Contract
Exhibit 10.69
This
Agreement (this "Agreement") is made
as a deed this 20th day of January 2010 by and between:
1. Xxxxxxx
Business Corp, a company organized and existing under the Laws of the British
Virgin Islands with its registered address at Intershore Xxxxxxxx, X.X.Xxx 4342,
Road Town, Tortola, British Virgin Islands ("Xxxxxxx");
2. Michalakis
Tsitsekkos, a citizen of Republic of Cyprus residing at Xxxxxxx, 00X Xxxxxxxxx,
X.X. 0000, Xxxxxxx, Xxxxxx, passport No. C355717, issued on 11 December 2001
("Xxxxxxx
Nominee");
3. Igor
Valeryevich Kolomoisky, a citizen of Israel residing at Xx. Xxxxx Xxxxxx 00,
Xxxxxxxxx, Xxxxxx, 00000, passport No. 00000000, issued on 2 October 2005
("Kolomoisky");
4. Xxxx
Mykhailovich Xxxxxx, a citizen of Ukraine, residing at 00, Xxxxxxxxx xxx. Xxxx
0, Xxxx, Xxxxxxx, passport No. XX000000, issued on 17 November 2005 ("Xxxxxx",
and together with Kolomoisky and Xxxxxxx Nominee, the "Xxxxxxx Owners", and
together with Kolomoisky and Xxxxxxx, the "Xxxxxxx
Parties");
5. Central
European Media Enterprises Ltd., a company organized under the Laws of Bermuda
with its registered address at Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, XX 00,
Xxxxxxxx, Xxxxxxx ("CME Ltd.");
6. CME
Ukraine Holding B.V., a besloten vennootschap met beperkte
aansprakelijkheid organized under the laws of the Netherlands with its
registered address at Dam 5B, JS1012 Amsterdam, the Netherlands ("Ukraine Holding");
and
7. CME
Cyprus Holding Limited, a wholly-owned subsidiary of CME Ltd. and a limited
liability company organized and existing under the Laws of Cyprus,
identification code No. 155308 , located at 199 Makarios III Avenue, Neocleous
House, P.O. Box 50613, CY – 3608, Limassol, the Republic of
Cyprus, (the "Company", and
together with CME Ltd. and Ukraine Holding, the "CME
Parties"),
(individually
a "Party" and
together the "Parties").
WHEREAS:
X. Xxxxxxx,
Xxxxxxx Nominee, Kolomoisky, Xxxxxx, CME Ltd. and the Company (collectively, the
"Original
Parties") entered into that certain Framework Agreement, dated 2 July
2009 (the "Original
Framework Agreement"), pursuant to which the Original Parties agreed to
form a joint venture on the basis of the Company to conduct television
broadcasting, media production and advertising business in Ukraine, and the
Original Parties and Ukraine Holding entered into that certain First Amended and
Restated Framework Agreement, dated 22 July 2009 (the "Framework Agreement",
pursuant to which the Parties agreed to amend and restate the Original Framework
Agreement.
B. Kolomoisky
and Xxxxxx are, collectively, the sole Beneficial Owners (as defined below) of
100% of the issued share capital of Xxxxxxx, and the Xxxxxxx Nominee is the sole
legal owner of 100% of the issued share capital of Xxxxxxx.
C. CME
Ltd. is the sole Beneficial Owner of the Company and Ukraine
Holding. The Company is the indirect owner of a group of companies
which conduct television broadcasting, media production and advertising
production in Ukraine.
D. CME
Ltd. and Kolomoisky, inter
alios, now intend to enter into a share purchase agreement (the "Share Purchase
Agreement"), pursuant to which CME Ltd. will indirectly sell, and a
company Beneficially Owned by Kolomoisky will indirectly acquire, 100% of the
issued share capital of the Company, and accordingly the Parties desire to
(i) terminate
the Framework Agreement without further effect in accordance with the terms of
the Framework Agreement and (ii) unconditionally
and irrevocably release each other Party from any liability in connection with
the implementation of the Framework Agreement prior to the date
hereof.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual
representations, covenants, warranties and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto, intending to be legally bound, agree as
follows:
1. Definitions and
Interpretation. Unless the context requires otherwise,
capitalized terms used but not defined in this Agreement shall have the
respective meanings set forth in the Framework Agreement.
2. Termination. With
effect from the date of execution of the Share Purchase Agreement, the Parties
hereby terminate the Framework Agreement in accordance with clause 6.1(a)
thereof, and no Party shall have any right or obligation either under the
Framework Agreement or as a consequence of any breach of it before, on or after
the date of this Agreement and any party that may have undertaken (by deed of
adherence or otherwise) to be bound by all or any of its provisions shall cease
to be so bound.
3. Release and
Discharge.
(a) Each
of the Parties for itself and on behalf of any parent, subsidiary, Affiliate,
officer, director, agent, attorney, shareholder, partner, member, manager,
representative, employee, trustee predecessor, principal, successor-in-interest,
assignor or assignee of such party (collectively, the "Releasors") forever,
knowingly, voluntarily and irrevocably release, acquit and discharge each of the
other Parties, together with any parent, subsidiary, Affiliate, officer,
director, agent, attorney, shareholder, partner, member, manager,
representative, employee, trustee predecessor, principal, successor-in-interest,
assignor or assignee of such other Parties (collectively, the "Releasees") from any
action, cause of action, chose in action, case, claim, potential claim,
counterclaim, potential counterclaim, right of set-off, indemnity, suit, debt,
dues, sum of money, account, guarantee, bond, covenant, controversy, lien,
contract, agreement, promise, representation, liability, variance, trespass,
injury, damage, harm, judgment, remedy, demand, loss, right or interest of any
kind or nature whatsoever, at law, in equity or otherwise, including, without
limiting the generality of the foregoing, claims for damages, attorney’s fees,
interest, costs, expenses, penalties and equitable relief, whether known or
unknown, suspected or unsuspected, however and whenever arising and in whatever
capacity and jurisdiction (each, a "Claim") of any nature
whatsoever, at law, in equity or otherwise, whether direct, indirect, derivative
or otherwise which have been asserted against any of the Releasees or which,
whether currently existing or not, known or unknown, suspected or unsuspected,
fixed or contingent, and whether or not concealed or hidden, the Releasors ever
could have asserted or ever could assert, in any capacity, either for themselves
or as an assignee, heir, executor, trustee, or otherwise, or for or on behalf of
any other person, against the Releasees, arising out of, relating to or
concerning the Framework Agreement, including any and all rights under the
Framework Agreement and each of the Claims (all such Claims, collectively, the
"Released
Claims"), and on behalf of the Releasors unequivocally, unconditionally
and irrevocably agrees not to initiate or continue legal proceedings of any kind
whatsoever with respect to any Released Claim, or institute, assert, or threaten
to assert any Released Claim, provided that this
Clause 3 shall in no event have the effect to exclude any liability
whatsoever that arises as a result of any fraudulent or criminal act or omission
by any Releasee.
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(b) Each
of the Parties further covenants and promises that it will not, and will use its
best efforts to cause the other Releasors not to, file, pursue or bring any
Released Claim in any judicial, arbitral or administrative forum against any one
or more of the Releasees; provided, however, that nothing herein will be
construed or deemed to release any covenants contained in, or claims for breach
of, this Agreement or any written amendments, supplements or modifications
thereto. The Parties expressly agree that a breach or an alleged
breach of this Agreement will neither give rise to nor resurrect any right to
xxx on the Released Claims.
(c) Without
prejudice to the generality of Clause 3(a), it is expressly agreed and accepted
by the Parties that the foregoing releases are and are intended to be a general
release of all claims of the Releasors against the Releasees in respect of the
matters referred to in that clause, and the Parties hereby expressly waive any
rights that they may have with respect to any Claims which they do not know or
suspect to exist at the time of executing this Agreement, even those Claims
which if known might have materially affected this Agreement. To the extent that
legislation or any principles of Law might provide otherwise than the first
sentence of this clause, such legislation and principles are (to the extent
permitted by Law) hereby expressly waived and excluded by each of the Parties,
who admit to full knowledge and understanding of the consequences of such waiver
and exclusion.
(d) The
Parties recognize that this Agreement was negotiated between them as equals,
that each was represented by competent counsel of its own choosing and that no
one of them will be considered to have drafted this Agreement for purposes of
resolving any ambiguities against that party.
(e) Notwithstanding
anything herein to the contrary, the Parties acknowledge and agree that this
Agreement shall not in any way constitute a waiver of any of the rights of any
of the parties to the Share Purchase Agreement under that
agreement.
4. Representations and
Warranties of the Parties. Each Party represents and warrants
to the other Parties as of the date hereof that:
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(a) it
has the necessary power and authority (including, as applicable, corporate power
and consent and/or full legal and dispositive capacity) to enter into, deliver,
and perform his obligations under this Agreement;
(b) the
execution, delivery and performance by it of this Agreement constitutes valid
and legally binding obligations, enforceable against it in accordance with the
terms thereof, and will not violate any provision of and will not result in a
breach of the terms of (i) any, Law, rule or
regulation of any Governmental Authority applicable to it, or (ii) any contract,
indenture, agreement or commitment to which it is a party or bound;
and
(c) no
additional consent by any other Person is required to be obtained by it in
connection with the execution or performance by it of this
Agreement.
5. Assignment. Except
as expressly provided herein none of the rights of the Parties under this
Agreement may be assigned or transferred without the prior written consent of
the other Parties.
6. Modification; Waiver;
Severability. Except as specifically provided herein, this
Agreement may be modified only by a written instrument executed by all the
Parties. If any provision of this Agreement is held to be
unenforceable for any reason, the Parties shall, acting in good faith and using
best efforts, seek to agree adjustments to such provision, so that such
provision is not avoided and in order to achieve the intent of the Parties to
the extent possible. In any event, the invalidity or unenforceability
of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of this Agreement, including that provision, in any
other competent jurisdiction. If any provision of this Agreement is or becomes
invalid or unenforceable, in whole or in part, this shall not affect the
validity of the remaining provisions hereof.
7. Entire
Agreement. This Agreement together with the documents herein
referred to are the entire agreement among the Parties with respect to the
subject matter hereof.
8. Preparation. Each
Party acknowledges and confirms that the preparation of this Agreement has been
a joint effort of all Parties and counsel for all Parties and that it shall not
be construed for or against any individual Party on the basis solely that this
Agreement or any part thereof was drafted by or on behalf of that
Party.
9. Costs. Each
Party shall bear its own costs, including lawyers' fees, in relation to this
Agreement.
10. Notices. All
notices and other communications made in connection with this Agreement shall be
in writing. Any notice or other communication in connection herewith
shall be deemed duly delivered and given to any other Party one (1) Business Day
after it is sent by fax, confirmed by letter sent by a reputable express courier
service, in each case, to the regular mail addresses and fax numbers set forth
below or to such other regular mail address and/or fax number as may be
specified in writing to the other Parties:
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if to
Xxxxxxx:
00,
Xxxxxxxxxx Xxx.
Xxxxx 00
X, Xxxxx 0, Xxxxxx 0
0000
Xxxxxxxxx
Xxxxxxx
Xxxxxx
Attn: Michalakis
Tsitsekkos
Tel.: x000-00-000-000
Fax: x000-00-000-000
if to
Xxxxxxx Nominee:
Michalakis
Tsitsekkos
00,
Xxxxxxxxxx Xxx.
Xxxxx 00
X, Xxxxx 2, Office 1
2108
Aglantzia
Nicosia
Cyprus
Attn: Michalakis
Tsitsekkos
Tel.: x000-00-000-000
Fax: x000-00-000-000
with a
copy to Xxxxxxx.
if to
Kolomoisky:
Igor
Valeryevich Kolomoisky
office
602
32,
Xxxxxxxxxxxx Xxxxxx, 00000
Xxxxxxxxxxxxxx,
Xxxxxxx
Attn: Xxxxx
Xxxxxxx
Tel.: x000
000000000
Fax: x000
000000000
with a
copy to Xxxxxxx.
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if to
Xxxxxx:
Xxxx
Mykhailovich Xxxxxx
Arch.
Makariou III, 155 XXXXXXX XXXXX,
0xx
xxxxx, X.X. 0000, Xxxxxxxx, Xxxxxx
Attn: Xx.
Xxxxxxx Xxxxxxxxxx
Tel.: x000
0000 0000
Fax: x000
0000 0000
with a
copy to Xxxxxxx.
if to CME
Ltd.:
c/o CME
Development Corporation
00
Xxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Attn:
General Counsel
Tel: x00
00 0000 0000
Fax: x00
00 0000 0000
if to
Xxxxxxx Xxxxxxx:
Xxx
0X
XX0000
Xxxxxxxxx
Xxx
Xxxxxxxxxxx
Tel: x00
00 000 0000
Fax: x00
00 000 0000
with a
copy to:
CME
Development Corporation
00
Xxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Attn:
General Counsel
Tel: x00
00 0000 0000
Fax: x00
00 0000 0000
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if to the
Company:
CME
Cyprus Holdings Limited
000
Xxxxxxxx XXX Xxxxxx, Xxxxxxxxx Xxxxx
X.X. Xxx
00000
CY –
0000, Xxxxxxxx, Xxxxxxxx of Cyprus
Tel.: x000
0000 0000
Fax: x000
0000 0000
Any Party
may give any notice or other communication in connection herewith using any
other means (including personal delivery, messenger service, facsimile, telex or
regular mail), but no such notice or other communication shall be deemed to have
been duly delivered and given unless and until it is actually received by the
individual for whom it is intended.
11. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original and all of which shall together constitute one and the same
agreement.
12. Governing Law. This
Agreement is governed by and shall be construed in accordance with English
Law.
13. Arbitration.
(a) General. Any
dispute, controversy or claim arising out of or relating to this Agreement,
including any question regarding its existence, validity, interpretation,
performance or termination, shall be finally resolved by arbitration in
accordance with the then existing Rules of Arbitration of the London Court of
International Arbitration (the "LCIA Rules"), which
are deemed to be incorporated by reference into this Clause 13, except to
the extent modified by this Clause 13. The tribunal shall
consist of three arbitrators. Subject to the provisions of
Clause 13(c), the parties to any such arbitration shall each be entitled to
nominate one arbitrator and the third arbitrator shall be appointed by the two
party-nominated arbitrators. In a multi-dispute the tribunal shall be
appointed by the LCIA Court, unless the parties to such arbitration agree in
writing that, for the purpose of Article 8.1 of the LCIA Rules, the disputant
parties represent two separate sides for the formation of the tribunal as
claimant and respondent respectively.
(b) Seat and
Language. The seat of the arbitration shall be London,
England. The language of the arbitration shall be English except that
any party to the arbitration may submit testimony or documentary evidence in
Ukrainian or Russian and shall furnish a translation or interpretation of any
such evidence into English.
(c) Related
Disputes. If any dispute arising out of or relating to this
Agreement (hereinafter referred to as a "Related Dispute")
raises issues which are substantially the same as or connected with issues
raised in another dispute which has already been referred to arbitration under
this Agreement or any other Transaction Document (an "Existing Dispute"),
the tribunal appointed or to be appointed in respect of any such Existing
Disputes shall also be appointed as the tribunal in respect of any such Related
Dispute. Where, pursuant to the foregoing provisions, the same
tribunal has been appointed in relation to two or more disputes, the tribunal
may, with the agreement of all the parties concerned or upon the application of
one of the parties, being a party to each of the disputes, order that the whole
or part of the matters at issue shall be heard together upon such terms or
conditions as the tribunal thinks fit. The tribunal shall have power
to make such directions and any interim or partial award as it considers just
and desirable.
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IN
WITNESS WHEREOF, this Agreement has been executed as a deed by the Parties and
delivered on the date first written above.
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EXECUTED as a deed
by CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD. acting
by:
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Signature
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/s/ Xxxxxx Xxxxx
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Title: President
and Chief Executive Officer
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in the
presence of:
Signature
of witness /s/ Xxxxxx
Xxxxxxxxx
Name (in
BLOCK CAPITALS) XXXXXX XXXXXXXXX
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Address
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C/O
CME MEDIA SERVICES
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Occupation
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Assistant
to the President and Chief Executive
Officer
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EXECUTED as a deed
by XXXXXXX BUSINESS CORP
acting by:
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Signature
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/s/ Michalakis
Tsitsekkos
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Title:
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in the
presence of:
Signature
of witness /s/ Xxxxx
Xxxxxx
Name (in
BLOCK CAPITALS) XXXXX XXXXXX
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Address
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21
Aglantzias Ave, Block 21B, Office 1, Aglantzia, 0000, Xxxxxxx,
Xxxxxx
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Occupation
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Corporate
Administrator
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EXECUTED as a deed
by MICHALAKIS
TSITSEKKOS:
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Signature
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/s/ Michalakis
Tsitsekkos
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in the
presence of:
Signature
of witness /s/ Eleni
Anthiamiadou
Name (in
BLOCK CAPITALS) ELENI
ANTHIAMIADOU
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Address
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00
Xxxxxxxxxx Xxx, Xxxxx 00X, Office 1, Aglantzia, 0000, Xxxxxxx,
Xxxxxx
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Occupation
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Corporate
Administrator
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EXECUTED as a deed
by IGOR VALERYEVICH
KOLOMOISKY:
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Signature
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/s/ Igor
Kolomoisky
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in the
presence of:
Signature
of witness /s/ Xxxxx
Xxxxxxx
Name (in
BLOCK CAPITALS) XXXXX XXXXXXX
Address
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Occupation
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First
Deputy Chairman of Privatbank
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EXECUTED as a deed
by XXXX MYKHAILOVICH
XXXXXX:
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Signature
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/s/ Xxxx
Xxxxxx
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in the
presence of:
Signature
of witness /s/ Xxxx
Lazarieva
Name (in
BLOCK CAPITALS) XXXX LAZARIEVA
Address
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Occupation
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Sofocleous
& Co. Consulting Director
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EXECUTED as a deed
by CME UKRAINE HOLDING
B.V. acting
by:
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Signature
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/s/ Xxxxx Xxxxxxxx
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Title:
Managing Director
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in the
presence of:
Signature
of witness /s/ Xxxxxx
Xxxxxxxx
Name (in
BLOCK CAPITALS) XXXXXX XXXXXXXX
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Address
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c/o
00 Xxxxxxx Xxxxxx
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Xxxxxx
X0X 0XX
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Occupation
|
Legal
Advisor
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EXECUTED as a deed
by CME CYPRUS HOLDING
LIMITED acting
by:
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Signature
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/s/ Xxxxx Xxxxxxxx
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Title:
Director
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in the
presence of:
Signature
of witness /s/ Xxxxxx
Xxxxxxxx
Name (in
BLOCK CAPITALS) XXXXXX XXXXXXXX
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Address
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c/o
00 Xxxxxxx Xxxxxx
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Xxxxxx
X0X 0XX
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Occupation
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Legal
Advisor
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