VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), is dated as of August 21, 2005, by and
between the undersigned shareholder (the "Shareholder") of SBS Broadcasting
S.A., a Luxembourg societe anonyme (the "Seller"); and PKS Media S.a x.x., a
Luxembourg societe a responsabilite limitee ("Purchaser").
WHEREAS, Seller and Purchaser have entered into that certain Sale and Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"; any term used
herein without definition herein shall have the meaning ascribed thereto in the
Purchase Agreement), pursuant to which Purchaser shall acquire the Business
(including the Direct Subsidiary Shares and the Acquired Assets) from Seller;
WHEREAS, the Shareholder is the sole and exclusive legal and beneficial owner of
the Subject Shares set forth on the signature page hereto; and
WHEREAS, as a condition to its willingness to enter into the Purchase Agreement,
Purchaser has requested that the Shareholder enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual terms, conditions and other
agreements set forth herein, the parties hereto hereby agree as follows:
1. Representations and Warranties of the Shareholder. The Shareholder
hereby represents and warrants to Purchaser as of the date hereof as follows:
(a) To the extent that the Shareholder is not an individual, the
Shareholder is duly organized and validly existing under the laws of the
jurisdiction in which it is organized and has full power and authority necessary
to enable it to own the Subject Shares and to enter into this Agreement and to
perform its obligations hereunder.
(b) To the extent that the Shareholder is not an individual: (i)
the Shareholder has full power and authority to execute this Agreement and to
perform its obligations hereunder; and (ii) the execution and delivery by the
Shareholder of this Agreement and the performance by the Shareholder of its
obligations hereunder have been duly authorized by all necessary action and no
such further action is required in connection therewith. The Shareholder has
duly executed and delivered this Agreement and this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by principles of
equity regarding the availability of remedies (whether in a proceeding at law or
in equity).
(c) The execution and delivery and performance by the Shareholder
of this Agreement does not and will not: (i) conflict with or result in any
violation of or default under (A) Applicable Law applicable to the Shareholder,
(B) to the Shareholder's Knowledge, any Contract that the Shareholder is a party
to or is otherwise bound, or (C) to the extent that the Shareholder is not an
individual, the Shareholder's Governing Documents or (ii) result in the creation
of any Lien upon the Subject Shares (other than any Lien created by this
Agreement). As used in this Section 1(c), the phrase "to the Shareholder's
Knowledge" means the knowledge that the executive officers and directors of
Shareholder: (1) actually have and (2) would have obtained after reasonable
investigation (whether or not any investigation was in fact conducted).
(d) Except as disclosed in filings made on or prior to the date
hereof with the US SEC or as otherwise indicated on the signature page hereto,
the Shareholder is the sole and exclusive record and beneficial owner of the
Subject Shares and has the sole and exclusive voting power and power of
disposition with respect to the Subject Shares. Except as provided for in this
Agreement: (A) the Shareholder owns the Subject Shares free and clear of all
Liens and (B) except as disclosed in filings made on or prior to the date hereof
with the US SEC or as otherwise indicated on the signature page hereto, none of
the Subject Shares are subject to any voting agreement, voting trust or any
other similar arrangement or restriction with respect to the voting of the
Subject Shares (other than restrictions contained in the Seller's Governing
Documents imposed on a person who owns more than 20% of the Seller Shares and
who has not obtained approval of the Board of Directors of Seller to be
registered, or otherwise accepted, as a shareholder of Seller).
(e) The Subject Shares, together with all other securities
convertible into, or exchangeable or exercisable for, Seller Shares indicated as
being legally or beneficially owned by the Shareholder on the signature page
hereto, constitute all of the equity securities of Seller owned of record or
beneficially by the Shareholder.
2. Covenants of the Shareholder. The Shareholder hereby covenants and
agrees as follows:
(a) From the date hereof until this Agreement is terminated in
accordance with its terms, without the prior written consent of Purchaser (to be
granted or withheld in its sole discretion), Shareholder will:
(i) attend and participate in all meetings of Seller
Shareholders called in connection with the Purchase Agreement, the
Acquisition and/or the transactions contemplated by the Purchase
Agreement (including any postponements or adjournments thereof, a
"Meeting");
(ii) at any Meeting, vote the Subject Shares, or cause the
Subject Shares to be voted, for the approval of the Acquisition and the
other transactions contemplated by the Purchase Agreement and other
matters relating thereto presented for approval of the Seller
Shareholders; and
(iii) vote the Subject Shares at any Meeting or any other
meeting of Seller Shareholders, or cause the Subject Shares to be
voted, against the approval of any other Contract providing for an
acquisition of shares, acquisition of assets, merger, consolidation or
other business combination of Seller with or by any Person other than
Purchaser, or providing for any amendment to Seller's Governing
Documents or any other action or Contract that is intended to or could
reasonably be expected to impede, interfere with, delay or discourage
the Acquisition or the other transactions contemplated by the Purchase
Agreement, or change the voting rights of any class of capital stock of
Seller.
For the avoidance of doubt, to the extent that the Shareholder is the beneficial
but not the legal owner of any portion of the Subject Shares (as disclosed in
filings made on or prior to the date hereof with the US SEC or as otherwise
indicated on the signature page hereto), the covenant set forth in Section
2(a)(i) in respect of such Subject Shares shall comprise a covenant to cause the
legal owner thereof to comply with the terms thereof.
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(b) From the date hereof until this Agreement is terminated in
accordance with its terms, without the prior written consent of Purchaser (to be
granted or withheld in its sole discretion), Shareholder will not: (i) sell,
assign, transfer or otherwise dispose of, or permit to be sold, assigned,
transferred or otherwise disposed of, any of the Subject Shares, (ii) grant any
proxy, deposit any Subject Shares in a voting trust or enter into a voting
agreement, power of attorney, voting trust or similar Contract with respect to
the Subject Shares (except for this Agreement), or (iii) take any other action
that would make any representation or warranty of the Shareholder contained
herein untrue or incorrect in any material respect or have the effect of
preventing the Shareholder from performing its obligations hereunder.
(c) The Shareholder shall, from time to time, execute and deliver,
or cause to be executed and delivered, such additional or further consents,
documents, agreements and other instruments (terminating concurrently with this
Agreement) as may be reasonably required for the purpose of carrying out the
intent of the parties hereunder (provided that Purchaser shall bear the cost of
incidental expenses incurred by the Shareholder in connection with such
execution and delivery). For the avoidance of doubt, the Shareholder's
obligations under this Section 2(c) shall not require the execution by the
Shareholder of any written consent so long as Shareholder has fulfilled its
obligations under Section 2(a) or the granting of any proxy.
3. Acknowledgements.
(a) The Shareholder acknowledges that irreparable damage to
Purchaser would occur if any of the provisions hereof were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the Shareholder agrees that Purchaser shall be entitled to an injunction or
other equitable remedies to prevent breaches of the provisions hereof and to
enforce specifically the terms and provisions hereof, in addition to any other
remedy to which Purchaser may be entitled at law or in equity, and the
Shareholder hereby waives and agrees that it will not raise any defense to any
action for specific performance based on Purchaser having an adequate remedy at
law.
(b) Purchaser acknowledges that: (i) the Shareholder is executing
and delivering this Agreement in the Shareholder's capacity as owner of the
Subject Shares and not in the Shareholder's capacity as an officer or director
of Seller (to the extent applicable), and nothing herein shall in any way bind
the Shareholder or prevent the Shareholder from taking any action or omitting to
take any action in his capacity as an officer or director of Seller (to the
extent applicable) and (ii) nothing in this Agreement shall create any
obligation on the part of the Shareholder or restrict the Shareholder in the
exercise and enjoyment of full rights of ownership of the Subject Shares, except
as expressly provided in this Agreement.
4. Amendment. This Agreement may only be amended with the written consent
of Purchaser and the Shareholder.
5. Termination. This Agreement shall be binding through and until the
earliest to occur of (a) the Closing, (b) November 30, 2005, (c) the date of the
termination of the Purchase Agreement and (d) the date that the Purchase
Agreement shall have been amended in a manner materially adverse to the
interests of the Shareholder.
6. Subject Shares. As used herein, the term "Subject Shares" shall mean
all of the Seller Shares that the Shareholder is the sole and exclusive record
and beneficial owner of on the date hereof, as set forth on the signature page
hereto, and all other Seller Shares and any other
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securities convertible into, or exchangeable or exercisable for, any such Seller
Shares, the record or beneficial ownership of which is acquired by the
Shareholder after the date hereof. The Shareholder agrees that to the extent it
acquires record or beneficial ownership of any of the foregoing after the date
hereof, such Seller Shares or other securities shall be deemed "Subject Shares"
hereunder and shall be subject in all respect to the terms hereof to the full
extent as if they were "Subject Shares" on the date hereof.
7. Miscellaneous.
(a) This Agreement is for the sole and exclusive benefit of the
parties hereto and their successors and permitted assigns, and nothing herein
expressed or implied shall give, or be construe to give, to any Person, other
than the parties hereto and such successors and permitted assigns, any legal or
equitable right, remedies or claims under or with respect to this Agreement or
any provisions hereof. This Agreement and the rights and obligations hereunder
shall not be assignable or transferable by any party hereto without the prior
written consent of the other party; provided that (i) Purchaser may assign its
rights hereunder to the same extent it may assign its rights under the Purchase
Agreement pursuant to Section 8.01(b) thereof. Any attempted assignment in
violation of this Section 7(a) shall be null and void and of no effect.
(b) All notices, consents, waivers, and other communications
required or permitted under this Agreement must be in writing and will be deemed
to have been duly given when (i) delivered by hand to the party to be notified
(with written confirmation of receipt), (ii) when sent by facsimile (with
written confirmation of receipt) if sent during the normal business hours of the
party to be notified, if not, then on the next Business Day (with a copy
provided in accordance with the delivery provisions of clause (i) above or (iii)
below) or (iii) when received by the party to be notified, if sent by an
internationally recognized overnight delivery service, specifying the soonest
possible time and date of delivery (with written confirmation of receipt), in
each case to the appropriate addresses and facsimile numbers set forth below (or
to such other addresses and facsimile numbers as a party may designate by notice
to the other parties from time to time). All such notices and other
communications shall be sent (A) if to Purchaser, to the Persons named in
Section 8.03(i) of the Purchase Agreement and (B) if to Shareholder, to the
Person(s) named under "Address for Notices of Shareholder" on the signature page
hereto.
(c) This Agreement may be executed in any number of counterparts,
all of which shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of the
parties and delivered to the other parties. Any such counterpart may be
delivered to a party by facsimile.
(d) If any provision of this Agreement (or any portion thereof) or
the application of any such provision (or any portion thereof) to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision hereof (or the remaining portion thereof)
or the application of such provision to any other persons or circumstances. Upon
a final determination that any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner to
the fullest extent permitted by Applicable Law in order that the transactions
contemplated hereby and by the Purchase Agreement may be consummated as
originally contemplated to the fullest extent possible.
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(e) This Agreement shall be construed in accordance with, and this
Agreement and all matters arising out of or relating in any way whatsoever
(whether in contract, tort or otherwise) to this Agreement shall be governed by,
the law of the State of New York.
(f) Any dispute, controversy or claim of any kind or nature
between the parties arising out of, relating to, or in connection with this
Agreement, or the breach, termination or validity thereof (each, a "Dispute")
shall be finally settled by binding arbitration ("Arbitration") under the Rules
of Arbitration (the "Rules") of the London Court of International Arbitration in
force at the time of such Arbitration, by three arbitrators appointed in
accordance with the Rules. The seat of the arbitration shall be London, England.
The language of the arbitration shall be English. The arbitral award shall be in
writing, shall detail the disputed matters and reasons on which the arbitral
award is based, shall not include any punitive damages and, except as provided
in this Section 7(f) with respect to applications for interim relief, shall be
the sole and exclusive remedy between the parties regarding any Dispute. The
parties expressly agree that leave to appeal under Section 69(1) or an
application for the determination of a preliminary point of law under Section 45
of the Arbitration Xxx 0000 may be sought with respect to any question of law
arising from an award. The arbitral award shall be final and binding upon the
parties and shall not be subject to appeal of any court or other authority.
Notwithstanding the foregoing, any party may file an application in the United
States federal courts sitting in the Borough of Manhattan seeking injunctive or
other forms of interim relief to compel, aid or facilitate the arbitration, or
to maintain the status quo pending completion of the arbitration. Judgment upon
the award or order may be entered in the Supreme Court of the State of New York
sitting in the Borough of Manhattan or the United States District Court for the
Southern District of New York for enforcement thereof. Each party agrees not to
oppose the registration or enforcement of any such judgment in any other
jurisdiction and to consent to jurisdiction and venue in any applicable court
for purposes of registration or enforcement of any such judgment. Each party
accepts and submits to the jurisdiction of the seat of arbitration referenced
above and to the New York State and United States federal courts sitting in the
Borough of Manhattan (and to any court in which appeals from those courts may be
heard) with regard to enforcement of the arbitral award or in connection with
any action or application for injunctive or other interim relief, as provided in
this Section 7(f). Each party waives any defense or objection based on
diplomatic immunity, lack of jurisdiction, improper venue, inconvenient forum or
competence that it could raise in any action or proceeding relating to this
Agreement. Process in any action or proceeding relating to this Agreement may be
served on any party anywhere in the world. Each party irrevocably consents to
the service of any and all process in any action or proceeding relating to this
Agreement by the mailing or delivery of copies of such process to it at its
address for notices specified in this Agreement. This Agreement and the rights
and obligations of the parties shall remain in full force and effect pending the
award in any arbitration proceeding hereunder. Any monetary award shall be made
and payable in euros without deduction or set off and the arbitral panel shall
be authorized in its discretion to grant pre-award and post-award interest at
commercial rates.
(g) If Purchaser has entered into, enters into, amends or waives
the terms of any other voting agreement relating to the Purchase Agreement or
the Acquisition that establishes rights or otherwise benefits the counterparty
thereto in a manner more favorable to such counterparty in any material respect
than the rights and benefits established in favor of the Shareholder under this
Agreement (or provides for covenants and obligations materially less onerous on
the counterparty thereto than the covenants and obligations imposed on the
Shareholder under this Agreement), Purchaser will as promptly as practicable
offer to extend the
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same to the Shareholder, who will be entitled to accept such offer by written
notice delivered to the Purchaser within 10 Business Days of such offer.
(h) From the date hereof until this Agreement is terminated in
accordance with its terms, without the prior written consent of the other,
neither party hereto will issue any press release or make any other public
statement with respect to the other party or with respect to this Agreement,
except to the extent required by Applicable Law (including, for the avoidance of
doubt, to the extent required by the United States federal securities laws and
any rule or other requirement of any securities exchange or automated quotation
service).
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IN WITNESS WHEREOF, the Shareholder and Purchaser have duly executed this
Agreement as of the date first written above.
PURCHASER: PKS MEDIA S.A X.X.
------------------------------
Name:
Title:
NAME OF SHAREHOLDER CLASS AND NUMBER OF SECURITIES OWNED
By:
---------------------------
Name:
Title:
ADDRESS FOR NOTICES OF SHAREHOLDER
[SIGNATURE PAGE TO VOTING AGREEMENT]
