Ronald S. Lauder New York, NY 10153 RSL Savannah LLC c/o Ronald S. Lauder New York, NY 10153

March 22,
2009
Xxxxxx X.
Xxxxxx
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
XX 00000
RSL
Savannah LLC
c/o
Xxxxxx X. Xxxxxx
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
XX 00000
Re:
|
Ladies
and Gentlemen:
Reference
is made to (i) that certain Form of Investor Rights Agreement, attached
hereto as Exhibit
A (the βInvestor Rights
Agreementβ), to be entered into by Central European Media Enterprises
Ltd., a Bermuda company (the βCompanyβ), Xxxxxx X. Xxxxxx
(βRSLβ), RSL Savannah
LLC, a Delaware limited liability company (βRSL Savannahβ), RSL Investment
LLC, a Delaware limited liability company, RSL Investments Corporation, a
Delaware corporation, TW Media Holdings LLC, a Delaware limited liability
company (βTWβ),
(ii) that certain Form of Irrevocable Voting Deed and Corporate
Representative Appointment, attached hereto as Exhibit B (the βVoting Deedβ) to be entered
into by the Company, RSL, RSL Savannah and TW, (iii) the Subscription
Agreement (the βSubscription
Agreementβ), dated March 22, 2009, by the Company and TW, (iv) that
certain Form of Registration Rights Agreement, attached hereto as Exhibit C (the βRegistration Rights
Agreementβ) to be entered into by the Company and TW and (v) the
Letter Agreement (the βSideletterβ), dated March 22,
2009, by and between RSL and TW. The documents referenced in the
preceding sentence, as each such document may be amended, supplemented, restated
or otherwise modified from time to time, together with all documents referred to
therein or contemplated thereby are referred to herein as the βTransaction Agreementsβ and
the transactions contemplated thereby are referred to herein as the βTransactionβ. Each
capitalized term used but not defined herein has the meaning ascribed to such
term in the Investor Rights Agreement.
1.
|
(a) Notwithstanding
any investigation at any time made by or on behalf of any RSL Indemnified
Persons (as defined below) or any knowledge or information that any RSL
Indemnified Person may now have or hereafter obtain, the Company shall
indemnify, defend and hold harmless RSL, RSL Savannah and their respective
Affiliates, and each of their respective members, officers, directors,
employees, agents, and representatives (collectively, the βRSL Indemnified Personsβ)
against any and all losses, liabilities, damages and expenses, including all
reasonable costs and expenses related thereto or incurred in enforcing this
Indemnity Letter (βLossesβ), that any RSL
Indemnified Person has suffered or sustained (i) arising directly from the
breach of any of the representations or warranties of the Company contained in
the Transaction Agreements, (ii) arising directly from the breach of any
covenant or agreement of the Company contained in the Transaction Agreements or
(iii) arising directly from any action, suit, claim, proceeding or
investigation instituted against such RSL Indemnified Person by any Governmental
Authority, any holder of equity securities of the Company who is not an
Affiliate of such RSL Indemnified Person or any other Person (other than the
Company) who is not an Affiliate of such RSL Indemnified Person relating to
Transaction Agreements or the Transaction (unless such action resulted directly
from any violations by such RSL Indemnified Person of state or federal
securities laws or any conduct by such RSL Indemnified Person which constitutes
fraud).
(b) The
parties hereto hereby acknowledge and agree that for purposes of this Indemnity
Letter in determining whether any representation or warranty has been breached
and for purposes of determining the amount of Losses resulting therefrom, any
and all βMaterial Adverse Effect,β βmaterial adverse effect,β βmaterialityβ and
similar exceptions and qualifiers set forth in any such representations and
warranties shall be disregarded.
(c) The
liability of the Company for indemnification of any RSL Indemnified Person under
this Indemnity Letter shall not include consequential, indirect, punitive or
exemplary damages or damages based on diminution of value.
(d) In
the case of any claim asserted by an RSL Indemnified Person under this
Agreement, notice shall be given by such RSL Indemnified Person to the Company
promptly after such RSL Indemnified Person has actual knowledge of any claim as
to which indemnity may be sought, and the RSL Indemnified Person shall permit
the Company (at the expense of the Company) to assume the defense of any claim
or any litigation resulting therefrom, provided that (i) counsel for the
RSL Indemnifying Party who shall conduct the defense of such claim or litigation
shall be reasonably satisfactory to the RSL Indemnified Person, and the RSL
Indemnified Person may participate in such defense at such RSL Indemnified
Personβs expense and (ii) the failure of any RSL Indemnified Person to give
notice as provided herein shall not relieve the Company of its indemnification
obligation under this Agreement, except to the extent that such failure results
in a lack of actual notice to the Company and the Company is materially
prejudiced as a result of such failure to give notice. Any settlement
or compromise of such asserted claim by the Company shall require the prior
written consent of the RSL Indemnified Person, which consent shall not be
unreasonably withheld, conditioned or delayed, provided that no such consent
shall be required as long as it is solely a monetary settlement (that will be
paid entirely by the Company) that provides a full release of the RSL
Indemnified Person with respect to such matter and does not contain an admission
of liability on the part of the RSL Indemnified Person and will not have an
ongoing adverse affect on the business or operations of the RSL Indemnified
Person.
(e) Any
indemnification of an RSL Indemnified Person by the Company pursuant to this
Section shall be effected by wire transfer of immediately available funds from
the Company to an account designated by the RSL Indemnified Person within 15
days after the determination thereof.
3. Confidentiality. Please
note that this Indemnity Letter may not be disclosed to any other party or
circulated or referred to publicly without each partyβs prior written consent,
except (i) as may be required by law, order, rule or regulation, including
the rules and regulations of any stock exchange and (ii) to such partyβs
officers, directors, agents and advisors who are directly involved in the
transaction to the extent such party notifies such Persons of their obligations
to keep such material confidential.
2
(a) the
performance or compliance by TW in all material respects with each of the
obligations, agreements and covenants required to be performed or complied by TW
under the TW Subscription Agreement on or prior to the Closing
Date;
(b) the
performance or compliance by the Company in all material respects with each of
the obligations, agreements and covenants required to be performed or complied
by it under the TW Subscription Agreement on or prior to the Closing
Date;
(c) the
consummation of the transactions contemplated by the TW Subscription Agreement
shall not have been restrained, enjoined or otherwise prohibited or made illegal
by any applicable law; and
(d) the
parties shall have received all Consents and Governmental Approvals (as such
terms are defined in the TW Subscription Agreement) set forth on Schedule 4.1(g)
of the TW Subscription Agreement.
(a) This
Indemnity Letter may be executed in counterparts. This Indemnity
Letter, once executed by a party, may be delivered to the other parties hereto
by facsimile transmission of a copy of this Indemnity Letter bearing the
signature of the party so delivering this Indemnity Letter.
(b) THIS
INDEMNITY LETTER 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).
(c) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS INDEMNITY LETTER SHALL BE
BROUGHT EXCLUSIVELY IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN NEW YORK
COUNTY, NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK (EACH, A βNEW YORK
COURTβ), AND, BY EXECUTION AND DELIVERY OF THIS INDEMNITY LETTER, EACH
PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH
PARTY BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO SUCH PARTY.
3
(d) THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND EACH OF THE PARTIES
HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(e) The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Letter were not performed in accordance with their specific
terms of were otherwise breached. It is accordingly agreed that the
parties shall be entitled to specific performance of this Indemnity Letter and
to enforce specifically the terms and provisions of this Indemnity Letter in any
New York Court in addition to the other remedies to which such parties are
entitled.
(f) This
Indemnity Letter may be amended, restated, modified or supplemented only by a
written instrument executed by each of the parties hereto.
[Signature
pages follow]
4
Please
confirm that the foregoing is in accordance with your understanding by signing
and returning to undersigned the enclosed copy of this Indemnity Letter, which
shall become a binding agreement upon receipt.
CENTRAL
EUROPEAN MEDIA
|
|
ENTERPRISES
LTD.
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx
|
Name:
Xxxxxxx Xxxxxxxxx
|
|
Title: CFO
|
|
Accepted
and agreed by:
|
Signature
page to Indemnity Letter
RSL
SAVANNAH LLC
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx
|
Name:
Xxxxxx X. Xxxxxx
|
|
Title:
Sole Member
|
Signature
page to Indemnity Letter
/s/ Xxxxxx X. Xxxxxx
|
Xxxxxx
X. Xxxxxx
|
Signature
page to Indemnity Letter
EXHIBIT
A
FORM
OF INVESTOR RIGHTS AGREEMENT
This
INVESTOR RIGHTS AGREEMENT (this βAgreementβ) is made
as of [β’], 2009, by and
among Central European Media Enterprises Ltd., a Bermuda company (the βCompanyβ), Xxxxxx X.
Xxxxxx, RSL Savannah LLC, a Delaware limited liability company (βRSL Savannahβ), RSL
Investment LLC, a Delaware limited liability company (βRSL CME GPβ), RSL
Investments Corporation, a Delaware corporation (βRSL CME LPβ and,
together with Xxxxxx X. Xxxxxx, RSL Savannah, RSL CME GP and the RSL Permitted
Transferees (as defined herein), the βRSL Investorsβ), TW
Media Holdings LLC, a Delaware limited liability company (βTWβ and, together
with the TW Permitted Transferees (as defined herein), the βTW Investorsβ), and
any other subsequent parties to this Agreement upon such Partyβs execution of a
joinder to this Agreement in the form annexed hereto as Exhibit
A. The Company, the RSL Investors and the TW Investors,
together with any subsequent parties hereto, are sometimes referred to herein
individually by name or as a βPartyβ and
collectively as the βPartiesβ, and the RSL
Investors and the TW Investors, together with any subsequent parties hereto, are
sometimes referred to herein as an βInvestorβ and
collectively as the βInvestorsβ. The
meanings of certain capitalized terms used herein are set forth in Section 2
hereof.
1
βAffiliateβ of any
Person, means any other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person. As used in this definition, the term βcontrol,β
including the correlative terms βcontrolling,β βcontrolled byβ and βunder common
control with,β means the possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of securities or any partnership or other ownership interest, by
contract or otherwise); provided, however that (a) none
of the Company or its subsidiaries shall be deemed to be an βAffiliateβ of any
Investor, (b) CME Holdco shall not be deemed an βAffiliateβ of any TW Investor
and (c) none of the RSL Excluded Persons shall be deemed to be an βAffiliateβ of
any RSL Investor for any purpose hereunder.
βAgreementβ has the
meaning set forth in the preamble.
βAmended Tag-Along
Noticeβ has the meaning set forth in Section
5.1.
βAnnual Information
Statementβ has the meaning set forth in Section
6.7.
βBoardβ has the
meaning set forth in Section
3.3(c).
βChange of Control
Transactionβ means (i) any merger, consolidation, amalgamation,
tender offer, recapitalization, reorganization, scheme of arrangement or any
other transaction resulting in the shareholders of the Company immediately
before such transaction owning, directly or indirectly, less than a majority of
the aggregate voting power of the resultant entity or (ii) any sale of all
or substantially all of the assets of the Company, in each case, in one
transaction or in a series of related transactions.
βClass A Common
Sharesβ means the shares of Class A Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class A Common
Shares as set forth in the governing documents of the Company, including the
Companyβs Bye-laws, and any Equity Securities issued or issuable in exchange for
or with respect to such Class A Common Shares (i) by way of dividend, split,
subdivision, conversion or consolidation of shares or (ii) in connection with a
reclassification, recapitalization, merger, consolidation, going private, tender
offer, amalgamation, change of control, other reorganization or similar
transaction.
βClass B Common
Sharesβ means the shares of Class B Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class B Common
Shares as set forth in the governing documents of the Company, including the
Companyβs Bye-laws, and any Equity Securities issued or issuable in exchange for
or with respect to such Class B Common Shares (i) by way of dividend, split,
subdivision, conversion or consolidation of shares or (ii) in connection with a
reclassification, recapitalization, merger, consolidation, going private, tender
offer, amalgamation, change of control, other reorganization or similar
transaction. Notwithstanding the foregoing, for purposes of this
Agreement, the term βClass B Common Sharesβ shall never include the Class A
Common Shares into which they are convertible pursuant to the Companyβs
Bye-laws.
2
βClosing Dateβ has the
meaning set forth in the TW Subscription Agreement.
βCME Holdcoβ means CME
Holdco, L.P., a Cayman Islands exempted limited partnership.
βCompanyβ has the
meaning set forth in the preamble and includes any successor entity
thereto.
βDesignated
Securitiesβ has the meaning set forth in Section
7.3.
βEffective Dateβ has
the meaning set forth in the TW Subscription Agreement.
βEquity Securitiesβ
means (i) shares or other equity interests (including the Class A Common
Shares and the Class B Common Shares) of the Company and (ii) options,
warrants or other securities that are directly or indirectly convertible into,
or exercisable or exchangeable for, shares or other equity interests of the
Company.
βExcluded Securitiesβ
has the meaning set forth in Section
7.1.
βFair Market Valueβ
has the meaning set forth in Section
10.14.
βGovernmental
Approvalβ means, with respect to any Transfer of Equity Securities, any
consent, clearance or other action by, or filing with, any Governmental
Authority required in connection with such Transfer and the expiration or early
termination of any applicable statutory waiting period in connection with such
action or filing.
βGovernmental
Authorityβ means any nation or government or multinational body, any
state, agency, commission, or other political subdivision thereof or any entity
(including a court) exercising executive, legislative, judicial or
administration functions of or pertaining to government, any stock exchange or
self regulatory entity supervising, organizing and supporting any stock
exchange.
βGroupβ means, with
respect to a Person, such Person and (i) such Personβs spouse, (ii) a lineal
descendant of such Person or such Personβs parents, the spouse of any such
descendant or a lineal descendant of any such spouse, (iii) The Xxxxxx X. Xxxxxx
Foundation, The Neue Galerie New York or a charitable institution controlled
(whether by funding or otherwise) by such Person and/or other members of such
Personβs Group, (iv) a trustee of a trust (whether inter vivos or testamentary),
all of the current beneficiaries and presumptive remaindermen of which are such
Person and/or one or more Persons described in clauses (i) through (iii) of this
definition, (v) a corporation, limited liability company, trust, cooperative or
partnership or any other entity of which all of the outstanding shares of
capital stock or interests therein are owned by such Person and/or Persons
described in clauses (i) through (iv) of this definition, (vi) an individual
covered by a qualified domestic relations order with such Person or any Person
described in clauses (i) or (ii) of this definition or (vii) a legal or personal
representative of such Person or any Person described in clause (i), (ii) or
(vi) in the event of any such Personβs death or disability. For
purposes of this definition, βpresumptive remaindermenβ refers to those Persons
entitled to a share of a trustβs assets if it were then to
terminate.
3
βInvestorβ and βInvestorsβ have the
meanings set forth in the preamble.
βInvoluntary Transferβ
means any Transfer (i) by seizure under levy of attachment or execution, (ii) in
connection with any voluntary or involuntary bankruptcy or other court
proceeding to a debtor in possession, trustee in bankruptcy or receiver or other
officer or agency, (iii) pursuant to any statute pertaining to escheat or
abandoned property, (iv) pursuant to a divorce or a separation agreement or a
final decree of a court in a divorce action, (v) to a legal representative of
any person occasioned by the incompetence of such person and (vi) to a Person
upon the death of an RSL Investor (who is a natural Person), by will (as in
effect on the Effective Date) or intestacy or pursuant to the laws governing
descent and distribution. Any transferee of Equity Securities
pursuant to an Involuntary Transfer shall remain bound by and subject to the
obligations and restrictions applicable to such Equity Securities to the fullest
extent permissible under applicable Law.
βLaw(s)β means all
laws, statutes, ordinances, rules, regulations, judgments, injunctions, orders
and decrees.
βNegotiation Periodβ
has the meaning set forth in Section
3.3(c).
βNew Stockβ has the
meaning set forth in Section
6.3.
βNew York Courtβ has
the meaning set forth in Section
10.10.
βOffer Noticeβ has the
meaning set forth in Section
4.1.
βOffered Sharesβ has
the meaning set forth in Section
4.1.
βOffering Investorβ
has the meaning set forth in Section
4.1.
βOther Investorβ
means, for purposes of Section 5 with
respect to any Selling Investor, all Investors other than such Selling
Investor.
βPartyβ and βPartiesβ have the
meanings set forth in the preamble.
βPermitted Transferβ
means Transfers among the RSL Investors or Transfers among the TW Investors, as
the case may be.
βPersonβ means any
individual, corporation, partnership, limited liability company, association or
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
βPotential Acquirorβ
has the meaning set forth in Section
3.3(c).
βProposed Securitiesβ
has the meaning set forth in Section
7.1(a).
βQEF Electionβ has the
meaning set forth in Section
6.7.
βRegistration Rights
Agreementβ means that certain Registration Rights Agreement by and
between the Company and TW, dated as of the date hereof.
4
βRSL Excluded Sharesβ
means (i) the TW Shares, (ii) the 3,138,566 Class B Common Shares beneficially
owned by Adele Guernsey L.P., (iii) the 72,620 Class B Common Shares
beneficially owned by Xxxxxxx Xxxxxx, (iv) the 110,717 Class B Common Shares
beneficially owned by LWG Family Partners, L.P., (v) the 29,999 Class A Common
Shares beneficially owned by Adele Guernsey L.P., (vi) the 30,000 Class A Common
Shares beneficially owned by LWG Family Partners, L.P., (vii) the 1 Class A
Common Share beneficially owned by Xxxxxxx Xxxx and (viii) the 105,231 Class B
Common Shares beneficially owned by RAJ Family Partners, L.P.
βRSL Investorsβ has
the meaning set forth in the preamble.
βRSL Permitted
Transfereeβ means (A) any Person that (i) is in the same Group as Xxxxxx
X. Xxxxxx and (ii) is a transferee in connection with a Transfer pursuant to a
bona fide estate planning purpose or (B) any Person that is a transferee in
connection with an Involuntary Transfer; provided, that any
Class B Common Shares Transferred pursuant to clauses (i), (ii), (iii) and (iv)
of the definition of Involuntary Transfer shall first be converted to Class A
Common Shares. No Person shall be an RSL Permitted Transferee
pursuant to clause (A) until such transferee has executed and delivered to TW
and the Company (x) a joinder to this Agreement in the form annexed hereto as
Exhibit A
pursuant to which such transferee agrees to be bound by this Agreement, and to
be treated as, and be entitled to the benefits of, and subject to the
obligations and restrictions applicable to, the RSL Investors for all purposes
of this Agreement; and (y) a joinder to the TW Voting Agreement in the form
annexed to the TW Voting Agreement as Exhibit A pursuant to
which such transferee agrees to be bound by the TW Voting Agreement, and to be
treated as, and be entitled to the benefits of, and subject to the obligations
and restrictions applicable to, the RSL Investors for all purposes of the TW
Voting Agreement; and provided further that, in the
case of clause (A) above, any such Person remains in the same Group as Xxxxxx X.
Xxxxxx (and if such Person ceases to be in the same Group as Xxxxxx X. Xxxxxx,
an RSL Investor shall give notice promptly to TW and the Company of the change
in circumstances and such former Group member of Xxxxxx X. Xxxxxx shall
immediately and unconditionally Transfer any Equity Securities held by it back
to Xxxxxx X. Xxxxxx or an RSL Permitted Transferee). No Person shall
be an RSL Permitted Transferee pursuant to clause (B) above until such
Transferee has executed and delivered to TW and the Company a joinder as set
forth in clause (x) and clause (y) to the fullest extent permitted under
applicable Law. For the avoidance of doubt, any Person that is a
transferee pursuant to a Permitted Transfer from an RSL Investor shall be an RSL
Permitted Transferee.
βRSL Savannahβ has the
meaning set forth in the preamble.
βSecurities Actβ means
the Securities Act of 1933.
5
βSelling Investorβ has
the meaning set forth in Section
5.1.
βStandstill Periodβ
has the meaning set forth in Section
3.3(d).
βTag-Along Noticeβ has
the meaning set forth in Section
5.1.
βTag-Along Rightsβ has
the meaning set forth in Section
5.2.
βTag-Along
Transactionβ means the Transfer by any Investor of any Equity Securities
held by such Investor (in a Transfer permitted pursuant to Section 3 hereof),
whether in one transaction or in a series of related transactions. A
Tag-Along Transaction shall not include any Transfer (a) that constitutes a
Permitted Transfer, (b) effected in connection with the consummation of a Change
of Control Transaction, (c) that constitutes a TW Upstream Transfer, (d)
effected pursuant to Section 4 or (e) that
constitutes 1% or less in any single transaction (or 3% or less in the case of
all such Transfers in the aggregate) of the Equity Securities beneficially owned
by such Investor and its Affiliates in the aggregate, on the Closing
Date.
βTag-Along Transfereeβ
has the meaning set forth in Section
5.2.
βTakeover Proposalβ
has the meaning set forth in Section
3.3(c).
βTime Warnerβ means
Time Warner Inc., a Delaware corporation (including any successor entity
thereto).
βTransferβ means a
direct or indirect transfer in any form, including a sale, assignment,
conveyance, pledge, charge, mortgage, encumbrance, securitization, hypothecation
or other disposition, or any purported severance or alienation of any beneficial
interest (including the creation of any derivative or synthetic interest) or
βbeneficial ownershipβ (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as in effect on the date hereof), or the act of
so doing, as the context requires, other than any bona fide mortgage,
encumbrance, pledge or hypothecation of capital stock to a financial institution
in connection with any bona fide loan to an RSL Investor or a TW Investor from
such financial institution in which such financial institution does not have the
power to vote or dispose of such capital stock other than in the case of a
default caused by the actions or inactions of such Investor and provided that
such financial institution executes a joinder to this Agreement in the form
annexed hereto as Exhibit A; provided, that the
following shall not constitute a Transfer: (x) a transfer of voting power
by a TW Investor to the Voting Rights Holder (as defined in the TW Voting
Agreement) pursuant to the TW Voting Agreement and (y) any distribution of
Equity Securities of the Company by any RSL Investor or any of its Affiliates
(including CME Holdco and, for purposes of this clause (y), the RSL Excluded
Persons) to any shareholder, member or partner of such RSL Investor or such
Affiliate, pursuant to the terms of such RSL Investorβs or such Affiliateβs
governing documents.
βTWβ has the meaning
set forth in the preamble.
βTW Investorsβ has the
meaning set forth in the preamble.
6
βTW Permitted
Transfereeβ means (i) any Person that is a direct or indirect wholly
owned subsidiary of Time Warner or (ii) any Person that is a transferee in
connection with clause (ii) of the definition of Involuntary Transfer; provided that any
Class B Common Shares Transferred pursuant to clause (ii) of the definition of
Involuntary Transfer shall first be converted to Class A Common
Shares. No Person shall be a TW Permitted Transferee hereunder
pursuant to clause (i) above until such Person has executed and delivered to the
Company (x) a joinder to this Agreement in the form annexed hereto as Exhibit A pursuant to
which such transferee agrees to be bound by this Agreement, and to be treated
as, and be entitled to the benefits of, and subject to the obligations and
restrictions applicable to, the TW Investors for all purposes of this Agreement
and (y) a joinder to the TW Voting Agreement in the form annexed to the TW
Voting Agreement as Exhibit A pursuant to
which such transferee agrees to be bound by the TW Voting Agreement, and to be
treated as, and be entitled to the benefits of, and subject to the obligations
and restrictions applicable to, the TW Investors for all purposes of the TW
Voting Agreement; and, provided further that, in the
case of clause (i) above, any such Person remains a direct or indirect wholly
owned subsidiary of Time Warner (and if such Person ceases to a direct or
indirect wholly owned subsidiary of Time Xxxxxx, XX shall give notice promptly
to RSL Savannah and the Company of the change in circumstances and such former
direct or indirect wholly owned subsidiary of Time Warner shall immediately and
unconditionally Transfer any Equity Securities held by it back to TW or a TW
Permitted Transferee). No Person shall be a TW Permitted Transferee
pursuant to clause (ii) above until such Transferee has executed and delivered
to the Company a joinder as set forth in clause (x) and clause (y) to the
fullest extent permitted under applicable Law.
βTW Sharesβ has the
meaning set forth in the recitals.
βTW Subscription
Agreementβ has the meaning set forth in the recitals.
βTW Upstream Transferβ
means Transfers of the securities of Time Warner, including a Change of Control
Transaction (provided that, for
purposes of this definition, βthe Companyβ in the definition of Change of
Control Transaction shall be replaced with βTime Warnerβ), and issuances of
securities of Time Warner by Time Warner.
βTW Voting Agreementβ
has the meaning set forth in the recitals.
3.1. Subject
in all respects to compliance with Sections 3.2 and
3.3:
(a)
On or prior to the earliest of (i) [β’], 2013, (ii) the date on
which the RSL Investors and their Affiliates in the aggregate have Transferred
more than 10% (measured as of the first day of such period) of the Equity
Securities beneficially owned by the RSL Investors and their Affiliates in the
aggregate in any given 365 day period and (iii) the date on which the RSL
Investors and their Affiliates in the aggregate have Transferred more than 30%
(measured as of the date hereof) of the Equity Securities beneficially owned by
the RSL Investors and their Affiliates in the aggregate, no TW Investor shall
Transfer any Equity Securities (which Equity Securities for purposes of this
clause shall not include any Class A Common Shares acquired by any TW Investor
after the date hereof from any Person other than any RSL Investors or any of
their respective Affiliates) at any time other than with respect to Transfers
(A) that constitute Permitted Transfers, (B) that are approved by each of RSL
Savannah, TW and the Company, it being understood that the Companyβs consent
shall (x) not be unreasonably withheld and (y) be required only to the extent
such Transfer would cause a default under the outstanding indebtedness of the
Company as in effect on the Effective Date as set forth on Schedule A to the TW
Voting Agreement, (C) effected in connection with the consummation of a Change
of Control Transaction, (D) by any TW Investor in compliance with the terms and
conditions of Section
5 (Tag-Along Rights) pursuant to a Tag-Along Transaction initiated by an
RSL Investor or (E) that constitute TW Upstream Transfers; it being understood
that with respect to any Transfer by any TW Investor that is permitted pursuant
to this Section
3.1(a) (except with respect to Transfers pursuant to clauses (A) through
(E) hereof) prior to [β’], 2013, such transferring
TW Investor must first comply with the terms and conditions of Section 4 (Right of
First Offer) and Section 5 (Tag-Along
Rights) hereof.
7
(b) Each
RSL Investor shall be permitted to freely Transfer any Equity Securities without
restriction, subject to compliance with the terms and conditions of Section 4 (Right of
First Offer) and Section 5 (Tag-Along
Rights) hereof; it being understood that with respect to Transfers (A) that
constitute Permitted Transfers, (B) that are approved by each of RSL Savannah,
TW and the Company, it being understood that the Companyβs consent shall (x) not
be unreasonably withheld and (y) be required only to the extent such Transfer
would cause a default under the outstanding indebtedness of the Company as in
effect on the Effective Date as set forth on Schedule A to the TW
Voting Agreement or (C) that are effected in connection with the consummation of
a Change of Control Transaction, such RSL Investor shall not be required to
comply with the terms and conditions of Section 4 (Right of
First Offer) and Section 5 (Tag-Along
Rights) hereof.
(c) Any
transferee pursuant to any Permitted Transfer shall agree in writing with the
Parties to be bound by, to comply with all applicable provisions of, and to be
deemed to be an Investor for purposes of, this Agreement, and shall be made a
Party hereto by executing a joinder agreement in the form attached as Exhibit A
hereto. Any purported Transfer in violation of the provisions of this
Section 3 or
the Companyβs Bye-laws shall be null and void and of no force and
effect. For the avoidance of doubt, each Investor hereby agrees and
acknowledges that the Company shall not be obligated to recognize or register
any Transfer that is in violation of this Agreement or the Companyβs Bye-laws,
and the Company shall not be obligated to, at any meeting of the Company,
recognize the vote(s) applicable to any Equity Security that has been so
Transferred in violation of this Agreement or the Companyβs
Bye-laws.
(a)
Each TW Investor agrees and acknowledges that should
such TW Investor seek to Transfer any Class B Common Shares (except in
connection with a TW Upstream Transfer) held by such TW Investor to a third
party that is not a TW Permitted Transferee, prior to, and as a condition to,
such Transfer, such TW Investor shall cause the Class B Common Shares that are
proposed to be Transferred to be converted into Class A Common Shares and such
Transfer shall be treated as an automatic election by such TW Investor to
convert such Class B Common Shares into Class A Common Shares under Section 3(4)
of the Companyβs Bye-laws and the Company hereby agrees that, upon any such
deemed election, it shall amend its register of shareholders to reflect that
conversion.
8
9
(c)
In the event that at any time the Board of
Directors of the Company (the βBoardβ) has
determined to approve and/or recommend to the shareholders of the Company an
offer or proposal from any Person with respect to a Change of Control
Transaction (a βTakeover Proposalβ),
and at such time the TW Investors beneficially own, directly or indirectly, not
less than 25% of the TW Shares (as adjusted for splits, combination of shares,
reclassification, recapitalization or like changes in capitalization and whether
such TW Shares are in the form of Class A Common Shares or Class B Common
Shares), the Company shall: (i) give each TW Investor prompt written notice of
(A) such determination by the Board with respect to such Takeover Proposal and
(B) the material terms and conditions of the Takeover Proposal, including the
identity of the party making such Takeover Proposal (the βPotential Acquirorβ),
subject to any agreements between the Company and the Potential Acquiror with
respect to an obligation of the Company to maintain the confidentiality of the
identity of the Potential Acquiror, and, if available, a copy of the relevant
proposed transaction agreements with such party and any other material
information necessary for the TW Investor to understand the terms and conditions
of the Takeover Proposal (including any relevant non-public information provided
to the Potential Acquiror or its Affiliates or representatives), (ii) give each
TW Investor ten (10) days after delivery of such notice (the βNegotiation Periodβ)
to propose to the Company an alternate transaction constituting a Change of
Control Transaction involving such TW Investor or its Affiliates and (iii)
negotiate in good faith with such TW Investor or its Affiliates with respect to
such alternate proposal. If such alternate proposal is more favorable
to the shareholders of the Company from a financial point of view than the
Takeover Proposal, (I) the Board shall approve and recommend to the shareholders
of the Company the transaction that is the subject of such alternate proposal
made by a TW Investor or an Affiliate thereof and (II) each RSL Investor shall,
and shall cause its Affiliates to, accept such alternate proposal made by a TW
Investor or Affiliate thereof (whether by vote or tender) in respect of all
Equity Securities that are beneficially owned by such RSL Investor; provided
that, the Board and each RSL Investor shall be under no obligation to approve,
recommend to shareholders or accept, as the case may be, any alternate proposal
to the extent that a Person has offered a subsequent Takeover Proposal that is
more favorable to the shareholders of the Company from a financial point of view
than such alternate proposal; provided, however, in the event
of such subsequent Takeover Proposal, the Company shall comply with clauses (i),
(ii) and (iii) of this Section 3.3(c) with
respect thereto and the Negotiation Period shall recommence. Subject
to the foregoing sentence, the good faith determination of the majority of the
disinterested directors of the Board as to whether any alternate proposal is
more favorable to the shareholders of the Company from a financial point of
view, compared to the most recent Takeover Proposal, shall be
conclusive. In the event that no TW Investor or any Affiliate thereof
makes an alternate proposal to the Company as provided by the foregoing, each TW
Investor shall accept such Takeover Proposal (whether by vote or tender) in
respect of all Equity Securities that are beneficially owned by such TW Investor
within the time period required by such Takeover Proposal, unless the Board
withdraws, withholds, qualifies or modifies or fails to promptly reconfirm (in
the case of the public announcement of an alternate Change of Control
Transaction to the Takeover Proposal) its recommendation of the Takeover
Proposal.
10
11
4.3. If
the ROFO Recipients do not elect to purchase all of the Offered Shares pursuant
to this Section
4, then the Offered Shares set forth in the Offer Notice shall be deemed
declined and the Offering Investor shall be free for a period of thirty (30)
days from the date the written notice from the ROFO Recipients was due to be
received by the Offering Investor to enter into customary definitive agreements
to Transfer the Offered Shares to any Person for consideration having a Fair
Market Value equal to or greater than the consideration set forth in the Offer
Notice, and otherwise on terms and conditions no more favorable, in any material
respect, to the transferee than the terms and conditions contained in the Offer
Notice, and to transfer to such Person the Offered Shares pursuant to such
definitive agreements. The Fair Market Value of any non-cash
consideration shall be determined in accordance with the Pricing Procedure set
forth in Section 10.14.
12
4.4. If
the ROFO Recipients do not elect to purchase all of the Offered Shares pursuant
to this Section
4, and the Offering Investor has not entered into a definitive agreement
described in Section
4.3 within thirty (30) days and consummated an alternative Transfer
within one hundred and eighty (180) days, in each case, from the date the
written notice from the ROFO Recipients was due to be received by the Offering
Investor, then the provisions of this Section 4 shall again
apply, and such Offering Investor shall not Transfer or offer to Transfer such
Equity Securities without again complying with this Section
4.
4.5. Upon
exercise by the ROFO Recipients of their right of first offer, the ROFO
Recipients and the Offering Investor shall be legally obligated to consummate
the purchase contemplated thereby, on the terms and conditions set forth in the
Offer Notice and shall use their commercially reasonable efforts to (i) secure
any Governmental Approvals required to comply with all applicable Laws as soon
as reasonably practicable, (ii) take all such other actions and to execute such
additional documents as are reasonably necessary or appropriate in connection
therewith and (iii) consummate the purchase of the Offered Shares as promptly as
practicable.
4.6. The
restrictions set forth in this Section 4 are in
addition to (and not in lieu of) the restrictions set forth in Section
3. All Class B Common Shares subject to Transfer to any TW
Investor in connection with the exercise of the right of first offer described
in this Section
4 during the term of the TW Voting Agreement shall be automatically
converted into Class A Common Shares immediately prior to the expiration of the
TW Voting Agreement, and such Transfer shall be treated as an automatic election
by such TW Investor to convert such Class B Common Shares into Class A Common
Shares under Section 3(4) of the Companyβs Bye-laws and the Company hereby
agrees that, upon any such deemed election, it shall amend its register of
shareholders to reflect that conversion.
4.7. If
the ROFO Recipients consist of more than one TW Investor or RSL Investor, each
TW Investor or RSL Investor, as applicable, shall be entitled to acquire its pro
rata portion (based on the number of Equity Securities held by each such TW
Investor or RSL Investor, respectively, on the date of receipt of the Offer
Notice) of the Offered Shares, or such other proportion as the TW Investors or
the RSL Investors, as applicable, may agree mutually.
4.8. Notwithstanding
the foregoing, prior to any Transfer of any Equity Securities by an Offering
Investor pursuant to this Section 4, the
Offering Investor shall, after complying with the provisions of this Section 4, comply
with the provisions of Section 5 hereof, if
applicable.
5.1. Subject
to complying with the provisions of Section 4 above, if
any Investor(s) or any Affiliate of such Investor(s) (for purposes of this Section 5, a βSelling Investorβ)
proposes to effect a Tag-Along Transaction prior to and including [β’], 2013, then such Selling
Investor(s) shall give written notice (a βTag-Along Noticeβ) to
each Other Investor setting forth in reasonable detail the terms and conditions
of such proposed Transfer, including the proposed amount and form of
consideration, terms and conditions of payment and a summary of any other
material terms pertaining to the Transfer. In the event that the
terms and/or conditions set forth in the Tag-Along Notice are thereafter amended
in any respect, the Selling Investor(s) shall give written notice (an βAmended Tag-Along
Noticeβ) of the amended terms and conditions of the proposed Transfer to
each Other Investor. The Selling Investor(s) shall provide additional
information with respect to the proposed Transfer as reasonably requested by the
Other Investors.
13
5.2. The
Other Investors shall have the right, exercisable upon written notice to the
Selling Investor(s) within twenty (20) days after receipt of any Tag-Along
Notice, or, if later, within seven (7) days of such receipt of the most recent
Amended Tag-Along Notice, to participate in the proposed Transfer by the Selling
Investor(s) to the proposed purchaser (the βTag-Along
Transfereeβ) on the terms and conditions set forth in such Tag-Along
Notice or the most recent Amended Tag-Along Notice, as the case may be (such
participation rights being hereinafter referred to as βTag-Along
Rightsβ). Any Other Investor that has not notified the Selling
Investor(s) of its intent to exercise Tag-Along Rights within twenty (20) days
of receipt of a Tag-Along Notice (or, if applicable, within seven (7) days of
receipt of an Amended Tag-Along Notice) shall be deemed to have elected not to
exercise such Tag-Along Rights with respect to the Transfer contemplated by such
Tag-Along Notice. Each Other Investor may participate with respect to
Equity Securities owned by such Party in an amount equal to the product of (i) a
fraction, the numerator of which is equal to the total number of Equity
Securities owned by such Other Investor, and the denominator of which is the
aggregate number of Equity Securities collectively owned by the Selling
Investor(s), all participating Other Investors, all other holders of Equity
Securities who have exercised a Tag-Along Right similar to the rights granted to
the Other Investors in this Section 5 that
are in existence on the Effective Date (excluding any vested options or
convertible securities that have an exercise or conversion price per share
greater than the price per share to be paid by the Tag-Along Transferee) and
(ii) the total number of Equity Securities that the Tag-Along Transferee has
agreed or committed to purchase.
5.3. At
the closing of the Transfer to any Tag-Along Transferee pursuant to this Section 5, the
Tag-Along Transferee shall remit to each Other Investor the consideration for
the Equity Securities of such Investor sold pursuant hereto (less each Other
Investorβs pro rata portion of the consideration to be escrowed or held back, if
any, as described below), against delivery by such Other Investor of
certificates (if any) or other instruments evidencing such Equity Securities,
duly endorsed for Transfer or with duly executed stock powers, instruments of
transfer or similar instruments, or such other instrument of Transfer of such
Equity Securities as may be reasonably requested by the Tag-Along Transferee and
the Company, with all stock transfer taxes paid and stamps
affixed. Additionally, each Other Investor shall comply with any
other conditions to closing generally applicable to such Selling Investor(s) and
all Other Investors selling Equity Securities in such
transaction. The consummation of such proposed Transfer shall be
subject to the sole discretion of the Selling Investor(s), who shall have no
liability or obligation whatsoever to any Other Investor participating therein
other than to obtain for such Other Investor the same terms and conditions as
those set forth in the Tag-Along Notice or any Amended Tag-Along
Notice. Each Other Investor shall receive the same amount and form of
consideration received by the Selling Investor for each Share. To the
extent that the Parties are to provide any indemnification or otherwise assume
any other post-closing liabilities, the Selling Investor(s) and all Other
Investors selling Equity Securities in a transaction under this Section 5 shall do so
severally and not jointly (and on a pro rata basis in accordance with their
Equity Securities being sold and solely with respect to the representations,
warranties and covenants that are applicable to such Selling Investor in
connection with such Transfer), and their respective potential liability
thereunder shall not exceed the proceeds received, subject to customary
exceptions in excess of such limits.
14
(a)
Subject to Section 6.3 below,
for so long as the TW Investors and their Affiliates beneficially own, directly
or indirectly, at least 25% of the TW Shares (as adjusted for splits,
combination of shares, reclassification, recapitalization or like changes in
capitalization and whether such TW Shares are in the form of Class A Common
Shares or Class B Common Shares), the RSL Investors shall not, and shall cause
their respective Affiliates not to, vote any Equity Securities beneficially
owned by such Persons, respectively, in favor of, or consent to (except in
connection with approving the transactions contemplated by the TW Subscription
Agreement), (i) an increase (via stock split, recapitalization, reclassification
or otherwise) in the number of Class B Common Shares authorized by the Companyβs
Bye-laws as in existence on the Effective Date, (ii) the issuance by the Company
of any Class B Common Shares, (iii) the issuance by the Company of any preferred
stock (or any other securities) with general or specific voting rights superior
to those of the Class A Common Shares, (iv) the authorization or issuance by the
Company or any of its subsidiaries of any securities exercisable for or
convertible or exchangeable into (A) Class B Common Shares or (B) preferred
stock of the Company (or any other securities of the Company) with general or
specific voting power superior to those of the Class A Common Shares or (v) a
modification of the terms of the Class B Common Shares as such terms existed on
Effective Date. For avoidance of doubt, a class of securities the
holders of which are entitled to vote as a separate class on any matter
submitted to the shareholders of the Company, other than as required by Law
(except in the case of a Change of Control Transaction), shall be deemed, for
purposes of this Agreement, to constitute securities with general or specific
voting rights superior to those of the Class A Common Shares.
(b)
The RSL Investors shall use their best
efforts to vote, and shall use their best efforts to cause their Affiliates to
vote, all Equity Securities beneficially owned by them as of the date thereof at
each annual or special general meeting of the shareholders of the Company called
for the purpose of filling positions on the Board, or by written consent
executed in lieu of such a meeting of shareholders, in favor of, the election to
the Board of (A) two Persons designated by the TW Investors as long as the TW
Investors and their Affiliates beneficially own at least a majority of the TW
Shares (as adjusted for splits, combination of shares, reclassification,
recapitalization or like changes in capitalization and whether such TW Shares
are in the form of Class A Common Shares or Class B Common Shares) or (B) one
Person designated by the TW Investors as long as the TW Investors and their
Affiliates beneficially own at least 25% of the TW Shares (as adjusted for
splits, combination of shares, reclassification, recapitalization or like
changes in capitalization and whether such TW Shares are in the form of Class A
Common Shares or Class B Common Shares), and the RSL Investors shall take all
such other actions reasonably within their power as shareholders of the Company
to cause such Persons to be elected to the Board. The right of the TW
Investors set forth in this Section 6.1(b) may
not be Transferred to any Person except a TW Permitted Transferee.
15
(a)
Subject to Section 6.3 below,
for so long as the TW Investors and their Affiliates beneficially own, directly
or indirectly, at least 25% of the TW Shares (as adjusted for splits,
combination of shares, reclassification, recapitalization or like changes in
capitalization and whether such TW Shares are in the form of Class A Common
Shares or Class B Common Shares), the Company shall not, without the consent of
TW (which consent shall not be subject to the TW Voting Agreement) (except in
connection with the transactions contemplated by the TW Subscription Agreement),
(i) propose or authorize an increase (via stock split, recapitalization,
reclassification or otherwise) in the number of Class B Common Shares authorized
by the Companyβs governing documents as in existence on the Effective Date, (ii)
issue any Class B Common Shares, (iii) issue any preferred stock (or any other
securities) with general or specific voting rights superior to those of the
Class A Common Shares or (iv) issue, or authorize the issuance of, by the
Company or any of its subsidiaries, of any securities exercisable for or
convertible or exchangeable into (A) Class B Common Shares or (B) any preferred
stock of the Company (or any other securities of the Company) with general or
specific voting power superior to those of the Class A Common Shares; provided, that the
Company may issue options to purchase Class B Common Shares to RSL Savannah or
any RSL Permitted Transferee (including Xxxxxx X. Xxxxxx) in connection with
Xxxxxx X. Xxxxxxβx compensation for serving on the Board, including (i) any
options that have been granted prior to the Effective Date and (ii) after the
Effective Date, in an amount not to exceed options to purchase 5,000 Class B
Common Shares per year.
(b)
Subject to Section 6.3 below,
for so long as the RSL Investors and their Affiliates beneficially own, directly
or indirectly, at least 25% of the Equity Securities (excluding the RSL Excluded
Shares, and as adjusted for splits, combination of shares, reclassification,
recapitalization or like changes in capitalization and whether such Equity
Securities are in the form of Class A Common Shares or Class B Common Shares)
held by them at the Closing Date, the Company shall not, without the consent of
RSL Savannah (except in connection with the transactions contemplated by the TW
Subscription Agreement), (i) propose or authorize an increase (via stock split,
recapitalization, reclassification or otherwise) in the number of Class B Common
Shares authorized by the Companyβs governing documents as in existence on the
Effective Date, (ii) issue any Class B Common Shares, (iii) issue any preferred
stock (or any other securities) with general or specific voting rights superior
to those of the Class A Common Shares or (iv) issue, or authorize the issuance
of, by the Company or any of its subsidiaries, of any securities exercisable for
or convertible or exchangeable into (A) Class B Common Shares or (B) any
preferred stock of the Company (or any other securities of the Company) with
general or specific voting power superior to those of the Class A Common Shares;
provided, that
the Company may issue options to purchase Class B Common Shares to RSL Savannah
or any RSL Permitted Transferee (including Xxxxxx X. Xxxxxx) in connection with
Xxxxxx X. Xxxxxxβx compensation for serving on the Board, including (i) any
options that have been granted prior to the Effective Date and (ii) after the
Effective Date, in an amount not to exceed options to purchase 5,000 Class B
Common Shares per year.
16
17
7.1. If
at any time, the Company determines to issue Equity Securities (other than: (i)
to employees, officers, directors, agents or consultants of the Company or any
subsidiary of the Company pursuant to employee benefit, stock option and stock
purchase plans maintained by the Company, in such amounts as are approved by the
Board; (ii) as consideration in connection with a bona fide acquisition (of
assets or otherwise), merger, consolidation or amalgamation by the Company
provided such acquisition, merger, consolidation or amalgamation has been
approved by the Board; (iii) in connection with splits, combination of shares,
reclassification, recapitalization or like changes in capitalization; (iv) the
conversion of any Class B Common Shares into Class A Common Shares; or (v) any
Class A Common Shares or Class B Common Shares issued upon conversion, exchange
or exercise of any Equity Securities outstanding as of the Effective Date or
issued pursuant to clause (i) above (collectively, βExcluded
Securitiesβ)) the Company shall:
18
(a)
give written notice to each TW Investor setting forth in
reasonable detail (i) the designation and all of the terms and provisions of the
Equity Securities proposed to be issued (the βProposed
Securitiesβ), including, where applicable, the voting powers, preferences
and relative participating, optional or other special rights, and the
qualification, limitations or restrictions thereof and interest rate and
maturity; (ii) the price and other terms of the proposed sale of such Equity
Securities; (iii) the amount of such Proposed Securities; and (iv) such other
information as a TW Investor may reasonably request in order to evaluate the
proposed issuance; and
(b)
offer to issue pro rata to each TW Investor upon
the terms described in the notice delivered pursuant to Section 7.1(a), a
portion of the Proposed Securities equal to the product of (i) the percentage of
the Equity Securities owned by such TW Investor immediately prior to the
issuance of the Proposed Securities relative to the total number of Equity
Securities outstanding immediately prior to the issuance of the Proposed
Securities, multiplied by (ii) the total number of Proposed
Securities.
7.2. A
TW Investor must exercise its respective purchase rights under Section 7.1 within
fifteen (15) days after receipt of such notice from the Company by giving
written notice to the Company within such offering period. The
closing for such transaction shall take place as proposed by the Company (but in
no event (a) prior to the closing of the sale of the Proposed Securities to
other purchasers thereof or (b) less than fifteen (15) days after a TW Investor
shall have exercised its right to purchase Proposed Securities). Upon
the expiration of such offering period, the Company will be free to sell such
Proposed Securities that TW Investors have not elected to purchase during the
sixty (60) days following such expiration on terms and conditions no more
favorable to the purchasers thereof than those offered to TW
Investors.
7.3. Notwithstanding
the foregoing, if at any time, the Company intends to issue Proposed Securities
to the public in a registered underwritten public offering or an offering
pursuant to Rule 144A or Regulation S under the Securities Act, the Company
shall give each TW Investor written notice of such intention (including, to the
extent possible, a copy of the prospectus included in the registration statement
filed in respect of such public offering or an offering circular relating to
such Rule 144A or Regulation S offering, as the case may be) describing, to the
extent then known, the anticipated amount of Equity Securities, range of prices,
timing and other material terms of such offering. The Company shall
give such written notice no less than three (3) business days prior to the
commencement of the marketing efforts with respect to such Rule 144A, Regulation
S or registered public offering, which notice shall constitute an offer to sell
pro rata to each TW Investor an amount of Proposed Securities as calculated
pursuant to Section
7.1(b) (the βDesignated
Securitiesβ). A TW Investor must exercise its respective
purchase rights under this Section 7.3 prior to
the commencement of marketing efforts with respect to such offering, which
commencement shall not be earlier than three business days following the
delivery of written notice to the TW Investors of such offering, by providing a
binding indication of interest (which shall be subject to customary conditions
with respect to the offering, including the pricing of the Proposed Securities)
of such TW Investor to purchase the Designated Securities within the range of
prices and consistent with the other terms set forth in the Companyβs notice to
it. In the event the pricing of the offer of Proposed Securities is
not yet consummated, any binding indication of interest will expire after the
second trading day subsequent to the anticipated pricing date set forth in the
Company's notice. If a TW Investor exercises its respective purchase
rights provided in this Section 7.3, the
Company shall agree to sell to such TW Investor, at the time of pricing of the
offering of Proposed Securities, the Designated Securities (as adjusted to
reflect the actual size of such offering when priced) at the same price as the
Proposed Securities are offered to the public or the purchasers, as the case may
be. Contemporaneously with the execution of any underwriting
agreement entered into between the Company and the underwriters of an
underwritten public offering or purchase agreement entered into between the
Company and the initial purchasers in a Rule 144A offering, each such TW
Investor shall enter into an instrument in form and substance reasonably
satisfactory to the Company acknowledging such TW Investorβs binding obligation
to purchase the Designated Securities to be acquired by it and containing
representations, warranties and agreements of such TW Investor that are
customary in private placement transactions that are necessary to demonstrate
the suitability of such TW Investor to participate in private placement
transactions. The failure by any TW Investor to provide a binding
indication of interest with respect to a Rule 144A, Regulation S or registered
public offering of Proposed Securities shall constitute a waiver of the
preemptive rights only in respect of such offering. If any TW
Investor waives its preemptive rights with respect to a public offering or Rule
144A or Regulation S offering, the Company agrees to use reasonable best efforts
to allocate to such TW Investor, at such TW Investor's request, Proposed
Securities up to the amount of Designated Securities such TW Investor would be
entitled to purchase pursuant to its preemptive rights had they not been waived,
on the same terms as the other purchasers in such offering.
19
7.4. The
exercise of the TW Investorsβ rights under this Section 7 and the
obligations of the Company to issue Equity Securities to the TW Investors
pursuant to this Section 7 shall be
subject to compliance with applicable Laws, rules and regulations, including the
federal securities laws and the rules and regulations of The NASDAQ Stock Market
LLC.
7.5. The
election by a TW Investor not to exercise its rights under this Section 7 in any one
instance shall not affect its right (other than in respect of a reduction in its
percentage holdings) as to any subsequent proposed issuance.
20
Xxxxxx X.
Xxxxxx
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
XX, 00000
Facsimile:
(000) 000-0000
000 Xxxxx
Xxxxxx
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx X. Xxx
c/o Time
Warner Inc.
Xxx Xxxx,
XX 00000
Attention: General
Counsel/Senior Vice President β Mergers and Acquisitions
with a
copy to (which shall not constitute notice):
000
Xxxxxxx Xxxxxx
Facsimile:
(000) 000-0000
Xxxxxxx
X. Xxxx
21
(c) if
to the Company, to:
Central
European Media Enterprises Ltd.
c/o CME
Development Corporation
00
Xxxxxxx, Xxxxxx XX0X 0XX
Xxxxxx
Xxxxxxx
Facsimile:
x00 00 0000 0000
Xxxxx
& XxXxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxx X. Xxxxxxxxx
10.3.
Successors and
Assigns. This Agreement shall inure to the benefit of the
parties, and shall be binding upon the parties and their respective successors,
permitted assigns, heirs and legal representatives.
10.5.
Descriptive
Headings. The headings of the articles, sections and
subsections of this Agreement are inserted for convenience of reference only and
shall not be deemed to constitute a part hereof or affect the interpretation
hereof.
10.6. Applicable
Law. THIS AGREEMENT 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).
22
23
(a)
If such security is listed on any established
stock exchange or a national market system (other than The Pink Sheets), its
Fair Market Value shall be the closing sales price of such security (or the
closing bid, if no sales were reported) as quoted on such exchange or system on
the date of determination, as reported in The Wall Street Journal or
such other source as the Offering Investor deems reliable;
(b)
If such security is regularly quoted by a
recognized securities dealer but its selling price is not reported, its Fair
Market Value shall be the mean between the high bid and low asked prices for
such security on the day of determination; or
(c)
In the absence of an established market for such security or other asset,
its Fair Market Value shall be the price at which such security or asset would
be sold in a current, arms-length transaction between a willing buyer and
willing seller, as determined by an independent internationally recognized
investment bank using customary valuation methods and
procedures.
(a)
Each Party hereto represents and warrants to each other Party that,
as of the date hereof: (i) such Party that is not a natural person is duly
organized, validly existing and in good standing under the jurisdiction of its
formation or organization, (ii) such Party has all requisite power and authority
to enter into and to perform its obligations under this Agreement and the TW
Voting Agreement and to consummate the transactions contemplated hereby and
thereby, (iii) this Agreement and the TW Voting Agreement has been duly executed
and delivered by such Party and constitutes a valid and binding obligation of
such Party, enforceable against such Party in accordance with its terms, except
as such enforceability may be limited by (A) applicable bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or similar Laws in effect
which affect the enforcement of creditorβs rights generally or (B) general
principles of equity, whether considered in a proceeding at Law or in equity and
(iv) the execution and delivery by such Party of this Agreement and the TW
Voting Agreement nor the performance by such Party of any of its obligations
hereunder or thereunder, nor the consummation of the transactions contemplated
hereby or thereby, will violate, conflict with, result in a breach, or
constitute a default (with or without notice or lapse of time or both) under,
give to others any rights of consent, termination, amendment, acceleration or
cancellation of, (A) any provision of the governing documents of such Party that
is not a natural person, (B) any trust agreement, loan or credit agreement,
note, bond, mortgage, indenture, lease, license or other agreement, contract,
instrument, permit or concession to which such Party or any of its Affiliates is
a party or (C) any Law applicable to such Party or its Affiliates.
24
10.16.
Specific
Performance. The Parties agree that irreparable damage would
occur in the event that any of the provisions this Agreement were not performed
in accordance with their specific terms of were otherwise
breached. It is accordingly agreed that the Parties shall be entitled
to, in addition to the other remedies provided herein, specific performance of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any New York Court in addition to the other remedies to which such
Parties are entitled.
[SIGNATURE
PAGE FOLLOWS]
25
|
|||
RSL
SAVANNAH LLC
|
|||
By:
|
|||
|
Name:
Xxxxxx X. Xxxxxx
|
||
|
Title:
Sole Member
|
||
RSL
INVESTMENT LLC
|
|||
By:
|
|||
|
Name:
Xxxxxx X. Xxxxxx
|
||
|
Title:
Sole Member and President
|
||
RSL
INVESTMENTS CORPORATION
|
|||
By:
|
|||
|
Name:
Xxxxxx X. Xxxxxx
|
||
|
Title:
Chairman
|
||
|
|||
Xxxxxx
X. Xxxxxx
|
Signature
Page to Investor Rights Agreement
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
Signature
Page to Investor Rights Agreement
TW
MEDIA HOLDINGS LLC
|
|||
By:
|
|||
Name:
|
|||
Title:
|
Signature
Page to Investor Rights Agreement
EXHIBIT
A
FORM
OF JOINDER AGREEMENT
This
JOINDER AGREEMENT (this βJoinderβ) to that certain Investor Rights Agreement,
dated as of [β’], 2009
(the βInvestor Rights
Agreementβ), by and among Central European Media Enterprises Ltd., a
Bermuda company (the βCompanyβ), Xxxxxx X.
Xxxxxx, RSL Savannah LLC, a Delaware limited liability company (βRSL Savannahβ), RSL
Investment LLC, a Delaware limited liability company (βRSL CME GPβ), RSL
Investments Corporation, a Delaware corporation (βRSL CME LPβ and,
together with Xxxxxx X. Xxxxxx, RSL Savannah, RSL CME GP and the RSL Permitted
Transferees (as defined herein), the βRSL Investorsβ), TW
Media Holdings LLC, a Delaware limited liability company (βTWβ and, together with
the TW Permitted Transferees (as defined therein), the βTW Investorsβ), and
any parties to the Investor Rights Agreement who agree to be bound by the terms
of the Investor Rights Agreement, is made and entered into as of [β’] by [β’] (βHolderβ). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Investor Rights Agreement.
(a)
|
Agreement to be
Bound. Holder hereby agrees that upon execution of this
Joinder, that Holder shall become a Party to the Investor Rights Agreement
and shall be fully bound by, and subject to, all of the covenants, terms
and conditions of the Investor Rights Agreement, as if Holder had signed
the Investor Rights Agreement and been an original party
thereto. Holder agrees that [he/she/it] shall be [an βRSL][a
βTW] Investorβ for all purposes under the Investor Rights
Agreement.
|
(b)
|
Representations and
Warranties. Holder hereby represents and warrants as
follows: (i) Holder has all requisite power and authority to enter into
this Joinder and to carry out his, her or its obligations hereunder; (ii)
this Joinder has
been duly executed by Holder, and constitutes a valid and binding
obligation enforceable against Holder in accordance with its terms; and
(iii) Holder has received a copy of the Investor Rights Agreement and any
and all other information and materials that Holder deems reasonably
necessary or appropriate to enable Holder to make an informed decision
concerning the transactions contemplated by the Investor Rights
Agreement.
|
(c)
|
Successors and
Assigns. This Joinder shall bind and inure to the
benefit of and be enforceable by the Company and its successors and
assigns and Holder and any subsequent holder of Equity Securities, and the
respective successors and assigns of
each of them, for so long as they hold Equity
Securities.
|
(d)
|
Counterparts. This
Joinder may be executed in any number of counterparts, each of which shall
be deemed an original, but all such counterparts shall together constitute
one and the same instrument. This Joinder may be delivered to
the other parties hereto by facsimile transmission bearing the signature
of the party so delivering this
Joinder.
|
(e)
|
Applicable
Law. THIS JOINDER 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).
|
**********************************
Holder
|
|||
By:
|
|||
Name:
|
|||
Title:
|
2
EXHIBIT
B
FORM
OF VOTING DEED
This
IRREVOCABLE VOTING DEED AND CORPORATE REPRESENTATIVE APPOINTMENT (this βDeedβ) is made on [β’], 2009,
by and among (1) RSL Savannah LLC, a Delaware limited liability company (βRSL Savannahβ) (RSL Savannah
together with all RSL Permitted Transferees (including Xxxxxx X. Xxxxxx (βRSLβ)) and their respective
successors, permitted assigns, heirs and legal representatives are herein
referred to as the βRSL
Investorsβ), (2) TW Media Holdings LLC, a Delaware limited liability
company (βTWβ) (TW
together with all TW Permitted Transferees and their respective successors,
permitted assigns, heirs and legal representatives are herein referred to as the
βTW Investorsβ) and (3)
Central European Media Enterprises Ltd., a Bermuda company (the βCompanyβ). Each
capitalized term used but not otherwise defined herein shall have the meaning
ascribed to such term in the Investor Rights Agreement, dated as of the date
hereof, by and among RSL, RSL Savannah, RSL Investment LLC, a Delaware limited
liability company, RSL Investments Corporation, a Delaware corporation, TW, the
Company and the other parties set forth therein (as such may amended, modified,
or supplemented from time to time, the βInvestor Rights
Agreementβ).
WHEREAS, the Company and TW
are parties to the TW Subscription Agreement, dated as of March 22, 2009,
pursuant to which the Company has, at the same time as entering into this Deed,
issued to TW four million five hundred thousand (4,500,000) Class B Common
Shares (the βTW Class B Common
Sharesβ) and fourteen million five hundred thousand (14,500,000) Class A
Common Shares (the βTW Class A
Common Sharesβ and, together with the TW Class B Common Shares, the
βTW Sharesβ), on the
terms and conditions set forth in the TW Subscription Agreement;
WHEREAS, RSL is the sole
member of RSL Savannah LLC;
WHEREAS, TW hereby agrees that
RSL Savannah or such other Permitted Holder (as defined below) as RSL Savannah
may from time to time nominate for such purpose (the βVoting Rights Holderβ) shall
have the exclusive right, and RSL Savannah hereby accepts such right, on the
terms and conditions set forth herein, to exercise the power to vote, except in
connection with any action, vote or consent to be taken or given in respect of
the exclusions to the appointment described in Section 4 below, (a) any and all
TW Shares owned by the TW Investors, (b) any and all Class A Common Shares,
Class B Common Shares or any other Equity Securities owned by the TW Investors
that any TW Investor may acquire hereafter and (c) any Equity Securities owned
by the TW Investors issued or issuable in exchange for or with respect to or
otherwise deriving from any such TW Shares, Class A Common Shares, Class B
Common Shares or such other Equity Securities, whether (i) by way of dividend,
split, subdivision, conversion or consolidation of shares or (ii) in connection
with a reclassification, recapitalization, amalgamation, merger, consolidation,
going private, tender offer, change of control, other reorganization or similar
transaction, and in each case in clauses (a) through (c) above, whether owned
beneficially or of record, after the date hereof (including, without limitation,
all Class A Common Shares and/or Class B Common Shares Transferred to any TW
Investor by an RSL Investor or an Affiliate thereof) (collectively, the βSubject Sharesβ);
1
WHEREAS, in connection
therewith, the parties hereto desire to enter into this Deed to provide for
certain matters with respect to voting of the Subject Shares; and
WHEREAS, TW hereby agrees and
acknowledges that the entry by it into this Deed, on the terms and conditions
set forth herein, is a condition to the entry by the Company into the TW
Subscription Agreement.
NOW, THEREFORE, in
consideration of the foregoing, and the mutual agreements set forth herein and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
2
3
5.1 The
Voting Rights Holder shall at all times be a βPermitted
Holder.β For the purposes of this Deed, a βPermitted Holderβ
means (a) RSL Savannah, (b) RSL and (c) any Person in the same Group as RSL for
so long as such Person remains in the same Group as RSL, provided that such
Person is also a βPermitted Holderβ under each of the agreements set forth on
Schedule A
hereto (as such term is defined therein).
5.2 RSL
Savannah hereby warrants and represents to the other parties hereto that RSL
Savannah is, on the date hereof, a Permitted Holder.
5.3 RSL
Savannah hereby undertakes to procure that at all times the TW Voting Rights are
exercised by or on the instructions of a Permitted Holder.
5.4 Each
of RSL and the Voting Rights Holder shall jointly and severally indemnify and
hold harmless the TW Investors against any and all losses, liabilities, damages
and expenses (including all reasonable costs and expenses related thereto or
incurred in enforcing this Section 5.4) suffered
or sustained by the TW Investors arising from claims asserted by any Person with
respect to the exercise of the TW Voting Rights by the Voting Rights Holder;
provided, however, that under no circumstances shall RSL or the Voting Rights
Holder have any obligation to indemnify or hold harmless the TW Investors for
any losses, liabilities, damages or expenses arising from (x) any claims
asserted by the TW Investors or any of their Affiliates or (y) the exercise of
the TW Voting Rights by any Person (including the TW Investors) other than the
Voting Rights Holder; provided, further, that the provisions of clauses (x) and
(y) above shall not limit any right of the TW Investors to make a claim for a
breach of this Deed or otherwise enforce the terms of this Deed.
6.2 Power; Binding
Agreement. It has all requisite power and authority to enter
into and perform all of its obligations under this Deed. The
execution, delivery and performance of this Deed by it shall not violate any
agreement to which it is a party, including, without limitation, any voting
agreement, proxy arrangement, pledge agreement, shareholders agreement, voting
trust or trust agreement. This Deed has been duly and validly
executed and delivered by it and constitutes a legally valid and binding
obligation of it, enforceable against it in accordance with its
terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which it is a trustee whose
consent is required for the execution and delivery of this Deed or the
compliance by it with the terms hereof.
4
8.1 Subject
to Section 8.2
hereof, this Deed (and the appointments and Proxies hereunder) shall terminate
and be of no further force and effect on the date that is the later of (a) [β’], 2013 and (b) the date
that there are no longer any Class B Common Shares
outstanding. Notwithstanding the foregoing, but subject to Section 8.2 hereof,
at anytime after [β’],
2013, TW may elect to terminate this Deed (and the appointments and Proxies
hereunder). Upon termination of this Deed, 50% of the TW Class B
Common Shares held by the TW Investors and their Affiliates thereof (and any
Class B Common Shares owned by any TW Investor issued or issuable in exchange
for or with respect to or otherwise deriving from such TW Class B Common Shares,
whether (i) by way of dividend, split, subdivision, conversion or consolidation
of shares or (ii) in connection with a reclassification, recapitalization,
amalgamation, merger, consolidation, going private, tender offer, change of
control, other reorganization or similar transaction)), including without
limitation all Class B Common Shares Transferred to any TW Investor or Affiliate
thereof by an RSL Investor or any Affiliate thereof, shall automatically and
without the need of any further action on the part of the holder of such Class B
Common Shares, convert to Class A Common Shares and the Company hereby agrees
that such event will be treated as an automatic election by such Person to
convert such Class B Common Shares into Class A Common Shares under Section 3(4)
of the Companyβs Bye-laws and that, upon any such deemed election, the Company
shall amend its register of shares to reflect that conversion.
5
8.2 Notwithstanding
any other provision to the contrary, this Deed (and the appointments and Proxies
hereunder) shall not terminate prior to the date that is the latest maturity
date of the outstanding indebtedness of the Company as in effect as of the
Effective Date (or the earlier repayment thereof (without giving effect to any
extension thereof or amendment thereto)), as set forth on Schedule A hereto or,
if earlier, on such date that the ownership of the Subject Shares by the TW
Investors would not result in a default, a βFundamental Changeβ or the making of
a βChange of Control Offerβ as such terms are defined in the documents
evidencing the outstanding indebtedness of the Company as in effect as of the
Effective Date, as set forth on Schedule A hereto,
under such indebtedness.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS
CONTAINED IN AN IRREVOCABLE VOTING DEED AND CORPORATE REPRESENTATIVE
APPOINTMENT, DATED AS OF [β’], 2009, BY AND AMONG THE
COMPANY, RSL SAVANNAH LLC, XXXXXX X. XXXXXX AND TW MEDIA HOLDINGS LLC, AS
MODIFIED OR SUPPLEMENTED FROM TIME TO TIME (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY).
9.2 The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any such Subject Shares upon
the earlier of (i) the termination of this Deed in accordance with Section 8
hereof or (ii) such time as such shares (or the holder thereof) shall no longer
be subject to the terms of this Deed.
6
(a)
if to RSL Savannah, to:
Xxxxxx X.
Xxxxxx
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx, 00000
Facsimile: (000)
000-0000
with a
copy to (which shall not constitute notice):
Xxxxxx
& Xxxxxxx LLP
000 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
X. Xxx
Xxxxxx X.
Xxxxxxx
c/o Time
Warner Inc.
Xxx Xxxx,
XX 00000
Facsimile:
000-000-0000
Attention: General
Counsel
Facsimile:
000-000-0000
Attention:
Senior Vice President β Mergers and Acquisitions
with a
copy to (which shall not constitute notice):
Xxxxxxx
Xxxx & Xxxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx X. Xxxx
Xxxxxxx
X. Xxxxxxxxx
(c) if
to the Company, to:
Central
European Media Enterprises Ltd.
c/o CME
Development Corporation
00
Xxxxxxx, Xxxxxx XX0X 0XX
Xxxxxx
Xxxxxxx
Facsimile:
x00 00 0000 0000
Attention: General
Counsel
7
with a
copy to (which shall not constitute notice):
Xxxxx
& XxXxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxx
Facsimile: (000)
000-0000
8
9
RSL
SAVANNAH LLC
|
|||
By:
|
|||
Name:
Xxxxxx X. Xxxxxx
|
|||
Title:
Sole Member
|
|||
Xxxxxx
X. Xxxxxx (for purposes of Section 5.4 only)
|
Signature
Page to Irrevocable Voting Deed and Corporate Representative
Appointment
TW
MEDIA HOLDINGS LLC
|
|||
By:
|
|||
Name:
|
|||
Title:
|
Signature
Page to Irrevocable Voting Deed and Corporate Representative
Appointment
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
|||
By:
|
|||
|
Name:
|
||
|
Title:
|
Schedule
A
1. Indenture,
by and among Central European Media Enterprises Ltd., Central European Media
Enterprises N.V., CME Media Enterprises B.V., The Bank of New York (formerly
JPMorgan Chase Bank, N.A. (London Branch)) and X.X. Xxxxxx Bank Luxembourg S.A.,
dated May 5, 2005.
2. Loan
Agreement, by and between Central European Media Enterprises Ltd. and European
Bank for Reconstruction and Development, dated July 21, 2006.
3. Indenture,
by and among Central European Media Enterprises Ltd., Central European Media
Enterprises N.V., CME Media Enterprises B.V., BNY Corporate Trustee Services
Limited, The Bank of New York and The Bank of New York (Luxembourg) S.A., dated
May 16, 2007.
4. Loan
Agreement, by and between Central European Media Enterprises Ltd. and European
Bank for Reconstruction and Development, dated August 22, 2007.
5. Indenture,
by and among Central European Media Enterprises Ltd., the Subsidiary Guarantors
party thereto and The Bank of New York, dated March 10, 2008.
Schedule
B
(a) RSL
Savannah
(b)
RSL
(c) Any
Person in the same Group as RSL for so long as such Person remains in the same
Group as RSL
This
JOINDER AGREEMENT (this βJoinderβ) to that certain Irrevocable Voting Deed and
Corporate Representative Appointment, dated as of [β’], 2009 (the βDeedβ), by and among (1) RSL
Savannah LLC, a Delaware limited liability company (βRSL Savannahβ) (RSL Savannah
together with all RSL Permitted Transferees (including Xxxxxx X. Xxxxxx (βRSLβ)) and their respective
successors, permitted assigns, heirs and legal representatives are herein
referred to as the βRSL
Investorsβ), (2) TW Media Holdings LLC, a Delaware limited liability
company (βTWβ) (TW
together with all TW Permitted Transferees and their respective successors,
permitted assigns, heirs and legal representatives are herein referred to as the
βTW Investorsβ) and (3)
Central European Media Enterprises Ltd., a Bermuda company (the βCompanyβ), and any parties to
the Deed who agree to be bound by the terms of the Deed, is made and entered
into as of [β’] by [β’] (βHolderβ). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Deed.
Agreement to be
Bound. Holder hereby agrees that upon execution of this
Joinder, Holder shall become a party to the Deed and shall be fully bound by,
and subject to, all of the covenants, terms and conditions of the Deed
applicable to a holder of Subject Shares, as if Holder had signed the Deed and
been an original party thereto.
Representations and
Warranties. Holder hereby represents and warrants as follows:
(i) Holder has all requisite power and authority to enter into this Joinder and
to carry out his, her or its obligations hereunder; (ii) this Joinder has been
duly executed by Holder, and constitutes a valid and binding obligation
enforceable against Holder in accordance with its terms; and (iii) Holder has
received a copy of the Deed and any and all other information and materials that
Holder deems reasonably necessary or appropriate to enable Holder to make an
informed decision concerning the transactions contemplated by the
Deed.
Applicable
Law. THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
BERMUDA WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
**********************************
Holder
|
|||
By:
|
|||
Name:
|
|||
Title:
|
2
EXHIBIT
C
FORM
OF REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (this βAgreementβ) is
made as of [β’], 2009, by and between Central European Media Enterprises
Ltd., a Bermuda company (the βCompanyβ) and TW
Media Holdings LLC, a Delaware limited liability company (βTWβ). Certain
capitalized terms used in this Agreement are defined in Section 2
hereof.
1.
Recitals.
1.1 WHEREAS,
the Company and TW are parties to that certain subscription agreement, dated as
of March 22, 2009 (the βTW Subscription
Agreementβ), pursuant to which the Company issued to TW (a) fourteen
million five hundred thousand (14,500,000) newly issued Class A Common
Shares (the βTW
Class A Common Sharesβ) and (b) four million five hundred
thousand (4,500,000) newly issued Class B Common Shares (the βTW Class B Common
Sharesβ and, together with the TW Class A Common Shares, the βTW Common Sharesβ) in
exchange for cash in the aggregate amount of US$241,500,000, on the terms and
conditions set forth in the TW Subscription Agreement;
1.2 WHEREAS,
the Class B Common Shares are convertible into Class A Common
Shares;
1.3 WHEREAS,
each of Xxxxxx X. Xxxxxx, RSL Savannah LLC (βRSL Savannahβ), TW
and the Company is a party to that certain Irrevocable Voting Deed and Corporate
Representative Appointment, dated as of the date hereof (the βTW Voting
Agreementβ); and
1.4 WHEREAS,
the Company and TW desire to enter into this Agreement to provide for certain
matters with respect to the registration of (a) the TW Class A Common Shares,
(b) the Class A Common Shares into which the TW Class B Common Shares are
convertible ((a) and (b) collectively, the βSharesβ) and certain
other Class A Common Shares acquired by TW and its Affiliates after the date
hereof.
NOW,
THEREFORE, in consideration of the foregoing, and the mutual agreements set
forth herein and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
2.
Definitions.
As used
herein, unless the context otherwise requires, the following terms have the
following respective meanings:
βAffiliateβ: of any
Person, means any other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person. As used in this definition, the term βcontrol,β
including the correlative terms βcontrolling,β βcontrolled byβ and βunder common
control with,β means the possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of securities or any partnership or other ownership interest, by
contract or otherwise).
1
βAgreementβ: As
defined in the preamble hereto.
βClass A Common
Sharesβ: means the shares of Class A Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class A Common
Shares as set forth in the governing documents of the Company, including the
Companyβs Bye-laws, and any Equity Securities issued or issuable in exchange for
or with respect to such Class A Common Shares (i) by way of dividend, split
or combination of shares or (ii) in connection with a reclassification,
recapitalization, merger, consolidation, going private, tender offer,
amalgamation, change of control, other reorganization or similar
transaction.
βClass B Common
Sharesβ: means the shares of Class B Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class B Common
Shares as set forth in the governing documents of the Company, including the
Companyβ s Bye-laws, and any Equity Securities issued or issuable in exchange
for or with respect to such Class B Common Shares (i) by way of dividend,
split or combination of shares or (ii) in connection with a
reclassification, recapitalization, merger, consolidation, going private, tender
offer, amalgamation, change of control, other reorganization or similar
transaction.
βCommissionβ: The
Securities and Exchange Commission or any other Federal agency at the time
administering the Securities Act.
βCompanyβ: As
defined in the preamble of this Agreement.
βEquity Securitiesβ:
means (i) shares or other equity interests (including the Class A
Common Shares and the Class B Common Shares) of the Company and
(ii) options, warrants or other securities that are directly or indirectly
convertible into, or exercisable or exchangeable for, shares or other equity
interests of the Company.
βExchange
Actβ: The Securities Exchange Act of 1934, or any similar
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular
Section of the Securities Exchange Act of 1934 shall include a reference to
the comparable Section, if any, of any such similar Federal
statute.
βInitiating
Holdersβ: Any holder or holders of Registrable Securities
initiating a request pursuant to Section 3.1 for
the registration of all or part of such holderβs or holdersβ Registrable
Securities; provided however, that to initiate a request for registration
pursuant to Section
3.1(a), such holder(s) must hold more than fifty percent (50%) of all the
outstanding Registrable Securities (as adjusted for splits, combination of
shares, reclassification, recapitalization or like changes in capitalization)
(for purposes of this calculation, the Class B Common Shares held by such holder
that are convertible into Registrable Securities shall be taken into
account). For the avoidance of doubt, an Initiating Holder shall only
be TW, any TW Permitted Transferee (as defined in the Investor Rights
Agreement), and any other transferees who, together with their Affiliates,
acquire at least 25% of the Shares (as adjusted for splits, combination of
shares, reclassification, recapitalization or like changes in capitalization)
(such transferees, βOther Permitted
Transfereesβ).
2
βInvestor Rights
Agreementβ: As defined in Section 12 of this
Agreement.
βNASDAQβ: The
automated screen-based quotation system operated by the Nasdaq Stock Market,
Inc., a subsidiary of the National Association of Securities Dealers, Inc., or
any successor thereto.
βOther Permitted
Transfereesβ: As defined in the definition of βInitiating
Holdersβ above.
βPersonβ: Any
individual, corporation, partnership, limited liability company, association or
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
βRegistrable
Securitiesβ: Any (i) TW Class A Common Shares, (ii) any
Class A Common Shares acquired by TW or one of its Affiliates pursuant to the
right of first offer in accordance with the Investor Rights Agreement,
(iii) any Class A Common Shares issued upon conversion of the TW
Class B Common Shares, (iv) any Class A Common Shares acquired by TW or one
of its Affiliates after the date hereof, so long as in the written opinion of
counsel reasonably satisfactory to the Company such shares when taken together
with all other Registrable Securities beneficially owned by TW and its
Affiliates may not be transferred in any three (3) month period without
restriction or limitation pursuant to Rule 144 (without regard to permitted
dispositions by non-affiliates of the Company) and Registrable Securities
defined in clauses (i), (ii), (iii) and (v) of this definition of βRegistrable
Securitiesβ are then outstanding and (v) any securities issued or issuable with
respect to any Class A Common Shares referred to above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise;
provided that such Class A Common Shares or such securities issued or issuable
with respect to any Class A Common Shares are held by either TW, TW Permitted
Transferees (as defined in the Investor Rights Agreement) or Other Permitted
Transferees. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (b) they shall have been
distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) they shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force,
(d) in the written opinion of counsel to the holder all Registrable
Securities beneficially owned by such holder of Registrable Securities may be
transferred in any three (3) month period without restriction or limitation
pursuant to Rule 144 (without regard to permitted dispositions by
non-affiliates of the Company) or (e) they shall have ceased to be
outstanding. Notwithstanding anything herein to the contrary, the
holders of Registrable Securities shall include, and the rights of holders of
Registrable Securities pursuant to the terms of this Agreement shall be
attributable to, any Person who has the right exercisable in its discretion to
acquire Registrable Securities, whether pursuant to a conversion of Class B
Common Shares or otherwise, without any requirement that such Person acquire
(whether pursuant to such conversion, distribution or otherwise) such
Registrable Securities prior to an offering of such securities.
3
βRegistration
Expensesβ: All expenses incident to the Companyβs performance
of or compliance with Section 3,
including, without limitation, all registration, filing and Financial Industry
Regulatory Authority fees, all stock exchange listing fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
reasonable fees and disbursements of counsel for the Company, one counsel for
the selling shareholders and of the Companyβs independent public accountants,
including the expenses of any special audits or βcold comfortβ letters required
by or incident to such performance and compliance, any fees and disbursements of
underwriters customarily paid by issuers of securities, but excluding
underwriting discounts and commissions and transfer or other taxes, if
any.
βRule
144β: As defined in Section 16(a) of this
Agreement.
βSecurities
Actβ: The Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as of the same shall be in effect at the time. References to a
particular Section of the Securities Act of 1933 shall include a reference
to the comparable Section, if any, of any such similar federal
statute.
βSharesβ: As
defined in the recitals of this Agreement.
βShelf
Registrationβ: As defined in Section 3.1(b) of
this Agreement.
βShelf Registration
Statementβ: As defined in Section 3.1(b) of
this Agreement.
βTWβ: As
defined in the preamble of this Agreement.
βTW Class A Common
Sharesβ: As defined in the recitals of this
Agreement.
βTW Class B Common
Sharesβ: As defined in the recitals of this
Agreement.
βTW Common
Sharesβ: As defined in the recitals of this
Agreement.
βTW Subscription
Agreementβ: As defined in the recitals of this
Agreement.
βTW Voting
Agreementβ: As defined in the recitals of this
Agreement.
4
(a) Request. At
any time, upon the written request of one or more Initiating Holders requesting
that the Company effect the registration under the Securities Act of all or part
of such Initiating Holdersβ Registrable Securities and specifying the intended
method of disposition thereof, the Company will promptly give written notice of
such requested registration to all registered holders of Registrable Securities,
and thereupon the Company will, subject to the terms of this Agreement, use
commercially reasonable efforts to effect the registration under the Securities
Act of the Registrable Securities which the Company has been so requested to
register by such Initiating Holders for disposition (not to exceed, in the case
of an underwritten offering, the number of Registrable Securities that the
managing underwriter shall advise the Company in writing (with a copy to each
holder of Registrable Securities requesting registration) may be distributed, in
its belief, without interfering with the successful marketing of such securities
(such writing to state the basis of such belief)) in accordance with the
intended method of disposition stated in such request to the extent necessary to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be
registered. Notwithstanding the foregoing, the Company shall not be
required to effect more than two registrations pursuant to this Section 3.1(a) in
any period of twelve consecutive calendar months. The Company shall
be entitled to elect to register securities for its own account in connection
with the offering of Registrable Securities pursuant to this Section 3.1(a),
subject to (i) the managing underwriter of such offering advising the Initiating
Holder in writing that, in its opinion, the inclusion of such securities on
behalf of the Company will not result in a number of securities being offered
which exceeds the number of securities which the managing underwriter believes
could be sold in the offering and (ii) the inclusion of such securities on
behalf of the Company not entitling any other Person to include securities in
such offering.
(b) Shelf
Registration. So long as the Company is eligible to register
securities on Form S-3 under the Securities Act (or any successor or
similar form then in effect), the Company shall, at the request of the
Initiating Holders, use its commercially reasonable efforts to promptly file and
cause to be effective, if available, a registration statement on Form S-3
(a βShelf Registration
Statementβ) for an offering of Registrable Securities to be made on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
(a βShelf
Registrationβ) and shall use its commercially reasonable efforts to
keep the Shelf Registration Statement effective and usable for the resale of
Registrable Securities until the date on which all Registrable Securities so
registered have been sold pursuant to the Shelf Registration Statement or until
such securities cease to be Registrable Securities.
(c) Offering
Requirements. The Company shall not be required to effect any
registration of Registrable Securities pursuant to Section 3.1(a) or
Section 3.1(b) unless
the anticipated aggregate public offering price (before any underwriting
discounts and commissions) of the Registrable Securities requested to be
registered by the Initiating Holders is equal to or greater than $25 million;
provided that, in the case of
an underwritten offering, the Company shall not be required to effect any such
registration unless the anticipated aggregate public offering price (before any
underwriting discounts and commissions) of the Registrable Securities
requested to be registered by the Initiating Holders is equal to or greater than
$100 million. Notwithstanding the foregoing, the Company shall not be
obligated to effect any such registration if within 20 days of receipt of a
written request from any Initiating Holder or Initiating Holders pursuant to
this Section
3.1, the Company gives notice to such Initiating Holder or Initiating
Holders of the Company's intention to make a public offering within 45 days from
receipt of such written request from any Initiating Holder or Initiating Holders
(other than on Form S-4 or S-8 or any successor or similar forms); provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and provided that the Company may
only delay an offering pursuant to this provision for a period of not more than
45 days, if a filing of any other registration statement is not made within that
period, and the Company may only exercise this right twice in any twelve
(12)-month period.
5
(d) Registration Statement
Form. Registrations under Section 3.1(a) shall
be on such appropriate registration form of the Commission (i) as shall be
selected by the Company and (ii) as shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods of
disposition specified in their request for such registration.
(e) Expenses. The
Company shall pay any Registration Expenses (excluding underwriting discounts
and commissions and transfer or other taxes, if any) in connection with
each registration requested under this Section 3.1;
provided that
the Company shall not be required to pay any Registration Expenses if the
registration request is subsequently withdrawn at the request of the holders of
a majority of the Registrable Securities to be registered (in which case all
selling shareholders shall bear such expenses pro rata based upon the number of
Registrable Securities that were to be included in the withdrawn
registration). Underwriting discounts and commissions and transfer or
other taxes (if any) in connection with each such registration shall be
allocated pro rata among all Persons on whose behalf securities of the Company
are included in such registration, on the basis of the respective amounts of the
securities then being registered on their behalf.
(f)
Effective Registration
Statement. A registration requested pursuant to this Section 3.1
shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has become effective, provided that a
registration which does not become effective after the Company has filed a
registration statement with respect thereto solely by reason of the refusal to
proceed of the Initiating Holders shall be deemed to have been effected by the
Company at the request of such Initiating Holders, (ii) if, after it has
become effective, such registration becomes subject to, for longer than
60 days, any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason or
(iii) the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied by reason of an act or omission by the Company. If a Shelf
Registration is requested, the Company shall not be required to keep the
registration statement effective during any period or periods (up to a total of
90 days in any 12-month period) if, based on the advice of counsel,
the continued effectiveness of the registration statement would require the
Company to disclose a material financing, acquisition, corporate development or
other material information and the Company shall have determined that such
disclosure would be detrimental to the Company; provided, further, that the
requirement to use commercially reasonable efforts to keep the registration
statement effective shall be extended one day for each day that the Company
allows the effectiveness of the registration statement to lapse in reliance on
the preceding proviso.
6
7
(b) Priority in Incidental
Registrations. If (i) a registration pursuant to this
Section 3.2
involves an underwritten offering of the securities so being registered, whether
or not for sale for the account of the Company, to be distributed (on a firm
commitment basis) by or through one or more underwriters of recognized
standing under underwriting terms appropriate for such a transaction and
(ii) the managing underwriter of such underwritten offering shall inform
the Company and holders of the Registrable Securities requesting such
registration by letter of its belief that the distribution of all or a specified
number of such Registrable Securities concurrently with the securities being
distributed by such underwriters would interfere with the successful marketing
of the securities being distributed by such underwriters (such writing to state
the basis of such belief and the approximate number of such Registrable
Securities which may be distributed without such effect), then the Company may,
upon written notice to all holders of such Registrable Securities and to holders
of such other securities so requested to be included, exclude from such
underwritten offering (if and to the extent stated by such managing underwriter
to be necessary to eliminate such effect) (i) first, the number of
such Registrable Securities so requested to be included in the registration
pro rata among such
holders on the basis of the number of such securities requested to be included
by such holders and (ii) second, shares of such other securities so
requested to be included by the holders of such other securities, so that the
resultant aggregate number of such Registrable Securities and of such other
shares of securities so requested to be included which are included in such
underwritten offering shall be equal to the approximate number of shares stated
in such managing underwriterβs letter.
If and
whenever the Company is required to use its commercially reasonable
efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 3.1 and
3.2, the
Company shall, as expeditiously as possible:
(i)
prepare and (in the case of a registration pursuant to Section 3.1,
such filing to be made within 30 days after the initial request of one or more
Initiating Holders of Registrable Securities) file with the Commission the
requisite registration statement to effect such registration and thereafter use
its commercially reasonable efforts to cause such registration statement to
become and remain effective, provided, however, that the
Company may postpone the filing or effectiveness of any registration statement
otherwise required to be filed by the Company pursuant to this Agreement or
suspend the use of any such registration statement for a period of time, not to
exceed 90 days in any 12-month period, if, based on an opinion of counsel to the
Company, the Company determines that the filing or continued use of such
registration statement would require the Company to disclose a material
financing, acquisition or other corporate development and the Company shall have
determined that such disclosure would be detrimental to the Company; provided, further, that the
Company may discontinue any registration of its securities which are not
Registrable Securities (and, under the circumstances specified in Section 3.2(a),
its securities which are Registrable Securities) at any time prior to the
effective date of the registration statement relating thereto;
8
(ii) subject
to Section 3.1(f),
prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until the earlier of (a) such
time as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement or (b) such time as such securities cease to be
Registrable Securities;
(iii) furnish
or make available to each seller of Registrable Securities covered by such
registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of the Securities
Act, and such other documents, as such seller may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities
owned by such seller; for the avoidance of doubt, the Company shall not be
obligated to print any prospectuses other than in a public underwritten
transaction;
(iv) use
its commercially reasonable efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities laws or blue sky laws of such jurisdictions as any seller
thereof shall reasonably request, to keep such registrations or qualifications
in effect for so long as such registration statement remains in effect, and take
any other action which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the securities
owned by such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(iv) be obligated to be so qualified, to subject itself to taxation in any
such jurisdiction or to consent to general service of process in any such
jurisdiction;
(v) use
its commercially reasonable efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable
Securities;
(vi) if
an underwritten offering, enter into an underwriting agreement in customary and
usual form with the underwriter(s) of such offering;
(vii) notify
the holders of Registrable Securities and the managing underwriter or
underwriters, if any, promptly and confirm such advice in writing promptly
thereafter:
9
(A) when
the registration statement, the prospectus or any prospectus supplement related
thereto or post-effective amendment to the registration statement has been
filed, and, with respect to the registration statement or any post-effective
amendment thereto, when the same has become effective;
(B) of
any request by the Commission for amendments or supplements to the registration
statement or the prospectus or for additional information;
(C) of
the issuance by the Commission of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings by any Person
for that purpose;
(D) if
at any time the representations and warranties of the Company made in an
underwriting agreement as contemplated by Section 3.4
below cease to be true and correct; and
(E) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of any Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation or threat of any proceeding
for such purpose;
(viii)
notify each seller of Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon the Companyβs discovery that, or upon
the happening of any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of any such seller
promptly prepare and furnish to such seller and each underwriter, if any, a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(ix) use
its commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement;
(x)
make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all pertinent financial and other records,
pertinent organizational documents and properties of the Company, and cause the
Companyβs officers, directors, employees and independent accountants to supply
all reasonably available information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
10
(xi) permit
one legal counsel to the sellers of Registrable Securities covered by such
registration statement (which counsel shall be chosen by such sellers) to review
and comment upon such registration statement filed pursuant to Section 3.1 and all
amendments and supplements thereto at least three (3) days prior to their filing
with the Commission, and not file any document in a form to which such legal
counsel to such sellers reasonably objects;
(xii) reasonably
cooperate with the sellers of Registrable Securities being offered to facilitate
the timely preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be offered pursuant to a
registration statement and enable such certificates to be in such denominations
or amounts, as the case may be, as such sellers may reasonably request and
registered on such names as such sellers may request;
(xiii)
provide each seller of Registrable Securities covered by such registration
statement with contact information for the Company's transfer agent and
registrar for all Registrable Securities registered pursuant to a registration
statement hereunder and a CUSIP number for all such Registrable Securities, in
each case not later than the effective date of such registration
statement;
(xiv)
in connection with any underwritten offering of Registrable Securities,
furnish, on the date that such Registrable Securities are delivered to the
underwriters for sale, (1) an opinion, dated as of such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to the underwriters, addressed to the
underwriters and (2) a letter, dated as of such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering and reasonably satisfactory to the underwriters,
addressed to the underwriters;
(xv) cause
all Registrable Securities to be qualified for inclusion in or listed on the
Prague Stock Exchange, the NASDAQ or any domestic or foreign securities exchange
on which securities of the same class issued by the Company are then so
qualified or listed; and
(xvi) take
such other action that may be requested by a seller of Registrable Securities
that are customary and reasonably required in connection with the sale of
Registrable Securities.
The
Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company and the underwriter such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request.
11
No holder
of Registrable Securities shall have any right to obtain or seek an injunction
restraining or otherwise delaying any registration pursuant to this Agreement as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
Each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the occurrence
of any event of the kind described in clauses (B) through (E) of
subdivision (vii) of this Section 3.3,
such holder will forthwith discontinue such holderβs disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until such holderβs receipt of the copies of the supplemented or
amended prospectus contemplated by subdivision (vii) of this Section 3.3 and,
if so directed by the Company, will deliver to the Company (at the Companyβs
reasonable expense) all copies, other than permanent file copies, then in
such holderβs possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
(b) Incidental Underwritten
Offerings. If the Company at any time proposes to register any
of its securities under the Securities Act as contemplated by Section 3.2 and
such securities are to be distributed by or through one or more underwriters,
the Company will, if requested by any holder of Registrable Securities as
provided in Section 3.2 and
subject to the provisions of Section 3.2(b),
use its commercially reasonable efforts to arrange for such underwriters to
include all the Registrable Securities to be offered and sold by such holder
among the securities to be distributed by such underwriters. The
holders of Registrable Securities to be distributed by such underwriters shall
be parties to the underwriting agreement between the Company and the
underwriters.
12
13
(b) Indemnification by the
Sellers. The Company may require, as a condition to including
any Registrable Securities in any registration statement filed pursuant to Section 3.2,
that the Company shall have received an undertaking satisfactory to it from the
prospective seller of such Registrable Securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this Section 3.5) the
Company, each director of the Company, each officer of the Company, each other
person, if any, who controls the Company within the meaning of the Securities
Act, each other selling shareholder in the offering, each Person who controls
such other selling shareholder, each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such holder or any such underwriter within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto (including any related issuer free-writing
prospectus) if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement (or any related issuer free-writing
prospectus). Any such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling person and shall survive the transfer
of such securities by such seller. Notwithstanding the foregoing, the
indemnity obligation of each seller of Registrable Securities pursuant to this
Section 3.5(b) shall
be limited to an amount equal to the total proceeds (before deducting
underwriting discounts and commissions and expenses) received by such
seller for the sale of shares by such seller in a registration
hereunder.
14
(d) Other
Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 3.5
(with appropriate modifications) shall be given by the Company and each
seller of Registrable Securities with respect to any required registration or
other qualification of securities under any Federal or state law or regulation
of any governmental authority, other than the Securities Act.
(e) Indemnification
Payments. The indemnification of out-of-pocket expenses
required by this Section 3.5
shall be made by periodic payments during the course of the investigation or
defense, as and when bills are received or expense is incurred.
(f)
Contribution. If
the indemnification provided for in the preceding subdivisions of this Section 3.5 is
unavailable to an indemnified party in respect of any expense, loss, claim,
damage or liability referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such expense, loss, claim,
damage or liability (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the holder or
underwriter, as the case may be, on the other from the distribution of the
Registrable Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of
the holder or underwriter, as the case may be, on the other in connection with
the statements or omissions which resulted in such expense, loss, damage or
liability, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and
of the holder or underwriter, as the case may be, on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission to state a material fact relates
to information supplied by the Company, by the holder or by the underwriter and
the partiesβ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, provided that the
foregoing contribution agreement shall not inure to the benefit of any
indemnified party if indemnification would be unavailable to such indemnified
party by reason of the provisions contained in the first sentence of subdivision
(a) of this Section 3.5, and
in no event shall the obligation of any indemnifying party to contribute under
this subdivision (f) exceed the amount that such indemnifying party would
have been obligated to pay by way of indemnification if the indemnification
provided for under subdivisions (a) or (b) of this Section 3.5 had
been available under the circumstances.
15
The
Company and the holders of Registrable Securities agree that it would not be
just and equitable if contribution pursuant to this subdivision (f) were
determined by pro rata allocation (even if the holders and any underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth in the preceding sentence and
subdivision (c) of this Section 3.5, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim.
Notwithstanding
the provisions of this subdivision (f), no holder of Registrable Securities or
underwriter shall be required to contribute any amount in excess of the amount
by which (i) in the case of any such holder, the total proceeds (before
deducting underwriting discounts and commissions and expenses) received by
such holder from the sale of Registrable Securities or (ii) in the case of
an underwriter, the total price at which the Registrable Securities purchased by
it and distributed to the public were offered to the public exceeds, in any such
case, the amount of any damages that such holder or underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
4.
Securities Law
Restrictions. To the extent required by the TW Subscription
Agreement, the parties hereto acknowledge and agree that the Shares (and any
Class A Common Shares issued upon conversion of the Class B Common Shares
included therein) shall bear restrictive legends substantially in the forms set
forth in the TW Subscription Agreement.
5.
Amendments and
Waivers. This Agreement may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company shall have obtained the prior written
consent to such amendment, action or omission to act, of the holder or holders
of a majority of Shares (as adjusted for splits, combination of shares,
reclassification, recapitalization or like changes in capitalization and whether
such Shares are in the form of Class A Common Shares or Class B Common
Shares). Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this Section 5,
whether or not such Registrable Securities shall have been marked to indicate
such consent.
6.
Notices. Except
as otherwise provided in this Agreement, 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 TW, c/o Time Warner Inc.,
Xxx Xxxx Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, (i) facsimile: x0 000 000 0000 to
the attention of its General Counsel and (ii) facsimile: x0 000 000 0000 to the
attention of the Senior Vice President β Mergers & Acquisitions, or at such
other address or facsimile number, or to the attention of such other officer, as
TW shall have furnished to the Company, (b) in the case of any other holder
of Registrable Securities, at the address or facsimile number that such holder
shall have furnished to the Company in writing, or, until any such other holder
so furnishes to the Company an address or facsimile number, then to and at the
address or facsimile of the last holder of such Registrable Securities who has
furnished an address or facsimile number to the Company, or (c) in the case
of the Company, c/o CME Development Corporation, 00 Xxxxxxx, Xxxxxx XX0X
0XX, Xxxxxx Xxxxxxx, facsimile: x00 00 0000 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 each holder of
Registrable Securities at the time outstanding. Each such notice,
request or other communication shall be effective upon personal delivery or one
day after being sent by overnight courier service or on the date of transmission
if sent by facsimile (so long as for notices or other communications sent by
facsimile, the transmitting facsimile machine records electronic conformation of
the due transmission of the notice) provided that any
such notice, request or communication to any holder of Registrable Securities
shall not be effective until received.
16
7.
Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, the provisions of this Agreement
which are for the benefit of the parties hereto other than the Company shall
also be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities who has agreed in a written instrument to be delivered to
the Company to be bound by and subject to the terms and conditions of this
Agreement, subject to the provisions respecting the minimum numbers or
percentages of shares of Registrable Securities required in order to be entitled
to certain rights, or take certain actions, contained herein.
8.
No Third Party
Beneficiaries. This Agreement shall not confer any rights or
remedies upon any Person other than the parties hereto and their respective
successors and permitted assigns and, with respect to Section 3.5, the
other Persons referred to as indemnified parties therein.
9.
Descriptive
Headings. The headings of the articles, sections and
subsections of this Agreement are inserted for convenience of reference only and
shall not be deemed to constitute a part hereof or affect the interpretation
hereof.
10. Applicable
Law. THIS AGREEMENT 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).
11. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile or electronic transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
17
13. SUBMISSION TO
JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN XXX XXXXXX XX XXX XXXXX XX XXX
XXXX LOCATED IN NEW YORK, NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH
PARTY BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO SUCH PARTY AT ITS ADDRESS SPECIFIED IN SECTION
6. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
14. Severability. Every
term and provision of this Agreement 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 Agreement.
15. Specific
Performance. The Parties agree that irreparable damage would
occur in the event that any of the provisions this Agreement were not performed
in accordance with their specific terms of were otherwise
breached. It is accordingly agreed that the Parties shall be entitled
to, in addition to the other remedies provided herein, specific performance of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any New York Court in addition to the other remedies to which such
Parties are entitled.
(a) make
and keep public information available as those terms are understood and defined
in Rule 144 under the Securities Act (βRule 144β), at all
times;
18
(b) use
its commercially reasonable best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish
to such holder upon request, a written statement as to its compliance with the
reporting requirements of Rule 144.
17. TW Voting
Agreement. In the event of any inconsistency or conflict
between this Agreement and the TW Voting Agreement with respect to the voting of
the TW Common Shares, each party hereto agrees that the TW Voting Agreement
shall prevail to the extent of such inconsistency or conflict.
18. Duration of
Agreement. This Agreement shall terminate and become void and
of no further force and effect upon the earlier to occur of (i) the mutual
agreement of the Parties and (ii) the date on which TW, TW Permitted
Transferees (as defined in the Investor Rights Agreement) and Other Permitted
Transferees cease to own any Registrable Securities; provided that Sections 3.5
and 4
through 18
shall survive any termination of this Agreement.
[SIGNATURE
PAGE FOLLOWS]
19
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officers hereunto duly authorized as of the date
first above written.
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
Signature
page to Registration Rights Agreement
TW
MEDIA HOLDINGS LLC
|
|||
By:
|
|||
Name:
|
|||
Title:
|
Signature
page to Registration Rights Agreement