Exhibit 1
Execution Copy
AGREEMENT FOR THE
PURCHASE AND SALE OF SHARES
Dated as of September 26, 2003
by and between
POSTABANK ES TAKAREKPENZTAR RT.
and
CDC SECURITIES
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Xxxxxxx 0
000 00 Xxxxxxxxxx
Xxxxxx Xxxxxxxx
TABLE OF CONTENTS
Page
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1. Definitions. 1
2. Purchase and Sale of Shares. 3
(a) Basic Transaction 3
(b) Purchase Price 3
(c) The Closing 3
(d) Deliveries at the Closing 3
3. Representations and Warranties Concerning the Transaction. 4
(a) Representations and Warranties of the Seller 4
(b) Representations and Warranties of the Buyer 5
4. Pre-Closing Covenant 6
5. Post-Closing Covenants 7
(a) General 7
(b) Litigation Support 7
(c) Exemption from Registration 7
6. Conditions to Obligation to Close. 7
(a) Conditions to Obligation of the Buyer 7
(b) Conditions to Obligation of the Seller 8
7. Remedies for Breaches of this Agreement. 9
(a) Survival of Representations and Warranties 9
(b) Indemnification Provisions for Benefit of the Buyer 9
(c) Indemnification Provisions for Benefit of the Seller 9
(d) Matters Involving Third Parties 9
(e) Indemnification with Respect to M&A Capital Ltd. Dispute 9
(f) Determination of Adverse Consequences 10
(g) Exclusive Remedy 10
8. Termination. 10
(a) Termination of Agreement 10
(b) Effect of Termination 11
9. Miscellaneous. 11
(a) Press Releases and Public Announcements 11
(b) No Third-Party Beneficiaries 11
(c) Entire Agreement 11
(d) Succession and Assignment 11
(e) Counterparts 11
(f) Headings 11
(g) Notices 12
(h) Governing Law 12
(i) Dispute Resolution 12
(j) Amendments and Waivers 13
(k) Severability 13
(l) Expenses 13
(m) Construction 13
(n) Incorporation of Exhibits and Schedules 14
Exhibit A Statement that Buyer is an Accredited Investor
Exhibit B Form of Opinion of Counsel Addressed to HTCC, Copy Delivered
to Buyer
Schedule 3(a)(vi) Litigation
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AGREEMENT FOR THE PURCHASE AND SALE OF SHARES
THIS AGREEMENT FOR THE PURCHASE AND SALE OF SHARES (this "Agreement") is
made as of September 26, 2003 by and among Postabank es Takarekpenztar Rt., a
Hungarian commercial bank ("Seller"), and CDC Securities, a New York corporation
("Buyer"). The Buyer and the Seller are referred to collectively herein as the
"Parties."
RECITALS
WHEREAS, Seller is the owner of the Shares (as defined in Section 1); and
WHEREAS, Seller wishes to sell and Buyer wishes to buy the Shares on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, provisions and covenants set forth in this Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Definitions.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses, and fees, including court costs and reasonable attorneys' fees and
expenses.
"Affiliate" means a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the person specified.
"Applicable Rate" means the corporate base rate of interest publicly
announced from time to time by Citibank, N.A.
"Xxxxxxx Agreement" means that certain purchase and sale agreement, dated
the date hereof, with respect to the transfer by Seller of $1,828,752 shares,
$25,000,000 face value subordinated notes and warrants to purchase 2,500,000
shares of HTCC.
"Buyer" has the meaning set forth in the preface above.
"Cash" means cash and cash equivalents (including marketable securities
and short term investments) calculated in accordance with GAAP.
"Closing" has the meaning set forth in Section 2(c) below.
"Closing Date" has the meaning set forth in Section 2(c) below.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"HTCC" means Hungarian Telephone and Cable Corp., a Delaware corporation,
together with all of its Subsidiaries and Affiliates.
"Income Tax" means any federal, state, local, or foreign income tax,
including any interest, penalty, or addition thereto, whether disputed or not.
"Indemnified Party" has the meaning set forth in Section 7(d) below.
"Indemnifying Party" has the meaning set forth in Section 7(d) below.
"Knowledge" shall mean the actual knowledge, without independent
investigation, of Xx. Xxxxxxx Xxxx, Deputy Chief Executive Officer of the
Seller, and Xx. Xxxxx Ugroczky, a director of the Seller and the officer at the
Seller responsible for the Senior Secured Debt Facility Agreement.
"Material Adverse Effect" means any material adverse effect on the
business, operations, properties, financial condition or operating results of
HTCC and its Subsidiaries, taken as a whole on a consolidated basis.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for taxes not yet due and payable or for taxes that the
taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the ordinary course of business and
not incurred in connection with the borrowing of money.
"Seller" has the meaning set forth in the preface above.
"Senior Secured Debt Facility Agreement" means the Senior Secured Debt
Facility Agreement dated April 11, 2000 arranged by Citibank, N.A. and
Westdeutsche Landesbank Girozentrale, pursuant to which the Seller is a senior
creditor of HTCC.
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"Shares" means the six hundred thousand (600,000) shares of common stock,
par value $0.001 per share, of HTCC owned by the Seller.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Third Party Claim" has the meaning set forth in Section 7(d) below.
2. Purchase and Sale of Shares.
(a) Basic Transaction
On and subject to the terms and conditions of this Agreement, the Buyer
agrees to purchase from the Seller, and the Seller agrees to sell to the Buyer
the Shares for the consideration specified below in this Section 2.
(b) Purchase Price
The Buyer agrees to pay to the Seller at the Closing the amount of three
million fifty thousand United States Dollars ($3,050,000.00) (the "Purchase
Price") in cash, which Purchase Price is payable by wire transfer or delivery of
other immediately available funds.
(c) The Closing
The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Squire, Xxxxxxx & Xxxxxxx L.L.P in
Budapest, Hungary, commencing at 9:00 a.m. local time on October 10, 2003 or on
such other date or at such other place as the Buyer and the Seller may mutually
determine (the "Closing Date"); provided, however, that the Closing Date shall
be no later than November 28, 2003.
(d) Deliveries at the Closing
At the Closing, (i) the Seller will deliver to the Buyer the various
certificates, instruments, and documents referred to in Section 6(a) below, (ii)
the Buyer will deliver to the Seller the various certificates, instruments, and
documents referred to in Section 6(b) below, (iii) the Seller will deliver to
the Buyer a stock certificate representing all of the Shares, endorsed in blank
or accompanied by duly executed assignment documents, and (iv) the Buyer will
deliver to the Seller the consideration specified in Section 2(b) above.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Seller
The Seller represents and warrants to the Buyer that the statements
contained in this Section 3(a) are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then).
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(i) Organization of Seller. The Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Seller has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of the Seller, enforceable against it in accordance
with its terms, except to the extent that the enforcement of the rights
and remedies created therein is subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application affecting the enforcement of creditors' rights and general
principles of equity. The Seller need not give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(iii) Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Seller is
subject or any provision of its charter or bylaws.
(iv) Brokers' Fees. The Seller has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which the Buyer could
become liable or obligated.
(v) Shares. The Seller holds of record and owns the Shares free and
clear of any restrictions on transfer (other than restrictions under the
Securities Act and state securities laws), taxes, Security Interests,
options, warrants, purchase rights, contracts, commitments, equities,
claims, and demands. The Seller is not a party to any option, warrant,
purchase right, or other contract or commitment that could require the
Seller to sell, transfer, or otherwise dispose of the Shares (other than
this Agreement). The Seller is not a party to any voting trust, proxy, or
other agreement or understanding with respect to the voting of the Shares.
(vi) Litigation. Neither the Seller nor any of its affiliates has at
any time taken or directed any act, omission or condition which would
reasonably be expected to result in or constitute grounds for or the basis
of any suit, action, arbitration, proceeding or investigation against or
with respect to HTCC. To the Knowledge of the Seller, except as set forth
in Schedule 3(a)(vi) hereto and except as otherwise publicly disclosed by
HTCC, there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or threatened against or affecting HTCC, any
Subsidiary or any of their respective properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) which could, if there were an
unfavorable decision, have or reasonably be expected to result in a
Material Adverse Effect.
(vii) Internal Controls. To the Knowledge of the Seller, HTTC and
each of its Subsidiaries maintains a system of internal accounting
controls sufficient to provide
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reasonable assurance that (A) transactions are executed in accordance with
HTCC's management's general or specific authorizations, (B) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (C) access to
assets is permitted only in accordance with HTCC's management's general or
specific authorization, and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. HTCC has not notified the
Seller that HTCC (Y) has not established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for HTCC
and (Z) has not designed such disclosure controls and procedures, if so
established, to ensure that material information relating to HTCC,
including its Subsidiaries, is made known to the certifying officers by
others within those entities, particularly during the period in which
HTCC's Form 10-K or 10-Q, as the case may be, is being prepared.
(viii) No Conflicts. To the Knowledge of the Seller, the business of
HTCC and its Subsidiaries is not being conducted, and is not anticipated
being conducted, in violation of any law, ordinance, rule, regulation,
order, judgment or decree of any governmental entity, court or arbitration
tribunal, except for possible violations the sanctions for which either
singly or in the aggregate would not have a Material Adverse Effect.
(ix) No Default Under Senior Secured Debt Facility Agreement. To the
Knowledge of the Seller, HTCC has not caused a default or an event of
default under the terms of the Senior Secured Debt Facility Agreement.
(x) Disclaimer of other Representations and Warranties. Other than
as specifically stated in this Agreement, the Seller makes no
representation or warranty, express or implied, at law or in equity, in
respect of HTCC or any of its assets, liabilities or operations. Buyer
hereby acknowledges and agrees that the Buyer is purchasing the Shares
having made, to its full and complete satisfaction, a due diligence
investigation of HTCC. Notwithstanding the foregoing, the Seller has no
Knowledge of any information contained in any HTCC SEC Filing or otherwise
provided or made available to the Buyer that contains any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements and writings
contained herein not false or misleading in the light of the circumstances
under which they were made.
(b) Representations and Warranties of the Buyer
The Buyer represents and warrants to the Seller that the statements
contained in this Section 3(b) are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then).
(i) Organization of the Buyer. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Authorization of Transaction. The Buyer has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. This
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Agreement constitutes the valid and legally binding obligation of the
Buyer, enforceable in accordance with its terms and conditions, except to
the extent that the enforcement of the rights and remedies created therein
is subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting the enforcement
of creditors' rights and general principles of equity. The Buyer need not
give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
(iii) Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated
hereby, will violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Buyer is
subject or any provision of its charter or bylaws.
(iv) Brokers' Fees. The Buyer has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which the Seller could
become liable or obligated.
(v) Investment. The Buyer (A) understands that the Shares have not
been, and will not be, registered under the Securities Act, or under any
state securities laws, and are being offered and sold in reliance, inter
alia, upon federal and state exemptions from registration for transactions
not involving any public offering, (B) understands that the Shares may not
be sold, transferred, pledged, hypothecated or otherwise disposed of or
offered for sale except pursuant to an effective registration statement
under the Securities Act and applicable state securities laws or an
applicable exemption therefrom, (C) is acquiring the Shares solely for its
own account for investment purposes, and not with a view to the
distribution thereof in violation of any applicable securities laws, (D)
is a sophisticated investor with knowledge and experience in business and
financial matters, (E) has received adequate information concerning HTCC
and has had the opportunity to obtain additional information as desired in
order to evaluate the merits and the risks inherent in holding the Shares,
(F) is able to bear the economic risk and lack of liquidity inherent in
holding the Shares, and (G) is an accredited investor within the meaning
of Regulation D promulgated under the Securities Act for the reasons set
forth in Exhibit A attached hereto.
4. Pre-Closing Covenant
Between the execution of this Agreement and the Closing, each of the
Parties will use its reasonable best efforts to take all action and to do all
things necessary in order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not waiver, of the
closing conditions set forth in Section 6 below).
5. Post-Closing Covenants
The Parties agree as follows with respect to the period following the
Closing.
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(a) General
In case at any time after the Closing any further action is necessary to
carry out the purposes of this Agreement, each of the Parties will take such
further action (including the execution and delivery of such further instruments
and documents) as any other Party reasonably may request, all at the sole cost
and expense of the requesting Party (unless the requesting Party is entitled to
indemnification therefore under Section 7 below).
(b) Litigation Support
In the event and for so long as any Party actively is contesting or
defending against any action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand in connection with (i) any transaction contemplated
under this Agreement or (ii) any fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction on or prior to the Closing Date involving HTCC,
the other Party shall cooperate with it and its counsel in the defense or
contest, make available its personnel, and provide such testimony and access to
its books and records as shall be necessary in connection with the defense or
contest, all at the sole cost and expense of the contesting or defending Party
(unless the contesting or defending Party is entitled to indemnification
therefore under Section 7 below).
(c) Exemption from Registration. The Seller shall not take any action or
omit to take any action that may result in the Parties being prohibited from
consummating the transactions contemplated hereby pursuant to an exemption from
registration under the Securities Act.
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer
The obligation of the Buyer to consummate the transactions to be performed
by it in connection with the Closing is subject to satisfaction of the following
conditions:
(i) the representations and warranties set forth in Section 3(a)
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
(iv) the Seller shall have delivered to the Buyer a certificate to
the effect that each of the conditions specified above in Section
6(a)(i)-(iii) is satisfied in all respects;
(v) the Buyer shall have received from counsel to the Seller a copy
of the opinion in form and substance as set forth in Exhibit B attached
hereto, addressed to HTCC, and dated as of the Closing Date;
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(vi) all actions to be taken by the Seller in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Buyer; and
(vii) the Buyer shall have had the opportunity to conduct a
reasonable investigation of the matters set forth in Schedule 3(a)(vi) of
this Agreement and satisfy itself that no material commercial risk will be
transferred with respect to the Shares as a result of the dispute
described therein in the event that the Closing shall occur.
The Buyer may waive any condition specified in this Section 6(a) if it executes
a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller
The obligation of the Seller to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction of the
following conditions:
(i) the representations and warranties set forth in Section 3(b)
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
(iv) the Buyer shall have delivered to the Seller a certificate to
the effect that each of the conditions specified above in Section
6(b)(i)-(iii) is satisfied in all respects;
(v) the Seller shall have entered into and be ready to close the
Xxxxxxx Agreement; and
(vi) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Seller.
The Seller may waive any condition specified in this Section 6(b) if it executes
a writing so stating at or prior to the Closing.
7. Remedies for Breaches of this Agreement.
(a) Survival of Representations and Warranties
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All of the representations and warranties of the Parties contained in
Section 3 above shall survive the Closing (unless the damaged Party knew or had
reason to know of any misrepresentation or breach of warranty at the time of
Closing) and continue in full force and effect forever thereafter (subject to
any applicable statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer
In the event any the Seller breaches any of its representations,
warranties, and covenants contained herein, and, if there is an applicable
survival period pursuant to Section 7(a) above, provided that the Buyer makes a
written claim for indemnification against the Seller pursuant to Section 9(g)
below within such survival period, then the Seller agrees to indemnify the Buyer
from and against the entirety of any Adverse Consequences the Buyer shall suffer
through and after the date of the claim for indemnification (but excluding any
Adverse Consequences the Buyer shall suffer after the end of any applicable
survival period) caused proximately by the breach.
(c) Indemnification Provisions for Benefit of the Seller
In the event the Buyer breaches any of its representations, warranties,
and covenants contained herein, and, if there is an applicable survival period
pursuant to Section 7(a) above, provided that the Seller makes a written claim
for indemnification against the Buyer pursuant to Section 9(g) below within such
survival period, then the Buyer agrees to indemnify the Seller from and against
the entirety of any Adverse Consequences the Seller shall suffer through and
after the date of the claim for indemnification (but excluding any Adverse
Consequences the Seller shall suffer after the end of any applicable survival
period) caused proximately by the breach.
(d) Matters Involving Third Parties
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against the other Party (the
"Indemnifying Party") under this Section 7, then the Indemnified Party
shall promptly (and in any event within five (5) business days after
receiving notice of the Third Party Claim) notify the Indemnifying Party
thereof in writing.
(ii) The Indemnifying Party will have the right at any time to
assume and thereafter conduct the defense of the Third Party Claim with
counsel of his or its choice.
(iii) Unless and until an Indemnifying Party assumes the defense of
the Third Party Claim as provided in Section 7(d)(ii) above, however, the
Indemnified Party may defend against the Third Party Claim in any manner
he or it reasonably may deem appropriate.
(iv) In no event will the Indemnified Party consent to the entry of
any judgment or enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Indemnifying Party (not to
be withheld unreasonably).
(e) Indemnification with Respect to M&A Capital Ltd. Dispute
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Seller agrees to indemnify and hold harmless the Buyer against any and all
costs, expenses, liabilities, claims, losses and damages of whatever nature
(including reasonable attorneys' fees) to the extent such costs, expenses,
liabilities, claims, losses and damages arise out of or are based on the matters
set forth in Schedule 3(a)(vi) of the Agreement.
(f) Determination of Adverse Consequences
The Parties shall make appropriate adjustments for tax benefits and
insurance coverage and take into account the time cost of money (using the
Applicable Rate as the discount rate) in determining Adverse Consequences for
purposes of this Section 7. All indemnification payments under this Section 7
shall be deemed adjustments to the Purchase Price.
(g) Exclusive Remedy
The Buyer and the Seller acknowledge and agree that the foregoing
indemnification provisions in this Section 7 shall be the exclusive remedy of
the Buyer and the Seller with respect to HTCC and the transactions contemplated
by this Agreement.
8. Termination.
(a) Termination of Agreement
The Parties may terminate this Agreement as provided below:
(i) the Buyer and the Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written notice
to the Seller at any time prior to the Closing (A) in the event that the
Seller has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Buyer has
notified the Seller of the breach, and the breach has continued without
cure for a period of thirty (30) days after the notice of breach but not
later than November 28, 2003 or (B) if the Closing shall not have occurred
on or before November 28, 2003, by reason of the failure of any condition
precedent under Section 6(a) hereof (unless the failure results primarily
from the Buyer itself breaching any representation, warranty, or covenant
contained in this Agreement); and
(iii) the Seller may terminate this Agreement by giving written
notice to the Buyer at any time prior to the Closing (A) in the event the
Buyer has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Seller has
notified the Buyer of the breach, and the breach has continued without
cure for a period of thirty (30) days after the notice of breach but not
later than November 28, 2003 or (B) if the Closing shall not have occurred
on or before November 28, 2003 by reason of the failure of any condition
precedent under Section 6(b) hereof (unless the failure results primarily
from the Seller itself breaching any representation, warranty, or covenant
contained in this Agreement).
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(b) Effect of Termination
If any Party terminates this Agreement pursuant to Section 8(a) above, all
rights and obligations of the Parties hereunder shall terminate without any
liability of any Party to any other Party (except for any liability of any Party
then in breach).
9. Miscellaneous.
(a) Press Releases and Public Announcements
No Party shall issue any press release or make any public announcement
relating to the subject matter of this Agreement without the prior written
approval of the other Party; provided, however, that any Party may make any
public disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to advise the
other Parties prior to making the disclosure).
(b) No Third-Party Beneficiaries
This Agreement shall not confer any rights or remedies upon any Person
other than the Parties and their respective successors and permitted assigns.
(c) Entire Agreement
This Agreement (including the documents referred to herein) constitutes
the entire agreement among the Parties and supersedes any prior understandings,
agreements, or representations by or among the Parties, written or oral, to the
extent they have related in any way to the subject matter hereof.
(d) Succession and Assignment
This Agreement shall be binding upon and inure to the benefit of the
Parties named herein and their respective successors and permitted assigns. No
Party may assign either this Agreement or any of his or its rights, interests,
or obligations hereunder without the prior written approval of the other Party.
(e) Counterparts
This Agreement may be executed by facsimile and in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
(g) Notices
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All notices, requests, demands, claims, and other communications hereunder
will be in writing. Any notice, request, demand, claim, or other communication
hereunder shall be deemed duly given if (and then two business days after) it is
sent by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the intended recipient as set forth below:
If to the Seller: Copy to:
Postabank es Takarekpenztar Rt. Squire, Xxxxxxx & Xxxxxxx L.L.P.
Rumbach Xxxxxxxxx u. 19-21. Xxxxxxx 0
0000 Xxxxxxxx 000 00 Xxxxxxxxxx
Xxxxxxx Xxxxxxxx of Slovakia
Attention: Xxxxxxx Xxxx Attention: Xxxxxx Xxxxxx
Facsimile: x00-0-000-0000 Facsimile: x000-0-0000-0000
If to the Buyer: Copy to:
CDC Securities Xxxxxxxxx Traurig, LLP
0 X 00xx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
XXX XXX
Attention: Xxxxxxx Xxxxx Attention: Xxxx Xxxxxxx, Esq.
Facsimile: x0 (000) 000-0000 Facsimile: x0 (000) 000-0000
and
Xxxxxx Xxxxx, as General Counsel
Facsimile: x0 (000) 000-0000
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
(h) Governing Law
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New York without giving effect to any choice or
conflict of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York.
(i) Dispute Resolution
(i) In the event of any dispute between the Parties, the Parties
shall first attempt to settle such dispute amicably. Provided that, unless
the Parties otherwise agree, arbitration may be commenced on or after the
thirtieth day after the day on which notice of intention to commence
arbitration of such dispute was given, even if no attempt at amicable
settlement thereof has been made.
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(ii) If amicable settlement has not been reached within the period
stated in Section 9(i)(i) above, the dispute shall be finally settled
under the Rules of Conciliation and Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed under such Rules.
The language of the arbitration shall be English and the place of such
arbitration shall be London. The prevailing party in any such arbitration
shall be fully reimbursed by the other party for all costs associated with
the arbitration, including legal fees.
(j) Amendments and Waivers
No amendment of any provision of this Agreement shall be valid unless the
same shall be in writing and signed by each Party. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(k) Severability
Any term or provision of this Agreement that is invalid or unenforceable
in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.
(l) Expenses
Each of the Buyer and the Seller will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement.
(m) Construction
The Parties have participated jointly in the negotiation and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation.
(n) Incorporation of Exhibits and Schedules
The Exhibits and Schedules identified in this Agreement are incorporated
herein by reference and made a part hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as
of the date first above written.
SELLER: BUYER:
POSTABANK ES TAKAREKPENZTAR RT. CDC SECURITIES
By: /s/ Bela Singlovics By: /s/ Xxxxxxx Xxxxx
------------------------------------ -------------------------------
Name: Bela Singlovics Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer Title: Managing Director and
Group Head
Private Capital Markets
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxx Xxxxx
------------------------------------ -------------------------------
Name: Xxxxxxx Xxxx Name: Xxxxx Xxxxx
Title: Deputy Chief Executive Office Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
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