Contract
EXHIBIT
99.5
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OTHER THAN PURSUANT TO SUCH
REGISTRATION OR PURSUANT TO AN EXEMPTION FROM REGISTRATION SPECIFIED IN AN
OPINION OF COUNSEL SATISFACTORY TO CENTRAL EUROPEAN MEDIA ENTERPRISES
LTD. FURTHERMORE, THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS CONTAINED IN THE SUBSCRIPTION AGREEMENT
BETWEEN THE COMPANY MEDIA PRO MANAGEMENT S.A. AND MEDIA PRO B.V. DATED AS OF
DECEMBER 9, 2009. ANY TRANSFER OF THIS WARRANT OR THE SECURITIES
ISSUABLE UPON ITS EXERCISE THAT CONTRAVENES SUCH RESTRICTIONS SHALL BE NULL AND
VOID.
WARRANT
TO PURCHASE COMMON STOCK
Dated:
December 9, 2009
FOR VALUE
RECEIVED, Central European Media Enterprises Ltd., a Bermuda company (the
“Company”), hereby certifies that, for value received, Media Pro B.V., Teleport
Xxxxxxxxx 000, 0000XX, 0000 XX, Xxxxxxxxx, Xxxxxxxxxxx, or its registered
assigns (the “Holder”), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time and from time to time, subject to three
(3) Business Days notice, prior to 5:00 p.m. New York City time on the sixth
anniversary of the date hereof (the “Issue Date” and such sixth anniversary of
the Issue Date, the “Expiration Date”) in whole or in part, an aggregate of up
to two hundred fifty thousand (250,000) fully paid and non-assessable shares
(the “Warrant Shares”) of the Company’s Class A Common Shares, par value $0.08
per share (the “Class A Common Shares”), at an exercise price of $21.75 per
share (the “Exercise Price”). All references to “Warrant Shares,”
“Class A Common Shares,” “Common Stock” and “Exercise Price” herein shall be
deemed to include any such adjustment or series of adjustments as described in
Section 3 hereof. This Warrant is herein called the
“Warrant.”
1. EXERCISE OF
WARRANT. (a) The purchase rights evidenced by this
Warrant shall be exercised by the Holder surrendering this Warrant, with the
purchase form attached hereto duly executed by the Holder to the Company
accompanied by proper payment either (at the option of the Holder) (i) in cash,
by certified or official bank check or by wire transfer, (ii) by cancellation of
a number of Warrant Shares, or (iii) a combination thereof, in each case, in an
amount equal to the Exercise Price multiplied by the number of shares of Common
Stock (as defined below) being purchased pursuant to such exercise of the
Warrant. In no event may this Warrant be exercised at any time after
the Expiration Date.
(b) This
Warrant may be exercised for less than the full number of shares of Common
Stock, in which case the number of shares receivable upon the exercise of this
Warrant as a whole, and the sum payable upon the exercise of this Warrant as a
whole, shall be proportionately reduced. Upon any such partial
exercise, the Company at its expense will issue to the Holder a new Warrant or
Warrants of like tenor calling for the number of shares of Common Stock as to
which rights have not been exercised, such Warrant or Warrants to be issued in
the name of the Holder (upon payment by the Holder of any applicable transfer
taxes).
The term
“Common Stock” includes (i) the Class A Common Shares, (ii) any other capital
stock of any class or classes (however designated) of the Company, the holders
of which shall have the right, without limitation as to amount, either to all or
to a share of the balance of current dividends and liquidating dividends after
the payment of dividends and distributions on any shares entitled to preference,
and (iii) any other securities into which or for which any of the securities
described in clauses (i) or (ii) above have been converted or exchanged pursuant
to a plan of recapitalization, reorganization, merger, sale of assets or
otherwise.
2. DELIVERY OF STOCK CERTIFICATES ON
EXERCISE. As soon as practicable after the exercise of this
Warrant and payment of the Exercise Price, and in any event within ten (10)
business days thereafter, the Company, at its expense, will cause to be issued
in the name of and delivered to the Holder a certificate or certificates for the
number of fully paid and non-assessable shares of Common Stock or other
securities or property to which the Holder shall be entitled upon such exercise,
plus, in lieu of any fractional share to which the Holder would otherwise be
entitled, cash in an amount determined in accordance with Section 3.3
hereof. The Company agrees that the shares so purchased shall be
deemed to be issued to the Holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have been surrendered
together with payment for such shares as aforesaid. Any certificates
issued upon exercise of this Warrant and any warrant certificate issued in
substitution for this Warrant pursuant to Section 11 hereof shall bear such
legends as to applicable securities laws or other restrictions as the Company
may deem appropriate.
3. ADJUSTMENTS. The
Exercise Price shall be subject to adjustment from time to time in accordance
with this Section 3. Upon each adjustment of the Exercise Price
pursuant to this Section 3, the registered Holder of this Warrant shall
thereafter be entitled to acquire upon exercise, at the Exercise Price resulting
from such adjustment, the number of shares of Common Stock obtainable by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of shares of Common Stock acquirable immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment. Notwithstanding anything else in this Warrant, the
Exercise Price per share shall never be lower than $0.08 per share.
(a)
Subdivisions and
Combinations. In case the Company shall at any time
(i) subdivide the outstanding Common Stock or (ii) issue a stock
dividend on its outstanding Common Stock, the Exercise Price in effect
immediately prior to such subdivision or dividend shall be proportionately
reduced by the same ratio as the subdivision or dividend. In case the
Company shall at any time combine its outstanding Common Stock, the Exercise
Price in effect immediately prior to such combination shall be proportionately
increased by the same ratio as the combination.
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(b)
Reorganization,
Reclassification, Consolidation, Merger or Sale of Assets. If
any capital reorganization or reclassification of the capital stock of the
Company, or consolidation or merger of the Company with or into another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities, cash or other property with respect to
or in exchange for Common Stock, then, prior to or simultaneous with such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the Holder shall have the right to
acquire and receive, upon exercise of this Warrant, such shares of stock,
securities, cash or other property issuable or payable (as part of the
reorganization, reclassification, consolidation, merger or sale) with respect to
or in exchange for such number of outstanding shares of Common Stock as would
have been received upon exercise of this Warrant at the Exercise Price then in
effect.
(c)
Fractional
Shares. The Company shall not issue fractions of shares of
Common Stock upon exercise of this Warrant or scrip in lieu
thereof. If any fraction of a share of Common Stock would, except for
the provisions of this Section 3.3, be issuable upon exercise of this
Warrant, the Company shall in lieu thereof, pay to the person entitled thereto
an amount in cash equal to the current value of such fraction, calculated to the
nearest one-hundredth (1/100) of a share, to be computed (i) if the Common Stock
is listed on NASDAQ (or, if not listed on NASDAQ, any other United States
national securities exchange, or, if not listed on any other United States
national securities exchange, on such other foreign national securities exchange
selected by the board of directors of the Company (the “Board of Directors”) on
which the Company’s Common Stock shall then be listed), on the basis of the last
sales price of the Common Stock on such exchange (or the quoted closing bid
price if there shall have been no sales) on the date of exercise, or (ii) if the
Common Stock shall not be listed on any securities exchange, on the basis of the
fair market value per share of Common Stock as determined by the Board of
Directors.
(d)
Adjustment Notices to
Holder. Whenever the Exercise Price shall be adjusted as
provided in Section 3 hereof, the Company shall provide to the Holder a
statement showing in reasonable detail the facts requiring such adjustment and
the Exercise Price that will be effective after such
adjustment.
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4. RESERVATION OF STOCK, ETC., ISSUABLE
ON EXERCISE OF WARRANTS. The Company shall at all times
reserve and keep available out of its authorized but unissued Common Stock,
solely for the issuance and delivery upon the exercise of this Warrant and other
similar Warrants, such number of its duly authorized shares of Common Stock as
from time to time shall be issuable upon the exercise of this Warrant and all
other similar Warrants at the time outstanding.
5. RESTRICTIONS ON
TRANSFER. The sale, transfer or assignment of the Warrant and
the Warrant Shares issued upon exercise of the Warrant are subject to the
restrictions set forth in Section 4 of the Subscription Agreement dated December
9, 2009 by and among the Company, Media Pro Management S.A. and Media Pro B.V.
(the “Subscription Agreement”). In connection with any sale or other
transfer or assignment of the Warrant or the Warrant Shares, the Company may
require the Holder and any transferee of the Holder to make such
representations, and may place such legends on this Warrant or on the
certificates representing the Warrant Shares, as may be reasonably required in
the opinion of counsel to the Company to permit such sale or transfer or
assignment in accordance with applicable securities laws.
6. REPLACEMENT OF
WARRANT. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to it, or (in the case of mutilation) upon surrender and
cancellation thereof, the Company will issue, in lieu thereof, a new Warrant of
like tenor.
7. NEGOTIABILITY,
ETC. This Warrant is issued upon the following terms, to all
of which each taker or owner hereof consents and agrees:
(a)
Until this Warrant is transferred on the books of the Company, the Company may
treat the registered Holder as the absolute owner hereof for all purposes
without being affected by any notice to the contrary.
(b)
Prior to the exercise of this Warrant, the Holder shall not be entitled to any
rights of a shareholder of the Company with respect to shares for which this
Warrant shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of or attend any
proceedings of the Company, except as provided herein.
(c)
The Company shall not be required to pay any United States federal or state
transfer tax or charge that may be payable in respect of any transfer involved
in the transfer or delivery of this Warrant or the issuance or conversion or
delivery of certificates for Common Stock in a name other than that of the
registered Holder or to issue or deliver any certificates for Common Stock upon
the exercise of this Warrant until any and all such taxes and charges shall have
been paid by the Holder or until it has been established to the Company's
satisfaction that no such tax or charge is due.
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8. CHANGE, WAIVER,
ETC. Neither this Warrant nor any term hereof may be changed,
waived, discharged or terminated orally but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
9. NOTICES. Except as
otherwise provided in this Warrant, all notices, requests and other
communications to any Person provided for hereunder shall be in writing and
shall be given to such Person (a) in the case of the Company, c/o CME
Development Corporation, 00 Xxxxxxx Xxxxxx, Xxxxxx X0X 0XX, Xxxxxx Xxxxxxx,
facsimile: x00 0000 000 0000 to the attention of its General Counsel, or at such
other address or facsimile number, or to the attention of such other officer, as
the Company shall have furnished to Holder; and (b) in the case of the Holder to
the address of the last Holder of this Warrant who shall have furnished an
address to the Company in writing.
10. DESCRIPTIVE
HEADINGS. The headings of the articles, sections and
subsections of this Warrant are inserted for convenience of reference only and
shall not be deemed to constitute a part hereof or affect the interpretation
hereof.
11. SEVERABILITY. Every
term and provision of this Warrant is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever,
such term or provision will be enforced to the maximum extent permitted by law
and, in any event, such illegality or invalidity shall not affect the validity
of the remainder of this Warrant.
12. APPLICABLE
LAW. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS
(OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
[SIGNATURE PAGE
FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned has executed this Warrant as of the Issue
Date.
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By
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/s/ Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Chief
Financial Officer
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Attest:
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Xxxxxxxx
Xxxxxxxxx
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