VOTING AGREEMENT
EXHIBIT 8
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 société anonyme
(the “Seller”); and PKS Media S.à x.x., a Luxembourg société á responsabilité limitée
(“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.
(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
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.
(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
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.à x.x.
/s/ XXXXXXX XXXXXX |
||
Name: Xxxxxxx Xxxxxx |
||
| Title: pursuant to a Power of Attorney issued on August 19, 2005 | ||
NAME OF SHAREHOLDER
|
Class and Number of Securities Owned |
By:
|
/s/ Xxxxx X’Xxxxx | 20,000 Options | ||
| Name: Xxxxx X’Xxxxx Title: Director |
Address for Notices of Shareholder
