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EXHIBIT 2.3
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT (this "Agreement"), dated 9 March, 2000, by and among
UNITED PAN-EUROPE COMMUNICATIONS N.V., a public limited liability company
(naamloze vennootschap) incorporated under the laws of The Netherlands
("Purchaser"), and each of the parties listed on the signature pages hereto
(each a "Shareholder", and collectively, the "Shareholders"). This Agreement
shall be deemed to be separate and several Agreements between Purchaser and each
Shareholder.
WHEREAS, each of the Shareholders is, as of the date hereof, the record and
beneficial owner of the shares of common stock, par value $1.50 per share (the
"Common Shares"), of SBS BROADCASTING S.A., a corporation organized under the
laws of Luxembourg (the "Company"), set forth opposite its name on Annex I
hereto;
WHEREAS, Purchaser and the Company concurrently herewith are entering into an
Exchange Offer Agreement, dated as of the date hereof (the "Exchange Offer
Agreement"), which provides, among other things, for the acquisition of Common
Shares by Purchaser by means of an exchange offer (the "Offer") by Purchaser for
all of the outstanding Common Shares, and upon the terms and subject to the
conditions set forth in the Exchange Offer Agreement; and
WHEREAS, as a condition to the willingness of Purchaser to enter into the
Exchange Offer, and in order to induce Purchaser to enter into the Exchange
Offer each of the Shareholders has severally agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Purchaser of
the Exchange Offer Agreement and the mutual representations, warranties,
covenants and agreements set forth herein and therein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Shareholder. Each of the
Shareholders hereby represents and warrants to Purchaser, severally and not
jointly, as follows:
(a) Such Shareholder is the beneficial owner of the Common Shares (as may
be adjusted from time to time pursuant to Section 6 hereof, the
"Shares") set forth opposite its name on Annex I to this Agreement.
Such Shares are held of record, in each case, by such Shareholder or by
a nominee or custodian of such Shareholder. On the date hereof, the
Shares opposite such Shareholder's name constitute all of the Shares
owned by such Shareholder. Such Shareholder has the exclusive right to
vote or dispose of (or exercise the voting or disposition of) such
Shares.
(b) If such Shareholder is a corporation, general partnership, limited
partnership, limited liability company, collective investment trust or
separate account, as the case may be, such Shareholder is duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization. Such Shareholder has all
requisite power and authority to enter into this
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Agreement and to consummate the transactions contemplated hereby and
has taken all corporate, partnership or other action necessary to
authorize the execution, delivery and performance of this Agreement.
This Agreement has been validly executed and delivered by such
Shareholder and (assuming due authorization, execution and delivery by
Purchaser) constitutes the legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by such Shareholder do
not, and the performance by such Shareholder of its obligations
hereunder will not, (i) conflict with, result in a violation or breach
of, constitute (with or without notice or lapse of time or both) a
default under, result in or give to any person any right of
termination, cancellation, modification or acceleration of, or result
in the creation or imposition of any Lien upon any of the assets or
properties of such Shareholder under, any of the terms, conditions or
provisions of (A), if such Shareholder is a corporation, partnership,
limited liability company, bank or other entity, the certificate or
articles of incorporation or bylaws, partnership agreement, limited
liability company agreement, trust agreement or other comparable
organisational governing documents of such Shareholder or (B) (x) any
Law or Order of any Governmental or Regulatory Authority applicable to
such Shareholder or any of its respective assets or properties, or (y)
any Contract to which such Shareholder is a party or by which such
Shareholder or any of its respective assets or properties is bound,
excluding from the foregoing clauses (x) and (y) conflicts, violations,
breaches, defaults, terminations, modifications, accelerations and
creations and impositions of Liens which, individually or in the
aggregate, would not be reasonably expected to have a material adverse
effect on the ability of such Shareholder to consummate the transaction
contemplated by this Agreement, or (ii) require any filing by such
Shareholder with, or any permit, authorization, consent or approval of,
any Governmental or Regulatory Authority or any third party other than
Schedule 13D or Schedule 13G and Form 4 and/or Form 5, or amendments
thereto, with the United States Securities and Exchange Commission, or
a notification to the Securities Board of The Netherlands (Stichting
Toezicht Effectenverkeer) pursuant to section 46b of the Netherlands
Securities Xxxxxx Xxxxxxxxxxx Xxx 0000 (Wet toezicht effecten verkeer
1995) or pursuant to the Luxembourg Act on Disclosure of Significant
Shareholdings in Listed Companies (Loi du 4 decembre 1992 sur les
informations publies lors de l'acquisition et de la cession d'une
participation importante dans une societe cotee en bourse). There is no
beneficiary or holder of a voting trust certificate or other interest
of any trust of which such Shareholder is a trustee whose consent is
required for the execution and delivery of this Agreement or the
consummation by such Shareholder of the transaction contemplated
hereby.
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(d) The Shares and the certificates representing the Shares owned by such
Shareholder are now and at all times during the term hereof will be
held by such Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all Liens, proxies, voting
trusts or agreements or understandings or arrangements whatsoever,
except for any such Liens or proxies arising hereunder, and not subject
to any preemptive rights.
SECTION 2. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to each of the Shareholders as follows:
(a) Purchaser is a public limited liability company (naamloze vennootschap)
duly incorporated and validly existing under the laws of The
Netherlands and Purchaser has full corporate power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
Purchaser and (assuming due execution and delivery by the Shareholders)
constitutes the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except as
may be limited by bankruptcy, insolvency reorganization, moratorium or
other similar laws affecting enforcement of creditors' rights generally
(including the doctrine of voidable preference within the meaning of
section 3:45 of the Netherlands Civil Code and section 42 et seq. of
the Netherlands Bankruptcy Code) and by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by Purchaser do not, and
the performance by Purchaser of its obligations hereunder and the
consummation of the transactions contemplated hereby will not, conflict
with, result in a violation or breach of, constitute (with or without
notice or lapse of time or both) a default under, result in or give to
any person any right of termination, cancellation, modification or
acceleration of, or result in the creation or imposition of any Lien
upon any of the assets or properties of Purchaser under, any of the
terms, conditions or provisions of (A) the articles of association
(statuten) of Purchaser or (B) (x) any Law or Order of any Governmental
or Regulatory Authority applicable to Purchaser or any of its assets or
properties, or (y) any Contract to which Purchaser is a party or by
which Purchaser or any of its assets or properties is bound, excluding
from the foregoing clauses (x) and (y) conflicts, violations, breaches,
defaults, terminations, modifications, accelerations and creations and
impositions of Liens which, individually or in the aggregate, would not
be reasonably expected to have a material adverse effect on the ability
of Purchaser to consummate the transactions contemplated by this
Agreement.
SECTION 3. Purchase and Sale of the Shares. Each of the Shareholders hereby
severally (and not jointly) agrees to exchange the Shares set forth opposite its
name on Annex I to this Agreement into the Offer promptly, and in any event no
later than the fifth business day following the commencement of the Offer
pursuant to Section 1.01 of the Exchange Offer Agreement and not to withdraw any
Shares so exchanged unless the Offer is terminated or has expired; provided that
if such Shareholder shall thereafter
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acquire further Common Shares, then any such Shares shall be exchanged no later
than the second business day after such acquisition. Purchaser hereby agrees to
purchase all the Shares so exchanged at a price per Share equal to the Offer
Price (as such term is defined in the Exchange Offer Agreement) or any higher
price that may be paid in the Offer; provided, however, that Purchaser's
obligation to accept for payment and pay for the Shares in the Offer is subject
to all the terms and conditions of the Offer including those set forth in the
Exchange Offer Agreement and Exhibit A thereto.
SECTION 4. Transfer of the Shares; Proxies and Non-Interference. Prior to the
termination of this Agreement, except as otherwise provided herein, each of the
Shareholders severally agrees that it shall not, directly or indirectly, (i)
offer for sale, sell, transfer, tender, pledge, encumber, assign, or otherwise
dispose of, any or all of its Shares; (ii) enter into any Contract, option or
understanding with respect to any transfer of any or all of its Shares or any
interest therein; (iii) except as provided herein, grant any proxy,
power-of-attorney or other authorization or consent in or with respect to its
Shares; (iv) deposit its Shares into a voting trust or enter into a voting
agreement or arrangement with respect to its Shares; or (v) take any other
action that would in any way restrict, limit or interfere with the performance
of such Shareholder's obligations hereunder or the transactions contemplated
hereby. Notwithstanding the foregoing, each Shareholder may transfer its Shares
(i) as a bona fide gift or gifts, provided that the donee or donees thereof
agree to be bound by the terms and provisions set forth herein and executes and
delivers to Purchaser a copy of this Agreement, (ii) to any trust for the direct
or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound by the
terms and provisions set forth herein and executes and delivers to Purchaser a
copy of this Agreement or (iii) with the prior written consent of Purchaser. For
purposes of this Agreement, "immediate family" shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin. In addition,
notwithstanding the foregoing, if the undersigned is a corporation, the
corporation may transfer the capital stock of the Company to any wholly-owned
subsidiary of such corporation; provided, however, that in any such case, it
shall be a condition to the transfer that the transferee execute an agreement
stating that the transferee is receiving and holding such capital stock subject
to the terms and provisions of this Agreement and there shall be no further
transfer of such capital stock except in accordance with this Agreement, and
provided further that any such transfer shall not involve a disposition for
value. Notwithstanding the foregoing, no transfer permitted hereunder shall
release the transferring Shareholder from its obligations under this Agreement
(including, without limitation, pursuant to Section 7 hereunder).
SECTION 5. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director of the Company makes any agreement or
understanding herein in his or her capacity as such director. Each Shareholder
signs solely in his or her capacity as the owner of, or the trustee of a trust
whose beneficiaries are the owners of, on a several (and not joint) basis, such
Shareholder's Shares. Each Shareholder is executing this Agreement severally
(and not jointly) in his individual capacity and not collectively and is not
forming a partnership group or other arrangement hereby.
SECTION 6. Certain Events. In the event of any share split, share dividend,
merger, reorganization, recapitalization or other similar change in the capital
structure of the Company affecting the Common
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Shares or the acquisition of additional shares of Common Shares or other
securities or rights of the Company by any Shareholder, the number of Shares
shall be adjusted appropriately, and this Agreement and the rights and
obligations hereunder shall attach to any additional shares of Common Shares or
other securities or rights of the Company issued to or acquired by any such
Shareholder.
SECTION 7. Certain Other Agreements. From the date of this Agreement until the
earlier of the termination of this Agreement or the Effective Time (as such term
is defined in the Exchange Offer Agreement), and shall not permit or authorize
any advisor or representative retained by or acting for or on behalf of any such
Shareholder to, directly or indirectly, (i) take any action to initiate,
solicit, continue, encourage or facilitate (including by way of furnishing or
disclosing non-public information) any inquiries or the making of any offer or
proposal with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company or any of its subsidiaries other
than in connection with Project Pluto or any proposal or offer to acquire in any
manner, directly or indirectly, 20% or more of the shares of any class of voting
securities of the Company or any of its subsidiaries or a substantial portion of
the assets of the Company or any of its subsidiaries, other than the
transactions contemplated by or as provided in the Exchange Offer Agreement or
by this Agreement (any of the foregoing being referred to as an "Acquisition
Proposal"), or (ii) except in his capacity as a director pursuant to the
Exchange Offer Agreement, engage in negotiations, discussions or communications
regarding or disclose any information relating to the Company or any of its
subsidiaries or afford access to the properties, books or records of the Company
or any of its subsidiaries to any person, corporation, partnership or other
entity or group (a "Potential Acquiror") that may be considering making, or has
made, an Acquisition Proposal or knowingly facilitate any effort or attempt to
make or implement an Acquisition Proposal or accept an Acquisition Proposal.
Each of the Shareholders shall (i) notify Purchaser promptly (and in any event
within one business day) after receipt by it of any Acquisition Proposal (or any
indication that any person is considering making an Acquisition Proposal) or any
request for non-public information relating to the Company or any of its
subsidiaries or for access to the properties, books or records of the Company or
any of its subsidiaries by any person that may be considering making, or has
made, an Acquisition Proposal, (ii) notify Purchaser promptly of any material
change to any such Acquisition Proposal received by it, indication or request
and (iii) upon reasonable request by Purchaser, provide Purchaser with all
material information about any such Acquisition Proposal, indication or request
received by it.
SECTION 8. Further Assurances. Each of the Shareholders shall, upon request of
Purchaser, take such further actions as may reasonably be necessary or desirable
to carry out the provisions hereof, provided that the Shareholders shall not be
required to incur any additional costs or expenses or receive less than the
agreed price as provided in Section 3 without their prior written consent.
SECTION 9. Termination. Except as otherwise provided in this Agreement, this
Agreement, and all rights and obligations of the parties hereunder, shall
terminate immediately upon the earlier of (i) the acquisition by Purchaser of
all of the Shares, (ii) the termination of the Exchange Offer Agreement in
accordance with its terms or provided, however, that Section 10 shall survive
any termination of this Agreement.
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SECTION 10. Expenses. All fees and expenses incurred by any party hereto shall
be borne by the party incurring such fees and expenses.
SECTION 11. Public Announcements. Each of the Shareholders and Purchaser agree
that they will not issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated hereby
without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure can be
made without obtaining such prior consent if (i) the disclosure is required by
Law, and (ii) the party making such disclosure has first used its best efforts
to consult with the other party about the form and substance of such disclosure.
SECTION 12. Definitions. As used in this Agreement, the following terms shall
have the meanings indicated below:
"Contract" means any agreement, lease, evidence of indebtedness, mortgage,
indenture, security agreement or other contract (whether written or oral).
"Law" means any law, statute, rule, regulation, ordinance and other
pronouncement having the effect of law of the United States, any foreign country
or any domestic or foreign state, county, city or other political subdivision or
of any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security interest, lease, lien,
adverse claim, levy, charge or other encumbrance of any kind, or any conditional
sale Contract, title retention Contract or other Contract to give any of the
foregoing.
"Governmental or Regulatory Authority" means any court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision.
"Order" means any writ, judgment, decree, injunction or similar order of any
Governmental or Regulatory Authority.
SECTION 13. Miscellaneous.
(d) All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile
numbers:
(A) if to any Shareholder, to such Shareholder at the
address set forth on the signature page hereto:
with copies to:
Xxxxxxxx & Xxxxxxxx
St. Olave's House
0x Xxxxxxxxxx Xxxx
Xxxxxx XX0X 0XX
Attn: Xxxxxxx X. Xxxxxxxxx
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Fax: x00 000 000 0000
Tel: x00 000 000 0000
and
(B) if to Purchaser, to:
United Pan-Europe Communications N.V.
Xxxx. Xxxxxxxxxxxx 000, X.X. Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx 1070 BT
Telephone: x00 00 000 0000
Facsimile: x00 00 000 0000
Attention: General Counsel
with a copy to:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: x0 000 000-0000
Facsimile: x0 000 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
and to:
Xxxxxxxx Chance Limited Liability Partnership
000 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: + 00 000 000 0000
Facsimile: + 44 207 600 5555
Attention: Xxxxxx Xxxxxxx
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice is to be delivered pursuant to this Section). Any party from
time to time may change its address, facsimile number or other information for
the purpose of notices to that party by giving notice specifying such change to
the other parties hereto.
(e) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(f) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall be considered
one and the same agreement.
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(g) This Agreement constitutes the entire agreement, and supersedes all
prior agreements and understandings, whether written and oral, among
the parties hereto with respect to the subject matter hereof.
(h) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
(i) Each party hereby irrevocably submits to the non-exclusive jurisdiction
of the United States District Court for the Southern District of New
York located in the Borough of Manhattan, City of New York in any
action, suit or proceeding arising in connection with this Agreement,
and agrees that any such action, suit or proceeding shall be brought in
such court (and waives any objection based on forum non conveniens or
any other objection to venue therein); provided, however, that such
consent to jurisdiction is solely for the purpose referred to in this
paragraph (f) and shall not be deemed to be a general submission to the
jurisdiction of said Courts or in the State of New York other than for
such purposes. Each party hereto hereby waives any right to a trial by
jury in connection with any such action, suit or proceeding.
(j) Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the
other parties, and any such purported assignment shall be null and
void; provided, however, Purchaser may, without the prior written
consent of any Shareholder assign its rights and obligations to any of
its direct or indirect wholly owned subsidiaries in connection with, or
for the purpose of, effecting the transactions contemplated by the
Exchange Offer Agreement. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be
enforceable by, the parties and their respective successors and
assigns, and the provisions of this Agreement are not intended to
confer upon any person other than the parties hereto any rights or
remedies hereunder.
(k) If any term, provision, covenant or restriction herein is held by a
court of competent jurisdiction or other authority to be invalid, void
or unenforceable or against its regulatory policy, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated.
(l) Each of the parties hereto acknowledge and agrees that in the event of
any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto (i)
will waive, in any action for specific performance, the defence of
adequacy of a remedy at law and (ii) shall be entitled, in addition to
any other remedy to which they may be entitled at law or in equity, to
compel specific performance of this Agreement.
(m) No amendment, modification or waiver in respect to this Agreement shall
be effective unless it shall be in writing and signed by each party
hereto.
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IN WITNESS WHEREOF, Purchaser and the Shareholders have caused this Agreement to
be duly executed and delivered as of the date first written above.
PURCHASER
By: /s/ Anton Tuijten
--------------------------------
Name: Anton Tuijten
Title: General Counsel/ POA
INDIVIDUAL SHAREHOLDERS:
By: /s/ Xxxxx Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx Xxxxx
Address: SBS Broadcasting S.A.
0-00 xxx Xxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
By: /s/ Xxxxxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Address: SBS Broadcasting S.A.
0-00 xxx Xxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Address: SBS Broadcasting S.A.
0-00 xxx Xxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Address: SBS Broadcasting S.A.
0-00 xxx Xxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
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ANNEX I
Beneficial Ownership of Company Common Shares
Number of Shares
Xxxxx Xxxxx Xxxxx 819,366
Xxxxxxx Xxxxxxxxxxx 125,000
Xxxxxx X. Xxxxxx 141,105
Xxxxxx Xxxxxxxx 6,723
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