or any agreement or obligation affecting it to give effect to the
Transaction Documents.
|
|
14.
|
ASSIGNMENTS
|
None
of
the rights or obligations under this agreement may be assigned or transferred
without the prior written consent of all the parties.
|
15.
|
PAYMENTS
|
|
15.1
|
Unless
otherwise expressly stated (or as otherwise agreed in the case of
a given
payment), each payment to be made under this agreement shall be made
in
SKK by transfer of the relevant amount into the relevant account
on or
before the date the payment is due for value on that date. The relevant
account for a given payment is:
|
|
(a)
|
if
that payment is to the Seller,
the account of the Seller
at:
|
|
bank:
|
HVB
Bank Slovakia a.s.
|
|
account
number:
|
0000000000/8080
|
or
such
other account as the Seller
shall,
not less than three Business Days before the date that payment is due, have
specified by giving notice to the Purchaser for the purpose of that payment;
and
|
(b)
|
if
that payment is to the Purchaser, the account as the Purchaser shall,
not
less than three Business Days before the date that payment is due,
have
specified by giving notice to the Seller
for the purpose of that payment.
|
|
15.2
|
If
a party defaults in the payment when due of any sum payable under
this
agreement, it shall pay interest on that sum from the date on which
payment is due until the date of actual payment (as well after as
before
judgment) at an annual rate of 1.0 per cent. above the one (1) month
BRIBOR rate valid on the first day of default and each monthly anniversary
thereof, which interest shall accrue from day to day and be compounded
monthly.
|
11
|
15.3
|
If
the Seller is required by law to make a deduction or withholding
in
respect of any sum payable under this agreement, it
shall,
at the same time as the sum which is the subject of the deduction
or
withholding is payable, make a payment to the Purchaser of such additional
amount as shall be required to ensure that the net amount received
by the
Purchaser will equal the full amount which would have been received
by it
had no such deduction or withholding been required to be
made.
|
|
16.
|
GENERAL
|
|
16.1
|
Each
of the obligations, Warranties and undertakings set out in this agreement
(excluding any obligation which is fully performed at Completion)
shall
continue in force after Completion and shall not be affected by the
waiver
of any Condition or any notice given by the Purchaser in respect
of any
Condition.
|
|
16.2
|
Except
as otherwise expressly provided in this agreement each party shall
pay the
costs and expenses incurred by it in connection with the entering
into and
completion of this agreement.
|
|
17.
|
WHOLE
AGREEMENT
|
|
17.1
|
This
agreement and the Transaction Documents to which the Seller and the
Purchaser is a party contains the whole agreement between the parties
relating to the transactions contemplated by this agreement and supersede
all previous agreements, whether oral or in writing, between the
parties
relating to these transactions.
|
|
17.2
|
Each
party acknowledges that in agreeing to enter into this agreement
it has
not relied on any representation, warranty, collateral contract or
other
assurance (except those set out in this agreement or any Transaction
Document) made by or on behalf of the other party before the entering
into
of this agreement. Each party waives all rights and remedies which,
but
for this sub-clause, might otherwise be available to it in respect
of any
such representation, warranty, collateral contract or other
assurance.
|
|
18.
|
GOVERNING
LAW AND JURISDICTION
|
|
18.1
|
This
agreement is governed by Slovak law. This agreement is governed by
the
provisions of the Commercial Code, save for those disapplied or modified
by this agreement.
|
|
18.2
|
Each
of the parties agrees that the application of any provision of Slovak
law
that is not of a strictly mandatory nature is expressly excluded
to the
extent that it could alter the meaning or purpose of any provision
of this
agreement.
|
|
18.3
|
Any
dispute arising out of or in connection with this agreement (including
any
question regarding its existence, validity, binding effect or termination)
shall be referred to, and finally resolved in arbitration proceedings
conducted under the Rules of Arbitration of the ICC (the Rules).
The Rules are deemed to be incorporated by reference into this agreement.
The tribunal shall consist of three arbitrators who shall be appointed
by
the parties in writing (pursuant to the Rules), or if they fail to
do so,
within 21 days of the day when any of the parties requested the dispute
to
be resolved by arbitration, by one arbitrator appointed pursuant
to the
Rules. The place of any such arbitration shall be Vienna and the
language
of proceedings English. The parties will be bound by any resulting
arbitral award.
|
12
|
19.
|
LANGUAGE
|
|
19.1
|
This
agreement is executed in two counterparts in English language. All
notices, demands, requests, statements, certificates or other documents
or
communications under this agreement shall be in English unless otherwise
agreed. A legally certified translation in Slovak language of this
agreement will be prepared. In case of any discrepancy between the
English
version of this agreement and its Slovak translation, the English
version
of this agreement shall prevail.
|
|
20.
|
TERMINATION
|
This
agreement cannot be terminated or rescinded otherwise than in accordance with
clause 3.3,
4.2(c)
or
4.3.
|
21.
|
AMENDMENTS
|
This
agreement may be only amended by written amendments executed by all parties.
Save as provided otherwise in this agreement, the same shall apply to waivers
of
rights under this agreement.
AS
WITNESS
this
agreement has been signed by the parties (or their duly authorised
representatives) on the date stated at the beginning of this
agreement.
13
SCHEDULE
1
THE
COMPANY
|
Company
name:
|
A.R.J.,
a.s.
|
|
|
Identification
number:
|
36
379 921
|
|
|
Registered
office:
|
Xxxxxxxxxx
00, Xxxxxx Xxxxxxxx 000 00
|
|
|
Date
of incorporation:
|
14
April 1998
|
|
|
Legal
form:
|
joint-stock
company
|
|
|
Board
of Directors:
|
Xxx
Xxxxxxx, member
|
|
|
Ing.
Milan Fiľo, chairman
|
||
|
Ing.
Xxxxxxxxx Xxxxxxx, member
|
||
|
Acting
on behalf of the Company:
|
All
directors together
|
|
|
Registered
capital:
|
SKK
90,000,000
|
|
|
Number,
type, kind and nominal value of shares:
|
90,000
issued, registered, ordinary shares (in Slovak "na meno"), in certificated
form (in Slovak "listinné"), series: A numbers of shares 0001-1000,
series: B numbers of shares 00001-89000, each with nominal value
of SKK
1,000 each, issued as 6 global share certificates replacing the
shares.
|
|
|
Supervisory
Board:
|
Xxxxxxxxx
Xxxxxx - chairman
|
|
|
Ing.
Xxxxx Xxxxxxxx - member
|
||
|
Ing.
Xxxxxxxx Xxxx - member
|
14
Schedule
2
WARRANTIES
PART
1
WARRANTIES
REGARDING PRE-COMPLETION ACTIVITIES
After
the
signing this agreement and prior to Completion the Company has not made any
of
the following decisions without the prior written consent of the
Purchaser:
|
(a)
|
incur
any expenditure exceeding EURO 5,000 and incur any expenditure in
relation
to Taxation exceeding EURO 13,000;
or
|
|
(b)
|
except
for the transfer of the Participation Interest 1 by the Company to
MEDIA
INVEST, dispose of or create any Encumbrance in respect of any part
of its
assets (including the Participation Interest or any part of it);
or
|
|
(c)
|
borrow
any money or make any payments out of or drawings on its bank account(s)
in excess of SKK 50,000 monthly; or
|
|
(d)
|
except
as contemplated under the Transaction Documents, enter into any contract
or commitment, or:
|
|
(i)
|
make
or prepay any loan; or
|
|
(ii)
|
fail
to observe and perform any term or condition of, or waive any rights
under, any contract or arrangement;
or
|
|
(iii)
|
contravene
any statute, order, regulation or the like;
or
|
|
(iv)
|
do
or omit to do anything which might result in the termination, revocation,
suspension, modification or non-renewal of any licence or consent
held by
it or the Markíza Licence; or
|
|
(v)
|
grant
any power of attorney; or
|
|
(e)
|
declare,
make or pay any dividend or other distribution or do or allow to
be done
anything which renders its financial position less favourable than
at the
date of this agreement; or
|
|
(f)
|
grant,
issue or redeem any mortgage, charge, debenture or other security
or give
any guarantee or indemnity; or
|
|
(g)
|
employ
any person; or
|
|
(h)
|
create,
issue, purchase or redeem any class of share or loan capital;
or
|
|
(i)
|
except
as contemplated under the Transaction Documents, pass any resolution
of
its shareholders, whether in general meeting or otherwise;
or
|
|
(j)
|
form
any subsidiary or acquire shares in any company or participate
in, or
terminate any participation in, any partnership or joint venture;
or
|
|
(k)
|
agree,
conditionally or otherwise, to do any of the foregoing; or
|
15
|
(l)
|
in
any other way depart from the ordinary course of its day-to-day
trading.
|
PART
2
OTHER
WARRANTIES
|
1.
|
GENERAL
|
|
1.1
|
Accuracy
of recitals and schedules
|
The
particulars relating to the Company and the Shares set out in the schedules
to
this agreement are true and accurate and there have been made no further filings
or actions that would change or amend the facts stated therein.
|
1.2
|
Capacity
and consequences of sale
|
|
(a)
|
The
Seller
has the requisite capacity, power and authority to enter into and
to
perform this agreement.
|
|
(b)
|
This
agreement
and all other documents to be entered into by the Seller in connection
with this agreement
will, when executed, constitute binding obligations on the
Seller
in
accordance with their respective
terms.
|
|
(c)
|
The
signature of and the compliance with the terms of this agreement
does not and will not:
|
|
(i)
|
conflict
with or constitute a default under any provision
of:
|
|
(A)
|
any
agreement or instrument to which the
Seller
or
the Company
is
a party;
|
|
(B)
|
the
constitutional and corporate documents of the
Company, except that the Seller has not obtained waivers of pre-emption
rights of other shareholders under the articles of association of
the
Company to the transaction under this agreement, which waivers will
be
obtained by the Seller by Completion;
|
|
(C)
|
any
order, judgment, decree or regulation or any other restriction of
any kind
by which the
Seller
or
the
Company
is
bound; or
|
|
(ii)
|
relieve
any other party to a contract with the
Company
of
its obligations or enable that party to vary or terminate its rights
or
obligations under that contract;
|
|
(iii)
|
result
in the creation or imposition of any Encumbrance on any of assets
of the
Company
(including the Participation Interest in Markíza) or the repayment of any
indebtedness of the
Company.
|
|
(d)
|
No
announcements, consultations, notices, reports or filings are required
to
be made in connection with the transactions contemplated by this
agreement
and no consents, approvals, registrations, authorisations or permits
are
required to be obtained by the Seller
or
the
Company
in
connection with the execution and performance of this agreement.
|
16
|
1.3
|
Constitutional
and corporate documents
|
|
(a)
|
The
Company has
been duly incorporated and properly formed, and is validly existing
under
the laws of the jurisdiction of its
incorporation.
|
|
(b)
|
The
list of shareholders and other statutory books and registers of the
Company have been properly kept and no notice or allegation that
any of
them is incorrect or should be rectified has been
received.
|
|
(c)
|
All
returns, resolutions and other documents which the Company is required
by
law to file with or deliver have been correctly made up and duly
filed or
delivered.
|
|
(d)
|
The
copies of the constitutional and corporate documents of the Company
which
have been given to the Purchaser or its advisers are true and accurate
and
complete, and have not been
breached.
|
|
1.4
|
Ownership
of the Shares
|
|
(a)
|
The
Seller
is
the sole owner of the Shares and has
full power, right and authority to transfer them to the
Purchaser.
|
|
(b)
|
The
Shares
constitute 34% of the issued share
capital
of
the Company.
|
|
(c)
|
The
Shares
have been validly issued as global shares and are fully paid up.
The paid
up capital has not been repaid.
|
|
(d)
|
No
person is entitled or has claimed to be entitled to require the
Company
to
issue any share
either now or at any future date and whether contingently or
not.
|
|
(e)
|
There
is no Encumbrance on, over or affecting any of the Shares,
nor is there any commitment to give or create any of the foregoing,
and no
person has claimed to be entitled to any of the foregoing. There
are no
outstanding depositary receipts in relation to the Shares.
|
|
1.5
|
Subsidiaries,
associations and branches
|
The
Company:
|
(a)
|
does
not hold, nor has it agreed to acquire, any interest of any other
company
(except for the Participation Interest in
Markíza);
|
|
(b)
|
is
not, nor has it agreed to become, a member of any partnership (whether
incorporated or unincorporated) or other unincorporated association,
joint
venture or consortium (other than recognised trade associations);
and
|
|
(c)
|
does
not have any branch or any permanent
establishment.
|
|
1.6
|
Insolvency
|
The
Company:
|
(a)
|
is
not, or is not deemed for the purposes of any law to be, unable to
pay its
debts as they fall due or insolvent;
|
|
(b)
|
has
not admitted its inability to pay its debts as they fall
due;
|
17
|
(c)
|
has
not suspended making payments on any of its debts or announces an
intention to do so;
|
|
(d)
|
has
not begun negotiations with any creditor for the rescheduling of
any of
its indebtedness;
|
|
(e)
|
has
not had any step taken with a view to a moratorium or a composition,
assignment or similar arrangement with any of its
creditors;
|
|
(f)
|
has
not had a meeting of its shareholders, directors or other officers
convened for the purpose of considering any resolution for, to petition
for or to file documents with a court for, its winding-up, administration
or dissolution or passed any such resolution;
|
|
(g)
|
has
not had any person present a petition, or file documents with a court,
for
its bankruptcy, composition, winding-up or
dissolution;
|
|
(h)
|
has
not had an order for its bankruptcy, composition, winding-up,
administration or dissolution made;
|
|
(i)
|
has
not had any liquidator, trustee in bankruptcy or composition, or
similar
officer appointed in respect of it or any of its assets;
and
|
|
(j)
|
has
had any other analogous step or procedure taken in any jurisdiction,
or
should have taken any step mentioned above but has not done
so.
|
|
1.7
|
Ownership
of assets
|
The
Company does not own any assets other than those assets that are shown in
accounting records of the Company.
|
1.8
|
Specific
Warranties on the purchase of the Shares by the Seller from
Mediapro
|
|
(a)
|
The
Seller is not aware that the purchase by the Seller
of
the Shares from Mediapro could be capable of being set aside, challenged,
reversed, voided or affected in whole or in part by any creditor
of
Mediapro or the Seller or any third party (whether in bankruptcy,
composition, liquidation or any similar proceedings or otherwise);
and
|
|
(b)
|
The
purchase by the Seller
of
the Shares from Mediapro could not result in any creditor of Mediapro
or
the Seller or any third party seeking satisfaction of its claim from
any
of the Shares.
|
|
(c)
|
Mediapro
does not have any creditors with claims exceeding in aggregate SKK
50,000
monthly and exceeding in aggregate SKK 500,000 in
total.
|
|
1.9
|
Vulnerable
prior transactions
|
There
has
been no transaction pursuant to or as a result of which (i) any of the Shares
or
(ii) any asset owned, purportedly owned or otherwise held by the
Company
is
liable to be transferred or re-transferred to another person or which gives
or
may give rise to a right of compensation or other payment in favour of another
person under the law of any relevant jurisdiction.
18
|
1.10
|
Compliance
with statutes
|
Neither
the Company,
nor any
of the representatives of the
Company,
has
done or omitted to do anything which is a contravention of any statute, order,
regulation or the like which has resulted or may result in any fine, penalty
or
other liability or sanction on the part of the
Company.
|
1.11
|
Licences
and consents
|
The
Company
has, and
has at all times complied with the terms and conditions of, all licences
(including statutory licences), authorisations and consents necessary to carry
on its business as it does at present and (so far as the Seller
is
aware)
no circumstances exist which may result in the termination, revocation,
suspension or modification of any of those licences, authorisations or consents
or that may prejudice the renewal of any of them, including the Markíza
License.
|
1.12
|
Insider
contracts
|
|
(a)
|
The
Company is
not
a
party to any contract or arrangement in which the Seller or any person
connected with the Seller is interested, directly or indirectly,
except
for the Agreement on coordinated procedure, nor has there been any
such
contract or arrangement at any time during three years ending on
the date
of this agreement.
|
|
(b)
|
The
Company is
not
a
party to, nor have the profits or financial position of the
Company
during three financial periods ended on the Accounts Date been affected
by, any contract or arrangement which is not of an entirely arm's
length
nature.
|
|
(c)
|
Neither
the Seller nor any person connected with the Seller is a party to
any
contract or arrangement for the provision of finance, goods, services
or
other facilities to or by the
Company
or
in any way relating to, or to the affairs of, the
Company.
|
|
1.13
|
Litigation
|
|
(a)
|
The
Company is
not
engaged in any litigation, arbitration or alternative dispute resolution
proceedings and there are no such proceedings pending or threatened
by or
against the
Company.
|
|
(b)
|
So
far as the Seller
is
aware, there are no circumstances which are likely to give rise to
any
litigation, arbitration or alternative dispute resolution proceedings
by
or against the
Company.
|
|
(c)
|
The
Company is
not
the subject of any investigation, inquiry, enforcement proceedings
or
process by any governmental, administrative or regulatory body nor,
so far
as the Seller
is
aware, are there any circumstances which are likely to give rise
to any
such investigation, inquiry, proceedings or
process.
|
|
1.14
|
Environmental
matters
|
|
(a)
|
The
Company
has at all times complied with all applicable laws concerning the
protection of the environment, human health or welfare, the conditions
of
the workplace or the generation, transportation, storage, treatment
or
disposal of any waste.
|
|
(b)
|
The
Company has not
used, disposed of, generated, stored, treated, transported, dumped,
released, deposited, buried or emitted any waste or dangerous
substance.
|
19
|
2.
|
ACCOUNTS
AND FINANCIAL
|
|
2.1
|
Accuracy
of Accounts
|
The
Accounts:
|
(a)
|
have
been prepared in accordance with generally accepted accounting principles
and practices in Slovakia and the applicable law and
regulations;
|
|
(b)
|
have
been prepared by the Accountants and will be authorised by the auditor
who
will render an auditor's certificate without
qualification;
|
|
(c)
|
state
the assets and liabilities of the Company and are true and correct
in all
respects and fairly present the financial state of affairs of the
Company
as at the Accounts Date and of the profit or loss of the Company
for the
period ended on the Accounts Date or (as the case may be) in respect
of
the periods for which they were
prepared;
|
|
(d)
|
contain
either provisions or reserves, as required under generally accepted
accounting principles in Slovakia and the applicable laws and regulations,
to cover all Taxation (including deferred Taxation) and other liabilities
(whether quantified, contingent or otherwise), bad and doubtful accounts
payable and as at the Accounts
Date;
|
|
(e)
|
do
not show any material one-off extraordinary items, including
gains;
and
|
|
(f)
|
have
been duly filed in accordance with applicable
law.
|
|
2.2
|
Business
|
The
Company
does not
trade or conduct any business, but holds the Participation Interest in
Markíza.
|
2.3
|
Books
and records
|
All
accounts, books, ledgers and other financial records of the
Company:
|
(a)
|
have
been properly maintained and contain accurate records of all matters
required to be entered in them under the applicable laws;
and
|
|
(b)
|
give
a true and fair view of the matters which ought to appear in
them.
|
|
2.4
|
Position
since Accounts Date
|
Since
the
Accounts Date:
|
(a)
|
there
has been no deterioration in the financial position or the prospects
of
the
Company;
and
|
|
(b)
|
the
Company
has paid its creditors within the times agreed with them and, without
limiting the foregoing, the Company has no indebtedness other than
the
indebtedness shown in the accounting records of the Company all of
which
shall be repaid before the Completion
Date.
|
20
|
2.5
|
Capital
commitments
|
Except
as
expressly disclosed in the Accounts, the
Company did not have
any
commitment on capital account outstanding at the Accounts Date. Since the
Accounts Date the
Company has
not
entered
into nor
agreed
to enter into any capital commitment.
|
2.6
|
Dividends
and distributions
|
|
(a)
|
No
dividend or other distribution of profits or assets has been or agreed
to
be declared, made or paid by the
Company
since the Accounts Date.
|
|
(b)
|
All
dividends or other distributions of profits or assets declared, made
or
paid since the date of incorporation of the
Company
have been declared, made and paid in accordance with law and its
constitutional documents.
|
|
2.7
|
Borrowings,
loan capital and
guarantees
|
The
Company does
not
have
outstanding any loan capital or any money borrowed or raised, including money
raised by acceptances or debt factoring, or any liability (whether present
or
future, actual or contingent) in respect of any guarantee or
indemnity.
|
2.8
|
Derivative
transactions
|
The
Company does
not
have
outstanding any obligations in respect of a derivative transaction including
any
foreign exchange transaction.
|
2.9
|
Government
grants
|
The
Company is
not
subject
to any arrangement for receipt or repayment of any grant, subsidy or financial
assistance from any governmental department or other body.
|
2.10
|
Loans
|
The
Company has
not
lent any
money which has not been repaid to it and
does
not own
the
benefit of any debt (whether present or future, actual or contingent) other
than
those loans provided to the shareholders of the Company that are shown in the
accounting records of the Company all of which shall be repaid as of the
Completion Date.
|
2.11
|
Bank
accounts
|
The
statement of the Company's
bank
accounts as at a date not more than two days before the date of this agreement
given to the Purchaser is correct, and the
Company does
not
have
any bank
or deposit account (whether in credit or overdrawn) not included in that
statement. Since the date of that statement there has not been any payment
out
of any of the accounts concerned and the balance on each such account is not
materially different from the balance shown on that statement.
|
2.12
|
Political
and charitable donations
|
The
Company has
not
incurred
any political expenditure or made any political or charitable donation in the
current or preceding financial year and
is
not
under
any commitment to do so.
21
|
3.
|
COMMERCIAL
|
|
3.1
|
Suppliers
and customers
|
The
Company has and never had any suppliers or customers where consideration for
such supplies or orders exceed SKK 50,000 monthly.
|
3.2
|
Contracts
|
The
Company is
not
a party
to any contract other than the contract for the transfer of Participation
Interest 1 to MEDIA INVEST, the Agreement on coordinated procedure, accounting
records maintenance agreement, agreement for the lease of non-residential
premises, loan agreements with shareholders of the Company, agreement on
maintenance of bank account in banks, agreement for maintenance of the list
of
shareholders.
|
3.3
|
Anti-competitive
arrangements
|
The
Company
is
not,
and has
not been, a party to any agreement or concerted practice or involved in any
business conduct which infringes any anti-trust or similar legislation in any
jurisdiction nor
has,
pursuant to any such legislation, given any undertaking, applied for negative
clearance, exemption, guidance or approval, had an order, notice or direction
made against it or received any request for information or statement of
objections from or corresponded with any court or authority. The
Company
has
not
been in
receipt of any state aid within the meaning of Article 87(1) EC (formerly
Article 92(1) of the EC Treaty).
|
3.4
|
Intellectual
property
|
|
(a)
|
The
Company never had or licensed any Intellectual Property Rights.
|
|
(b)
|
No
activities of the
Company
infringe or are likely to infringe any Intellectual Property Right
of any
third party and no claim has been made against the
Company
or
any such licensee in respect of such
infringement.
|
|
(c)
|
So
far as the Seller
is
aware there has been no unauthorised use by any person of any confidential
information of the
Company.
|
|
3.5
|
Business
names
|
The
Company carries
on
business under its own corporate name and not any other name.
|
3.6
|
Powers
of attorney
|
The
Company has
not
granted
any power of attorney or similar authority which remains in force other than
a
power of attorney to Ing Miroslav Demjanovič to represent the
Company
before
securities centre and a power of attorney to Xx Xxxxxxx
Xxxxxxxxx
to represent the
Company
before
Central Depositary, both of which remain in force at the date of this
agreement.
|
4.
|
TAXATION
|
|
(a)
|
The
Company maintains adequate and proper records for tax purposes, and
has
made all filings of its tax returns. The Company is not in any dispute
with any tax authority.
|
22
|
(b)
|
All
Taxation of any nature whatsoever for which the Company is and has
been
liable or for which the Company is and has been liable to account
has been
duly paid (insofar as such taxation ought to have been paid) and
the
Company has made all such deductions and retentions as it was obliged
or
entitled to make and all such payments in respect of these deductions
and
retentions as should have been made except for a penalty of SKK 4,124.-
for the late payment of an advance for the income tax for 2002 that
will
be paid as of the Completion Date.
|
|
(c)
|
The
Company has not paid or become liable to pay, and there are no
circumstances by reason of which the Company is likely to become
liable to
pay, any penalty, fine, surcharge or interest in respect of
Taxation.
|
|
(d)
|
The
Company has not received any notice of enquiry or suffered any enquiry,
investigation, audit or visit by any taxation or excise authority,
and no
such enquiry, investigation, audit or visit planned. The Company
has not
been a party to or otherwise involved in any transaction which could
be
viewed as tax avoidance or tax evasion by a tax
authority.
|
|
(e)
|
As
far as the Seller is aware, all Taxation of any nature whatsoever
for
which the Seller is and has been liable has been duly paid (insofar
as
such taxation ought to have been
paid).
|
|
5.
|
EMPLOYEES
|
The
Company currently has no employee (whether full time or part
time).
23
SCHEDULE
3
COMPLETION
PART
1
SELLER'S
Obligations
The
Seller shall procure
the
delivery to the Purchaser of:
|
(a)
|
the
share certificates representing the Shares duly endorsed for the
benefit
of the Purchaser (unless these share certificates have been delivered
to
the Purchaser earlier);
|
|
(b)
|
the
full list of shareholders (in Slovak "zoznam akcionárov") issued by the
Central Depositary for the Company and showing the Purchaser as
the
registered holder of all the shares in the
Company;
|
|
(c)
|
the
resignations of all members of board of directors and supervisory
board of
the Company, in each case acknowledging these persons have no claim
against the Company,
whether for loss of office or
otherwise;
|
|
(d)
|
the
resignations of
Xx. Xxx Xxxxxxx and Ing. Xxxxxxxxx Xxxxxxx as the executives of
Markíza,
in each case acknowledging they have no claim against Markíza, whether for
loss of office or otherwise;
|
|
(e)
|
the
resignations of Ing. Xxxxxxxxx Xxxxxxx as the executive of STS,
acknowledging Ing. Xxxxxxxxx Xxxxxxx has no claim against STS, whether for
loss of office or otherwise;
|
|
(f)
|
certified
copies of the minutes of the meetings referred to in
paragraphs (h)
and (i)
below;
|
|
(g)
|
a
confirmation of the relevant Commercial Register that the new memorandum
of association of Markíza in the Agreed Form, certified for accuracy by
the executives of Markíza has been filed with the collection of deeds at
the relevant Commercial Register;
|
|
(h)
|
that
an extraordinary general meeting of the
Company
is
held at which it is resolved that:
|
|
(i)
|
the
resignation of all members of its board of directors and supervisory
board
is acknowledged and such persons as the Purchaser nominates are
appointed
as new members of its board of directors and supervisory
board;
|
|
(ii)
|
its
registered office is changed to such address as the Purchaser notifies
to
the Seller;
|
|
(iii)
|
its
bank mandates are revised in such manner as the Purchaser
requires;
|
|
(i)
|
that
an extraordinary general meeting of Markíza
is
held at which it is resolved
that:
|
|
(iv)
|
the
division of the Participation Interest in Markíza into the Participation
Interest 1 and the Participation Interest 2 is
approved;
|
|
(v)
|
the
transfer by the Company to MEDIA INVEST of the Participation Interest
1 is
approved;
|
|
(vi)
|
the
new memorandum of association of Markíza in the Agreed Form is adopted;
and
|
|
(vii)
|
the
resignation of Xx
Xxx Xxxxxxx and Ing. Xxxxxxxxx Xxxxxxx
is
acknowledged.
|
24
PART
2
PURCHASER'S
OBLIGATIONS
Subject
to the Seller having done or procured to be done those things set out in
Part
1
of this
schedule, at Completion the Purchaser shall make a payment to the Seller
of the
Initial Consideration.
25
SCHEDULE
4
INTERPRETATION
|
1.
|
In
this agreement:
|
Accounts
means
the balance sheet as at the Accounts Date, profit and loss account and cash
flow
statement for the year ended on the Accounts Date, of the Company and the notes
and directors' reports relating to them, signed by the Accountants in accordance
with Slovak accounting principles;
Accountants
means
ABT Consult, spol. s r.o., Skuteckého 30, 974 01 Banská Bystrica, Identification
No.: 36 035 041 ;
Accounts
Date
means 31
December 2004;
Agreed
Form
means,
in relation to any document, the form of that document which has been initialled
for the purpose of identification by the Seller and the Purchaser;
Agreement
on coordinated procedure means
the
agreement on coordinated procedure made between the Company, the
Seller, the Purchaser, Ing. Milan Fiľo, Xx. Xxx Xxxxxxx, Xx Xxxx Xxxxxxxx, Ing.
Xxxxxxxxx Xxxxxxx, Mediapro and MEDIA INVEST, SALIS, s.r.o. and MEDIA PARTNER
spol s r.o. on 22 November 2000 as amended by an amendment No. 1 dated 11
November 2002;
BRIBOR
means
a
percentage rate p.a. determined by the Purchaser as the rate published at 11.00
a.m. on the BRIBOR page of the Reuters service on the date on which the amount
becomes overdue (or, if unavailable for four or more consecutive Business Days,
on such a page of such a service as the Purchaser reasonably specifies as the
page or the service that is due to its parameters the closest equivalent of
the
original page and service) for SKK and for the period of one month;
Broadcasting
Act
means
the Act No. 308/2000 Coll. on Broadcasting and Retransmission and the amendments
to Act No. 195/2000 Coll. on Telecommunications;
Business
Day means
a
day (other than a Saturday or Sunday and public holidays in the Slovak Republic)
on which banks are open for normal business in the Slovak Republic and in the
Netherlands;
Central
Depositary
means
Centrálny depozitár cenných papierov SR, a.s. or any other entity holding a
central depositary's licence pursuant to the Securities Act;
Commercial
Code
means
the Slovak Act No. 513/1991 Coll. the Commercial Code;
Commercial
Register
means a
public register pursuant to Act. No.: 530/2003 Coll. on Commercial Register
and
amending and supplementing certain acts;
Completion
means
the performance, in accordance with this agreement, of the obligations described
in clause 4
and
Schedule
3;
Completion
Date means
the
day on which the Completion takes place;
26
Conditions
means
the conditions precedent set out in clause 3
and a
Condition
means
any
of them;
Consideration
means
the
aggregate of the Initial Consideration and the Deferred
Consideration;
Council
means
the Council for Broadcasting and Retransmission pursuant to the Broadcasting
Act;
Deferred
Consideration
has the
meaning given in clause 6;
Encumbrance
means
any encumbrance including, without limitation, a pledge, lien, assignment by
way
of security, conditional transfer agreement, option, right of pre-emption,
or
claim of a ownership or other right, by a third party;
EURO
means
the
currency of the member states of the European Union that adopted the euro as
their currency pursuant to the EU legislation on Monetary Union;
Initial
Consideration
means
that part of the consideration for the sale of the Shares set out in clause
5;
Material
Adverse Effect
means an
effect that is or is reasonably likely to be materially adverse to the assets,
business, results of operations, financial condition or prospects of the Company
and/or Markíza;
Markíza
means
MARKÍZA - SLOVAKIA, spol. s r. o., with its registered office at Xxxxxxxxxxxx
000/00, Xxxxxx 000 00, identification no.: 31444 873;
Markíza
Licence
means
the licence No. T/41 dated 7th August, 1995 for the television broadcasting,
as
amended, granted by the Council to Markíza;
MEDIA
INVEST means
MEDIA INVEST spol. s r.o., having its seat at Xxxxxxxxxx 00, 000 00 Xxxxxx
Xxxxxxxx, Identification number 36 044 024, registered in the commercial
register of the District Court Banská Bystrica, section: Sro, insert No.:
6673/S;
Mediapro
means
MEDIAPRO 2000, s.r.o., having its seat at Xxxxxxxxxxx 00, Xxxxxxxxxx 000 00,
identification number 36 385 603;
Other
ARJ Shares means
59,400 issued, registered ordinary shares (in Slovak "na
meno")
in the
Company, in certificated form (in Slovak "listinné"),
series: A numbers of shares 0001-0510 and 0851-1000 and series B: numbers of
shares 00001-45390 and 75651-89000, with nominal value of SKK 1,000 each, issued
as four global share certificates;
Participation
Interest in Markíza
means a
50% participation interest in Markíza owned by the Company the date of this
agreement.
Participation
Interest 1
means a
part of participation interest in Markíza in the amount of 4% owned by the
Company and representing a contribution into the registered capital of Markíza
in the nominal value of SKK 8,000, which participation interest is to be: (a)
created on or before Completion by division of the Participation Interest in
Markíza and (b) transferred by the Company to MEDIA INVEST on
Completion;
Participation
Interest 2
means a
part of participation interest in Markíza in the amount of 46% owned by the
Company and representing a contribution into the registered capital of Markíza
in the nominal value of SKK 92,000, which participation interest is to be
created on or before Completion;
27
PMU
means
the
Antimonopoly Office of the Slovak Republic (in Slovak "Protimonopolný
úrad Slovenskej republiky");
Purchaser's
Counsel
means
Xxxxx & Xxxxx Bratislava, s.r.o.;
Related
Person means
in
relation to a person (the subject):
(a)
controlled or controlling persons (ovládaná
a ovládajúca osoba)
(as
defined in §66a of the Commercial Code) in relation to any subject; or (b)
connected
persons
to any subject; or (c) persons or entities in which the subject has a direct
or
indirect ownership interest of shares or other securities;
Securities
Act means
the
Act No. 566/2001 Coll. on Securities and Investment Services, amending and
supplementing certain acts;
Shares
means
30,600 issued, registered ordinary shares (in Slovak "na
meno")
in the
Company, in certificated form (in Slovak "listinné"),
series: A numbers of shares 0511-0850 and series B: numbers of shares
45391-75650, with nominal value of SKK 1,000 each, issued as two global share
certificates;
SKK
means
Slovak koruna, the lawful currency of the Slovak Republic;
STS
means
Slovenská televízna spoločnosť, s.r.o., having its registered office at Xxxxxxx
x. 00/00, 000 00 Blatné, identification No.: 34 128 611, registered in the
Commercial Register of the District Court Bratislava I in section Sro, insert
No. 12516/B.
Taxation
means
all
forms of taxation, duties, levies, imports and social security charges,
including, without limitation, corporate income tax, wage withholding tax,
national health insurance and social security contributions, value added tax,
customs and excise duties, any type of transfer tax, withholding tax, real
estate taxes, municipal taxes and duties, environmental taxes and duties and
any
other type of taxes or duties in any relevant jurisdiction; together with any
interest, penalties, surcharges or fines relating thereto, due, payable, levied,
imposed upon or claimed to be owed in any relevant jurisdiction;
Transaction
means
the
purchase by the Purchaser of entire share capital in the Company, the transfer
of the Participation Interest 1 by the Company to MEDIA INVEST, changes to
the
corporate documents in Markíza and STS and such other changes, as are
contemplated under the Transaction Documents;
Transaction
Documents
means
this agreement, the documents referred to in it and any other agreements
executed or to be executed on the date of this agreement or
Completion;
Warranties
means
the representations and warranties given by the Seller to the Purchaser in
clause 9
and
Schedule
2;
Warranty
Claim means
a
claim by the Purchaser for compensation in relation to any of the Warranties
being, or allegedly being, incorrect or misleading.
|
2.
|
Any
reference, express or implied, to an enactment includes references
to:
|
|
(a)
|
that
enactment as re enacted, amended, extended or applied by or under
any
other enactment (before or after the signature of this
agreement);
|
28
|
(b)
|
any
enactment which that enactment re enacts (with or without modification);
and
|
|
(c)
|
any
subordinate legislation made (before or after the signature of this
agreement) under that enactment, as re enacted, amended extended
or
applied as described in paragraph (a) above, or under any enactment
referred to in paragraph (b) above,
|
and
enactment includes any legislation in any jurisdiction.
|
3.
|
In
this agreement:
|
|
(a)
|
words
importing the singular shall include the plural and vice
versa;
|
|
(b)
|
words
denoting persons shall include bodies corporate and unincorporated
associations of persons and vice versa;
|
|
(c)
|
any
reference to e
is
to EURO ; and
|
|
(d)
|
references
to a party shall include the legal successors, heirs or assigns of
that
party.
|
|
4.
|
A
person shall be deemed to be connected
with another if that person is dependent on another (in Slovak
"závislá")
within the meaning of §2 of the Slovak Income Tax Act No. 595/2003 Coll.
|
|
5.
|
In
this agreement, unless the contrary intention appears, a reference
to a
clause, sub-clause, exhibit or Schedule is a reference to a clause,
sub-clause, exhibit or schedule of this agreement. The Schedules
and
exhibits form part of this
agreement.
|
|
6.
|
The
headings in this agreement do not affect its
interpretation.
|
|
7.
|
Sub-clauses
1 to 6 apply unless the contrary intention is expressed in this
agreement.
|
29
SIGNATORIES
|
Signed
by PhDr.
Xxxxx Xxxxx
|
)
|
/s/
Xxxxx Xxxxx
|
|
|
Signed
by Xxxxxx
X. Xxxxx,
under
|
)
|
/s/
Xxxxxx X. Xxxxx
|
|
| power of attorney | |||
|
for
CME
MEDIA ENTERPRISES B.V.
|
)
|
Viera
Rusková, spouse of PhDr. Xxxxx Xxxxx, hereby gives her consent to her husband,
PhDr. Xxxxx Xxxxx, to enter and perform the transactions contemplated by this
agreement for sale of 34% shares in A.R.J., a.s.
|
Signed
by Viera
Rusková
|
)
|
/s/
Viera Xxxxxxx
|
|
00
