EXHIBIT 2
SALE AND TRANSFER AGREEMENT CONCERNING AMERICAN DEPOSITARY RECEIPTS
-------------------------------------------------------------------
among
Tele Columbus GmbH, Xxxxxx Xxxxxxx 0, 00000 Xxxxxxx, represented by the
general manager Xx. Xxxxxxx Xxxxxxx and the holder of a special commercial power
of attorney (Prokurist) Xx. Xxxxxxx Xxxxxxx
- hereinafter referred to as "TC" -
and
Xxxxxx Park International Limited, 00 Xxxx Xxxxxx, Xxxxxx 0, Xxxxxxx, a
wholly-owned subsidiary of MFC Bancorp Ltd., represented by Xx. Xxxxxxx X. Xxxxx
- hereinafter referred to as "SPI" -
and
Digitale Xxxxxxxxx XX, Xxxxxx Xxxxxxx 0, 00000 Hanover, represented by the
members of the management board Messrs. Xxxxx Xxxxxxxxxx and Xxxxx Xxxxxxxxxxxx
- hereinafter referred to as the "Company" -
PREAMBLE
--------
WHEREAS, TC is the legal and beneficial owner of 679,772 of a total of
750,000 American Depository Receipts (the "ADRS") representing American
Depository Shares (the "ADSs") which have been issued on the shares of the
Company. The Company is registered with the Commercial Register of the Local
Court of Hanover under HRB 59537. The ADRs of the Company are listed on the
NASDAQ Small-Cap Market and traded there under the securities identification
number 00000X000 and on the over-the-counter market of the Frankfurt Stock
Exchange and Berlin Stock Exchange as well as XETRA under the securities
identification number 879531. TC desires to sell such ADRs. SPI wishes to
purchase such ADRs.
NOW, THEREFORE, the parties agree to the following:
1. OBJECT OF SALE
------------------
1.1 The share capital of the Company is DEM 3,750,000.00 (in words:
three million and seven hundred and fifty thousand German marks). 750,000
bearer shares with a nominal value of DEM 5.00 per share have been issued on the
share capital. All of the shares have been duly and lawfully issued and have
been fully paid-in. Pursuant to Section 4 paragraph 3 of the Articles of
Association of the Company, the rights of shareholders to individual
certificates representing their shares are excluded. One global certificate
representing all the shares has been issued and has been deposited with Dresdner
Bank AG, Frankfurt am Main ("Dresdner Bank"). Dresdner Bank AG, Frankfurt am
Main is acting as the custodian (the "Custodian") within the meaning of the
Depositary Agreement (the "Depositary Agreement") of December 30, 1996, as
amended September 27, 1999, by and between the Company and the Bank of New York,
which is acting as the depositary bank (the "Depositary"). Pursuant to the
Depositary Agreement, the Depositary has issued 750,000 ADRs representing
750,000 ADSs, each representing one bearer share of the Company with a nominal
value of DEM 5.00.
1.2 TC is the legal and beneficial owner of 679,772 (in words: six
hundred and seventy-nine thousand and seven hundred and seventy-two) ADRs of the
Company.
2. SALE
--------
2.1 TC hereby sells its 679,772 ADRs of the Company to SPI pursuant to
the provisions of this Agreement. From and after the Closing SPI shall be
entitled to any profits for the current financial year as well as any
undistributed profits for the preceding financial years.
SPI accepts the sale pursuant to the terms and conditions of this
Agreement.
3. PURCHASE PRICE
------------------
3.1 The purchase price (the "Purchase Price") shall be DEM 6,780,400.00
(in words: six million seven hundred eighty thousand and four hundred German
marks) subject to the Purchase Price Adjustment pursuant to Section 3.2.
3.2 The Purchase Price shall be adjusted upwards or downwards as
follows (the "Purchase Price Adjustment"):
(i) the Purchase Price shall be reduced by 90% of the amount by
which the shareholders' equity recorded in the Closing Statement (as defined
below) falls short of DEM 3,750,000 (in words: three million seven hundred
fifty thousand German marks) on the date of Closing.
(ii) the Purchase Price shall be increased or reduced by 90% of the
amount by which the sum of the cash and cash equivalents of the Company
recorded in the Closing Statement falls short of or exceeds DEM 7,256,000.00
(in words: seven million two hundred fifty-six thousand German marks) on the
date of Closing.
When calculating the Purchase Price Adjustment there shall be no
double counting.
3.3 The Purchase Price for the ADRs shall be paid in two installments.
The first installment in the amount of DEM 6,530,400.00 (in words: six million
five hundred thirty thousand four hundred German marks) shall be due on the date
of Closing and paid to the Escrow Account maintained by the Escrow Agent (both
as defined in the Escrow Agreement, attached in Schedule I hereto) on a
-----------
payment-versus-delivery basis (Zug um Zug) in exchange for the transfer and
assignment
of the ADRs. The balance of the Escrow Account shall be released by
the Escrow Agent in accordance with the terms of the Escrow Agreement, if
applicable, taking into account any Purchase Price Adjustment following the
final determination of the Closing Statement.
Should the Purchase Price following the Purchase Price Adjustment (if
applicable, taking into account any claims by SPI against TC arising out of
Section 8.1, 9.1 and/or 9.6), exceed the amount set forth in Section 3.1, SPI
shall pay the difference to TC within 30 days of the final determination of the
Closing Statement.
The second installment in the amount of DEM 250,000.00 (in words: two hundred
fifty thousand German marks), if applicable taking into account claims by SPI
against TC arising out of Sections 8.1, 9.1 and/or 9.6, shall be due on December
31, 2002.
3.4 Any and all payments to TC from the Escrow Agent or SPI may only be
made to TC's account, account no. 150 42 32 at the Commerzbank AG, Hanover, bank
code 250 400 66.
4. CLOSING STATEMENT
---------------------
4.1 The Company shall prepare closing financial statements (comprising
a balance sheet and income statement) as of the date of Closing (the "Closing
Statement") together with a calculation of the Purchase Price Adjustment which
it shall provide to TC, SPI and the accounting firm Schwantag & Xxxxxxxxx GmbH,
Xxxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx xx Xxxx, within thirty days of the date of
Closing. The Closing Statement shall be prepared in accordance with the
generally accepted principles of accounting and balance sheet preparation in
Germany, including the accounting principles provided by the German Commercial
Code (Handelsgesetzbuch) for large stock corporations applied on a consistent
basis in preparing the balance sheet and performing valuations.
4.2 Schwantag & Xxxxxxxxx GmbH shall then audit the Closing Statement
within thirty days and send a copy of the Closing Statement so audited together
with its audit report and certificate to the Company, TC and SPI. TC shall bear
any all costs in relation to such audit, including, but not limited to, the fees
and expenses of Schwantag & Xxxxxxxxx GmbH.
4.3 Within thirty days of receipt of the audited Closing Statement by
it, SPI shall inform TC in writing of whether or not it approves or objects to
the audited Closing Statement. In the event that SPI objects to the audited
Closing Statement, such information must also state the grounds therefor. If
SPI informs TC of its approval within the specified period or should it fail to
inform TC during the specified period, the audited Closing Statement and, if
applicable, the Purchase Price Adjustment derived therefrom, shall be deemed
finally determined.
4.4 Should SPI object to the audited Closing Statement, SPI and TC
shall discuss a solution of the objections on the part of SPI in good faith and
make an attempt to reach an agreement.
4.5 Should SPI and TC fail to reach an agreement within thirty days
subsequent to TC receiving the information referred to in Section 4.3, each of
SPI and TC may request the Institut fur
Wirtschaftsprufer in Deutschland, e.V., Xxxxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxxx
(the "IWD") that it select and appoint an auditor (the "Auditor") who shall
render a final, binding opinion within the meaning of Sec. 317 of the German
Civil Code (Burgerliches Gesetzbuch: BGB) to TC and SPI in respect of the
objections on the part of SPI to the audited Closing Statement. The
Auditor's opinion must be in German, observe the principles of preparing
the Closing Statement pursuant to Section 4.1, and to the extent that the
Auditor determines that amendments to the audited Closing Statement are
required, include an amended version of the Closing Statement and a new
calculation of the Purchase Price Adjustment. The Closing Statement, as
amended, if applicable, together with the Purchase Price Adjustment
derived therefrom, shall be deemed final and binding upon the parties of
the date of receipt of the Auditor's opinion (together, if applicable,
with an amended version of the Closing Statement and a new calculation of
the Purchase Price Adjustment) by SPI and TC. The costs of the Auditor and
the IWD shall be borne by SPI and TC as set forth in Sections 91 and 92 of
the German Code of Civil Procedure (Zivilprozessordnung) which shall apply
mutatis mutandis. The Auditor shall also include in his opinion a
decision regarding the allocation of the costs.
4.6 SPI, TC and the Company shall ensure that the Auditor is granted
access to the working papers of Schwantag & Xxxxxxxxx GmbH.
5. TRANSFER OF THE ADRS
------------------------
5.1 At the Closing, TC shall transfer and assign to SPI title to
679,772 ADRs of the Company free from all rights of third parties on a
payment-versus-delivery basis (Zug um Zug) in exchange for payment of the
Purchase Price to the Escrow Agent. SPI shall accept such transfer and
assignment.
5.2 Title to the 679,772 ADRs of the Company shall be transferred and
assigned by means of a written agreement of assignment and credit through
Dresdner Bank to a securities deposit account designated and maintained by SPI
at Dresdner Bank. SPI and TC agree that the transfer and assignment of title to
the 679,772 ADRs of the Company to SPI pursuant to this Agreement shall only
take effect at the Closing if and to the extent that the Purchase Price for the
ADRs has been credited on the Escrow Account.
6. CLOSING
-----------
6.1 The Closing shall take place in the offices of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, Neue Xxxxxxx Xxxxxxx 00, 00000 Xxxxxxxxx xx Xxxx, or at
another location agreed to by the parties within five days of the fulfillment of
the condition set forth in Section 6.2 (ix) (the "Closing").
6.2 The obligation of SPI to accept the transfer and assignment and to
pay the Purchase Price, is subject to the condition precedent for SPI that (i)
no material adverse change in the financial situation of the Company has
occurred since the date of signing this Agreement, (ii) the ADRs of the Company
have continued to be listed on the NASDAQ Small-Cap Market and the Company has
not received a notice from NASDAQ according to which the suspension or
termination of the Company's inclusion has been determined or is immediately
forthcoming, (iii) the Company has provided SPI with a copy of all written and a
summary of all verbal communications to and from the National Association of
Securities Dealers, Inc. (the "NASD") and NASDAQ, (iv) the current members of
the
management board of the Company have been removed from office with effect as
of the Closing and the persons enumerated in Annex 6.2 have been appointed as
---------
the new members of the management board with effect as of the Closing and the
respective applications have been filed with the competent commercial register,
(v) the current members of the supervisory board of the Company have resigned
from office with effect as of the Closing and the respective application has
been filed with the competent commercial register, (vi) the Company has revoked
with effect as of the date of Closing all and any special commercial powers of
attorney (Prokuren) and other commercial powers of attorney
(Handlungsvollmachten) granted on behalf of the Company and the respective
applications have been filed with the competent commercial register, (vii) the
Company has effectively terminated the agreements enumerated in Annex 7.12 under
Section 1.1, 1.10, 1.14 and in Annex 7.13 under Section 1.1, (viii) TC is not in
breach of any of the warranties set forth in Section 7, and (ix) the statutory
waiting period under applicable merger control laws has expired or clearance by
the competent merger control authorities of the transaction contemplated in this
Agreement has been granted.
SPI may waive individual or all of these conditions by written instrument.
The obligation of TC to effect the transfer and assignment at the Closing is
subject to the condition precedent set forth in Clause (ix) of the preceding
sentence.
A "material adverse change" within the meaning of this provision shall be
deemed to have occurred if, between the date this Agreement is signed and the
date of Closing, one or more events occur having an effect, or that can
reasonably be expected to have an effect, on the financial situation of the
Company reaching or exceeding DEM 500,000.00 (in words: five hundred thousand
German marks).
6.3 The parties agree to cooperate fully in order to be granted
unconditional clearance from the competent merger control authorities.
6.4 If the condition precedent set forth in Section 6.2 (ix) has not
been fulfilled by November 30, 2001, SPI and TC are each entitled to withdraw
from this Agreement. If the remaining conditions precedent set forth in Section
6.2 have not been fulfilled by November 30, 2001, SPI is entitled to withdraw
from this Agreement.
7. WARRANTIES
--------------
TC warrants the following to SPI on the date of signing this Agreement and
on the date of Closing in the form of an independent guarantee (selbststandiges
Garantieversprechen):
7.1 The Company is a stock corporation duly incorporated and validly
existing under the laws of the Federal Republic of Germany.
7.2 TC is fully authorized to execute this Agreement as well as to
fulfill all of its obligations arising out of this Agreement and to perform the
transactions contemplated herein. The execution and performance of this
Agreement shall bring into existence legally binding and enforceable
obligations.
7.3 The share capital of the Company is DEM 3,750,000.00 (in words:
three million and seven hundred and fifty thousand German marks) and is fully
paid-in. Cash contributions have been made in full. Contributions in kind have
been valued at fair market values. There have not been any distributions of
profit (including hidden distributions) nor any return of capital (including
hidden returns). There have been no violations of any post-formation provisions
of the German Stock Corporation Act (Aktiengesetz).
There have not been any control, profit transfer or silent partnership
agreements concluded by the Company.
7.4 750,000 ordinary bearer shares with a nominal value of DEM 5.00 per
share have been issued on the share capital. All of the shares have been duly
and lawfully issued and have been fully paid-in. Pursuant to Section 4
paragraph 3 of the Articles of Association of the Company, the rights of
shareholders to individual certificates representing their shares are excluded.
One global certificate representing all the shares has been issued and has been
deposited with Dresdner Bank. Dresdner Bank is acting as the Custodian and the
Bank of New York is acting as the Depositary. Pursuant to the Depositary
Agreement, the Depositary has issued 750,000 ADRs representing 750,000 ADSs,
each representing one bearer share of the Company with a nominal value of DEM
5.00.
7.5 TC is the legal and beneficial owner of 679,772 of a total of
750,000 ADRs of the Company. TC may dispose of these ADRs of the Company
without requiring the approval of any third parties nor violating any
third-party rights. The ADRs being sold are not encumbered with any third-party
rights, in particular, they have neither been pledged nor attached or seized nor
transferred as collateral. Except the 750,000 ADRs, the 750,000 ADSs which are
represented by the ADRs, and the 750,000 bearer shares of the Company each with
a nominal value of DEM 5.00 which are represented by the ADSs, there are no
other outstanding ADRs, ADSs or other dividend papers. There are no call
options, convertible notes, warrants or other rights to purchase or acquire any
ADRs, ADSs or other shares of the Company. There are no agreements,
arrangements or understandings of any kind obligating the Company to issue
additional ADRs, ADSs or other shares or obligating TC - except under this
Agreement -, to sell ADRs, ADSs or other shares of the Company or to cause the
Company to issue ADRs, ADSs or other shares.
7.6 There have been no bankruptcy, composition or insolvency
proceedings filed or initiated against the Company nor against TC. Furthermore,
there are no grounds that would justify initiating such proceedings.
7.7 The Company has filed with the U.S. Securities and Exchange
Commission (the "SEC") when due true and complete copies of, all forms, reports,
exhibits, schedules, statements and other documents (other than preliminary
materials) required to be filed by it under the U.S. Securities Exchange Act of
1934, as amended (the "Exchange Act"), or the U.S. Securities Act of 1933, as
amended, (the "Securities Act") (such forms, reports, exhibits schedules,
statements and other documents, including any financial statements or schedules
included therein, are referred to as the "Filings"). The Filings, at the time
filed, (a) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the
statements therein (i) not misleading (in the case of registration
statements filed under the Securities Act) or (ii) not misleading in the light
of the circumstances under which they were made (in the case of all other
Filings), and (b) complied in all material respects with the applicable
requirements of the Exchange Act and the Securities Act, as the case may be, and
the applicable rules and regulations of the SEC thereunder.
7.8 The Depositary Agreement is in full force and effect and has not
been amended since September 27, 1999. The ADRs of the Company are listed on
the NASDAQ Small-Cap Market and traded there under the securities identification
number 00000X000 and are traded on the over-the-counter market of the Frankfurt
Stock Exchange and Berlin Stock Exchange as well as XETRA under the securities
identification number 879531. Except for the NASDAQ policy with regard to
continued listings of companies not engaged in an active business and the
provisions of NASDAQ Rule 4330(f), neither the Company nor TC are aware of any
facts, or if it had exercised the care of a prudent business person within the
meaning of Section 347 (1) of the German Commercial Code (Handelsgesetzbuch),
should have been aware of any facts which may indicate non-compliance with the
regulations of the NASD or NASDAQ or which could jeopardize the listing of the
ADRs of the Company on the NASDAQ Small-Cap Market.
7.9 The Company does not own any real estate.
7.10 The Closing Statement of the Company shall be prepared in
accordance with the generally accepted principles of accounting and balance
sheet preparation in Germany, including the accounting principles provided by
the German Commercial Code (Handelsgesetzbuch) for large stock corporations
applied on a consistent basis. The Closing Statement of the Company shall
completely and accurately present a fair view of the earnings situation, the
business and financial condition as well as the assets and liabilities of the
Company as of the date of Closing.
7.11 The Company has not given any guarantees or assurances nor assumed
any other liability for the liabilities of a third party. No third parties have
given any guarantees or assurances nor assumed any liability for liabilities of
the Company with the exception of the security deposit guarantee (Mietaval) set
forth in Annex 7.11. The Company has not conducted any operational business
-----------
activities since May 1, 2001, except for the endeavors of the management board
to invest the capital of the Company in broadband cable networks. However, in
the meantime, those negotiations have been terminated. No liabilities resulted
therefrom for the Company or TC.
7.12 Annex 7.12 contains a complete and accurate list of all written
-----------
and verbal agreements or arrangements binding upon the Company.
7.13 Annex 7.13 contains a complete and accurate list of all
-----------
consultants engaged by the Company including any fee arrangements made with such
consultants. As of the Closing, the Company has no effective employment
relationships (including suspended employment relationships) and no unfulfilled
liabilities resulting from or in connection with any employment relationships.
7.14 Except as set forth in Annex 7.14, there are no (i) outstanding
----------
administrative or judicial orders, judgments, decisions or arbitration awards
issued against the Company or (ii) any
current or threatened court, administrative or arbitration proceedings or
investigations against the Company. There are no grounds for any complaints,
lawsuits, proceedings or investigations against or by the Company. The Company
has conducted its business in compliance with applicable legal regulations
and all regulatory licenses and permits.
7.15 The Company has duly and completely prepared and filed all tax
returns and social security returns on a timely basis. Any taxes, social
security contributions and other public charges of any kind owed by the Company
relating to any periods prior to the Closing (including the period from January
1, 2001 through the date of Closing) that must be paid by the Company have been
either paid when due, or to the extent that such taxes, social security
contributions and other public charges were not due by the date of Closing, were
fully accounted for in the Closing Statement.
8. LEGAL CONSEQUENCES
----------------------
8.1 If one or more of the warranties given by TC pursuant to Section 7
of this Agreement is breached, SPI may request TC to cure the breach and bring
about the condition that would exist if the warranty concerned had not been
breached, within an appropriate period of time, not later however, than within
four weeks following receipt of the request. Should TC fail to cure the breach
within such period of time or should the cure not be feasible, TC shall
indemnify SPI and the Company in respect of the breach of the warranty by paying
monetary damages by means of which SPI and the Company are put in the position
in which they would have been had the warranty concerned not been breached.
8.2 Any claims by SPI pursuant to Sections 8.1 on the basis of Sections
7.1 through 7.5 of this Agreement are subject to a limitation period
(Verjahrungsfrist) of five years following the Closing. Any claims
pursuant to Sections 8.1 on the basis of Section 7.15 are subject to a
limitation period of six months following the date of a final and binding
tax assessment concerning the relevant taxes, social security contributions or
other public charges. This restriction shall not apply in the case of tax
evasion or tax evasion due to gross negligence. Any claims by SPI pursuant
to Section 8.1 on the basis of Section 7.7 of this Agreement shall be subject
to a limitation period of three years as of the date of Closing. A
limitation period of two years as of the date of Closing shall apply to any
other claims pursuant to Sections 8.1 on the basis of Section 7.
8.3 Any claims against TC as of the date of Closing for cancellation
(Anfechtung) on the ground of lack of important qualities of the subject matter
of this Agreement or for rescission (Ruckabwicklung) or adaptation of this
Agreement due to a fundamental change of the circumstances underlying the
Agreement are excluded.
9. SPECIAL OBLIGATIONS
-----------------------
9.1 TC shall indemnify and hold harmless the Company and SPI from and
against any and all liabilities asserted against the Company arising from our in
connection with the matters of the Company which arise or are incurred before
the Closing even if such liabilities are related to time periods before the
Closing, or which materialize after the date of Closing, and irrespective of
whether such liabilities are due, not yet due, limited in time, conditional,
contingent or have a fixed maturity date or are required to be reflected on a
balance sheet. The obligation to indemnify and
hold harmless shall include in particular (i) liabilities to Deutsche
Telekom AG for payment of the basic service charge through Xxxxx 00, 0000,
(xx) and all liabilities arising out of and in connection with the legal
relationships referred to in the Annexes 7.11 through 7.14, but with the
exception of the liabilities to the NASDAQ Stock Market with respect to
the NASDAQ annual fee and to the Depositary pursuant to Section 5.9 of
the Depositary Agreement, provided that the liabilities arising out of
the two latter legal relationships are related to time periods after the
Closing and are not due until after the Closing. Moreover, TC shall
indemnify the Company and SPI for any adverse effects resulting from
dispositions by the current members of the management board of the Company
in relation to the assets of the Company from their revocation through the
registration of the revocation of the appointment of such members of the
management board in the commercial register.
9.2 The Company agrees to provide SPI without undue delay, but before
the Closing, with a copy of all written and a summary of all verbal
communications to and from the NASD and NASDAQ.
9.3 TC shall use its best efforts, to the extent legally possible, to ensure
the resignation of the current members of the management board of the Company,
Xx. Xxxxx Xxxxxxxxxx and Xx. Xxxxx Xxxxxxxxxxxx immediately prior to the Closing
with effect as of the Closing. Moreover, TC shall use its best efforts, to the
extent legally possible, to ensure that the supervisory board of the Company
appoints the persons enumerated in Annex 6.2 as new members of the management
---------
board of the Company with effect on the date of Closing and to ensure the
resignation of the members of the supervisory board from their office following
such appointment at the Closing.
9.4 TC shall use its best efforts, to the extent legally possible, to
ensure that the Company revokes prior to the Closing and with effect as of the
Closing all and any special commercial powers of attorney (Prokuren) and other
commercial powers of attorney (Handlungsvollmachten) granted on behalf of the
Company.
9.5 TC shall indemnify and hold harmless SPI and the Company from and
against all tax payment obligations, social security contributions and other
public charges for any and all periods prior to and through the Closing, pro
rata if applicable, also if and to the extent that no accruals have been made in
respect of such taxes in the Closing Statement.
9.6 In connection with its former business operation sold to various
buyers, the Company shall divide up and pass on the shares of any service
charges (including VAT) not having yet been invoiced for the provision and use
of cable interconnection points to such buyers, in accordance with their
contractually agreed share of the invoices, following the receipt of the
relevant invoice or invoices from Deutsche Telekom AG or its legal successors.
TC shall ensure that all charges that are passed on are paid to the Company by
the buyers within two weeks of being notified of such charges. Should the
Company not receive the payment within the two-week period, TC shall reimburse
the amount in default to the Company upon its first request. TC shall also
indemnify and hold the Company harmless for any liabilities to Deutsche Telekom
AG or its legal successors arising from the provision and use of cable
interconnections which cannot be passed on to the buyers.
10. GENERAL
------------
10.1 The application of Sections 460 and 464 of the German Civil Code
(Burgerliches Gesetzbuch) and Section 377 of the German Commercial Code
(Handelsgesetzbuch) is excluded.
10.2 All notices or other communications to any Party hereto hereunder
shall be deemed to have been duly given only if made in writing in German, if
delivered to the following addressees and if made in the following manner: (i)
hand delivery against a receipt signed and dated by the addressee, (ii)
facsimile, (iii) registered mail (return receipt requested) or (iv) overnight
courier service:
If to TC:
Tele Columbus GmbH
Attn: Xx. Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
If to SPI:
Xxxxxx Park International Limited
Attn: Xxxxxxx X. Xxxxx
00 Xxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Including a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Attn: Xxxxxx X. Xxxx
Main Tower
Neue Mainzer Xxxxxxx 00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
If to the Company:
Digitale Telekabel AG
Attn: Chairman of the Management Board
Xxxxxx Xxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
The Parties shall be deemed to have received the notice or communication on
the date stated on the receipt by the addressees for hand delivery, on the date
of the send receipt of the facsimile, on the date set forth as delivery date on
the return receipt for registered mail, or on the date set forth as delivery of
the courier.
Each party may change the named recipient by notice according to this
Section 10.2.
10.3 This Agreement contains all agreements between the parties. No
ancillary agreements have been concluded. Any and all previous arrangements or
agreements or other understandings of any kind related to this transaction shall
be superseded in full by this Agreement.
10.4 This Agreement may only be supplemented, amended or terminated by
an instrument in writing signed by all parties. This written form requirement
can only be waived by an instrument in writing signed by all parties.
10.5 Unless expressly provided otherwise in this Agreement, each of the
parties shall bear its own costs or expenses in connection with the preparation,
negotiation, execution and performance of this Agreement, including any taxes,
attorneys' fees, auditors' fees as well as fees of other representatives and
advisors.
10.6 This Agreement and its terms shall be kept confidential except as
required by statutory regulations, decisions by any governmental authorities,
rules of any stock exchange, NASD or NASDAQ or by the depositaries and
custodians in connection with the ADR program of the Company in which case the
Party intending to disclose shall give prior notice to each of the other
Parties..
10.7 This Agreement and the rights and obligations set forth herein may
not be transferred or assigned to other parties without the prior written
consent of each of the other parties.
10.8 This Agreement shall be governed by the laws of the Federal
Republic of Germany.
10.9 The place of jurisdiction in respect of all claims arising out of
or in connection with this Agreement is Frankfurt am Main.
10.10 Should any provision of this Agreement be or become invalid or
unenforceable, this shall not affect the validity of the remaining provisions
hereof. The parties shall agree to a valid provision resembling the economic
intent of the invalid or unenforceable provision to the greatest extent
possible. The same applies by analogy to any gaps in this Agreement.
Frankfurt am Main, this 18th day of October 2001
Tele Columbus GmbH:
________________________
Xx. Xxxxxxx Xxxxxxx
________________________
Xxxxxxx Xxxxxxx
Xxxxxx Park International Limited:
________________________
Xxxxxxx X. Xxxxx
Digitale Telekabel AG
________________________
Xxxxx Xxxxxxxxxx
________________________
Xxxxx Xxxxxxxxxxxx
ANNEX 6.2
1. NEW MEMBERS OF THE MANAGEMENT BOARD
--------------------------------------
1.1 Xxxxxxx Xxxxxxx
1.2 Xxxxxx Xxxxxxxx
1.3 Xxxxxxx X. Xxxxx
ANNEX 7.11
1. LIABILITIES AND GUARANTEES
-----------------------------
Guarantee by Commerzbank Aktiengesellschaft, Xxxxxxxxxxxx 00-00, 00000
Xxxxxxxxx xx Xxxx to Xxxxxxx Grundstucksverwertungsgesellschaft mbH und Co. KG,
Xxxxxxxxxxxxx 00, 00000 Xxxxxxxx-Xxxxxxx, dated August 12, 1996
* Object: security deposit for space rented by the Company located at
Xxxxxxxxxxxxxxx 00-00, 00000 Xxxxxxxxx xx Xxxx, in the lease dated July 8, 1996.
* Duration: until the return of the guarantee deed
* Amount: DEM 26,781.00
ANNEX 7.12
1. WRITTEN OR VERBAL AGREEMENTS OR ARRANGEMENTS
-- --------------------------------------------
1.1 Arrangement between TC and the Company dated October 15, 2000
* Object: authorization of account holder TC to optimize interest
yield in automatic cash management system ("ACMS") and to set
interest rates for balances in the ACMS.
* Duration: terminated automatically when ACMS-Agreement with
Commerzbank is terminated
* Interest due by October 5, 2001: approx. DEM 20,000.00
(this amount corresponds to average interest income for one
month)
1.2 Insurance Contract no. 26940287-4 between ARAG Allgemeine
Rechtsschutz-Versicherungs AG ("ARAG"), Xxxxxxxxxxxx 00, 00000
Xxxxxxxxxx, and the Company dated December 14, 1998
* Object: special protection for companies in criminal matters
* Duration: December 1, 1998 until December 1, 2003
* Premium: DEM 1,667.50 p.a.
* Premium due until contract expires: DEM 3,335.00
1.3 Insurance Contract no. 26940296-3 between ARAG and the Company
dated December 14, 1998
* Object: legal expenses insurance
* Duration: December 1, 1998 until December 1, 2003
* Premium: DEM 1,723.98 p.a.
* Premium due until contract expires: DEM 3,447.96
1.4 Insurance Contract no. 26940298-7 between ARAG and the
Company dated December 22, 1998
* Object: D&O liability
* Duration: December 1, 1998 until December 1, 2003
* Premium: DEM 6.394,00 p.a.
* Premium due until contract expires: DEM 12,788.00
1.5 Insurance Contract no. 27037732-2 between ARAG and the Company
dated March 10, 2000
* Object: pecuniary loss liability insurance
* Duration: March 1, 2000 until March, 1 2005
* Premium: DEM 1402.00 p.a.
* Premium due until contract expires: DEM 4,206.00
1.6 Insurance Contract between Volksfursorge Deutsche Sachversicherung
AG and the Company dated January 31, 2001
* Object: third-party liability insurance
* Duration: January 25, 2001 until January 1,2002
* Premium: DEM 399.50 p.a.
* Premium due until contract expires: DEM 0.00
1.7 Contract between NASDAQ Stock Market Inc., Washington DC
20073-0570, U.S.A., and the Company
* Object: listing on NASDAQ SmallCap Market
* Fees: USD 500.00 p.a.
* Outstanding fees for 2001: USD 500.00
1.8 Depositary Agreement between Bank of New York, One Wall Street, New
York, NY, U.S.A., and the Company dated December 12, 1996
as amended on September 27, 1999
* Object: Deposit of the Company's ADRs
* Duration: Agreement may be terminated by each party at any time
with 90 days prior notice.
* Fees: USD 16,000.00 p.a. (for 2001), USD 20,000.00 p.a.
(as of 2002)
* Outstanding fees for 2001: USD 8,000.00
1.9 Pooling Contract between Xxxxxxxxxxxx XxxX & Xx. XX, Xxxxxxxxxxxxx
2, 60385 Frankfurt am Main, and the Company dated March 13, 2000
* Object: pooling of cable holdings of both parties in relation
to the settlement with Deutsche Telekom AG
* Duration: May 1, 2000 until December 31, 2001
* Payment: Company receives all additional quantity discounts
exceeding a basic discount of 9.5%; final invoice in the amount
of approx. DEM 161,000.00 was issued by the Company
1.10 Cooperation Agreement and supplemental arrangement to the
Cooperation Agreement between Kabel Deutschland GmbH ("KDG"), Key Account
Management Bezirk Mitte, Xxxxxxxxxx Xxxxxxx 00, 00000 Xxxxxxxx, and the Company
dated November 2, 1999
* Object: use of all existing and future cable connections/
interconnection points for the Company in the public
broadband net operated by KDG
* Duration: Agreement may be terminated by each party with 12
months prior notice with effect as of the end of the fiscal
year, but not before December 31, 2010.
1.11 Lease Agreement between Xxxxxxx Grundstucksverwaltungs GmbH & Co.
KG, Xxxxxxxxxxxxx 00, 00000 Xxxxxxxx-Xxxxxxx and the Company dated July 8, 1996
* Object: 267.68 m2 office space located at Xxxxxxxxxxxxxxx 00-00,
00000 Xxxxxxxxx xx Xxxx
* Duration: July 8, 1996 until July 8, 2002
* Rent: DEM 11,599.29 per month (including an advance on ancillary
costs and VAT)
1.12 Sublease Agreement between MAZARS Revisions- und
Treuhandgesellschaft mbH, Xxxxxxxxxxxxxxx 00-00, 00000 Xxxxxxxxx xx Xxxx,
and the Company dated November 10, 2000 and November 20, 2000
* Object: 109,87 m2 Office space located at Xxxxxxxxxxxxxxx
00-00, 00000 Xxxxxxxxx xx Xxxx
* Duration: August 1, 2000 until June 30, 2002
(not July 8, 2002!)
* DEM 4,760.96 per month (including an advance on ancillary
costs and VAT)
1.13 Sublease Agreement between newtron AG, Xxxxxxxxxxxxxxx 00-00,
00000 Xxxxxxxxx xx Xxxx, and the Company dated November 22,2000
* Object: 157.81 m2 office space located at Xxxxxxxxxxxxxxx 00-00,
00000 Xxxxxxxxx xx Xxxx
* Duration: November 22, 2000 until December 31, 2001
* DEM 6,838.33 per month (including an advance on ancillary
costs and VAT)
1.14 Consultancy and brokerage agreement between Bershin Mergers &
Acquisitions, Xxxxxxxxx 0, 00000 Xxxxxxxx/Xxxxxx, and the Company dated
November 20, 2000 and November 23, 2000, respectively
* Object: referral or brokerage of objects and/or advice on
negotiations
* Duration: terminated on September 13, 2001 with effect as of
December 12, 2001, alternatively in due time by March 31, 2002
* Outstanding commission: DEM 0.00
1.15 Purchase agreement between TC and the Company dated
September 28, 2001
* Object: sale of a car BMW 728i Automatic to TC
* Purchase Price: DEM 32,319.22
* Date payment is due: immediately
1.16 Sale and transfer agreement between KVG X. Xxxxx
Kabelanschluss-Vermeitungs GmbH & Co. KG ("KVG"), Xxxxxxxxxxx Xxxxxxx
000, 00000 Xxxxxxxx, and the Company dated September 27, 2001 and
October 31, 2001
* Object: sale and transfer of claims for reimbursement
against Deutsche Telecom AG to KVG
* Transfer of claims: with immediate effect
* Purchase Price: DEM 37,692.92
* Date payment is due: immediately
1.17 Sale and transfer agreement between KVG and the Company dated
October 1, 2001
* Object: sale and transfer of claims against from former cable
television customers
* Transfer of claims: with effect as of September 28, 2001
* Purchase Price: DEM 37,692.92
* Date payment is due: October 1, 2001
1.18 Sale and transfer agreement between X. Xxxx KG, Xxxxxxxxxxxx 000,
00000 Xxxxxxx-Xxxxxxxxx and the Company dated September 29, 2001
* Object: sale and transfer of claims against former cable
television customers in the amount of DEM 99,299.75
* Transfer of claims: with immediate effect
* Purchase Price: DEM 4,500.00
* Date payment is due: October 15, 2001
1.19 Sale and transfer agreement between ImmoMediaNet GmbH, registered
in the commercial register of the Local Court of Hamburg under HRB 77 484 dated
July 6, 2001
* Object: Sale and transfer of a share in the amount of DEM 5,000.00
in the limited liability company Deutsche Netzmarketing GmbH,
with its registered office in Hamburg,
* Transfer of the share: subject to full payment of the purchase
price
* Purchase Price: DEM 5,000.00
* Date payment is due: immediately
ANNEX 7.13
1. CONSULTANTS
-- -----------
1.1 Xx. Xxxx X. Xxx, attorney-at-law, consultancy agreement, expires
December 31, 2001, monthly fee of DEM 5,000.00;
1.2 Schwantag & Xxxxxxxxx XxxX, Xxxxxxxxxxxxxxxx 00, 60323 Frankfurt am
Main, auditor of the Company for fiscal year 2001, fee is charged according to
expense.
ANNEX 7.14
1. ADMINISTRATIVE ORDERS, JUDICIAL DECISIONS, ORDERS, DECREES,
-- -----------------------------------------------------------
RESOLUTIONS OR AWARDS, PENDING OR THREATENING LEGAL PROCEEDINGS,
----------------------------------------------------------------
ADMINISTRATIVE PROCEDURES, ARBITRATION PROCEEDINGS OR PRELIMINARY INVESTIGATIONS
--------------------------------------------------------------------------------
1.1 Claim asserted by SI Sachwert-Immobilien-Service & Bautrager GmbH
("SI"), Xxxxxxxxxxxx 0 x, 00000 Xxxxxxxx, against the Company to bear the costs
of a legal action by SI against DeTeKabel Kabel Service GmbH in the amount of
DEM 182,560.50 based on a letter of the Company dated May 28, 1998.
SCHEDULE I
ESCROW AGREEMENT
among
Tele Columbus GmbH, Xxxxxx Xxxxxxx 0, 00000 Xxxxxxx, represented by the
general manager Xx. Xxxxxxx Xxxxxxx and the holder of a special commercial power
of attorney (Prokurist) Xx. Xxxxxxx Xxxxxxx
- hereinafter referred to as "TC" -
and
Xxxxxx Park International Limited, 00 Xxxx Xxxxxx, Xxxxxx 0, Xxxxxxx, a
wholly-owned subsidiary of MFC Bancorp Ltd., represented by Xx. Xxxxxxx X. Xxxxx
- hereinafter referred to as the "SPI" -
and
Attorney-at-law Xxxxxxxx Xxxxxx, Zeil 65-69, 60313 Frankfurt am Main,
- hereinafter also referred to as the "ESCROW AGENT" -
RECITAL
WHEREAS, TC and SPI have agreed, subject to the terms and conditions stated
herein and in the Agreement for the Sale and Transfer of American Depositary
Receipts representing 679,772 shares of Digitale Telekabel AG, a stock
corporation organized under the laws of Germany (the "Company") among TC, SPI
and the Company dated October 18, 2001 (the "Sale and Transfer Agreement"), that
pursuant to Section 3.3 of the Sale and Transfer Agreement on the date of
Closing the first installment of the Purchase Price in the amount of DEM
6,530,400.00 (in words: six million five hundred thirty thousand four hundred
German marks) shall be paid to the Escrow Account maintained by the Escrow Agent
on a payment-versus-delivery basis (Zug um Zug) in exchange for the transfer and
assignment of the ADRs. All amounts to be credited to the Escrow Account shall
be released by the Escrow Agent in accordance with the terms of this Escrow
Agreement. TC and SPI desire to appoint herein the Escrow Agent and to instruct
the Escrow Agent regarding the maintenance of the Escrow Account and the release
of all amounts credited to the Escrow Account.
ARTICLE 1 DEFINITIONS
Unless otherwise defined herein, terms defined in the Sale and Transfer
Agreement are used herein as therein defined.
ARTICLE 2 APPOINTMENT OF ESCROW AGENT
TC and SPI hereby appoint Xxxxxxxx Xxxxxx as Escrow Agent hereunder, and
Xxxxxxxx Xxxxxx hereby accepts the appointment as Escrow Agent and agrees to act
pursuant to the terms and upon the conditions of this Escrow Agreement.
ARTICLE 3 ESCROW ACCOUNT
As set forth in Section 3.3 of the Sale and Transfer Agreement, at the
Closing, SPI shall pay the first installment of the Purchase Price in the amount
of DEM 6,530,400.00 (in words: six million five hundred thirty thousand four
hundred German marks) by wire transfer of immediately available funds to the
account no. 308323, at the Frankfurter Sparkasse, bank code 500 502 101 (the
"Escrow Account"), the receipt of which shall be promptly acknowledged to TC and
SPI by the Escrow Agent.
Subject to the provisions of this Escrow Agreement, the Escrow Agent will
invest any funds held in escrow hereunder in interest-bearing fixed-term
deposit account with Frankfurter Sparkasse or another a major German bank from
which the funds may be withdrawn on a daily basis without penalty. Any earnings
from such investments shall be credited to the Escrow Account without
deduction of any fees or commission of the Escrow Agent.
ARTICLE 4 RELEASE OF THE ESCROW AMOUNT
(a) As provided below, the Escrow Agent shall release from escrow and
transfer all amounts that are credited to the Escrow Account (the "Escrow
Amount") to TC and/or SPI, as the case may be:
(1) within two business days after receipt, in accordance with a
written instruction, signed by TC and SPI, directing the Escrow Agent to
release the Escrow Amount or any portion thereof as set forth in the
instruction;
(2) twenty business days after receipt, and in accordance with, a
written instruction (a "Clause (2) Request") signed by SPI, directing the
Escrow Agent to release and deliver to SPI the Escrow Amount or any given
portion thereof.
(A) The Escrow Amount or any portion thereof shall only be
released if
(i) the Escrow Agent has promptly after receipt delivered to TC
a copy of the Clause (2) Request, and
(ii) the Clause (2) Request specifies that the Escrow Amount or
any given portion thereof is to be released on account of a Purchase
Price Adjustment pursuant to Section 3.2 of the Sale and Transfer Agreement
and/or an obligation by TC to indemnify SPI pursuant to Section 8.1, 9.1
and/or 9.6 of the Sale and Transfer Agreement, and
(iii) the Clause (2) Request specifies the amount of the
Purchase Price Adjustment or obligation in euros.
(B) If within fifteen business days after receipt of the Clause (2)
Request by the Escrow Agent TC delivers to the Escrow Agent a written objection
to such instruction stating that there is no such Purchase Price Adjustment
and/or obligation pursuant to Section 8.1, 9.1 and/or 9.6 of the Sale and
Transfer Agreement or that the Purchase Price Adjustment and/or obligation
pursuant to Section 8.1, 9.1 and/or 9.6 of the Sale and Transfer Agreement is
less than the amount set forth in the Clause (2) Request, such lesser amount
being specified in euros, the Escrow Agent shall release the Escrow Amount
requested by SPI only to the extent there is no objection. After receipt
of any such objection, the Escrow Agent shall promptly deliver a copy
to SPI.
(C) Each Clause (2) Request as to which there is an objection
shall be referred to as a "Disputed Clause (2) Request".
(D) The Escrow Amount or portion thereof that is the object of a
Disputed Clause (2) Request and not released on account of any such
objection may thereafter be released by the Escrow Agent pursuant to
further instructions in compliance with clause (1), (3) or (4).
(3) twenty business days after receipt of, and in accordance with a
written instruction (a "Clause (3) Request"), signed by TC, directing the
Escrow Agent to release and deliver to TC the Escrow Amount or any
portion thereof.
(A) The Escrow Amount or any portion thereof shall only be released
if
(i) the Escrow Agent promptly after receipt deliver to SPI a copy of
the Clause (3) Request, and
(ii) the Clause (3) Request specifies that the Escrow Amount or any
given portion thereof is to be released on account of a Purchase Price
Adjustment pursuant to Section 3.3 of the Sale and Transfer Agreement
after the presentation and on the basis of a Closing Statement finally
determined pursuant to Section 4.3 or 4.5 of the Sale and
Transfer Agreement.
(iii) the Clause (3) Request specifies the amount to b released to
TC in euros.
(B) If within fifteen business days after receipt of a Clause (3)
Request SPI delivers to the Escrow Agent a written objection to such instruction
stating that there is no such Closing Statement finally determined or, that
there is a Purchase Price Adjustment and that therefore there is no Escrow
Amount to be released to TC or that the Escrow Amount to be released to TC is
less than the amount set forth in the Clause (3) Request, such lesser amount
being specified in euros, then the Escrow Agent shall release the Escrow Amount
requested by TC only to the extent there is no objection. After receipt of any
such objection, the Escrow Agent shall promptly deliver a copy to TC.
(C) Each Clause (3) Request as to which there is an objection shall
be referred to as a "Disputed Clause (3) Request").
(D) The Escrow Amount or portion thereof that is the object of any
Disputed Clause (3) Request and not released on account of any such
objection may thereafter be released by the Escrow Agent pursuant to further
instructions in compliance with clause (1), (2) or (4).
(4) within ten business days after receipt and in compliance with an
order, a judgment or decision by a German court substantiating a payment
obligation on the part of TC to SPI or on the part of SPI to TC.
(A) The Escrow Amount or any portion thereof shall only be
released if
(i) the Escrow Agent is furnished by TC or SPI with a legal opinion of
a German law firm which did not participate in the drafting and negotiation of
the Sale and Transfer Agreement and the annexes thereto, to the effect that
such order, judgment or decision represents an enforceable, final adjudication
by a court of competent jurisdiction, and
(ii) after receipt the Escrow Agent has promptly delivered a copy of
the order, judgment or decision and the legal opinion to the party obligated to
make payment
(b) The release of the Escrow Amount or any portion thereof pursuant to
this Article 4 shall be take place by being transferred to the party concerned
at the bank account specified by such party, except for that any and all
payments to TC from the Escrow Agent may only be made to the account of TC set
forth in Section 3.4 of the Sale and Transfer Agreement.
ARTICLE 5 CONCERNING THE ESCROW AGENT
(a) TC and SPI acknowledge and agree that the Escrow Agent
(1) shall be obligated only for the performance of such acts as are
specifically set forth in this Escrow Agreement;
(2) shall not be obligated to take any legal or other action hereunder
which might in its judgment involve any expense or liability unless the Escrow
Agent shall have been furnished with acceptable indemnification;
(3) may rely on and shall be protected in acting or refraining from
acting in compliance with any written notice, instruction, statement, request or
document furnished to it hereunder that is signed by an authorized signatory
(pursuant to authorized signature declarations attached as Annex 5(a)(3) to this
-------------
Escrow Agreement) (provided that any instruction to release the Escrow Amount or
any portion thereof to any person other than TC or SPI must be signed by both TC
and SPI), and shall have no responsibility for determining the accuracy thereof.
The authorized signature declaration for TC or SPI may be changed by each party
by notice to the respective other party in accordance with Section 6(a).
(b) Neither the Escrow Agent nor any of its employees shall be
liable for any action taken or omitted to be taken hereunder except in the
case of gross negligence or willful misconduct. TC and SPI, jointly and
severally, covenant and agree to indemnify the Escrow Agent and hold it
harmless without limitation from and against any loss, liability or expense
of any nature incurred by the Escrow Agent arising out of or in connection
with this Escrow Agreement or with the administration of its duties hereunder,
including legal fees and other costs and expenses of defending or preparing
to defend against any claim or liability arising under this Escrow
Agreement, unless such loss, liability or expense shall be caused by
the Escrow Agent's gross negligence or willful
misconduct.
(c) The Escrow Agent shall be entitled to compensation in the amount of
DEM 10,000 (in words: ten thousand German Marks) plus value added tax at the
statutory rate, if applicable, for all its services and expenses hereunder. TC
and SPI shall each bear one half of such compensation. The compensation shall
be due within 10 days after of the invoice by TC and SPI respectively, but in no
event before the Closing.
ARTICLE 6 MISCELLANEOUS
(a) All notices or other communications to any Party hereto hereunder
shall be deemed to have been duly given only if made in writing in German, if
delivered to the following addressees and if made in the following manner: (i)
hand delivery against a receipt signed and dated by the addressee, (ii)
facsimile, (iii) registered mail (return receipt requested) or (iv) overnight
courier service:
If to TC:
Tele Columbus GmbH
Attn.: Xx. Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
If to SPI:
Xxxxxx Park International Limited
Attn.: Xxxxxxx X. Xxxxx
00 Xxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Including a copy to
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Attn: Xxxxxx X. Xxxx
Main Tower
Neue Mainzer Xxxxxxx 00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
If to the Escrow Agent:
Xxxxxxxx Xxxxxx, Esq.
Xxxx 00-00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
The Parties shall be deemed to have received the notice or communication
on the date stated on the receipt by the addressees for hand delivery, on the
date of the send receipt of the facsimile, on the date set forth as delivery
date on the return receipt for registered mail, or on the date set forth as
delivery of the courier.
Each Party may change the named recipient by notice according to this
Article 6 (a).
(b) This Escrow Agreement contains all escrow agreements between the
Parties. No ancillary escrow agreements have been concluded. Any and all
previous arrangements or agreements or other understandings of any kind related
to this escrow relationship shall be superseded in full by this Escrow
Agreement.
(c) This Escrow Agreement may only be supplemented, amended or
terminated by an instrument in writing signed by all parties. This written form
requirement can only be waived by an instrument in writing signed by all
parties.
(d) Unless expressly provided otherwise in this Escrow Agreement, each
of the Parties shall bear its own costs or expenses in connection with the
preparation, negotiation, execution and performance of this Escrow Agreement,
including any taxes, attorneys' fees, auditors' fees as well as fees of other
representatives and advisors.
(e) This Escrow Agreement and its terms shall be kept confidential
except as required by statutory regulations, decisions by any governmental
authorities, rules of any stock exchange, NASD or NASDAQ or by the depositaries
and custodians in connection with the ADR program of the Company in which case
the Party intending to disclose shall give prior notice to each of the other
Parties.
(f) This Escrow Agreement and the rights and obligations set forth
herein may not be transferred or assigned to other Parties without the prior
written consent of each of the other Parties.
(g) This Escrow Agreement shall be governed by the laws of the Federal
Republic of Germany.
(h) The place of jurisdiction in respect of all claims arising out of
or in connection with this Escrow Agreement is Frankfurt am Main.
(i) Should any provision of this Escrow Agreement be or become invalid
or unenforceable, this shall not affect the validity of the remaining provisions
hereof. The Parties shall agree to a valid provision resembling the economic
intent of the invalid or unenforceable provision to the greatest extent
possible. The same applies by analogy to any gaps in this Escrow Agreement.
Frankfurt am Main, this 18th day of October 2001
Tele Columbus GmbH:
________________________
Xx. Xxxxxxx Xxxxxxx
________________________
Xxxxxxx Xxxxxxx
Xxxxxx Park International Limited:
________________________
Xxxxxxx X. Xxxxx
Escrow Agent:
________________________
Xxxxxxxx Xxxxxx
ANNEX 5(a)(3)
AUTHORIZED SIGNATURE DECLARATIONS
For Tele Columbus GmbH:
________________________
Xx. Xxxxxxx Xxxxxxx
________________________
Xxxxxxx Xxxxxxx
For Xxxxxx Park International Limited:
________________________
Xxxxxxx X. Xxxxx
